IAS Compass - Current Affairs Compilation For Mains - Polity Governance2023

Preface
Dear Aspirants,
Polity & Governance is the most important section from the point of view of UPSC exams. Civil
Servants take oath of the constitution and take pledge to implement constitution and promotes
its values in public life. Day to day life of a civil servant is often engaged in issues of polity. Thus,
understanding and appreciating these issues is central.
Keeping this in mind, UPSC has been given due weight to issues of Polity & Governance in UPSC
Mains Examination. Over the years, about 150 marks of questions have been asked by UPSC in
each year. Thus, it is anybody's case that a well-prepared student in Polity & Governance will
certainly be better placed at harnessing a better result.
We have tried to design this book, according to syllabus of the UPSC exam. Attempt has been
made to cover all the topics in syllabus of UPSC exam along with relevant current affairs for the
coming mains exam.
For the best use of this book, the topics covered in this book should be extensively used in
answer writing practice in RAU's IAS MAINS QIP Program is a right supplementary program to
arm student to excel in the Mains exam.
Hopefully students will like our efforts and achieve great success.
All the best!!!
Rau’s IAS Team

CONTENTS
12. INTER STATE BOUNDARY DISPUTES 71
CHAPTER-1
13. INTER-STATE COUNCIL 72
INDIAN
CONSTITUTION CHAPTER-3
01 SEPARATION OF
1. REPRESENTATIVENESS AND LEGITIMACY OF
CONSTITUENT ASSEMBLY 01 POWERS
2. CONTEMPORARY ISSUES IN INDIA UNDER
CONSTITUTIONAL LAW 03 74
3. BASIC STRUCTURE OF THE INDIAN 1. MEANING OF SEPARATION OF POWERS 74
CONSTITUTION 04
4. PREAMBLE 09
5. COMPARISON OF CONSTITUTION 13 CHAPTER-4
FUNDAMENTAL RIGHTS 14
6. ARTICLE-14 14
EXECUTIVE
7. ARTICLE-15 15
79
8. ARTICLE-16 16
1. PRESIDENT 79
9. ARTICLE-19 23
2. DEATH PENALTY AND CLEMENCY 82
10. ARTICLE-21 30
11. RIGHT TO FREEDOM OF RELIGION 38 3. GOVERNOR 83
12. UNIFORM CIVIL CODE (UCC) 39 4. ORDINANCE 84

13. ESSENTIAL RELIGIOUS PRACTICE (ERP) 41
DPSP 42
CHAPTER-5
CHAPTER-2 PARLIAMENT
FEDERALISM 87
1. PARLIAMENT 87
47
2. PARLIAMENTARY COMMITTEE 88
1. FEDERALISM 47
3. ROLE OF SPEAKER 89
2. ARTICLE-3 AND INDIAN FEDERALISM 48
4. ANTI DEFECTION LAW 91
3. INTERSTATE RIVER WATER DISPUTE 50
5. UPPER HOUSE 92
4. DELHI'S STATEHOOD 53
6. OFFICE OF PROFIT 94
5. ASYMMETRIC FEDERALISM IN INDIA 55
7. CONCEPT OF PRIVILEGES AND TYPES OF
6. COOPERATIVE FEDERALISM 56 PRIVILEGES 95
7. FISCAL FEDERALISM 58 8. LEGISLATIVE COUNCILS 96
8. 6TH SCHEDULE 64 9. RESERVATION FOR WOMEN IN POLITICS 97
9. SCHEDULED AREAS UNDER FIFTH SCHEDULE 65 10. PARLIAMENTARY COMMITTEES 99
10. PANCHAYATS (EXTENSION TO SCHEDULED
AREAS) ACT, 1996 68
11. ONE NATION, ONE LANGUAGE 70
i
3. CIVIL SERVICE REFORMS 150
CHAPTER-6 4. MISSION KARMAYOGI 153
JUDICIARY 5. COHERENT POLICYMAKING 157
6. VOLUNTARY ORGANISATIONS 158
106 7. FCRA (AMENDMENT) ACT, 2020 159
1. SUPREME COURT 106 8. PRESSURE GROUPS 160
2. JUDICIAL ACTIVISM/ OVER-REACH 106 9. SOCIAL AUDIT 161
3. COLLEGIUM AND APPOINTMENTS 109 10. SELF HELP GROUPS 163
4. PUBLIC INTEREST LITIGATION (PIL) 113 11. COOPERATIVES 166
5. GOVERNMENT LITIGATIONS 116 12. CITIZENS’ CHARTER 168
6. NATIONAL JUDICIAL INFRASTRUCTURE 13. UNINTENDED CONSEQUENCES OF ANTI-
CORPORATION (NJIC) 117 CORRUPTION LAWS 170
7. CRIMINAL JUSTICE SYSTEM (CJS) 119 14. NEED FOR LAW AGAINST WRONGFUL ARREST
171
8. UNDER TRIALS 120
15. STANDING COMMITTEE CRITICISES PROGRAMS
9. ALTERNATE DISPUTE RESOLUTION 122
FOR DENOTIFIED TRIBES 173
10. LOK ADALAT 124
16. NATIONAL COMMISSION FOR DE-NOTIFIED,
11. GRAM NYAYALAS 124 NOMADIC AND SEMI-NOMADIC TRIBES 174
12. TRIBUNALS IN INDIA 125 17. RIGHT TO INFORMATION ACT 175
18. ASPIRATIONAL DISTRICT PROGRAM 184
19. CORPORATE SOCIAL RESPONSIBILITY 185
CHAPTER-7
20. INDEPENDENT REGULATORY BODIES 187
ELECTIONS 21. REGULATORY IMPACT ASSESSMENT 188
22. GRIEVANCE REDRESSAL MECHANISM 189
129
1. POL PARTIES UNDER RTI 131
2. STATE FUNDING OF ELECTIONS 132
CHAPTER-10
CONSTITUTIONAL &
CHAPTER-8 STATUTORY BODIES
LOCAL GOVERNANCE 193
139 1. ELECTION COMMISSION 193
2. CAG 194
1. PRI 139
3. FINANCE COMMISSION (COVERED IN
2. GRAM SABHA 140 FEDERALISM) 195
3. URBAN LOCAL BODIES 143 4. UNION PUBLIC SERVICE COMMISSION 195
5. STATUTORY ORGANIZATIONS 195
6. NATIONAL HUMAN RIGHTS COMMISSION 196
CHAPTER-9
7. NATIONAL GREEN TRIBUNAL 196
GOVERNANCE & 8. CBI 197
MISCELLANEOUS 9. LOKPAL & LOKAYUKTA 198
146
1. THE DIGITAL PERSONAL DATA PROTECTION BILL,
2023 146
2. CHANGES IN IAS CADRE RULES 149
ii
1
INDIAN
Chapter CONSTITUTION
TOPICS TO BE COVERED
1. Representativeness and Legitimacy of Constituent Assembly
2. Contemporary Issues in India Under Constitutional Law
3. Basic Structure of the Indian Constitution
4. Preamble
5. Comparison of Constitution
FUNDAMENTAL RIGHTS
6. Article-14
7. Article-15
8. Article-16
9. Article-19
10. Article-21
11. Right to Freedom of Religion
12. Uniform Civil Code (UCC)
13. Essential Religious Practice (ERP)
DPSP
1. REPRESENTATIVENESS AND LEGITIMACY OF

CONSTITUENT ASSEMBLY
The arguments regarding the legitimacy and representativeness of the Constituent
Assembly, as presented in the provided articles, can be summarized as follows:
1. Representativeness
a. Limited Franchise: The Constituent Assembly was formed through indirect
elections based on the limited franchise under the Government of India Act, 1935.
Critics argue that this restricted the representation of the entire Indian population
and undermined the Assembly's claim to represent the will of the entire people of
India.
b. Lack of Universal Adult Franchise: The demand for universal adult franchise,
advocated by the Indian National Congress, was not implemented in the election
process for the Constituent Assembly. Instead, indirect elections by members of
the Provincial Assemblies were used, further limiting the Assembly's
representative credentials.
c. Underrepresentation: The Assembly consisted of members indirectly elected by
provincial assemblies, which were themselves elected by a small subset of the
population. This underrepresentation raised concerns about whether the
Assembly could legitimately frame a Constitution for the entire country.
d. Exclusion of Marginalized Groups: Critics point out that certain marginalized
groups, such as women, Dalits, and tribal communities, were not adequately
represented in the Constituent Assembly. Their absence from the decision-making
RAU’S IAS FOCUS SPECIAL EDITIONS | POLITY & GOVERNANCE 1

INDIAN CONSTITUTION
process raises doubts about the inclusivity and fairness of the Assembly's
proceedings.
e. Congress dominance: one party
2. Legitimacy
a. Cabinet mission:
b. Copying Foreign Constitutions: The Draft Constitution prepared by B.N. Rau and
debated in the Constituent Assembly drew heavily from the Government of India
Act, 1935, as well as constitutions of other countries like the United States, Britain,
Ireland, Australia, and Canada. Critics argue that this approach did not take into
account India's specific conditions, culture, and customs, and instead resulted in a
Constitution that was seen as a slavish imitation.
c. Not put to referendum.
d. The members did not have the mandate to formulate the constitution for free
India.
These arguments highlight concerns about the Constituent Assembly's composition,
election process, representativeness, and the nature of the Constitution it drafted. It's
important to note that these arguments represent specific viewpoints and
interpretations, and there are varying opinions on the legitimacy of the Constituent
Assembly and the Indian Constitution.
Counter arguments:
Although the reasons are factually accurate, they do not prove that the Indian
constitution does not reflect the will of the people. Because:
 Elections could not be held at the time.
 Though dominated by Congress, but as suggested by ‘Granville Austin’ who is treated
as the best authority on Indian constitution – ‘Congress was India and India was
Congress’.
o Performance of other parties (Hindu Mahasabha and RPI-not even one seat)
o In the words of Granville Austin, it was one party assembly in one party state.
o Congress co-opted the members of other parties so that constitution becomes a

consensus document. It is to be noted that majority of the provisions were adopted
by consensus rather than by majority.
 Supreme Court in Keshavanand Bharati case has settled the matter with respect
to the will of the people. According to the Supreme Court, there is no point
examining the factual correctness of the phrase ‘we the people’. We have to accept it
as correct.
 If we examine the outcomes of the initial general elections, we can observe that the
makeup of the membership remained unchanged. This shows that even when
election had taken place, composition would not have been different.
 NCRWC which was set up by non-congress govt. led by NDA did not recommend any
far reaching changes or the need to call for the new assembly.
FEATURES OF INDIAN CONSTITUTION

The Indian Constitution is known for its unique features, which have played a crucial role
in shaping the governance and society of India. Here are some notable features of the
Indian Constitution and their benefits:
1. Lengthy and Detailed: The Indian Constitution is one of the world's lengthiest written
constitutions, comprising a comprehensive framework of laws, principles, and
guidelines. This detailed nature ensures clarity and specificity in governance,
enabling a systematic and structured approach to the functioning of the state.

INDIAN CONSTITUTION
2. Federalism: The Indian Constitution establishes a federal system of government,

dividing powers and responsibilities between the central government and the state
governments. This division of powers helps in decentralizing authority, promoting
regional autonomy, and accommodating the diverse needs and aspirations of
different states within the country.
3. Parliamentary System: The Indian Constitution follows a parliamentary form of
government, where the President is the head of state, and the Prime Minister is the
head of government. This system ensures accountability, as the government is
answerable to the Parliament and can be held responsible for its actions. It also
allows for a smoother transition of power and promotes stability in governance.
4. Fundamental Rights: The Indian Constitution guarantees fundamental rights to its
citizens, such as the right to equality, freedom of speech and expression, right to life
and personal liberty, and protection against discrimination. These rights ensure the
protection of individual liberties, promote social justice, and empower citizens to
challenge any violation of their rights.
5. Directive Principles of State Policy: The Constitution also includes Directive
Principles of State Policy, which provide guidelines for the government to promote
social justice, economic welfare, and the overall development of the nation. Although
these principles are not legally enforceable, they act as moral and political
obligations for the state, guiding policymaking and ensuring a focus on the welfare
of the people.
6. Independent Judiciary: The Indian Constitution establishes an independent judiciary
as a separate and impartial branch of the government. The judiciary acts as the
guardian of the Constitution, interprets laws, and safeguards the fundamental rights
of citizens. This independence ensures checks and balances, upholds the rule of
law, and protects citizens from arbitrary actions by the government.
7. Universal Adult Franchise: The Indian Constitution grants universal adult suffrage,
providing every citizen above the age of 18 with the right to vote. This inclusive
provision ensures political participation and representation for all sections of
society, promoting democracy and giving a voice to every citizen.
8. Social Justice and Affirmative Action: The Indian Constitution emphasizes social
justice and includes provisions for affirmative action to uplift disadvantaged and
marginalized communities. Through reservations in education, employment, and
political representation, the Constitution aims to address historical inequalities and
promote a more inclusive and equitable society.
These features of the Indian Constitution have several benefits, such as promoting
democracy, protecting individual rights, ensuring social justice, fostering unity in
diversity, and providing a stable and effective governance structure. The Constitution
serves as a guiding document that upholds the principles of justice, equality, and
freedom, and has played a vital role in shaping India as a democratic and diverse nation.
2. CONTEMPORARY ISSUES IN INDIA UNDER

CONSTITUTIONAL LAW
Under constitutional law in India, there are several contemporary issues that the country
is grappling with. Here are some of the key ones:
1. Freedom of Expression: While freedom of expression is guaranteed by the Indian
Constitution, there have been instances of curtailment and restrictions on this right.
Issues such as sedition laws, internet censorship, and restrictions on artistic and

INDIAN CONSTITUTION
cultural expression have raised concerns about the scope and protection of freedom
of expression.
2. Judicial Independence and Judicial Activism: The independence of the judiciary is
essential for upholding the rule of law. However, questions have been raised about
the appointment process of judges, political interference, and the increasing trend of
judicial activism. Balancing judicial intervention and respecting the separation of
powers remains a challenge.
3. Women's Rights and Gender Equality: Despite constitutional guarantees of gender
equality, India faces persistent issues of gender-based discrimination, violence against
women, and unequal access to opportunities. Measures to address these issues, such
as implementing stricter laws, improving law enforcement, and promoting gender-
sensitive policies, are ongoing challenges.
4. Caste-based Discrimination: India's caste system continues to be a social and
constitutional challenge. Discrimination and atrocities based on caste persist,
affecting marginalized communities. Efforts to eliminate caste-based discrimination,
provide reservation policies, and promote social inclusion face resistance and require
continued attention.
5. LGBTQ+ Rights: The rights of the LGBTQ+ community have gained visibility and
recognition in recent years, but challenges remain. Section 377 of the Indian Penal
Code, which criminalized same-sex relationships, was struck down by the Supreme
Court in 2018, but societal acceptance, anti-discrimination laws, and equal rights
protections for the LGBTQ+ community are ongoing concerns.
6. Minority Rights: Protecting the rights of religious and ethnic minorities is a crucial
constitutional issue in India. Ensuring religious freedom, preventing communal
violence, and addressing issues such as hate speech, religious conversions, and
religiously motivated discrimination require sustained efforts.
7. Environmental Protection: India faces significant environmental challenges,
including pollution, deforestation, and climate change. Balancing economic
development with environmental sustainability and ensuring effective
implementation of environmental laws and regulations are pressing issues.
8. Right to Education: Although the right to education is a fundamental right
guaranteed by the Constitution, challenges persist in ensuring quality and inclusive
education for all. Issues such as access to education, quality of education, and bridging
the urban-rural divide in educational opportunities remain areas of concern.
Addressing these contemporary issues requires a multi-faceted approach involving legal
reforms, public awareness, policy changes, and effective implementation of
constitutional provisions. It involves the cooperation and collaboration of various
stakeholders, including the government, judiciary, civil society organizations, and citizens.
3. BASIC STRUCTURE OF THE INDIAN

CONSTITUTION
This April will be 50 years since the Supreme Court of India delivered its verdict in
Kesavananda Bharati vs State of Kerala. The judgment is widely recognised as a milestone
in India’s history. In holding that Parliament’s power to amend the Constitution was not
plenary, that any change that damages the document’s basic structure would be declared
void, the Court, it was understood, had helped preserve the essence of our republic.
CONSTITUTIONAL AMENDMENT
 Like any other written Constitution, the Constitution of India also provides for its
amendment in order to adjust itself to the changing conditions and needs.

INDIAN CONSTITUTION
However, the procedure laid down for its amendment is neither as easy as in Britain
nor as difficult as in USA. In other words, the Indian Constitution is neither flexible nor
rigid but a synthesis of both. Article 368 in Part XX of the Constitution deals with the
powers of Parliament to amend the Constitution and its procedure.
 It states that the Parliament may, in exercise of its constituent power, amend by way
of addition, variation or repeal any provision of the Constitution in accordance with
the procedure laid down for the purpose. However, the Parliament cannot amend
those provisions which form the ‘basic structure’ of the Constitution. This was ruled by
the Supreme Court in the Kesavananda Bharati case1 (1973).
PROCEDURE FOR AMENDMENT

The procedure for the amendment of the Constitution as laid down in Article 368 is as
follows:
 An amendment of the Constitution can be initiated only by the introduction of a bill
for the purpose in either House of Parliament and not in the state legislatures.
 The bill can be introduced either by a minister or by a private member and does not
require prior permission of the president.
 The bill must be passed in each House by a special majority, that is, a majority of
the total membership of the House and a majority of two-thirds of the members of
the House present and voting.
 Each House must pass the bill separately. In case of a disagreement between the
two Houses, there is no provision for holding a joint sitting of the two Houses for the
purpose of deliberation and passage of the bill.
 If the bill seeks to amend the federal provisions of the Constitution, it must also be
ratified by the legislatures of half of the states by a simple majority, that is, a
majority of the members of the House present and voting.
 After duly passed by both the Houses of Parliament and ratified by the state
legislatures, where necessary, the bill is presented to the president for assent.
 The president must give his assent to the bill. He can neither withhold his assent
to the bill nor return the bill for reconsideration of the Parliament.
 After the president’s assent, the bill becomes an Act (i.e., a constitutional amendment
act) and the Constitution stands amended in accordance with the terms of the Act.
EMERGENCE OF THE BASIC STRUCTURE

The question whether Fundamental Rights can be amended by the Parliament under
Article 368 came for consideration of the Supreme Court within a year of the Constitution
coming into force. In the Shankari Prasad case (1951), the constitutional validity of the
First Amendment Act (1951), which curtailed the right to property, was challenged. The
Supreme Court ruled that 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.
But in the Golak Nath case (1967), the Supreme Court reversed its earlier stand. In
that case, the constitutional validity of the Seventeenth Amendment Act (1964), which
inserted certain state acts in the Ninth Schedule, was challenged. The Supreme Court
ruled that the Fundamental Rights are given a ‘transcendental and immutable’
position and hence, the Parliament cannot abridge or take away any of these rights. A

INDIAN CONSTITUTION
constitutional amendment act is also a law within the meaning of Article 13 and hence,
would be void for violating any of the Fundamental Rights.
The Parliament reacted to the Supreme Court’s judgement in the Golak Nath case (1967)
by enacting the 24th Amendment Act (1971). This Act amended Articles 13 and 368.
However, in the Kesavananda Bharati case3 (1973), the Supreme Court overruled its
judgement in the Golak Nath case (1967). It upheld the validity of the 24th Amendment
Act (1971) and stated that Parliament is empowered to abridge or take away any of the
Fundamental Rights. At the same time, it laid down a new doctrine of the ‘basic
structure’ (or ‘basic features’) of the Constitution. It ruled that the constituent power
of Parliament under Article 368 does not enable it to alter the ‘basic structure’ of the
Constitution. This means that the Parliament cannot abridge or take away a Fundamental
Right that forms a part of the ‘basic structure’ of the Constitution.
The doctrine of basic structure of the constitution was reaffirmed and applied by the
Supreme Court in the Indira Nehru Gandhi case (1975). In this case, 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. The court said that this provision was beyond the amending
power of Parliament as it affected the basic structure of the constitution.
Again, the 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.
However, the Supreme Court in the Minerva Mills case4 (1980) invalidated this
provision as it excluded judicial review which is a ‘basic feature’ of the Constitution.
Applying the doctrine of ‘basic structure’ with respect to Article 368, the court held that:
“Since the Constitution had conferred a limited amending power on the Parliament, the
Parliament cannot under the exercise of that limited power enlarge that very power into
an absolute power. Indeed, a limited amending power is one of the basic features of
the Constitution and, therefore, the limitations on that power cannot be
destroyed. In other words, Parliament cannot, under article 368, expand its amending
power so as to acquire for itself the right to repeal or abrogate the Constitution or to
destroy its basic features. The donee of a limited power cannot by the exercise of that
power convert the limited power into an unlimited one”.
ELEMENTS OF THE BASIC STRUCTURE

The present position is that the Parliament under Article 368 can amend any part
of the Constitution including the Fundamental Rights but without affecting the
‘basic structure’ of the Constitution. However, the Supreme Court is yet to define or
clarify as to what constitutes the ‘basic structure’ of the Constitution. From the various
judgements, the following have emerged as ‘basic features’ of the Constitution or
elements of the ‘basic structure’ of the constitution:
 Supremacy of the Constitution:
o Kesavananda Bharati v. State of Kerala (1973) - The case established the doctrine of
basic structure, stating that certain fundamental features of the Constitution cannot
be amended by the Parliament.
 Sovereign, democratic and republican nature of the Indian polity:
o Indira Nehru Gandhi v. Raj Narain (1975) - The case dealt with the imposition of
emergency and its effect on the democratic nature of the Indian polity.
 Secular character of the Constitution:

INDIAN CONSTITUTION
o S.R. Bommai v. Union of India (1994) - The case discussed the concept of secularism
and its importance in the Indian political system.
 Separation of powers between the legislature, the executive, and the judiciary:
o Ram Jawaya Kapur v. State of Punjab (1955) - The case discussed the doctrine of
separation of powers and emphasized the independence of each organ of the
government.
 Federal character of the Constitution:
o S.R. Bommai v. Union of India (1994) - The case also discussed the federal nature of
the Indian Constitution and the importance of federalism.
 Unity and integrity of the nation:
o Keshav Singh v. Speaker, Legislative Assembly (1965) - The case dealt with the
disqualification of a legislator on the grounds of secessionist activities.
 Welfare state (socio-economic justice):
o Olga Tellis v. Bombay Municipal Corporation (1985) - The case dealt with the right
to livelihood and the duty of the state to provide social welfare to its citizens.
 Judicial review:
o Kesavananda Bharati v. State of Kerala (1973) - The case not only established the
basic structure doctrine but also affirmed the power of the judiciary to review
constitutional amendments.
 Freedom and dignity of the individual:
o Maneka Gandhi v. Union of India (1978) - The case expanded the scope of personal
liberty and emphasized the importance of the right to life and dignity.
 Parliamentary system:
o Kihoto Hollohan v. Zachillhu (1992) - The case discussed the power of the Speaker
to disqualify a member of the legislative assembly and upheld the principles of the
parliamentary system.
 Rule of law:
o A.K. Gopalan v. State of Madras (1950) - The case highlighted the importance of the
rule of law and the protection of fundamental rights.
 Harmony and balance between Fundamental Rights and Directive Principles:
o Minerva Mills Ltd. v. Union of India (1980) - The case discussed the relationship
between fundamental rights and directive principles and upheld the primacy of
fundamental rights.
 Principle of equality:
o State of Madras v. Champakam Dorairajan (1951) - The case dealt with the issue of
reservation in educational institutions and emphasized the principle of equality.
 Free and fair elections:
o Mohinder Singh Gill v. Chief Election Commissioner (1977) - The case discussed the
importance of free and fair elections in a democratic system and upheld the
principles of electoral integrity.
 Independence of Judiciary:
o S.P. Gupta v. Union of India (1981) - The case, also known as the Judges' Transfer
case, emphasized the independence of the judiciary and the importance of
preserving its integrity.
These are just a few examples of relevant case laws. The Indian judicial system has a vast
body of case laws that have interpreted and clarified various aspects of the Indian
Constitution.

INDIAN CONSTITUTION
CRITICISM OF THE DOCTRINE OF BASIC STRUCTURE

 Legitimacy of the judgement can be questioned as the verdict was given on a very thin
margin (7-6).
 Judiciary is "overlooking the letters of the constitution" and "inventing its soul".
 It's metaphysical appraoch "Basic Structure" disturbs the separation of power and
establishes judicial sovereignty
 Judiciary is least representative and most elitist, least accountable hence assuming the
role of super legislature is unsuitable for democracy.
 Since entire spectrum of BS is undefined, it creates uncertainty and discretion affecting
the working of executive.
Arguments in favor:
 The fundamental structure concept serves as evidence for the constitutionalist thesis
that majority rule by force cannot destroy the core of the COI.
o “Parliament too is a creature of the Constitution”. Therefore, it can only have
such powers that are expressly vested on it. If those powers are seen as unlimited,
Parliament, the Court found, “would cease to be an authority under the
Constitution”; it would instead “become supreme over it, because it would have
power to alter the entire Constitution including its basic structure”. In other words,
the principle that Parliament is proscribed from changing the Constitution’s
essential features is rooted in the knowledge that the Constitution, as originally
adopted, was built on an intelligible moral foundation.
 Because it serves as a check on constituent power, the fundamental concept
preserved Indian democracy; otherwise, unchecked parliamentary power may have
turned India into a totalitarian state.
 Retaining the fundamental principles of our constitution, which our founding fathers
so painstakingly crafted, is beneficial.
 It gave citizens fundamental rights that no state organ can alter by restricting the
legislative branch's ability to amend laws.
 Being dynamic in nature, it is more progressive and open to changes in time
unlike the rigid nature of earlier judgements.
In conclusion, the doctrine of the basic structure has played a significant role in shaping
the interpretation of the Indian Constitution. It has evolved through landmark judgments
of the Supreme Court, starting from the Shankari Prasad case to the Kesavananda Bharati
case. The doctrine establishes that certain fundamental features of the Constitution,
which form the basic structure, cannot be amended by the Parliament under Article 368.
These features include the supremacy of the Constitution, the democratic and republican
nature of the Indian polity, the secular character of the Constitution, separation of
powers, federalism, unity and integrity of the nation, welfare state principles, judicial
review, freedom and dignity of the individual, parliamentary system, rule of law, harmony
between Fundamental Rights and Directive Principles, principle of equality, free and fair
elections, and independence of the judiciary.
While the doctrine has faced criticism, questioning its legitimacy and the potential
overreach of the judiciary, it has also been supported as a safeguard against arbitrary
amendments and the preservation of the core principles of the Constitution. The doctrine
provides a check on the power of the Parliament, ensuring that the fundamental rights
of citizens remain protected and that the Constitution's essential features are not
undermined.
However, the precise definition and scope of the basic structure are still subject to
ongoing debate, and the Supreme Court is yet to provide a comprehensive and definitive

INDIAN CONSTITUTION
explanation. The doctrine's application has been dynamic and adaptable, allowing for
progressive interpretations and responsiveness to changing societal needs.
Ultimately, the doctrine of the basic structure has served as a crucial mechanism for
upholding the integrity and enduring principles of the Indian Constitution, striking a
balance between the amending power of the Parliament and the need to safeguard the
fundamental rights and foundational values enshrined in the Constitution.
4. PREAMBLE
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a 1
[SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the 2 [unity and integrity of the
Nation];
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY
ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION
OBSERVATION ON PREAMBLE
 Palkhiwala: Identity card of our constitution
 KM Munshi: Horoscope of our Sovereign Democratic Republic
 Pt. Thakurdas:
o “Soul of the constitution”
o Jewel Set of the constitution
o Proper yardstick with which one can measure the worth of the constitution
 Ernest Barker: Keynote of constitution

 Sir Alladi k. Ayyar: “Preamble expresses what we have thought for so long”
Sovereign
 Internally Supreme and externally independent: Free to conduct its own affairs in
internal as well as external matters. India is neither a dependency nor dominion.
 Has Globalization impacted India’s Sovereignty?
o Political Sovereignty
 Human rights and Environmental laws.

 Politics everywhere are now essentially market-driven
 Global Governance: Organizations can determine and dictate
o Economic Sovereignty
 The internationalization of financial markets, of technology and of some

manufacturing and services bring with them a new set of limitations upon the
freedom of action of nation states.
 In addition, the emergence of institutions such as the WTO, World Bank, and the
International Monetary Fund, involve new constraints and imperatives.
o Cultural Sovereignty
 Globalization induced homogeneity

INDIAN CONSTITUTION
SOCIALISM
 The Indian Constitution, therefore, does not seek to abolish private property
altogether but seeks to put it under restraints so that it may be used in the interests
of the nation, which includes the upliftment of the poor. Instead of a total
nationalization of all property and industry, it envisages a ‘mixed economy’, but aims
at offering ‘equal opportunity’ to all, and the abolition of ‘vested interests’.
 The Constitution had a socialist content in the form of certain Directive Principles of
State Policy (esp. Arts. 39(b) and 39(c)), even before the term was added in 1976.
 In D.S. Nakara v. Union of India, the S.C. held that the basic framework of socialism is
to provide a decent standard of life to the working people and especially provide
security form cradle to grave.
 Indian state is deviating from its path of Socialism.
o Adoption of neo-liberal economic policy: The new economic policy (1991) of
liberalization, privatization and globalization has diluted the socialist credentials of
the Indian state.
o From 1991 onwards, the trend has been away from socialism to privatization.
Investment in many public enterprises has been divested in favour of private
persons and many industries and services, which were reserved for the
government sector have been thrown open for private enterprise.
o Growth, which happened after the reforms of 1990s exacerbated inter-state and
intrastate disparities.
o Further, this growth has been without any meaningful job creation. (Jobless growth)
o The Indian state has failed to end mass poverty.
SECULAR
 Equality
o 14 - The State shall not deny to any person
o 15 (1) - Prohibition of discrimination on grounds of religion, race, caste, sex or place

of birth.
 Right to freedom
o 25 - Freedom of conscience and free profession, practice and propagation of
religion. (Between individual and state)
o 26 - Freedom to manage religious affairs - (state and religion)
o 27 - Freedom as to payment of taxes for promotion of any particular religion.
o 28 - Freedom as to attendance at religious instruction or religious worship in certain

educational institutions.
 Cultural and Educational Rights
o 29 - Cultural and Educational Rights
o 30 - Right of minorities to establish and administer educational institutions.
DEMOCRATIC
 Procedural Versus Substantive Democracy: How India Fares
 India’s commitment to democracy has been carefully and rigorously defended
since 1947.
o Regular conduct of General Elections. (No military Coup)
o Elections conducted under the authority of Independent Election commission.
o Free press and vigorous public debate.
o Rule of Law, Sanctity of contracts.

INDIAN CONSTITUTION
o Independent Judiciary
o Some level of direct democracy at local level
 Poor Performance in substantive democracy

o India’s Poor rank in global indices
o Poor state of rural infra and agriculture
o Corruption
o Increasing economic inequality
o Misuse of administrative machinery
o Criminalization of politics
o Declining debates in parliament
o Lack of intra party democracy
o Electorate is not empowered
REPUBLIC
 India has a republic form of government as the head of state is elected and not
a hereditary monarch like a king or queen. The term Republic is obtained from res
publica that means public property or commonwealth.
 It implies that the people have the authority to choose the head of state for a set period
of time.
 In conclusion, the term "republic" refers to a system of governance in which the head
of the state is chosen by popular vote rather than by virtue of birth.
Justice – Social, Economic and Political
 No state can exist if people perceive that it is unjust. Preamble explains the idea of
justice found in the constitution. It is a comprehensive idea of justice. i.e. Justice –
social, economic and political.
 Social Justice – In India, social injustice had been present in terms of the
discrimination based on caste and gender. Constitution of India prohibits
discriminations based on caste, color, race, sex etc. It not only prohibits
discriminations, it also provides for affirmative action in favor of the weaker sections.
 Economic Justice – The directive principles of state policy especially Art 39B and 39C,
aim to reduce the inequalities of income and wealth. And to achieve the aim of
equitable distribution of resources. It contains many other social and economic rights.
Like Right to adequate wages. Right to work. Promotion of educational & economic
interests of members of scheduled caste and scheduled tribe, Raise the level of
nutrition and standard of living, including public health.
 Political Justice – Universal adult franchise, Independent election commission,
reservations for the weaker sections like members of SC, ST community in parliament
and assemblies. Reservation for women along with backward class members in all the
three levels of panchayats
LIBERTY of thought, expression, belief, faith and worship
 The idea of Liberty came to the forefront with the French Revolution in 1789 and the
leaders defined liberty as "the power to do like anything that does not injure another
is liberty.
 The Constitution of India professes to secure the liberty of thought, expression, belief,
faith, and worship, which are regarded as essential to the development of the
individual in the Nation.

INDIAN CONSTITUTION
 The same principle is reflected in Articles 25-28 of the Constitution which talk about
the Right to Freedom of Religion and Article 19 (1) (a) which talks about the liberty in
the field of expression
EQUALITY of status and of opportunity
 D.D. Basu has observed that it is the same equality of status and opportunity that the
constitution of India professes to offer to the citizens by the preamble.
 Equality of status and opportunity is secured to the people of India by abolishing all
distinctions and discriminations by the state between citizen and citizen on the ground
of religion, race, caste sex and by throwing open public places, by abolishing
untouchability and titles, by securing equality for opportunity in the matters relating
to employment or matters relating to employment or appointment to any office under
the state.
FRATERNITY assuring the dignity of the individual and the unity and integrity of the
Nation;
 By "fraternity is understood a spirit of brotherhood, the promotion of which is
absolutely essential in our country which is composed of people of many races and
religions."
 The phrase dignity of the individual' signifies that the Constitution, as K.M. Munshi
said, "is an instrument not only of ensuring material betterment and maintaining a
democratic set up, but that recognizes that personality of every individual is sacred."
 The use of words Unity and Integrity has been made to prevent tendencies of
regionalism, provincialism, linguism, communalism and secessionist and separatist
activities," more and more so that the dream of national integration on the lines of
enlightened secularism is achieved.
Whether preamble is a part of the constitution?
Berubari Union (1960)
 Preamble is not a part of the constitution. (Ordinarily, Preamble is not regarded as a
part of the statute).
 SC took precedence from US Supreme court (Supreme Court of USA did not accept
preamble as a part of the constitution)
Recall Pratap Bhanu Mehta:
 Indian constitution is cosmopolitan.
 While interpreting judiciary considers the legal traditions followed in different
countries.
Keshavanand Bharti (1973)
 Supreme Court held that preamble is part of the constitution.
 It mentioned that preamble is ‘integral part’ of the constitution. It further added that
preamble contains ‘the basic structure’ of the constitution.
 Supreme Court acknowledged that it had disregarded a crucial preamble-related fact.
 The motion stating that the preamble being adopted as a part of the constitution was
approved by the constituent assembly.
Amendability of the Preamble: Keshavanand Bharti (1973)
 Article 368, which addresses the amendment process, only refers to amending "the
provision" and not "a part" of the constitution. Preamble is a part but not provision.
SC clarified that preamble can be amended.
 This is an example of ‘creative interpretation’ by judiciary.

INDIAN CONSTITUTION
 “Preamble was last to be adopted by the constituent assembly with the purpose that
there should be organic unity between the preamble and the main body. Hence it may
happen that the preamble appears disjointed considering amendments in the
constitution. Thus, it was expedient on the part of the judiciary to allow the
amendments.”
 Court made three observations:
o that the Preamble to the Constitution of India is a part of Constitution
o that the Preamble is not a source of power nor a source of limitations
o the Preamble has a significant role to play in the interpretation of statues, also in
the interpretation of provisions of the Constitution.
Significance of the preamble in the interpretation of the constitution.
In A.K. Gopalan case (1950) SC held that constitution need not to be interpreted in the
light of preamble, to be used only where there is ambiguity. In Berubari Union case (1960)
SC held that preamble is like a lighthouse or a key to open the minds of constituent
assembly where there is ambiguity.
In Keshavanand Bharati case (1973) SC held that constitution has to be interpreted in the
light of ‘noble vision’ expressed in the preamble.
Consensus form various judgments:
 The Preamble is neither a source of power to legislature nor
 Prohibition upon the powers of legislature.
 It is non-justiciable, that is, its provisions are not enforceablev in courts of law.
Interpretative role of Preamble:
 Preamble aiding in the interpretation of the Constitution's own clauses.
 Preamble as a guide for interpreting laws created in accordance with the Constitution.
 The Preamble's wording as they have been interpreted by courts and are reflected in
their analyses.
It serves several important purposes, as for example:
 It contains the enacting clause which brings the Constitution into force.
 It declares the basic type of government and polity which is sought to be established
in the country.
 It declares the great rights and freedom which the people of India intended to secure
to its entire citizen.
 It throws light on the source of the Constitution, viz., the People of India.
5. COMPARISON OF CONSTITUTION
FEATURE INDIA UK USA RUSSIA JAPAN FR
Written/ Written Unwritten Written Written Written Wr

Unwritten
Flexible/ Both Flexible Rigid Rigid Rigid Rig

Rigid
Unitary / Federal with Unitary Federal Unitary Unitary Un

Federal unitary bias

INDIAN CONSTITUTION
Parliamentary Parliamentary Parliamentary Presidential Semi Parliamentary Qu

/ Presidential Presidential
Sovereignty Supremacy of Supremacy of Supremacy Supremacy of Par

of Parliament Constitution Parliament of Constitution lim
Constitution
Republic / Republic Constitutional Republic Republic Constitutional Rep

Monarch Monarchy Monarchy
President Ceremonial Ceremonial Executive Executive Exe
Fundamental Yes Yes Yes No Yes Yes

Rights
FUNDAMENTAL RIGHTS
6. ARTICLE-14
EQUALITY BEFORE THE LAW
Three principles proposed by A.V. Dicey
 Absolute supremacy of Law:
o It implies that a man may be punished for a breach of law but he can’t be punished
for anything else.
o Dicey asserted that discretion has no place where there is supremacy of law.
o According to him discretion is a link to arbitrariness. Dicey says that wherever there
is discretion, there is room for arbitrariness and discretionary authority on the part
of the government to jeopardize the legal freedom of the people.
 Equality before law:
o Equal subjection of all citizens (rich or poor, high or low, official or non-official) to
the ordinary law of the land administered by the ordinary law courts.
o Every man irrespective of his rank or position is subject to the ordinary law and
jurisdiction of the ordinary court and not to any special court.
o According to him special law and special courts is a threat to the principles of
equality.
 Predominance of legal spirit:
o The primacy of the rights of the individual, that is, the constitution is the result of
the rights of the individual as defined and enforced by the courts of law rather than
the constitution being the source of the individual rights.
o He believed that the courts are the enforcer of the rule of law and hence it should
be free from impartiality and external influence. Independence of the judiciary is
therefore an important pillar for the existence of rule of law.
The Rule of Law rejects all kinds of arbitrary and discretionary powers of the government
or public officials.
EQUAL PROTECTION OF LAW

 It means: All persons in similar circumstances shall be treated alike both in privileges
and liabilities imposed.

INDIAN CONSTITUTION
 This provision corresponds to the equal protection clause of the 14th Amendment of
the U.S.
 Constitution which declares: “No State shall deny to any person within its jurisdiction
the equal protection of the laws.
Equal Protection of the laws does not postulate equal treatment of all persons without
distinction.
What it postulates is the application of the same laws alike and without discrimination to
all persons similarly situated.
The Legislature is required to deal with diverse problems arising out of an infinite variety
of human relations. On the other hand, where persons or groups of persons are not
situated equally, to treat them as equals would itself be violative of Art. 14 as this would
itself result in inequality.
EXHIBIT: SANABOINA SATYANARAYAN V. GOVT. OF A.P

In Andhra Pradesh, they formulate a scheme for prevention of crime against women. In
prisons also prisoners were classify in to two categories:
 Prisoners guilty of crime against women and second prisoners who are not guilty of
crime against women.
 Prisoners who are guilty of crime against women challenge the court saying that there
right to equality is deprived.
 Court held that there is reasonable classification to achieve some objective
SUMMARY OF ARTICLE 14
 Article 14 of the Constitution embodies the principle of “non-discrimination”.
 In this series of constitutional provisions, Art. 14 is the most significant. It has been
given a highly activist magnitude in recent years by the courts and, thus, it generates
many court cases.
 It may be noted that the right to equality has been declared by the Supreme Court as
a basic feature of the Constitution.
 The case of M. Nagaraj v Union of India (2006) recognised that ‘formal equality’ is not
a part of the basic structure but ‘proportional equality’ is.
7. ARTICLE-15
Article 15(1) is an extension of Art. 14. Art 15(1) expresses a particular application of the
general principle of equality embodied in Art. 14.
Just as the principle of classification applies to Art. 14 so it does to Art. 15(1) as well. Art.
14 is the genus while Arts. 15 and 16 are the species. Arts. 14, 15 and 16 are constituents
of a single code of constitutional guarantees supplementing each other.
Article 15(2) contains a prohibition of a general nature and is not confined to the
state only. Based on this provision, it has been held that if a section of the public puts
forward a claim for an exclusive use of a public well, it must establish that the well was
dedicated to the exclusive use of that particular section of the public and not to the use
of the general public.
Articles 15(3) and 15(4) constitute exceptions to Arts. 15(1) and 15(2). According to Art.
15(3), the state is not prevented from making any “special provision” for women and
children.
Article 15(4) confers discretion and does not create any constitutional duty or
obligation. Hence no mandamus can be issued either to provide for reservation or for
relaxation

INDIAN CONSTITUTION
SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES

A major difficulty raised by Art. 15(4) is regarding the determination of who are
‘socially and educationally backward classes.’ This is not a simple matter as
sociological and economic considerations come into play in evolving proper criteria
for its determination. Art. 15(4) lays down no criteria to designate ‘backward classes’; it
leaves the matter to the state to specify backward classes, but the courts can go into the
question whether the criteria used by the state for the purpose are relevant or not.
The question of defining backward classes has been considered by the Supreme Court in
a number of cases. On the whole, the Supreme Court’s approach has been that state
resources are limited; protection to one group affects the constitutional rights of other
citizens to demand equal opportunity, and efficiency and public interest have to be
maintained in public services because it is implicit in the very idea of reservation that a
less meritorious person is being preferred to a more meritorious person. The Court
also seeks to guard against the perpetuation of the caste system in India and the inclusion
of advance classes within the term backward classes.
From the several judicial pronouncements concerning the definition of backward
classes, several propositions emerge.
 First, the backwardness envisaged by Art. 15(4) is both social and educational and
not either social or educational. M. R. Balaji And Others vs State Of Mysore, the
Court equated the “social and educational backwardness” to that of the “Scheduled
Castes and Scheduled Tribes”.
 Backwardness should be comparable, though not exactly similar, to the Scheduled
Castes and Scheduled Tribes.
 ‘caste’ may be a relevant factor to define backwardness, but it cannot be the
sole or even the dominant criterion. If classification for social backwardness were
to be based solely on caste, then the caste system would be perpetuated in the Indian
society. Also this test would break down in relation to those sections of society
which do not recognize caste in the conventional sense as known to the Hindu
society.
 Poverty, occupations, place of habitation, all contributes to backwardness and such
factors cannot be ignored.
 Backwardness may be defined without any reference to caste. As the Supreme
Court has emphasized, Art. 15(4) “does not speak of castes, but only speaks of classes”,
and that ‘caste’ and ‘class’ are not synonymous. Therefore, exclusion of caste to
ascertain backwardness does not vitiate classification if it satisfies other tests.
The landmark judgment of the Supreme Court in NALSA v. Union of India ushered in
the recognition of various civil and political rights of the transgender community. The
court inter-alia also directed the centre to treat transgenders as socially and
educationally backward classes and provide them with the reservations available to
OBCs in education, employment etc.
8. ARTICLE-16
Ground of ‘residence’ as a basis of discrimination
Art. 16(2) which bans discrimination of citizens on the ground of ‘residence’ only in
respect of any office or employment under the state, can be qualified as regards
residence, and a ‘residential qualification’ imposed on the right of appointment in the
State for specified appointments.

INDIAN CONSTITUTION
Article 16(3), therefore, introduces some flexibility, and takes cognisance of the fact that
there may be some very good reasons for restricting certain posts in a State for its
residents.
Article 16(3), however, incorporates a safeguard to ensure that it is not abused. Power
has been given to Parliament and not to the State Legislatures to relax the principle of
non-discrimination on the ground of residence so that only a minimum relaxation is
made in this regard. The State Legislatures being subjected to greater local pressures
might have been tempted to create all kinds of barriers in the matter of public services.
Under Art. 16(3), Parliament has enacted the Public Employment (Requirement as to
Residence) Act, 1957.
Demands for Other Backward Classes (OBCs) by Dominant castes
Jats, Marathas and Patidars
Who are OBCs?
 OBC is a collective term used by the Government to classify castes which are
educationally or socially disadvantaged.
 OBCs are a vastly heterogeneous group.
o There are various jaatis or sub-castes which vary significantly in the societal and
economic status.
o For instance, OBCs include land-owning communities in both north and south India
alongside poorer sections of the society living on subsistence labour.
DEMANDS FOR OTHER BACKWARD CLASSES (OBCS) BY DOMINANT

CASTES
The Mandal Commission:
 In 1990, the then Union government announced that Other Backward Classes
(OBCs) would get 27 percent reservation in jobs in central government services and
public sector units (under Article 16(4) of the Constitution).
 The decision was based on Mandal Commission Report (1980), which was set up in
1979 and chaired by B.P. Mandal. The mandate of the Mandal Commission was to
identify socially or educationally backward classes to address caste
discrimination.
 The recommendation for OBC reservations in central government institutions was
implemented in 1992 while the education quota came into force in 2006 (under
Article 15(4) of the Constitution).
 To ensure that benefits of the recommendations of the Mandal Commission
percolated down to the most backward communities, the creamy layer criteria was
invoked by Supreme Court in the ruling called the ‘Indira Sawhney Judgment’
(1992).
 A household with an annual income of Rs 8 lakh or above is classified as belonging to
the ‘creamy layer’ among OBCs and hence is not eligible for reservations.
Demands for Other Backward Classes (OBCS) by Dominant castes
Why?
 Success of affirmative action
 Relative deprivation
 Structural transformations in the economy
 Underperforming agriculture

INDIAN CONSTITUTION
 Fragmentation of land holdings

 Shrinking opportunities in private sector
 Lack of skills to take advantage
Rejected:
 Violation of 50% limit put by Indra Sawhney
 Not “Socially and Educationally Backward” (Deshpande)
 Their anxieties seem to be based more on perception than on empirical evidence.
SC Observation: “providing reservation for advancement of any socially and
educationally backward class in public services is not the only means and method for
improving the welfare of backward class”, and “the State ought to bring other measures
including providing educational facilities to the members of backward class free of
cost giving concession in fee, providing opportunities for skill development to
enable the candidates from the backward class to be self-reliant.
SUB-CATEGORIZATION OF OTHER BACKWARD CLASSES (OBCs)

Idea of sub-categorization:
 The First Backward Class Commission report of 1955 had proposed sub-categorization
of OBCs into backward and extremely backward communities.
 In the Mandal Commission report of 1979, a dissent note by member L R Naik
proposed sub-categorization in intermediate and depressed backward classes.
In 2015, the NCBC had proposed that OBCs be divided into the following three
categories:
 Extremely Backward Classes (EBC-Group A) facing social, educational and economic
backwardness even within the OBCs, consisting of nomadic and semi-nomadic
tribes who have been carrying on with their traditional occupations.
 More Backward Classes (MBC-Group B) consisting of vocational groups carrying on
with their traditional occupations.
 Backward Classes (BC-Group C) comprising of those comparatively more forward.
According to the NCBC, 11 states (Andhra Pradesh, Telangana, Puducherry, Karnataka,
Haryana, Jharkhand, West Bengal, Bihar, Maharashtra, Rajasthan and Tamil Nadu) have
subcategorized OBC for reservations in state government-owned institutions.
NEED FOR SUB-CATEGORIZATION – EQUAL OPPORTUNITY

 Benefits of reservations have reached only limited sections:
o The Rohini commission highlighted that from about 2,633 central list OBCs, about
1900 castes have not proportionately benefitted.
o Half of these 1900 castes have not availed the benefits of reservation at all,
and the other half include those that have availed less than 3 per cent share in the
OBC quota.
o The commission highlighted that 25% of benefits from OBC reservations have
been availed by only 10 sub-castes.
o According to the committee, the communities that have got almost no benefits of
reservations include profession-based castes such as Kalaigars, a community that
traditionally polishes tins; and Sikligars and Saranias, communities that traditionally
sharpen knives; apart from several other marginalised groups.
 Benefits are tilted towards economically stronger sub-sections:
o Research suggests that the Mandal Commission recommendations helped the
economically better positioned OBCs more than the most backward castes.

INDIAN CONSTITUTION
 Sachar commission: 40.7% of Muslims are Muslim OBCs, which is 15.7% of the total
OBC population of the country. “The abysmally low representation of Muslim OBCs
suggests that the benefits of entitlements meant for the backward classes are yet to reach
them.”
CHALLENGES IN ITS IMPLEMENTATION?

 Use of older and unreliable estimates:
o The commission has based its recommendations on quota within quota on the
population figures from the 1931 Census, and not on the more recent Socio-
Economic Caste Census (SECC) 2011.
o Since the implementation of the Mandal Commission report, over 500 new castes
have been added to the Central list of OBCs. The 1931 Census does not have the
population for these new additions.
o The 1931 census also does not have population of princely states that were not
ruled by the British.
 Information unavailability on social and educational status: There is lack
availability of information regarding the social and educational backwardness of
various castes.
 It could be a very difficult exercise statistically due to following reasons:
o Large number of castes: According to NCBC, there are 2514 OBC castes in the
country and scientific sub-categorization by analysing each caste could be
challenging.
o Variation from state to state: There are significant variations within castes from
state to state which implies data collection needs to be larger and more robust.
 Political sensitivity of the issue:
o The move to sub-categorize OBCs may create agitation in some sections of OBCs as
the benefits get redistributed.
o OBC reservations have caused political turmoil in the past.
RESERVATION TO ECONOMICALLY WEAKER SECTION

The 103rd Constitution Amendment Act 2019 inserted Article 15 (6) and Article 16 (6)
in the Constitution to allow reservation for the Economically Weaker Section (EWS) among
the general category. The Supreme Court Constitutional Bench upheld validity of 103rd
Constitutional Amendment which introduced 10% quota for EWS in education and public
employment.
Article 15 has been amended to enable the government to take special measures
for the advancement of EWS.
 Up to 10% of seats may be reserved for such sections for admission in educational
institutions. Such reservation will not apply to minority educational institutions.
 The newly added Article 16(6) permits the government to reserve up to 10% of all posts
for the EWS of citizens.
 This reservation of up to 10% for the EWS will be in addition to the existing reservation
cap of 50% reservation for SC, ST and OBCs.
 The central government will notify the “economically weaker sections” of citizens
based on family income and other indicators of economic disadvantage.
 Arguments in favour of reservation based on economic status
 Need for new deprivation assessment criteria: While caste remains a cause of
injustice, it is not the sole determinant of backwardness.

INDIAN CONSTITUTION
o With LPG, the symmetry between caste and class has broken down to a certain
extent.
 In Ram Singh v. Union of India (2015), SC asserted that social deficiencies may exist
beyond the concept of caste (e.g. economic status / gender identity as in
transgenders). Hence, there is a need to evolve new yardsticks to move away from
caste-centric definition of backwardness.
 Increasing dissatisfaction among various sections: Politically, the class issues have
been overpowered by caste issues
 Extension of affirmative action to Muslims and Christians. (Sachar Committee)
o The conditions of the general Muslim category are lower than the Hindu- OBCs who
have the benefit of reservation.
ARGUMENTS AGAINST EXTENDING RESERVATIONS ON ECONOMIC

BASIS
 In M. Nagaraj v. Union of India (2006), a Constitution Bench ruled that equality is
part of the basic structure of the Constitution.
o The 50% ceiling is a constitutional requirement without which the structure of
equality of opportunity would collapse.
 Reservation is not a poverty alleviation program:
o The primary purpose of reservation was to provide representation to the hitherto
marginalized and not as a poverty alleviation program for the economically
deprived. The poorer sections among the upper castes could be elevated through
different affirmative actions like providing them with scholarships and other
financial helps.
o This amendment runs contrary to this primary purpose of reservation.
o Poverty is not a permanent thing like the baggage of caste that affects the dignity
of a person.
 Ignores “Social Capital” possessed by non-SC/ST/OBC:
 Definition of EWS and allotment of quota:
o The issue with current definition of EWS is that it is too broad and would include
large sections of population.
o Further, it also puts families below poverty line and the ones with income of 8
lakh/annum in the same category.
o Excluding the SEBCs/OBCs, SCs/STs from the scope of EWS reservation
KEY POINTS OF SUPREME COURT VERDICT (JANHIT ABHIYAN V

UNION OF INDIA CASE, 2022)
 Reservation on economic criteria alone did not violate the Basic Structure of the
Constitution.
 SC’s earlier jurisprudence i.e “economic criteria cannot be sole basis for determination
of backwardness” is somewhat restricted to reservation provided to SEBCs. o And EWS
is deemed a separate and distinct category.
 Exclusion of SC/ST, SEBC was a part of reasonable classification and necessary to avoid
double benefits. o Also, Reservations as a concept cannot be ruled out in private
institutions where education is imparted.
 50% rule formed in Indira Sawhney judgment in 1992 has not been held to be inflexible
and inviolable for all times to come. Further, it had applied only to SC/ST/SEBC/OBC
communities and not the general category.

INDIAN CONSTITUTION
SIGNIFICANCE OF THE JUDGEMENT

 Reshapes politics of affirmative action: EWS quota moves the reservation
discussion beyond Mandal debate (weighed in favor of caste reservation).
o Though caste may be a prominent factor for determination of backwardness, Court
has routinely discouraged identification of backwardness solely on basis of caste.
o In Ram Singh and Ors. vs Union of India case (2015), Supreme Court suggested
the need for a non-caste based identification of backward classes.
o It held that new practices, methods and yardsticks have to be continuously evolved
to enable recognition of newly emerging groups in society.
 Attempt to elevate poor among the general category: EWS quota provides
economic justice to those who have not been the beneficiaries of affirmative action
like reservation. Proponents have argued that it is in line with the transformative goals
of the Constitution. o Further, economic criteria may be perceived as a first step in the
process of moving away with caste-based reservation.
o By reading caste alongside class, it reconfigures India’s affirmative action policy by
offering an expansive view.
CONCERNS RELATED TO EWS QUOTA

 Reservation is meant for social upliftment: Reservation as a traditional concept is
not for financial empowerment. It is for social empowerment and cannot be used as a
poverty alleviation measure. Poverty can be alleviated by other means like
scholarships.
o A collective remedy, meant to be compensatory discrimination in favor of
historically deprived classes, cannot be converted into a scheme based on
economic criteria.
o While an economic quota is justified for accessing public goods including subsidies
(Article 15), it can’t be extended to reservation (Article 16), which seeks
representation of community. o Additionally, unlike caste discrimination, poverty
does not necessarily get carried from one generation to the other.
 Violates principle of equality: By excluding OBCs, SC/ST communities from EWS,
there is a clear violation of equality in their eligibility to avail of a part of the open
competition opportunities.
 Minority view in recent judgement held that such exclusion is arbitrary and
discriminatory. It virtually confines SC/ST/OBC within their allocated reservation
quotas.
o Issue with income criteria: The income criterion of ₹8 lakh a year has already been
questioned as it is liable to result in excessive coverage of socially advanced classes.
o It is to be noted that exemption from filing I-T returns are only provided to those
with taxable income below ₹2.5 lakh.
o Further, annual income cut-off is much higher than the national-level annual per
capita income, thus including a large section of the population. o Also, paucity of
data on direct income and possibility of malicious income declarations can create
additional hindrances in effective implementation.
 Tool of populism: Critics have also pointed to the political nature of the EWS quota.
The move is politically fraught with potential to aggravate social tensions. o Minority
view in recent judgement highlighted that permitting breach of 50% ceiling limit would
become a gateway for further infractions and result in compartmentalization.

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RESERVATION TO LOCALS IN PRIVATE SECTOR

A survey done by the Centre for the Study of Developing Societies (CSDS) in 2016 showed
that nearly two third of respondents were in favour that people from the state should be
given priority vis-à-vis employment opportunities.
Similar demands are being raised in other states like Andhra Pradesh, Madhya Pradesh,
Karnataka, Gujarat, Maharashtra etc. Earlier, similar 75% job reservation to locals was
given in Andhra Pradesh but the matter is sub judice and AP High Court has indicated
that it may be unconstitutional.
Examples:
 Haryana: The Haryana State Employment of Local Candidates Act, 2020, reserves 75%
of private sector jobs for locals having Haryana domicile.
 Andhra Pradesh: The Andhra Pradesh Local Employment Guarantee Act, 2019,
reserves 75% of private sector jobs for locals having Andhra Pradesh domicile.
 Jharkhand: The Jharkhand State Employment of Local Candidates Act, 2017, reserves
75% of private sector jobs for locals having Jharkhand domicile.
These laws have been challenged in court, and the Supreme Court has yet to rule on their
constitutionality. However, they have been implemented in these states, and they have
had a significant impact on the employment opportunities for certain groups.
Such moves are considered mainly to promote Inclusive Development. For example, in
Germany, every village has a factory. India could also have industries in villages and
provide jobs to the local people for an all-round development.
Demand for Reservation to locals in Private sector - For
 Perception that Central devolution is insufficient: especially in the southern states,
as they feel successive finance commissions accord a high weightage to poverty and
population vis-a-vis development thus majority share goes to the northern states. In
this context, local reservation provides them a sense of indirect economic justice.
 Extent of migration: According to some estimates drawn from 2011 Census, NSSO
surveys and Economic Survey suggests that there are a total of about 65 million inter-
state migrants, and 33 per cent of these migrants are workers. These migrants
increase the labour market competition which fuels the demand for reservation.
 Agrarian Distress: The agrarian sector is under tremendous stress across the country,
and young people are desperate to move out of the sector, hence seeking local jobs.
 Displacement of landowners: Since most of the land requirement is met by acquiring
private agricultural lands, the landowners are being displaced and deprived of their
occupation and thereby the associated loss of income generates demand for local
level jobs.
 Rising unemployment: With unemployment figures likely to rise drastically in the
backdrop of pandemic and lack of access to skills and low employability, these
demands are only going to rise in future.
 Lack of participation of all sections in the workforce: Several reports like, the State
of Working India 2018 have shown that discrimination is one of the reasons for under-
representation of Dalits and Muslims in the corporate sector. Reservation could help
these sections overcome this discrimination.
Demand for Reservation to locals in Private sector - Against
 Violative of Article 16 (Right to equal opportunity): Article 16 does not empower
the state government but rather the Parliament to provide reservation in jobs on the
basis of residence but that too is limited to public sector.

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 Violates Article 19(1)(g) of the Constitution that recognises citizens’ right to practise
any profession, or to carry on any occupation, trade or business. Article 19(2) provides
for reasonable restrictions on these, but reservations in private employment are not
covered by any of the reasonable restrictions except remotely
 Indira Sawhney vs Union of India case capped the reservation limit in public
sector jobs at 50% in 1992.
o Legal experts have said that one may then contend that the reservation limit in
private sector employment should not exceed that prescribed for public services.
 Can compromise “Fraternity” and hence unity and integrity: By promoting
regionalism it may hinder national integration.
 Dissuade private sector investment and harm the economic interests.
RESERVATION IN PRIVATE JOBS

Reservation in private jobs is a controversial topic in India. There is no constitutional
provision for reservation in private jobs, but some states have passed laws that reserve
a certain percentage of jobs in the private sector for certain groups, such as SCs, STs, and
OBCs.
For example, in Haryana, the implementation of the reservation law has led to an
increase in the number of jobs for locals. In the first year of the law's implementation,
over 2 lakh jobs were reserved for locals. This has helped to address the historical and
ongoing discrimination faced by certain groups in Haryana.
Of course, why not?
 Rolling back of the state in employment
 Private sector gets benefits from the state services
 Discrimination persists even in private sector
 Appointments not subject to fairness or values of constitution
 Most states have reserved only unskilled jobs
 Least impact on competitiveness
Bad Idea!
 Article 19(1)(g): Freedom to practice profession
 Private sector is not exapted to take the burden of “Social Justice”
 Discourages competitiveness
 Impacts merit
 Principle of hire and fire
The debate over reservation in private jobs is likely to continue for some time. The
Supreme Court's ruling on the constitutionality of these laws will be a major factor in
determining the future of reservation in the private sector in India.
9. ARTICLE-19
Article 19(1)(a) Right to Freedom of Speech and Expression: SC judgements
widening the scope of 19(1) (a):
 The right to speech implies the right to silence (P.A. Jacob vs The Superintendent Of
Police, 1992)
 Right to receive information
o "In a Government of responsibility like ours, where all the agents of the public must
be responsible for their conduct, there can be but few secrets. The people of this

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country have a right to know every public act, everything that is done in a public
way, by their public functionaries.” (U.P. Vs. Raj Narain (1975)
o No democratic Government can survive without accountability and the basic
postulate of accountability is that the people should have information about the
functioning of the Government. (S.P. Gupta Vs. Union of India)
o The Court has ruled that candidates for the Lok Sabha or State Legislative
Assemblies would have to disclose their antecedents, assets and educational
qualifications to help the electorate make the right choice. The Court has said:
“Votes cast by uninformed voters in favor of a candidate would be meaningless.”
(Union of India v. Association for Democratic Reforms, 2002)
 Freedom of expression
o It need not and ought not to be confined to expressing something in words
orally or in writing.
o The Court noted that ballot is the instrument by which the voter expresses his
choice between candidates.
o PUCL vs. Union of India Judgement 2013 directed the use of NOTA in the context
of direct elections to the Lok Sabha and the respective state assemblies.
o Even though the right to vote itself may not be a fundamental right, the expression
of opinion through the final act of casting a vote is part of the fundamental right of
freedom of speech and expression under Article 19(1) (a)
o Freedom of the press is implied from the freedom of speech and expression
guaranteed by Art. 19(1)(a)
 The freedom of press was encompassed within the contours of the ‘freedom of
speech and expression’. (Bennett coleman vs Union Of India)
 Freedom of the press involved both qualitative and quantitative dimensions
(Indian Express Newspapers vs Union Of India )
 Picketing, demonstration:
o Peaceful picketing is free speech. Non-violent acts are like words.” Picketing or
demonstration is a nonviolent act of persuasion.
o Bandhs” organised by political parties from time to time as unconstitutional being
violative of the Fundamental Rights of the people. (Bharat Kumar)
 Right to travel abroad
o State action taken in India may impair or restrict the exercise of this right elsewhere.
For example, a journalist may be prevented from sending his dispatches abroad.
The same applies by parity to Art. 19(1) (g). (Maneka Gandhi vs Union of India)
 Right to Dissent and Democracy
 Commercial advertisement having an element of trade and commerce and
promoting business has an element of trade and commerce, and it no longer falls
within the concept of freedom of speech.
FREEDOM OF PRESS (TRAI REPORT)

Challenges being faced by Indian media:
 Monopoly of Google and Facebook over news content- revenues of print media
declining
 Cross-media ownership & Monopoly, Political leaders with media.
 Significant loss of editorial freedom;
 The fake news phenomenon
 Media produces views as news, yet has emerged as powerful entity

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TRAI suggestions
 Limiting cross media ownership and monopoly
 Imposing norms of financial transparency.
 Reestablish editorial freedom
 For paid news, media houses also to be punished.
SEDITION
The Supreme Court has suspended pending criminal trials and court proceedings under
Section 124A (Sedition) of the Indian Penal Code, while allowing the Union of India to
reconsider the British-era law. Three Judge Bench held that all pending trials, appeals and
proceedings with respect to the charge framed under Section 124A of the IPC to be kept in
abeyance. However, adjudication with respect to other sections of law, if any, would proceed
if the court concerned was “of the opinion that no prejudice would be caused to the accused”.
The court also made it clear that it “hopes and expects” the Centre and States to restrain from
registering FIRs, continuing investigations or take coercive measures under Section 124A while
the “reconsideration” of the colonial provision was on. So, if new case of sedition is registered,
then the accused is at liberty to approach the Court and Court will dispose the case.
SEDITION & FREE SPEECH WORKS AT OPPOSITE ENDS

 Sedition and Free Speech operates at two ends of the spectrum but sedition can
cross the path of free speech once in a while. Once, threshold of the reasonable
restrictions are crossed by an individual, he/she enters into the unknown domain or
territory of sedition.
 This world of sedition is mostly one sided as the government holds most of the
strings of one’s life and personal liberty. So, it is important to know the grey areas
where the world of sedition begins and more often than not, it begins with the idea of
freedom of speech and expression which is also one of the fundamental right under
Article 19(1)(a).
 Free speech is one of the most significant principles of democracy - The purpose
of this freedom is to allow an individual to attain self-fulfilment, assist in discovery of
truth, strengthen the capacity of a person to take decisions and facilitate a balance
between stability and social change. The freedom of speech and expression is the first
and foremost human right, the first condition of liberty as it makes the life meaningful.
This freedom is termed as an essence of free society
SUPREME COURT JUDGMENTS ON SEDITION

 Kedar Nath Vs State of Bihar, 1962: SC held that "a citizen has a right to say or write
whatever he likes about the government, or its measures, by way of criticism or
comment, long as he does not incite people to violence"
 P. Alavi vs State of Kerala, 1982: SC held that sloganeering, criticising of Parliament
or Judicial setup did not amount to sedition.
 Balwant Singh vs State of Punjab, 1995: SC held that 'Raising some slogan ("Khalistan
Zindabad") a couple of times which neither evoked any response nor any reaction from
the public does not amount to sedition.
OBSERVATIONS OF LAW COMMISSION

 Dissent and criticism of the government are essential ingredients of a robust
public debate in a vibrant democracy. Thus, if the country is not open to positive
criticism, there lies little difference between the pre- and post-Independence eras.

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 Right to criticise one’s own history and the right to offend are rights protected
under free speech under Article 19 of the Constitution. While it is essential to
protect national integrity, it should not be misused as a tool to curb free speech.
 Every restriction on free speech and expression must be carefully scrutinised to
avoid unwarranted restrictions.
 In a democracy, singing from the same songbook is not a benchmark of patriotism.
People should be at liberty to show their affection towards their countryin their
own way.
 An expression of frustration over the situation cannot be treated as sedition. For
merely expressing a thought which is not in consonance with the policy of the
government of the day, a person should not be charged under the provision of
sedition.
 The Commission also asked whether it would be worthwhile to rename Section 124A
and find a suitable substitute for the term – sedition
ARGUMENTS IN FAVOUR OF SEDITION ARGUMENTS AGAINST SEDITION
 Used only in specific circumstances  Against democratic norms

 Application of sedition is a part of reasonable  Grossly misused by state
restriction. machinery to quell dissent
 Does not curb freedom of speech until it  Used against writers, journalists,
incites violence students who raise voice against
 Used against anti-national elements or policies of government.
actors such as Naxals, terrorists etc.  Draconian in nature
 Mere misuse of sedition law by one  It is used to gag press and freedom
government cannot be grounds for repeal of of speech and expression.
the law.  Has a chilling effect on the freedom
of speech.
CONCLUSION
 There is a need to differentiate between strong criticism of the government and
incitement of violence. Mere criticism of the government or its policies should not
amount to sedition.
 Such a dissent or criticism must be accompanied by incitement to violence or intention
or tendency to create public disorder or cause disturbance of public peace which is
against the interests of sovereignty and integrity of India or security of the state - for
invoking charges under sedition.
 Sedition should not be used by the government against such people voicing their
opinion even against the functioning of the government.
 Government must either repeal sedition or introduce amendments to fix specific
criteria for use of sedition against any citizen or organisation.
DEFAMATION
In India, defamation can both be a civil wrong and a criminal offence.
The difference between the two lies in the objects they seek to achieve.
A civil wrong tends to provide for a redressal of wrongs by awarding compensation and
a criminal law seeks to punish a wrongdoer and send a message to others not to commit
such acts.
In Indian laws, criminal defamation has been specifically defined as an offence under
the section 499 of the Indian Penal Code (IPC) whereas the civil defamation is based on

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tort law (an area of law which does not rely on statutes to define wrongs but takes from
ever-increasing body of case laws to define what would constitute a wrong).
Section 499 states defamation could be through words, spoken or intended to be
read, through signs, and also through visible representations.
These can either be published or spoken about a person with the intention of damaging
the reputation of that person, or with the knowledge or reason to believe that the
imputation will harm his reputation. Section 499 also cites exceptions. These
include “imputation of truth” which is required for the “public good” and thus has to be
published, on the public conduct of government officials, the conduct of any person
touching any public question and merits of the public performance.
Section 500 of IPC, which is on punishment for defamation, reads, “Whoever defames
another shall be punished with simple imprisonment for a term which may extend to two
years, or with fine, or with both.”
Moreover, in a criminal case, defamation has to be established beyond reasonable
doubt but in a civil defamation suit, damages can be awarded based on probabilities.
 About:
o It is an injury to the reputation of a person resulting from a statement that is
false.
o Anyone who feels he or she has been wrongly accused of something by someone
in public, through words or gestures, spoken, written, or by inference can file a
defamation suit in a court of law claiming that the accusation levelled deals a blow
to his/her reputation.
o Defamation essentially must fulfil the following requirements:
 The statement must be published (both oral and written forms publication)
 The statement must lower the estimation of the person (damaging to the
reputation of the person against whom charges have been made)
 Respective sections of IPC:
o IPC Section 499 lays down the definition of defamation and Section 500 lays down
the punishment for criminal defamation (two years’ imprisonment for a person
found guilty of defamation).
 Types of defamation:
o There are two types of defamation in India: Civil and Criminal.
 Civil defamation: Under this, a person who is defamed can move either High
Court or subordinate courts and seek damages in the form of monetary
compensation. There is no punishment in the form of a jail sentence.
 Criminal Defamation: Under this, the person against whom a defamation case
is filed might be sentenced to two years’ imprisonment or fined or both.
 Arguments against defamation law/ Concerns
o Freedom of speech and expression of media is important for a vibrant
democracy and the threat of prosecution alone is enough to suppress the truth.
Many times the influential people misuse this provision to suppress any voices
against them.
o The criminal provisions have often been used purely as a means of harassment
o The right to reputation cannot be extended to collectives such as the government,

which has the resources to set right damage to their reputations.
o It goes against the global trend of decriminalizing defamation, many countries,
including neighbouring Sri Lanka, have decriminalized defamation.
 Law of Defamation and Right to Free Speech

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The Supreme Court recently upheld the validity of the criminal defamation law.
 According to Supreme Court:
o The Reputation of an individual, constituent in Article 21 is an equally important
right as free speech.
o The criminalization of defamation to protect individual dignity and reputation is a
“reasonable restriction”.
o Editors have to take responsibility for everything they publish as it has far-reaching
consequences in an individual and country’s life.
o The acts of expression should be looked at both from the perspective of the
speaker and the place at which he speaks, the audience etc.
Freedom to Assemble: Arts. 19(1) (b) and 19(3)
Article 19(1) (b) guarantees to the citizens of India the right to assemble peaceably and
without arms.
Under Art. 19(3), however, the state can make any law imposing reasonable restrictions
on the exercise of this right in the interests of public order, and sovereignty and integrity
of India.
To some extent, there is common ground between Arts. 19(1)(a) and 19(1)(b). For
example, demonstrations, processions and meetings considered under Art. 19(1) (a) also
fall under Art. 19(1) (b) for a demonstration also amounts to an assembly and, therefore,
the same principles apply under both Articles.
The right to strike is not available under either of these Articles. Article 19(1)(b) does not
confer on any one a right to hold meetings in government premises. Therefore, Railways
can validly prohibit holding of meetings in their premises either within or outside office
hours. The right of assembly cannot be exercised on the property of somebody. Railways
are entitled to enjoy their properties in the same manner as any private individual subject
to such restrictions as may be placed on them by law or usage.
Article 19(1) (c) guarantees to the citizens of India the right to form associations or unions.
Under Art. 19(4), reasonable restrictions in the interests of public order or morality or
sovereignty and integrity of India may be imposed on this right by law.
The right to form associations is the very lifeblood of democracy. Without such a right,
political parties cannot be formed, and without such parties a democratic form of
government, especially that of the parliamentary type, cannot be run properly. Hence the
Constitution guarantees the right to form associations subject to such restrictions as can
be imposed under Art. 19(4).
The Unlawful Activities (Prevention) Act, 1967 (Act)
The UAPA is a controversial law, and there are strong arguments on both sides of the
debate about its use. However, the recent attention to the Act has highlighted the need
for a careful review of its provisions to ensure that it is used in a fair and just manner.
Here are some specific examples of recent news stories about the UAPA:
 "UAPA misused to suppress dissent, target political opponents," says Shashi Tharoor."
 "UAPA: Supreme Court issues notice on plea to invoke law against anti-Muslim hate
crimes."
"Delhi High Court denies bail to Umar Khalid in Delhi riots larger conspiracy case."
These are just a few examples of the many news stories that have been published about
the UAPA in recent times. The Act is a complex and controversial law, and it is likely to
remain in the news for some time to come.

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The Unlawful Activities (Prevention) Act, 1967 (Act) was enacted to provide for more
effective prevention of certain unlawful activities of individuals and associations, and for
dealing with terrorist activities, and related matters. Provisions of the act:
 Act defines “Unlawful activity” as “any action taken by individual or association that
leads to cession of a part of the territory of India, questions the sovereignty of India or
disrupt the integrity of India etc.
 Powers with the government: Under the Act, Central government can declare a person
or an organization as a terrorist/ terrorist organisation, if it/ he:
o commits or participates in acts of terrorism,
o prepares for terrorism,
o promotes terrorism, or
o is otherwise involved in terrorism.
 Government can impose all-India bans on associations which are declared ‘unlawful’
under the Act.
 Both Indian nationals and foreign nationals can be charged under the Act. Also, Act
holds offenders accountable in the same manner if crime is committed on foreign land
outside India.
 Investigating powers: Cases can be investigated by both State police and National
Investigation Agency (NIA).
 Appeal mechanism: It provides for tribunal to review or to hear an appeal against the
ban.
 Act allows seizure of property connected with terrorism without taking approval of
 Director General of Police in case investigation is conducted by an officer of National
Investigation Agency (NIA)
 The Government of India issued notifications under the Act on December 10, 1992,
declaring the following bodies as unlawful for two years:
o Vishwa Hindu Parishad (VHP);
o Rashtriya Swayam Sevak Sangh (RSS); Bajrang Dal;
o Islamik Sevak Sangh and Jamaat-e-Islami Hind.
Challenges
 Vague and unclear definitions: Act does not define terrorism and definition of
‘unlawful activity’ is such that it covers almost every kind of violent act be it political or
non-political.
 Excessive discretionary powers: No objective criterion has been laid for
categorization of an individual as a terrorist and the government has been provided
with “unfettered powers” to designate anyone as a terrorist.
 Challenge to fundamental rights like Article 14, 19(1) (a), 21: Act does not provide
any opportunity to the individual termed as a terrorist to justify his case before the
arrest. Those arrested under Act can be imprisoned up to 180 days without a charge
sheet being filed.
 Contrary to the principle of ‘innocent until proven guilty: Act violates mandate of
Universal Declaration of Human Rights and International Covenant on Civil and
Political Rights which recognize this principle as a universal human right.
 Low conviction rate: Only 2.2% of cases registered under the UAPA between 2016
and 2019 resulted in conviction by courts.
 Issue in the appeal process: Act provides for appeal, but government itself will set
up threemember review committee, two of whom can be serving

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Freedom of Movement and Residence: Arts. 19(1) (d), (19)(1)(e) AND 19(5)
 Article 19(1) (d) guarantees to every citizen the right to move freely throughout the
territory of India.
 Art. 19(1) (e) guarantees to a citizen the right to reside and settle in any part of India.
 According to Art. 19(5), however, the State may impose reasonable restrictions on
these rights by law in the interests of general public or for the protection of the
interests of any Scheduled Tribe.
These constitutional provisions guarantee to the Indian citizens the right to go or to
reside wherever they like within the Indian Territory. A citizen can move freely from one
State to another or from one place to another within a State. These rights underline the
concept that India is one unit so far as the citizens are concerned.
The rights of movement [Art. 19(1)(d)] and residence [Art. 19(1)(e)] go together in most
cases for when a person is asked to quit a particular place, both these rights are
simultaneously affected.
Therefore, most of the cases fall both under Arts. 19(1)(d) and (e) simultaneously, and the
same principles are followed in the matter of restrictions on any of these two rights, and
hence these are being discussed together.
Freedom to Carry on Trade and Commerce: Arts. 19(1) (g) AND 19(6)
Article 19(1) (g) guarantees to all citizens the right to practice any profession, or to carry
on any occupation, trade or business.
Under Art. 19(6), however, the state is not prevented from making a law imposing, in the
interests of the general public, reasonable restrictions on the exercise of the above right.
Nor is the state prevented from making law relating to professional or technical
qualifications necessary for practising a profession or carrying on any occupation, trade
or business; or law relating to the carrying on by the state, or by corporation owned or
controlled by it, of any trade, business, industry or service, whether to the exclusion,
complete or partial, of citizens or otherwise.
The right to carry on trade is very much regulated in India and the Courts have upheld, in
course of time, a good deal of social control over private enterprise
10. ARTICLE-21
No person shall be deprived of his life or personal liberty except according to
procedure established by law.”
The concept of personal liberty and the right to life has undergone significant evolution
in the Indian legal landscape. This part explores the pivotal cases and developments that
have shaped the interpretation of Article 21 of the Constitution of India. It delves into the
debates surrounding the interpretation of "procedure established by law" and the scope
of personal liberty. The part also examines the landmark judgments that have expanded
the understanding of Article 21, such as the R.C Cooper case and the Maneka Gandhi
case.
Furthermore, this part delves into the implications of these interpretations on criminal
jurisprudence, including the reconsideration of arrest as a necessity in all cognizable
offenses and the provision of free legal aid to indigent prisoners. It also explores the
discourse on the death penalty and its compatibility with Article 21, highlighting the
criteria established by the Supreme Court to determine the "rarest of rare" cases
warranting capital punishment.
Moreover, this part explores the widening interpretation of the right to life,
encompassing factors such as human dignity, adequate nutrition, shelter, and
educational facilities. It examines the intersection of Article 21 with international

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conventions and Directive Principles of State Policy (DPSP) to expand the scope of
personal liberties. Additionally, the part examines the evolving understanding of privacy
as a fundamental right, as well as its relationship with issues such as euthanasia and
adultery.
Lastly, this part discusses the implications of Article 21 for environmental protection, as
the Supreme Court has recognized the right to a healthy environment as an essential
aspect of the right to life. It also examines the integration of international human rights
instruments, such as the Universal Declaration of Human Rights, in interpreting and
expanding the rights guaranteed under Article 21.
Through a comprehensive analysis of significant judgments and legal developments, this
part provides insights into the dynamic interpretation and impact of Article 21 on
personal liberties and the right to life in India.
GOPALAN: 1950
‘MUTUAL EXCLUSIVITY THEORY
 The validity of the Preventive Detention Act, 1950, was challenged.
 Article 21 envisaged any procedure laid down by a law enacted by a legislature, or
whether the procedure should be fair and reasonable.
 The word 'law' was used in the sense of lex (state-made law) and not jus. The
expression 'procedure established by law' would therefore mean the procedure as laid
down in an enacted law."
On the other hand, Fazl Ali J disagreeing with the majority view, held that the principle of
natural justice that 'no one shall be condemned unheard' was part of the general law of
the land and same should accordingly be read into Article 21.
R. C COOPER CASE
Breakdown of Exclusivity & “Effect Test”
The major contribution of this case was the overruling of the ‘Mutual Exclusivity Theory’
which had been practiced for 20 years till this case happened, from A. K Gopalan Vs. State
of Madras.
The Court held that just based on technicalities; it can’t reject a petition which clearly
shows that the Fundamental Rights of the citizens are being violated. Just because a
Legislative action was also violating the Rights of the company didn’t mean that the Court
was not having the jurisdiction to protect the Rights of the shareholder of the company
as well.
The Court also struck down the ‘Object’ test and laid down the ‘Effect’ test.
The Effect test would now investigate the Effect of any legislative Act, rather than looking
at the objective with which it had been formulated. Thus, if any Act of the Legislature,
even at a remote stage, violated the Fundamental Rights of the citizens, then, it was liable
to be struck down.
MANEKA GANDHI: THE NEW APPROACH

Re-interpretation by the Court of the expression 'procedure established by law' used in
Art. 21.
The Court now gave a new orientation to this expression. Article 21 would no longer mean
that law could prescribe some semblance of procedure, however arbitrary or fanciful, to
deprive a person of his personal liberty. It now means that the procedure must satisfy
certain requisites in the sense of being fair and reasonable. The procedure "cannot be
arbitrary, unfair or unreasonable". The concept of reasonableness must be projected in
the procedure contemplated by Art. 21.

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The Court has now assumed the power to adjudge the fairness and justness of procedure
established by law to deprive a person of his personal liberty. The Court has reached this
conclusion by holding that Arts. 21, 19 and 14 are not mutually exclusive, but are inter-
linked.
IMPACT OF MANEKA GANDHI

Art. 21 which had lain dormant for nearly three decades has been brought to life by
Maneka. Art.
21 has now assumed a "highly activist magnitude. According to Bhagwati, J., Art. 21
"embodies a constitutional value of supreme importance in a democratic society." Iyer,
J., has characterized Art. 21 as "the procedural magna carta protective of life and liberty.”
The Supreme Court has described this metamorphosis of Art. 21 as follows: "Once
Gopalan was overruled in R.C. Cooper, and its principle extended to Art. 21 in Maneka
Gandhi, Art. 21 got unshackled from the restrictive meaning placed upon it in Gopalan. It
came to acquire a force and vitality hitherto unimagined. A burst of creative decisions of
this Court fast on the heels of Maneka Gandhi gave a new meaning to the Article and
expanded its content and connotation”.
Criminal Jurisprudence:
 The Court has now expressly said that arrest is not a must in all cases of cognizable
offences.
 There is little doubt that any procedure which keeps such large numbers of people
behind bars without trial so long cannot possibly be regarded as "reasonable, just and
fair"
 Free legal aid be provided by the State to poor prisoners facing a prison sentence.
 Death Sentence
“Life”
The Court has often quoted the following observation of Field, J., in Munn v. Illinois, an
American case: "By the term 'life' as here used something more is meant than mere
animal existence. The inhibition against its deprivation extends to all those limbs and
faculties by which life is enjoyed.
In P. Rathinam v. Union of India, the Supreme Court has defined 'life' as follows: "The
right to live with human dignity and the same does not connote continued drudgery. It
takes within its fold some of the fine graces of civilization which makes life worth living
and that the expanded concept of life would mean the tradition, culture and heritage of
the person concerned Widening interpretation of “The Life”
 Interpret Art. 21 along with International Conventions
 Interpret Art. 21 along with DPSP
Interpret Art. 21 along with DPSP
In Shantisar Builders v. Narayanan Khimalal Totame, the Supreme Court has
observed: "The right to life under Art. 21 would include the right of food, clothing, decent
environment and reasonable accommodation to live in. The difference between the need
of an animal and a human being for shelter has to be kept in view. For the animal, it is
the bare protection of the body, for a human being, it has to be suitable accommodation
which allows him to grow in all aspects-physical, mental and intellectual.
Olga Tellis: The right to life which is conferred by Art. 21 includes the right to livelihood
and two, that it is established that if the petitioners are evicted from their dwellings, they
will be deprived of their livelihood. But the Constitution does not put an absolute
embargo on the deprivation of life or personal liberty. By Art. 21, such deprivation has to
be according to procedure established by law.

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The Bandhua Mukti Morcha offers yet another comprehensive interpretation of the
concept of living with dignity. Characterizing Art. 21 as the heart of Fundamental Rights,
the Court gave it an expanded interpretation--"to live with human dignity, free from
exploitation. It includes protection of health and strength of workers, men and
women, and of the tender age of the children against abuse, opportunities and facilities
for children to develop in a healthy manner and in conditions of freedom and dignity,
educational facilities, just and human conditions of work and maternity relief. These are
the minimum conditions which must exist in order to enable a person to live with human
dignity. No government can take any action to deprive a person of the enjoyment of these
basic rights.
In Chameli Singh v. State of Uttar Pradesh, the Supreme Court while dealing with Art.
21 has held that the need for a decent and civilized life includes the right to food, water
and decent environment. The Court has observed in this connection.
In CERC v. Union of India, the Supreme Court has observed: "The right to life with human
dignity encompasses within its fold, some of the finer facets of human civilization which
makes life worth living. The expanded connotation of life would mean the tradition and
cultural heritage of the persons concerned.
ENVIRONMENTALISM THROUGH ARTICLE 21

Apart from several personal rights which the Supreme Court has spelt out of Art. 21, as
stated above, the Supreme Court has made a signal contribution to the welfare of the
people by using Art. 21 for the improvement of the environment.
The Supreme Court has pointed out that two salutary principles governing environment
are (i) principle of sustainable development, and (ii) precautionary principle. It was held
that Convention on Biological Diversity having been acceded to by India, the Government
should, in the absence of compelling reasons, keep in view the international obligations
while exercising its discretionary powers under Forest (Conservation) Act.
The expansive interpretation of 'life' in Art. 21 has led to the salutary development of an
environmental jurisprudence in India. Although a number of statutes have been enacted
with a view to protect environment against pollution, and an administrative machinery
has been put in place for the purpose of enforcement of these statutes, the unfortunate
fact remains that the Administration has done nothing concrete towards reducing
environmental pollution.
In this context, the Supreme Court has performed a yeoman service by taking cognizance,
in a number of cases, of various environmental problems and giving necessary directions
to the Administration. The Court has thus compelled an inactive and inert Administration
to make some movement towards reducing environmental pollution. In this way, the
Court has promoted a broad social interest. For this purpose, the Court has depended
upon such Directive Principles as those contained in Arts. 47 and 48A as well as on the
Fundamental Duty contained in Art.
51A(g) of the Constitution. The right to healthy environment is an internationally
recognized essential. For example, the Basel Convention effectuates the Fundamental
Rights guaranteed under Art. 21, the right to information and community participation
for protection of environment and human health.
 MC Mehta v. Union of India (Oleum Gas Leak Case): This case addressed the leakage
of oleum gas from a factory in Delhi, highlighting the importance of industrial safety
and the right to a clean environment.
 MC Mehta v. Union of India (Taj Trapezium Case): The focus of this case was the
protection of the Taj Mahal from pollution caused by industries in the Taj Trapezium
Zone, leading to the formulation of stringent regulations for industrial activities in the
area.

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 MC Mehta v. Union of India (Ganga Pollution Case): This case aimed to tackle the
pollution of the River Ganga (Ganges), resulting in the Court's intervention to ensure
the effective implementation of pollution control measures and the establishment of
bodies like the Central Pollution Control Board.
 MC Mehta v. Union of India (Hazardous Industries Case): This case addressed the
issue of hazardous industries operating near residential areas, leading to the closure
or relocation of such industries to prevent harm to public health and the environment.
 MC Mehta v. Union of India (Vehicular Pollution Case): This case focused on
reducing vehicular pollution in Delhi, leading to the implementation of measures such
as phasing out old vehicles, improving fuel quality, and introducing emission
standards.
 MC Mehta v. Union of India (Illegal Mining Case): This case dealt with the issue of
illegal mining and its environmental impact, leading to the suspension of mining
activities and the formulation of guidelines for sustainable mining practices.
 MC Mehta v. Union of India (Forest Conservation Case): This case emphasized the
need for forest conservation and the protection of wildlife habitats, resulting in the
banning of commercial activities in forested areas and the promotion of afforestation
efforts.
 Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh: Expanded
Article 21 to include the right to a healthy environment and recognized environmental
rights as integral to the right to life.
 Vellore Citizens Welfare Forum v. Union of India: Declared the right to a clean
environment as a fundamental right and imposed strict liability on polluting industries.
 Subhash Kumar v. State of Bihar: Recognized the right to live in a pollution-free
environment as part of the right to life and imposed restrictions on noise pollution.
These cases showcase the Supreme Court's progressive interpretation,
constitutionalizing environmental concerns, and providing a legal framework for
environmental protection.
Interpret Art. 21 along with Universal Declaration of Human Rights
Another strategy adopted by the Supreme Court with a view to expand the ambit of Art.
21, and to imply certain rights therefrom, has been to interpret Art. 21 along with
Universal Declaration of Human Rights.
 For example, in PUCL, the Court has implied the right of privacy from Art. 21 by
interpreting it in conformity with Art. 12 of the Universal Declaration on Human Rights
and Art. 17 of the International Covenant on Civil and Political Rights, 1966.
 Both of these international documents provide for the right of privacy; India is a
signatory to both and they do not go contrary to any part of Indian municipal law.
 However, the Court has been careful to point out that individuals rights cannot be
absolute in a welfare state. It has to be subservient to the rights of the public at large.
Hence financial constraints of the state have also to be considered and recognized
when demands for medical and health facilities arise in a welfare state.
 Thus, the Supreme Court has introduced a qualitative concept into Art. 21. Whatever
promotes quality of life falls within the parameters of Art. 21. The right to life connotes
not merely animal existence but includes finer graces of human dignity, culture and
civilization. The right to life with human dignity encompasses within its purview some
of the finer facets of human civilization which make life worth living. This gives a very
expansive dimension to Art. 21. To reach such a result, the Supreme Court in a display
of judicial activism has integrated Art. 21 withseveralf Directive Principles.

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This judicial approach has led to two very spectacular results within the last two
decades:
 Many Directive Principles which, as such, are not enforceable have been activated and
have become enforceable.
 The Supreme Court has implied a number of Fundamental Rights from Art. 21.
 The Supreme Court does not follow the principle that unless a right is expressly stated
as a Fundamental Right, it cannot be treated as one.
The Supreme Court has asserted that in order to treat a right as a Fundamental Right, it
is not necessary that it should be expressly stated as a Fundamental Right in the
Constitution. Political, social and economic changes occurring in the country entail the
recognition of new rights and the law in its eternal youth grows to meet the demands of
the society.
In course of time, Art. 21 has come to be regarded as the heart of Fundamental Rights.
Art. 21 has enough of positive content in it and it is not merely negative in its reach. Over
time, since. Maneka Gandhi, the Supreme Court has been able to imply, by its creative
interpretation, several Fundamental Rights out of Art. 21. This has been possible by
reading Art. 21 along with some Directive Principles. Art. 21 has thus emerged into a
multi-dimensional Fundamental Right.
PERSONAL LIBERTY
The expression 'personal liberty' used in Art. 21 has also been given a liberal
interpretation. It does
not mean merely the liberty of the body, i.e., freedom from physical restraint or freedom
from confinement within the bounds of a prison. In other words, it means not only
freedom from arrest or detention, from false imprisonment or wrongful confinement,
but means much more than that.
The term 'personal liberty' is not used in a narrow sense but has been used in Art. 21 as
a compendious term to include within it all those variety of rights of a person which go
to make up the personal liberty of a man. Liberty of an individual has to be balanced with
his duties and obligations towards his fellow citizens. The expression "personal liberty"
in Art. 21 is of the widest amplitude and it covers a variety of rights which go to constitute
the personal liberty of man and some of them have been raised to the status of distinct
Fundamental Rights and given additional protection under Art. 19.
Right to personal liberty also means the life free from encroachments unsustainable in
law. Any law interfering with personal liberty of a person must satisfy a triple test
 It must prescribe a procedure;
 The procedure must withstand the test of one or more of the Fundamental Rights
conferred under Art. 19 which may be applicable in a given situation; and
 It must also be liable to be tested with reference to Art. 14
PASSIVE EUTHANASIA
"Debates on the right to die in India have sparked discussions on euthanasia, highlighting
arguments for and against its legalization. This article explores the perspectives
surrounding euthanasia, including considerations of individual autonomy, relief from
suffering, sanctity of life, and the need for comprehensive regulations."
ARGUMENTS FOR THE RIGHT TO DIE (EUTHANASIA) IN INDIA:

 Individual Autonomy: Euthanasia allows individuals to exercise their autonomy and
make decisions regarding their own lives, including the choice to end suffering and die
with dignity.

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 Relief from Unbearable Suffering: Euthanasia provides a humane option for patients
with terminal illnesses or intractable suffering to alleviate their pain and end their lives
peacefully.
 Right to a Dignified Death: The right to life under Article 21 of the Indian Constitution
includes the right to die with dignity, as recognized by the Supreme Court. Euthanasia
upholds this right by giving individuals control over the manner and timing of their
death.
 Compassion and Mercy: Allowing euthanasia demonstrates compassion and mercy
towards patients who are enduring severe pain and have a severely diminished quality
of life.
 Regulation and Safeguards: Legalizing euthanasia with proper regulations and
safeguards can prevent misuse and ensure that it is only administered in cases where
it is genuinely requested by the patient and deemed necessary.
ARGUMENTS AGAINST THE RIGHT TO DIE (EUTHANASIA) IN INDIA:

 Sanctity of Life: The sanctity of life is a fundamental principle, and deliberately ending
a life, even to alleviate suffering, goes against the intrinsic value and sacredness of life.
 Slippery Slope: Legalizing euthanasia may lead to the potential abuse of the practice,
with the possibility of involuntary euthanasia or the devaluation of certain lives,
especially those of vulnerable individuals.
 Palliative Care Alternatives: Improving access to quality palliative care can effectively
manage pain and provide emotional support to terminally ill patients, eliminating the
need for euthanasia.
 Medical Ethics and Professional Responsibility: Healthcare professionals are bound by
ethical obligations to preserve life and provide care, and participating in euthanasia
may conflict with these principles.
 Religious and Cultural Beliefs: Many religious and cultural traditions in India
emphasize the sanctity of life and consider euthanasia morally wrong or unacceptable,
leading to concerns about violating deeply held beliefs and values.
 The topic of euthanasia is complex and multifaceted, involving ethical, legal, and
societal considerations. Public discourse and careful deliberation are crucial to reach
a consensus on whether to legalize euthanasia in India and, if so, to establish
comprehensive guidelines and safeguards to prevent potential abuses.
RIGHT TO PRIVACY
Constituent Assembly after discussing this issue decided not to put right to privacy in
constitution
 Earlier M.P. Sharma (8-judge Bench) and Kharak Singh (6-judge Bench) cases delivered
in 1954 and 1961, respectively, held that privacy is not protected under the
Constitution.
 In Maneka Gandhi vs Union of India (1978), it was held that any law interfering with
personal liberty and right of privacy must be just & not arbitrary
 The IT (information technology) Act of 2003 was silent on privacy.
RIGHT TO PRIVACY – PUTTASWAMY

 SC pronounced privacy to be a distinct and independent fundamental right under
Article 21 of the Constitution. Expansive interpretation of the right to privacy - it was
not a narrow right against physical invasion, or a derivative right under Article 21, but
one that covered the body and mind, including decisions, choices, information and
freedom.

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 It rejected the argument of the Attorney General that the right to privacy must be
forsaken in the interest of welfare entitlements provided by the state.
 Significantly, while holding that the right to privacy was not absolute in nature, the
judgment also gave an overview of the standard of judicial review that must be applied
in cases of intrusion by the State in the privacy of an individual. It held that the right to
privacy may be restricted where such invasion meets the three-fold requirement of
o Legality, which postulates the existence of law;
o Need, defined in terms of a legitimate state aim; and
o Proportionality which ensures a rational nexus between the objects and the means
adopted to achieve them.
Navtej Singh Johar and ors Vs. Union of India (UOI)
 Section 377: ‘carnal intercourse against the order of nature’, held unconstitutional.
 Joseph Shine vs. Union of India (UOI), 2018
 Decriminalized adultery (it deprives a woman of her autonomy, dignity and privacy)
 Indian Young Lawyers Association and Ors. vs. The State of Kerala
 Supreme Court upheld the right of women aged between 10 to 50 years to enter the
Sabrimala Temple.
 Forced disclosure of the menstrual status that consequently violates the right to
dignity and privacy
DEATH SENTENCE
The question of constitutional validity of death sentence has been raised before the
Supreme Court several times vis-a-vis Arts. 14, 19 and 21. It has been argued in Jagmohan
that the right to live is basic to the enjoyment of all these freedoms and, therefore,
freedom to live could not be denied by a law unless it is reasonable and in public interest.
It was further argued against the constitutional validity of awarding a death sentence that
the procedure laid down in the Criminal Procedure Code is limited only to the finding of
guilt. After the accused is found guilty of the offence of murder, no procedure is laid down
for trial of the factors and circumstances crucial for making the choice by the Judge
between awarding capital sentence or life imprisonment.
The Supreme Court again upheld the constitutional validity of the death penalty in
Rajendra Prasad v. State of Uttar Pradesh. The Court did agree with the proposition
that, as death penalty finally deprives the accused of his right to life and other
Fundamental Rights, the validity of such a punishment can be teste with reference to Arts.
14, 19 and 21.
In Machchi Singh. Vs State of Punjab, the Supreme Court has emphasized that death
penalty need not be inflicted except in the "gravest of cases of extreme culpability" and
that "life imprisonment is the rule and death sentence is an exception". The Court has
emphasized that death sentence is to be imposed only when "life imprisonment appears
to be an altogether inadequate punishment having regard to relevant circumstances of
crime, and provided, and only provided, the option to impose sentence of imprisonment
for life cannot be conscientiously exercised having regard to the nature and
circumstances of the crime and all the relevant circumstances.”
Further, the Supreme Court in Bachchan Singh has formulated broad guidelines for
determining the "rarest of rare cases" in which murderers should be awarded the death
penalty instead of life imprisonment. The judges must ask themselves two questions for
deciding whether a murder case falls in the category of "rarest of rare cases":

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 Aggravating Circumstances: Whether there is something uncommon about the

crime which renders a life imprisonment sentence inadequate and calls for a death
sentence
 Mitigating circumstances: Whether "the circumstances of the crime are such that
there is no alternative but to impose the death sentence even after according
maximum weightage to the mitigating circumstances which speak in favour of the
offender?
MERITS:
 John Locke: If someone violates another’s right to life, they forfeit their own right to
life.
o The use of the death penalty is a reasonable method of retribution because those
responsible for associated crimes ought to be punished.
o Principle of Proportionality: Justice demands that the punishment amount merited
should be proportional to the seriousness of the offence.
 Proponents of the death sentence argue that it serves society better because it has a
brutalising effect and significantly deters crime.
 Cpaital punishment helps police in plea bargaining
DEMERITS:
 Being irreversible in nature death sentence is opposed by UN
 There is no empirical evidence that the death penalty serves as a greater deterrent
than less severe punishments like life in prison.
 When law and order are viewed from the perspective of retributive justice, the
restorative and rehabilitative parts of justice are marginalised.
 Media/Public sentiments often dictates the trials.
 Other issues
o Lack of concrete framework on aggravating and mitigating factors
o Lack of procedural fairness due to the discretion in the interpretation of “Rarest of

the rare”
11. RIGHT TO FREEDOM OF RELIGION

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 Preamble - Secular
 Equality
o 14 - The State shall not deny to any person
o 15 (1) - Prohibition of discrimination on grounds of religion, race, caste, sex or place

of birth.
 Right to freedom
o 25 - Freedom of conscience and free profession, practice and propagation of
religion. (Between individual and state)
o 26 - Freedom to manage religious affairs - (state and religion)
o 27 - Freedom as to payment of taxes for promotion of any particular religion.
o 28 - Freedom as to attendance at religious instruction or religious worship in certain

educational institutions.—
 Cultural and Educational Rights
o 29 - Protection of interests of minorities

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o 30 - Right of minorities to establish and administer educational institutions.
Pratap Bhanu Mehta has criticized the Indian model. In theory it appears rational but in
practice it gives scope for plausibility. Indian secularism is a balancing act. It legitimizes
vote bank politics. Congress used to model to placate one group or the other at different
times. Flirting with all religions, is no longer viable. Principled distance is misleading. It is
casting secularism in a mould to hide communalism. It keeps all communities insecure at
all times.
12. UNIFORM CIVIL CODE (UCC)

Uniform Civil Code (UCC) is a European concept of 17th century. It is linked to the
process of modernization and secularization in the west. The experience of 30 year war
forced these countries to roll back the religion and to establish solidarity on the basis of
secular nationalism. European nation states accepted the principle of ‘sovereignty of the
state’, rejecting the sword of the church. Hence state became the supreme institution to
determine law. There has been no limitations on the power of law-making by the state.
To quote Hobbes ‘Liberty is where law is silent’. Freedom to conduct the life according to
its own way was dependent on the will of sovereign. Hence in these countries, even the
laws governing family, marriage, divorce, in heritance, so called personal laws came
within the scope of legal sovereignty of the state. In these countries, religious freedom
means freedom of conscience. (John Locke). It does not involve freedom to practice,
profess and propagate religion. Thus European model of secularism, based on religious
neutrality led to the UCC.
Uniform Civil Code symbolizes power of state to make personal laws. (Principle of
legal sovereignty). UCC does not necessarily mean common code for all communities. It
is up to the state as to what type of reforms state aims to make with respect to personal
laws. Why it is called uniform? When state makes personal laws, some sort of uniformity
automatically comes. Why? State /government can make laws only in accordance to the
constitutional principles. Hence all laws are brought to align with the constitutional
principles. Hence they start looking uniform or overlapping.
The basic question is not whether all communities to be governed by same personal laws
or a single code, the basic question is whether Indian state can ‘constitutionally’
intervene in personal laws.
WHY CONFUSION EMERGES?

The conflicting provisions in the constitution itself. Indian constitution is not based don a
single ideology, rather incorporates multiple ideologies at the same time. Within the
chapter of fundamental rights both – Individual basis of rights and community based
rights are guaranteed. On one hand there is a idea of universal citizenship, oh the other
hand, differentiated citizenship, based on multiculturalism exists.
Art 14,15 guarantees equality in the eyes of state. Prohibits state from discriminating
among citizens not only on the basis of sex but also religion.
On the other hand Art 29,30 guarantees community based rights. The real problem
arises because in Art 25, besides freedom of conscience, the freedom to practice
religion is also guaranteed.
Personal laws comes under ‘freedom to practice religion’. It is also to be noted that ‘right
to religion’ under Art 25, is also not absolute. It is subjected to public order, decency and
morality. Hence this creates scope for State’s intervention in religious practices.
The UCC calls for formulation of one law to be made applicable to all religious
communities in matters such as marriage, divorce, inheritance, and adoption. It is
intended to replace the system of fragmented personal laws, which currently governs

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interpersonal relationships and related matters within different religious communities.

DPSP under Article 44 provides that State shall endeavour to secure for all citizens a UCC
throughout the territory of India.
FAVOUR:
 Simplify laws that are segregated at present based on religious beliefs. Same civil
law will then be applicable to all citizens irrespective of their faith.
 Many judicial pronouncements (including Mohd. Ahmed Khan v. Shah Bano Begum,
1985 and Sarla Mudgal v Union of India, 1995) of higher judiciary have favoured UCC
in some or the other forms. Parliament may make a law to make these judicial
pronouncements enforceable.
 Gender Justice: Mostly the religious or customary personal laws are biased in favour
of men. Religion and personal law are different avenues: In S.R. Bommai v. Union
of India, the Apex court upheld that religion is the matter of individual faith and cannot
be mixed with secular activities. Secular activities can be regulated by the State by
enacting a law.
 Promote national integration: Different laws for different religious groups breed
communalism. Single, secular law governing various aspects of personal matters
would arouse a sense of oneness and the national spirit.
AGAINST:
 Indian laws do follow a uniform code in most civil matters like Indian Contract Act,
Code of Civil Procedure, Sale of Goods Act, etc. There is diversity even under these
secular civil laws.
 “personal laws” are mentioned in the Concurrent List. Also, if the framers of the
Constitution had intended to have a UCC, they would have given exclusive jurisdiction
to Parliament in respect of personal laws, by including this subject in the Union List.
 Against the diversity of the country: There has been skepticism whether there could
ever be uniformity of personal laws in a democratic and diverse country like India.
 Lack of national consensus: UCC still is a politically sensitive issue. There are still
many organisations who advocate rights of minorities as well as many religious clerics
oppose UCC
OPINION OF LAW COMMISSION ON GOVERNMENTS REFERENCE

Since there is an absence of consensus, UCC is not possible and desirable in present
situations. Issue of UCC is vast, its potential repercussions remain untested. Change
should be done in a manner which can protect and preserve the diversity, plurality which
forms socio-cultural fabric of the nation. The first step will be the codification of the laws.
 First we should try to achieve equality between men and women within a community
rather than between communities.
 Codification should be done in a manner which preserves the differences which are
meaningful.
 Discriminatory practices to be taken out.
 Absolute uniformity is not needed.
 Follow piecemeal approach.
 It is wrong to put Muslim women to make a hard choice between right to equality and
freedom to practice faith.
 By giving the example of Special Marriage Act, law commission held that codification
of laws are themselves not the guarantee of justice. Law should not contain loopholes.

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 Freedom of religion has to be protected but evils should not take refuge in the name
of social customs. Human rights is a touchstone. If practices violate human dignity,
even when they are essential practices, they cannot be allowed.
13. ESSENTIAL RELIGIOUS PRACTICE (ERP)

The essential practices doctrine owes its existence to a speech made by B.R. Ambedkar
in the Constituent Assembly. “The religious conceptions in this country are so vast that
they cover every aspect of life, from birth to death,” he said. “…I do not think it is possible
to accept a position of that sort… we ought to strive hereafter to limit the definition of
religion in such a manner that we shall not extend beyond beliefs and such rituals as may
be connected with ceremonials which are essentially religious. It is not necessary that…
laws relating to tenancy or laws relating to succession, should be governed by religion.”
Ambedkar was striving to distinguish the religious from the secular, by arguing that the
state should be allowed to intervene in matters that are connected to religion but are not
intrinsically religious.
Over the years, the Supreme Court (SC) has evolved a practical test of sorts to determine
what religious practises can be constitutionally protected and what can be ignored.
In 1954, the SC held in the Shirur Mutt case that the term “religion” will cover all rituals
and practises “integral” to a religion. The test to determine what is integral is termed
the “essential religious practises” test.
The intent of the Supreme Court up until this point was to draw a line between religious
and secular. In other words, the test was not meant to distinguish between practices that
were essential to a religion and those that were not. It was meant to distinguish between
practices that were essentially religious and those that were secular. The latter practices
could be restricted through law, but the former couldn’t.
However, ‘essentially religious’ slowly turned into the ‘essential religious practice test’ with
the Allahabad High Court ruling in 1957 that bigamy cannot be considered an integral
part of the Hindu religion. In 2004, the Supreme Court ruled that Tandava dance was not
an essential rite of the Ananda Marga Faith.
In 2016, the Bombay High Court permitted women to enter the sanctum sanctorum of
the Haji Ali Dargah. In its judgment, the court ruled that the Trust had failed to place any
material on record to demonstrate that the exclusion of women from dargahs was an
“essential feature” of Islam.
More recently, in 2017, the Supreme Court ruled that triple talaq was not an essential
practice of Islam and could not be offered constitutional protection under Article
25.
A year later in 2018, the Supreme Court in the Sabarimala case rejected the claim
of ‘Ayyappans’ (pilgrims) that the exclusion of women between the age of 10 and 50
from entering the temple constituted an essential practice. A review petition against this
decision is, however, pending in the Supreme Court.
Supreme Court's intervention
 Hadiya Case - freedom to choose religion and life partner - central to Indian pluralism
 Entry of women - Haji Ali, Shani - shingnapur, sabrimala (10-50 yrs)
o Sabrimala: Indian Young Lawyers Association case
 Upheld Hindu Marriage Act for inter caste marriage

 Tripple Talaq - null and void
 Parsi women. married outside community allowed to participate ritual inside fire
temple

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 Banned female genital mutilation in Dawoodi - Bohra sect

Benefits of Essential Religious Practice doctrine
 It has ensured balance between fundamental rights. For example, in Sabrimala case,
SC attempted to strike a balance between the two fundamental rights of the right to
equality and the right to freedom of religion.
 In has ensured social justice during the practice of Right to freedom of religion.
 It ensured that constitutional morality gains primacy over religious morality to give
freedom to people in a multicultural society, example SC struck down section 377.
 It ensured that there will be primacy of rule of law rather than rule of religion. It helps
in eliminating the possibility of conflict between different sections of society.
 The doctrine protects the essential practices of religion from interference of state.
The negative effects of Essential Religious Practice doctrine
 First, it has allowed the Court to narrow the extent of safeguards available to
religious customs by directly impinging on the autonomy of groups to decide for
themselves what they deem valuable, violating, in the process, their right to ethical
independence.
 Second, it has also negated legislation that might otherwise enhance the cause
of social justice by holding that such laws cannot under any circumstances encroach
on matters integral to the practice of a religion.
o For example, in 1962, the Court struck down a Bombay law that prohibited
excommunications made by the Dai of the Dawoodi Bohra community when it held
that the power to excommunicate is an essential facet of faith and that any measure
aimed at social welfare cannot reform a religion out of its existence.
 what constitutes an essential practice shall be decided by the judges or
members of the community? The doctrine lead the court into an area that is beyond
its competence.
 There is no fixed parameter for deciding the essential practices, in some cases
they have relied on religious texts to determine essentiality, in others on the empirical
behaviour of followers, and in yet others, based on whether the practice existed at the
time the religion originated.
DPSP
DPSP denotes the ideals which should be kept in mind while formulating policies and
enacting laws Instructions to legislature and executive Comprehensive Socio-economic
and political program
Non Justiciable in Nature
Article 37 is fundamental for the governance of the country.
Helps the court in determining and examining the constitutional validity of laws
About
1. Part 4
2. Articles- 36-51
3. Borrowed from Irish constitution which took it from Spanish Constitution, ideas of
French, American revolution, thinking of Indian nationalists like Gandhi
4. Along with FR, these are soul/philosophy of the constitution
5. They were not justiciable

INDIAN CONSTITUTION
Features
1. instructions to legislature, executive and administrator
2. establish welfare state- economic and social democracy
3. non-justiciable but fundamental in governance (art 37)
4. DPSP are used to interpret the laws, if law fulfills principle of DPSP and violate FR, it
may be considered reasonable
WHY DPSP ARE NON-JUSTICIABLE?

 India didn’t posses financial resources
 Vast diversity and backwardness
 Could have been over burdened with too many preoccupations.
Alladi K.S Ayer: No responsible govt. can afford to ignore part IV.
Dr Ambedkar: If government ignores them, it will certainly have to answer for that before
electorate at election time.
In constituent assembly, there were some members who were dissatisfied with the non-
enforceable nature of part 4. Since we did not have enough resources, if social and
economic rights had been made automatically enforceable, it would have created
constitutional crisis. Ambedkar assured that there will be political sanctions. It means no
govt. can overlook these rights.
Ideally there should not be non-enforceable features in the constitution which is the
supreme law of the land. Hence all features of the constitution should be enforceable.
Hence it is a rare feature.
In order to ensure that all parts of the constitution remain relevant, Judiciary goes for the
application of doctrine of ‘harmonious construction’.
Socialist:
1. welfare state, democratic socialism, social and economic justice
2. deals with health, wages, children, workers
3. Art 38, 39, 39A, 41, 42, 43, 43A, 47
Gandhian
1. reconstruction programme
2. Decentralization- Art 40
3. Village panchayat, cooperatives- Art 40, 43, 43B
4. Promote educational and economic interest of SCs, STs, Weaker sections of society-
Art 46
5. Prohibit consumption of drugs, liquor Art 47
6. Prohibit slaughter of cows, calves, milch cattle- Art 48
Liberal-intellectual
1. Principle of liberalism
2. Art44- UCC
3. Childhood care- Art 45
4. Organize agriculture and animal husbandry on scientific lines- Art 48
5. forest, environment, wildlife- Art 48A protect monuments, places of national
importance- Art 49
6. Separate judiciary from executive- Art 50

INDIAN CONSTITUTION
7. Promote international peace, security, maintain just and honourable relations with
nations; foster respect for international law and treaty obligation, encourage
settlement of international dispute by arbitration- Art 51
Amendments:
1. 42nd Amendment, 1976: 39, 39A, 43A, 48A
2. 44th Amendment 1978 : Art 38
3. 86th Amendment 2002: Art 45 was made FR and subject matter of it was changed
4. 97th Amendment 2011: Co-operative society- 43B
CRITICISMS OF DPSP
 Lack of legal force: Non justiciable
o K T Shah: Pious superfluities
o A check on bank payable when resources of the bank permit.
o Nasiruddin: No better than new year resolutions
o T Krishnamachari: A veritable dustbin of sentiments
o K C Wheare: A manifesto of aims and ambitions.
o Ivor Jennings: pious aspirations
 Illogically arranged (No Consistent Philosophy)

o N Srinivas: Neither properly classified Nor properly arranged.
o Sir Ivor Jennings: DPSP have no consistent philosophy.
 Conservative:
o Sir Ivor Jennings:
 The Ghosts of Sydny Webb and beatrice webb talks in these pages of text.
 Expresses Fabian Socialism without socialism
 Even questioned the suitability of this part in 21st century India
 Constitutional Conflict
o K Santhanam: Have led to conflict between ;
 To fulfill DPSP, there can be constitutional crisis between Centre and State,
President and PM and governor and CM
 There can be conflict on whether DPSP or FR have to be given primacy
o It limits the choice of future governments with respect to the formulation of policies.
o It undermines federalism. (some of the DPSPs contains subjects in state list).
So, what is the utility of DPSP?

 LM Singhvi: These are life giving provisions of constitution.
 MC Chagla: If all these are implemented, India would be a heaven on earth.
 DR B R Ambedkar: they lay down the goal of Indian Polity and Indian Economy.
 Granville Austin: They aim at furthering the goals of social revolution.
 BN RAU: They are moral precepts for authorities of state nd have educative value.
Role:
 They remind basic principles of socio, economic order.
 Act as beacon to courts.
 Forms background for state actions.
 Amplifies the preamble and commitments
 Facilitate stability and continuity in domestic and foreign policy

INDIAN CONSTITUTION
 Supplementary to FR's
 Political democracy without economic democracy.
 Crucial test for the performance of the govt.
 Common political manifesto to parties.
What is the conflict between FR and DPSP
 Champakam Dorairajan case 1951
o FR are supreme to DPSP, but FR can be amended
 Parliament made 1st, 4th and 17th Amendment in 1951, 1955 and 1964 to implement
some directives.
 Golaknath Case 1967 FR can't be amended for implementation of DPSP
 Parliament made 24th and 25th Amendment Act in 1971
o 24th: Parliament can amend FR
o 25th: added Art 31C no law which seeks to implement DPSP in Article 39(b) (c) shall
be void on the ground of contravention of FR by Art 14, 19 and 31
 Keshvananda Bharti 1973
o 25th Amendment is valid but laws can be questioned in court since JR is basic
structure
 42nd Amendment-
o for any DPSP, not just (b)(c) of 39, FR can be amended
 Minerva Mills case

o Declared unconstitutional in 1980 Minerva Mills
Relationship between Fundamental Rights and Directive Principles.

Initially there was lack of clarity because of the contradiction between the two parts. 1st
contradiction – Fundamental rights enforceable, directive principles non-
enforceable. 2nd contradiction – Fundamental rights based on liberalism, directive
principles on socialism.
The legal battle and the conflict between the legislature and judiciary. Over a period of
time, the clarity has come that they are not contradictory but complementary. There is a
need for harmonious construction. Political democracy without social and economic is a
contradiction. Directive principles were not given immediate effect not because they
were not important but because country lacked resources, if given the status of
enforceable rights and govt. unable to enforce it, it would create constitutional crisis. In
Nehru Report 1928 as well as in Constituent assembly, they were introduced as
integrated scheme, but later on separated.
The Role of Directive Principles in Judicial Interpretation: A Balanced Approach
Introduction: The invocation of Directive Principles of State Policy (DPSPs) by the Indian
Supreme Court has become increasingly common in its decisions. However, it is crucial
to exercise judicial discipline and avoid interpreting DPSPs to mean everything, as it
would render them meaningless. This article aims to establish a conceptual foundation
for DPSPs, using constitutional text, history, precedent, and philosophy. By offering a
faithful description of existing practice and providing prescriptive recommendations, this
article seeks to strike a balance between the role of DPSPs in constitutional interpretation
and the need for judicial restraint.
Three Distinct Roles of Directive Principles: The article argues that DPSPs serve three
distinct roles in judicial interpretation. First, legislation enacted in furtherance of DPSPs
meets the "public interest" threshold in a fundamental rights challenge. However, the
reasonableness of such legislation must still be examined, rather than solely relying on

INDIAN CONSTITUTION
DPSPs. Secondly, if legislation can be interpreted in multiple ways, the meaning that
aligns closely with DPSPs should be preferred. However, the Court has yet to clarify the
standard for this interpretation. Lastly, DPSPs play a crucial role in structuring the specific
manifestations of abstract concepts in the fundamental rights chapter. This aligns with
the Court's dictum that fundamental rights should be interpreted in light of DPSPs,
establishing a clear role for DPSPs in constitutional analysis.
Limits of the Role of DPSPs: There are two limits to the role of DPSPs. First, the Court
cannot strike down legislation solely for non-compliance with DPSPs. Second, the Court
should not incorporate DPSPs to a degree that requires it to exceed its designated role
under classical separation of powers theory. While the Court has taken on a broader
policymaking role in some cases, it should exercise caution to maintain a balance
between interpretation and policy choices.
A Balanced and Faithful Approach: The suggested approach, though complex, is both
intellectually defensible and faithful to the Constitution. It safeguards against judicial
overreach, which has affected Articles 14 and 21, and ensures a measured application of
DPSPs to prevent indiscriminate usage. Time will tell if the Court follows this path and
maintains a balanced approach in its interpretation of DPSPs.
Conclusion: Incorporating Directive Principles of State Policy in judicial interpretation
requires a careful and balanced approach. By clarifying the distinct roles of DPSPs, setting
limits on judicial intervention, and maintaining fidelity to the Constitution, a nuanced
understanding of DPSPs can be achieved. This approach safeguards against judicial drift
and provides a framework for upholding the ideals of DPSPs while respecting the
separation of powers. Only through thoughtful application and adherence to
constitutional principles can the Court ensure a harmonious coexistence between
fundamental rights and socioeconomic goals outlined in DPSPs.

2
Chapter FEDERALISM
1. Federalism
2. Article-3 and Indian Federalism
3. Interstate River Water Dispute
4. Delhi's Statehood
5. Asymmetric Federalism in India
6. Cooperative federalism
7. Fiscal Federalism
8. 6th Schedule
9. Scheduled Areas under Fifth Schedule
10. Panchayats (Extension to Scheduled Areas) Act, 1996
11. One nation, One Language
12. Inter state Boundary Disputes
13. Inter-state Council
1. FEDERALISM
UNITARY GOVERNMENT FEDERAL GOVERNMENT CONFEDERAL SYSTEM
A unitary country has a A federal form of government In a confederal system,

single or multi-tiered has a multi-layered structure, the general government
government in which with all orders of government serves as the agent of the
effective control of all having some independent as member units, usually
government functions rests well as shared responsibilities without independent
with the central government. of decision-making. taxing and spending
The city-states of Singapore Federalism represents either powers.
and Monaco are single- a “coming together” or a The United Nations, the
tiered unitary governments. “holding together” of European Union, and the
constituent geographic units. Commonwealth of
The People’s Republic of
China, Egypt, France, “Coming together” has been Independent States (CIS),
Indonesia, Italy, Japan, the guiding framework for which now consists of 11
Korea, New Zealand, mature federations such as of the former republics of
Norway, the Philippines, the United States, Canada, the Union of Soviet
Portugal, Sweden, Turkey, and, more recently, the Socialist Republics
and the United Kingdom European Union. (USSR), approximate the
have multi-tiered The “holding together” view of confederal form of
governments based on federalism, also called “new government.
unitary constitutions. federalism”, represents an A confederal system suits
attempt to decentralise communities that are
responsibilities to state-local internally homogeneous
orders of government to but, as a group, are
overcome regional and local

FEDERALISM
discontent with central completely

policies. This view is the heterogeneous.
driving force behind the
current interest in principles
of federalism in unitary
countries and in relatively
newer federations such as
Brazil and India and emerging
federations such as Iraq,
Spain and South Africa.
2. ARTICLE-3 AND INDIAN FEDERALISM

Political scientist Alfred Stepan, categorised India as a “holding together” as opposed to a
“coming together” federation. Unlike the federal form of government in the United States,
which is described as an indestructible union composed of indestructible states, India is
described as an indestructible union of destructible states. The Indian federation has
seen multiple transformations since 1947. This is because Article 3 of the Constitution
empowers Parliament to create new states. While such a provision can be seen as giving
too much power to the union, it has arguably been central in holding India together since
it allows the federation to evolve, respond and change according to subnational
aspirations.
Initially, in 1950, the Constitution contained a four-fold classification of the states of the
Indian union, into Parts A, B, C, and D. With the States Reorganisation Act (1956),
the distinction between Part A and Part B states was done away with, while Part C and
Part D states were abolished. Currently, India now has 28 states and 9 union territories.
LARGE STATE Vs SMALL STATE

The idea of smaller states refers to the division or reorganization of existing larger states
into smaller administrative units.
This concept has its own set of proponents who argue for its benefits. Here are
some arguments in favor of smaller states:
 Fulfills Political Aspirations: Creating smaller states can fulfill the political aspirations
of certain regions or communities. It allows for more localized governance and
representation, giving people a greater sense of ownership and control over their own
affairs. This can lead to better participation and inclusivity in the political process.
 Administrative Efficiency: Smaller states often result in more efficient administration
and governance. Smaller administrative units can be more responsive to the specific
needs and challenges of the region, leading to better delivery of public services and
development initiatives. It can also reduce bureaucratic red tape and improve the
speed of decision-making processes.
 Resolution of Identity Crises: In multi-ethnic or culturally diverse countries, the
creation of smaller states can help resolve identity crises. It allows distinct linguistic,
cultural, or ethnic groups to have their own separate administrative units, promoting
cultural preservation, and fostering a sense of pride and identity among the people.
 Resolution of "Internal Colonization": In some cases, certain regions within larger
states may feel marginalized or neglected in terms of development, resources, and
political representation. The creation of smaller states can address these concerns by
giving such regions greater autonomy and control over their resources, leading to
balanced development and reducing the sense of internal colonization.

FEDERALISM
 Security Threats: Smaller states can potentially have an advantage in effectively

addressing security threats. With a smaller geographical area and population, it may
be easier to ensure law and order, manage border security, and respond swiftly to
internal security challenges. Smaller states can focus their resources and efforts on
protecting their specific territories and populations.
 It is important to note that the creation of smaller states is a complex and sensitive
issue that requires careful consideration of various factors, including the economic
viability, social cohesion, and long-term implications. It is necessary to strike a balance
between decentralization and maintaining national unity and integration. Each case
should be evaluated on its own merits, considering the specific context and aspirations
of the people involved.
ARGUMENTS AGAINST SMALLER STATES

While there are proponents of creating smaller states, there are also valid arguments
against this idea. Here are some points raised by those who oppose the creation of
smaller states:
 No Direct Relation between Size and Good Governance: The size of a state does
not necessarily determine its ability to govern effectively. Examples such as Tamil
Nadu, despite being a large state, have demonstrated good governance. On the other
hand, smaller states like Jharkhand and Chhattisgarh have faced challenges in
achieving good governance.
 No Direct Relation between Size and Development: The development of a state is
not solely determined by its size. States like Punjab and Maharashtra, despite being
large, have shown significant development. In contrast, the development trajectory of
smaller states like Chhattisgarh may be unsustainable, relying heavily on limited
resources such as mining.
 Increased Expenditure: Creating new states involves setting up new ministries,
establishing infrastructure for government institutions, and additional administrative
expenses. This can result in unnecessary expenditure, particularly if the economic
viability of the new states is questionable.
 Interstate Disputes: With more states, there is a potential for an increase in interstate
disputes over resources, borders, or water-sharing. Resolving these disputes can
further strain the administrative and legal systems.
 Political Instability: Smaller states may face challenges in maintaining political
stability. Instances of defection and political upheaval, as seen in Goa, can disrupt
governance and hinder the implementation of long-term policies and development
plans.
 Economic Viability: The economic viability of some proposed smaller states may be
questionable, as they may heavily rely on financial grants from the central
government, similar to union territories. This can lead to a dependency on external
sources for sustenance.
 Impact on Mother State: The creation of smaller states can have repercussions on
the mother state from which they are carved out. It may lead to a loss of resources,
revenue, or cultural and historical ties, affecting the overall development and cohesion
of the larger state.
 Strategic Concerns and International Relations: Some demands for smaller states,
such as Gorkhaland in India, may raise strategic concerns and international
implications. It can give credence to allegations by neighboring countries of territorial
disputes or historical grievances.

FEDERALISM
WAY FORWARD
 Strengthening Local Governance: The introduction of the 73rd amendment to the
Constitution, which empowers local self-governance through Panchayati Raj
institutions, suggests that the focus should be on strengthening grassroots
governance rather than creating smaller states.
 Emphasis on E-Governance: The use of information and communication technology,
such as e-governance, can bridge the gap between the government and citizens. It can
facilitate the delivery of services and ensure effective governance without the need for
territorial reorganization.
These arguments caution against the potential drawbacks and challenges associated with
the creation of smaller states, emphasizing the need for careful evaluation and
considering alternative approaches to governance and development. This does not mean
that no demand for smaller states to be accepted. Wherever there is a genuine aspiration
of the people, the demand can be considered. However, it should not be purely political.
3. INTERSTATE RIVER WATER DISPUTE

INDIA has twenty-five major river basins running through the nation, with as many as 103
sub-basins. Many of these rivers traverse more than one State, leading to conflicts
between States regarding the use and distribution of water,for industrial and
agrarian uses and for consumption. The resolution of inter-State river water disputes,
consequently, is vital to the functioning of India as a federal State.
For the same reason, the resolution of inter-State river water disputes, and the processes
and institutions that guide such resolution, are the site of continued and intense
conflict and contestation.
This conflict plays out in politics, and the contestation manifests itself in extensive judicial
debate. This is, in part, due to a complex set of constitutional provisions that lay
competing claims on how and where inter State river water disputes are resolved.
WATER DISPUTES AND THE CONSTITUTIONAL FRAMEWORK

 Article 262 and the Vesting of Power in Parliament
a. The resolution of federal disputes—that is, disputes between States, or between
States and the Union—is constitutionally conducted through the judiciary.
b. Article 131 of the Constitution vests the Supreme Court with such jurisdiction ‘in so
far as the dispute involves any question (whether of law or fact) on which the
existence or extent of a legal right depends’. An exclusion, however, was carved out
for inter-State river water disputes, under Article 262 allowing Parliament to decide
the forum and manner of resolution.
 Inter-State Rivers in a Federal Nation
o Schedule VII of the Indian Constitution differentiates between regulation of inter-
State rivers (vested in the Union Parliament, in List I, Item 56) and the use of
water, irrigation, and canals, generally (vested in States, in List II, Item 17).
o A declaration by Parliament relating to the regulation and development of inter-
State rivers would denude the States of their legislative field in Entry 17 of List
II.
Traditional justifications for vesting the control of inter-State rivers in the Union have
revolved around the claim that Parliament controls matters of national interest, while
States control matters of local interest.
The consumptive use of river water, on the one hand, as Seervai has noted, is
fundamentally local in nature. At the same time, in current times where the use of
water is in multiple forms, and

FEDERALISM
with the increasing emphasis on delocalisation of agricultural practices, the national

significance of the use of water cannot be minimised. Unlike land and mineral resources,
however, inter-State rivers are not static, and the use of water from inter-State rivers
inevitably affects the use of such water in other States through which the river flows.
Constitutional Design: Political Negotiation or Adjudication
The Constituent Assembly of India was faced with the choice of political versus
adjudicatory resolution of disputes of distribution of waters of inter State rivers.
In independent India, the political consequences of such decisions upon democratically
elected governments at the Union and the States made it imperative to create a process
that would leave space for consensual resolution as well as, where necessary,
adjudication by a judicial or quasijudicial forum. It clearly could not be left solely to
the Union of India to mediate in such differences. Current events bear testimony to the
reluctance of the political executive of the Union to intervene in—much less take
proactive steps to resolve—disputes relating to inter-State river waters
PARLIAMENT’S ROLE: THE INTER-STATE RIVER WATER DISPUTES ACT

 The River Boards Act
o In 1956, the Parliament of India enacted two legislation dealing with the subject of
inter-State river waters. The first of these was the River Boards Act 1956, which was
enacted with the declaration that the Union government should take under its
control the regulation and development of inter-State rivers and river valleys in the
public interest.
 The Inter-State River Water Disputes Act
o The second legislation enacted by Parliament—the IRWDA 1956—was an Act to
provide for the adjudication of disputes relating to waters of inter State rivers and
river valleys. Unlike the River Boards Act, this law has been used frequently, and has
led to considerable litigation.
The significant features of the IRWDA are:
 it defines ‘water disputes’;
 it excludes such disputes from the jurisdiction of the Supreme Court;
 it confers a power upon the Union government to constitute tribunals to resolve such
disputes.
When a dispute has occurred, or, in the opinion of a State Government, is likely to occur,
the State makes a request to the Union government to refer the dispute to a tribunal.14
It is only when the Union government is of the opinion that water disputes cannot be
settled by negotiations, that it shall within one year from the receipt of such request
constitute a Water Disputes Tribunal.
Upon the constitution of a tribunal, the water dispute is referred to it for adjudication.
The tribunal submits its report to the Union government setting out the facts as found by
it, and more significantly, ‘giving its decision on the matters referred to it’.16 Section 6 of
the Act mandates that the Union government shall publish the decision of the tribunal in
the Official Gazette and the decision shall be final and binding on the parties to the
dispute.
INTER-STATE RIVER DISPUTE RESOLUTION: CONCERNS AND

DIFFICULTIES
 The Principles of Inter-State River Water Dispute Resolution
o The IRWDA gives no indication of the principles that have to be applied by the
tribunal in deciding water disputes.
 The Bar Against the Supreme Court’s Jurisdiction

FEDERALISM
o On the one hand, the Court has rightly held that only States may raise ‘water
disputes’, but in doing so it has had to reconcile this with the issue of
enforcement of the fundamental right to water. Despite this, in certain specific
circumstances, the Court would have the jurisdiction to intervene.
 Water Disputes’ and the Jurisdiction of the Supreme Court relief sought were not
‘related to the use, distribution or control of the water.
 Locus Standi and Water Disputes instances of private groups filing petitions.
 Experience has shown that the tribunals have not proved to be the most efficacious
forums for dispute resolution. The way in which the governments (Union as well as of
the States) treat tribunals has shown that this machinery has failed to command the
respect it deserves as a constitutional forum. The Supreme Court, armed with the
power to punish for contempt, is able to deal with States in a manner far more effective
than tribunals—especially in respect of matters that have political overtones.
o Post-Award Litigation
 APEALS AGAINST AWARDS: Article 136 grants the Supreme Court the power to
hear appeals by special leave ‘from any judgment, decree, determination, sentence
or order in any cause or matter passed or made by any court or tribunal in the territory
of India’. The observations of the Supreme Court in State of Tamil Nadu v State of
Karnataka would suggest that the Supreme Court could examine constitutional or
legal issues that may arise out of an award under article 136.
 ENFORCEMENT AND IMPLEMENTATION: The Supreme Court, in reconciling Article
131 with Article 262, held that the enforcement of award of a tribunal in relation to
‘adjudicated disputes’ does not raise a water dispute, and a suit for that purpose would
be maintainable.

FEDERALISM
 Delays in Resolving Disputes:

o Delays in resolving inter-State river water disputes are a matter of grave concern.
o Much of the delay arises at the stage of constitution of a tribunal. ‘the Union
government is of opinion that the water dispute cannot be settled by negotiations.
 The 2002 amendment provided that the Union government shall, within a period
not exceeding one year from the date of receipt of the request, constitute the
tribunal.
o Publication of Awards: Section 6 of the Act requires the Union government to
publish the decision of the tribunal in the Official Gazette. It is only upon publication
that the award becomes final and binding.
In contemporary partisan politics, no Chief Minister or the party in power in a State would
agree to give up its claim to a share of water, in favour of a neighbouring State, for fear
of the political backlash of such a decision, however reasonable a proposal may be from
the national perspective. The decades that have followed the enactment of the IRWDA
have shown that the exclusion of the jurisdiction of the courts has only been partial—and
rightly so, for the courts have found areas of jurisdiction for intervention— prior to the
constitution of a tribunal, against the decision of a tribunal, and after the award of the
tribunal, notwithstanding the provisions of Article 262 and the IRWDA.
The recurrence of inter-State river water disputes can be indicated through two sets of
problems that have occurred in the past and will continue to recur. The first concerns
how the courts and tribunals grapple with the increasing recognition of environmental
concerns, particularly in the form of individual petitions under the general claim of the
‘right to life’.
Since individual petitions are prohibited in inter-State river water disputes, an attempt at
some reconciliation of these claims will undoubtedly arise. The second deals with State
reorganisation, the adjustment of State boundaries in India, that inevitably brings with it
the readjustment of claims over water sharing.
4. DELHI'S STATEHOOD
Prior to 1992, Delhi functioned as a union territory under the complete control of the
Government of India, with limited autonomy. In the early 1990s, Delhi was granted a form
of statehood, establishing a Chief Minister and a popularly elected unicameral legislature.
However, the powers of the "State" remained restricted, and in practice, Delhi continued
to operate as a union territory. The Chief Minister and his Cabinet faced challenges due
to their late entry into a system already occupied by the Lt. Governor and various
municipal corporations, leading to friction. The governance of Delhi involved numerous
departments from the central and state governments, along with parastatals and urban
local bodies, resulting in a fragmented governance structure. It can be argued that Delhi
had a surplus of government bodies but lacked effective governance, making it unique
compared to other cities or states in the country.
SUPREME COURT CASES

Government of NCT Delhi vs Union of India Resolving the dispute over the
demarcation of powers between the Union Government and the Government of Delhi,
the Supreme Court laid down a few key principles: o Delhi government has power in all
areas except land, police and public order and the LG is bound by the aid and advice of
the government in areas other than those exempted o The only exception to this rule, it
said, was a proviso to Article 239-AA, which allowed the LG to refer to the President any
issue on which there was a difference of opinion with the council of ministers. In such a
case, the LG would be bound by the President’s decision. o Delhi Lieutenant Governor

FEDERALISM
cannot act independently and must take the aid and advice of the Council of Ministers
because national capital enjoys special status and is not a full state. Hence, the role of
the L-G is different than that of a Governor. o It observed that neither the state nor the
L-G should feel lionized, but realize that they are serving Constitutional obligations and
there is no space for absolutism or anarchy in our Constitution
DELHI GOVT VS LG
What was the Centre’s argument?
 The Centre’s argument was that in the 2018 ruling, the court did not analyse two crucial
phrases in Article 239AA(3)(a). First was “ insofar as any such matter is applicable to
union territories” and the second was “subject to the provisions of this Constitution.”
 The Centre argued that since no Union Territory has power over services, Delhi too
could not exercise such power. Essentially, Delhi could only legislate on issues that
other Union Territories are explicitly allowed to legislate upon.
 “The legislative power of Delhi will extend to an entry only when that entry is clearly
and unequivocally applicable to union territories as a class. Consequently, the list II
(state list) has to be read contextually and certain entries can be excluded from the
domain of GNCTD,” the Centre argued.
2023 Supreme Court Verdict
 While quoting Article 239-AA, SC ruled that Elected government of the NCTD has
legislative and executive power over "Services" under Entry 41, List II of the 7th
schedule.
 LG is bound by the aid and advice of CoM of NCTD in relation to matters within the
legislative scope of NCTD.
 The court concluded that Delhi under the constitutional scheme is a Sui Generis (or
unique) model, and is not similar to any other Union Territory. It said Delhi presents a
special constitutional status under article 239AA.
 Having regard to the history in background, it would be fundamentally inappropriate
to assign to the NCT status similar to other union territories.”
 When the Constitution was enacted, there was no concept of Union Territories.
“Therefore the phrase in question was used to facilitate the automatic conferment of
powers to make laws for Delhi on all matters, including those in the state and
concurrent list except when an entry indicates that its applicability is expressly barred
for a union territory
Central government issued the Government of National Capital Territory of Delhi
i.e., GNCTD (Amendment) Ordinance, 2023 which seeks to amend GNCTD Act, 1991.
 Powers to legislate over services: Ordinance specifies that the Delhi Legislative
Assembly will not have the power to legislate on the subject of 'services', which comes
under the State List. o Services include matters related to appointments and transfers
of employees of the Delhi government, and vigilance.
 National Capital Civil Services Authority (NCCSA): It creates a new statutory authority
NCCSA – to make recommendations to LG regarding transfer posting, vigilance and
other incidental matters. o NCCSA will consist of Chief Minister (CM) of Delhi who shall
be the Chairperson of the Authority, Chief Secretary and Principal Secretary of Home
department.
o All matters required to be decided by NCCSA shall be decided by majority of votes
of the members present and voting.
o Central government will appoint both the Principal Secretary and Chief Secretary.
 Powers of the Lieutenant Governor: LG will act in his sole discretion. It expands the
discretionary role of the LG by giving him powers to approve the recommendations of

FEDERALISM
the Authority, or return them for reconsideration. o The LG's decision will be final in
the case of a difference of opinion between him and the Authority
Why statehood should be granted?
 In 1991, when the 69th Amendment to the Constitution created the Legislative
Assembly of Delhi, the city’s population was much smaller. Today, there are nearly two
crore people in Delhi.
o Nowhere in any democracy are two crore people represented by a government with
restricted powers.
 When the Union Territories were first created, the idea was to provide a flexible yet
transitional status to several territories that joined the Indian. With time, Goa,
Manipur, Himachal Pradesh and Tripura have been granted statehood.
 It would also provide equal right of people for representation and self governance.
 Now, the time has come to enter the second and final stage to create the full State of
Delhi.
 United Nations report projects that Delhi urban agglomeration will make it the most
populous city in the world by 2028.
 An elected government representing a massive population need to have a say in law
and order and land management.
Why statehood should not be granted?
 The support for full statehood has not been a national compulsion, but a call fuelled
by Delhi’s local political ambitions.
 Delhi is the national capital and must necessarily be viewed from the prism of the
interests of the entire country.
 Delhi is home to vital institutions such as the president’s estate, the Parliament and
foreign embassies. All of these infrastructures require special security cover and close
coordination with centrally administered agencies such as the Research and Analysis
Wing (RAW) and Intelligence Bureau (IB). These institutions are the sole responsibility
of the Union Government and not of any one particular state legislative assembly
 Indian government must have some territory under its control; it cannot possibly be
an occupant or a tenant of a state government
 Many regional parties have expressed their strong reservation to acceding full
statehood for Delhi. For them, India’s national capital belongs to every citizen of the
country and not just those who reside in the city
 Statehood would deprive Delhi of the many advantages it gets as national capital. For
instance, the entire burden of policing—involving the coordination of a mammoth
staff—is borne by the federal government.
5. ASYMMETRIC FEDERALISM IN INDIA

In a federal arrangement, the constituent units are identified on the basis of region or
ethnicity, and conferred varying forms of autonomy or some level of administrative and
legislative powers. “Asymmetric federalism” is understood to mean federalism based on
unequal powers and relationships in political, administrative and fiscal arrangements
spheres between the units constituting a federation
ASYMMETRIC FEDERALISM IN PRACTICE IN INDIA

 Special provisions to some states: Special provisions’ applicable to States are mainly
in the form of empowering the Governors to discharge some special responsibilities.
E.g. Articles 371 to 371J

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 Union Territories: These are directly administered by Centre. Also, there are Union
Territories with a legislature, and Union Territories without a legislature.
 Tribal areas and scheduled areas under 5th and 6th schedule.
 Economic asymmetry: E.g. Finance Commission Grants, providing funds to local
bodies, state disaster relief funds and compensates for any revenue loss to states after
devolution of taxes.
Reasons for India’s asymmetric federalism
 Economic reasons: Motivation for special status may be purely for expanding
economic opportunities and securing freedom from exploitation by larger and more
powerful members of the federation. E.g. The erstwhile distinction of special category
and non-special category status states.
 Political factors and preserving group identities: 5th and 6th schedules provide for
special governance measures in regions inhabited by ‘Scheduled Tribes’ and ‘tribal
areas’ in the country. They aim to protect the Scheduled Tribes in the country by
enabling them to develop autonomy and preserve their land, economy, and
community.
 Cultural factors: There are various clauses in Articles 371 to 371J which accord special
powers to various states. These special provisions include respect for customary laws,
religious and social practices, and restrictions on the migration non-residents to the
State. E.g. Article 371G contains special provisions to preserve the religious and social
practices of Mizos in Mizoram and their customary law and procedure.
 Historical: Asymmetric arrangement is also shaped by how British unified the country
under their rule and later the way in which the territories were integrated in the Indian
Union. E.g. erstwhile Article 370 for Jammu & Kashmir.
 Administrative and other factors: Union territories were created because they were
too small to become independent states or they could not be joined with their
neighbouring countries on the account of cultural differences
6. COOPERATIVE FEDERALISM
Cooperative federalism in India is a system of governance that emphasizes collaboration
and cooperation between the central government and the state governments. It aims to
strike a balance between centralized authority and regional autonomy, with the goal of
fostering development, unity, and effective governance across the country.
There are several mechanisms in place to promote cooperative federalism in India. These
mechanisms facilitate collaboration, coordination, and cooperation between the central
government and state governments. Some of the key mechanisms include:
 Inter-State Council: The Inter-State Council is a constitutional body established under
Article 263 of the Indian Constitution. It serves as a forum for deliberations and
consultations among the central government and state governments on issues of
national importance and mutual interest. The Council is headed by the Prime Minister
and includes Chief Ministers of all states and Union Territories.
 National Institution for Transforming India (NITI Aayog): The NITI Aayog replaced
the Planning Commission and serves as a think tank and policy advisory body for the
central government. It acts as a platform for cooperative federalism by fostering
collaboration between the central government and state governments in the
formulation and implementation of development strategies and policies.
 Finance Commission: The Finance Commission is constituted under Article 280 of the
Constitution. It is responsible for recommending the distribution of financial resources
between the central government and state governments. The Commission plays a

FEDERALISM
crucial role in ensuring fiscal federalism by determining the principles for sharing tax
revenues and providing grants-in-aid to the states.
 Goods and Services Tax (GST) Council: The GST Council is a constitutional body
formed to oversee the implementation of the Goods and Services Tax, which replaced
multiple indirect taxes across India. The Council comprises the Union Finance Minister
and State Finance Ministers. It acts as a platform for cooperative decision-making on
issues related to GST rates, exemptions, and other policy matters.
 Zonal Councils: Zonal Councils are statutory bodies established under the States
Reorganization Act, 1956. They aim to promote cooperation and coordination among
states sharing common borders and language. There are five Zonal Councils:
Northern, Eastern, Western, Southern, and Central. The Zonal Councils facilitate inter-
state cooperation on economic, social, and cultural issues.
 Conferences and Meetings: Various conferences and meetings are organized at
regular intervals to facilitate discussions, consultations, and collaboration between the
central government and state governments. These include conferences of Chief
Ministers, meetings of sector-specific councils, and conferences on specific policy
areas such as education, health, and agriculture.
 Cooperative Schemes and Programs: The central government and state
governments collaborate through cooperative schemes and programs in areas such
as agriculture, infrastructure, education, healthcare, and social welfare. These
schemes involve joint funding, planning, and implementation, ensuring the
participation of both levels of government.
These mechanisms help foster cooperative federalism by providing platforms for
dialogue, consensus-building, and coordination among different levels of government.
They aim to balance the powers and responsibilities of the central government and state
governments, ensuring collaboration and mutual support for the overall development
and well-being of the country.
While cooperative federalism is an important principle in the Indian Constitution, there
have been several challenges to its effective implementation. Some of these challenges
include:
 Centralization of Power: One of the significant challenges to cooperative federalism
is the perceived centralization of power in the central government. Critics argue that
the central government often makes decisions without adequately consulting or
considering the views and interests of the state governments. This can lead to a sense
of alienation and reduced participation of the states in policy-making processes.
 Financial Dependency: State governments heavily rely on financial assistance from
the central government for their functioning and implementation of various programs.
However, the fiscal autonomy of the states is limited, and they often face financial
constraints due to the conditionalities and restrictions imposed by the central
government. This financial dependency can undermine the autonomy of the states
and hinder their ability to address the specific needs and priorities of their respective
regions.
 Inter-state Water Disputes: Water resources are a significant source of contention
among states in India. Disputes over sharing of river waters, construction of dams, and
inter-state water management often arise, leading to conflicts and strains in the
cooperative federal framework. Resolving these disputes requires careful negotiation
and coordination between the central government and the concerned states.
 Implementation of Central Schemes: While the central government launches
various schemes and programs for social welfare and development, the
implementation at the state level can sometimes be challenging. Differences in
administrative capacity, resource allocation, and varying priorities between the central

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and state governments can result in uneven implementation, leading to disparities

across states and undermining the spirit of cooperative federalism.
 Political Factors: Political dynamics and differences between political parties at the
central and state levels can also pose challenges to cooperative federalism. The ruling
party at the center and in the states may have divergent ideologies or conflicting
interests, leading to tensions and difficulties in coordinating and collaborating on
policy matters.
 Lack of Clarity in Division of Powers: The division of powers between the central
government and state governments is outlined in the Constitution. However, there can
be ambiguity and disputes regarding the interpretation and extent of these powers.
This lack of clarity can create confusion and hinder effective cooperation between the
different levels of government.
Addressing these challenges requires a proactive approach from both the central
government and the state governments. It involves promoting open dialogue, ensuring
adequate representation of states in decision-making processes, strengthening fiscal
autonomy of states, and fostering a spirit of cooperation and mutual respect among all
stakeholders involved in the federal structure of India.
7. FISCAL FEDERALISM
Fiscal federalism broadly considers the vertical structure of the public sector, fiscal policy
institutions and their interdependence.
 First, one needs to determine at which level of government to assign different
expenditure responsibilities.
o the lowest possible level of government should provide public goods and services.
 Second, one needs to determine the strategy to finance a given level of public goods
and services
o The starting point is that the level of government that is responsible for the
provision of a particular good or service should also be responsible for its funding
and collecting the necessary revenue.
 Third, and as a consequence of the previous two points, one needs to determine the
appropriate instruments (and their degree) to equalise disparities in fiscal resources
and fiscal needs, both over time and across jurisdictions.
 Fourth, and to the extent that the vertical design does not impose fiscal discipline to
an adequate degree, one needs to adopt strategies to cap excessive spending and
borrowing at each level of government.
 Finally, it should be noted that in many respects, the allocation of responsibilities and
instruments to different levels of governments is never clear-cut; there is always some
degree of overlap
Broadly speaking, with the evolution of fiscal federalism in India, there has been marked
stability in its process and procedures. The annual budgetary processes of both the
central and federal governments are independent exercises and must pass through the
Parliament or state legislature. The Finance Commission, which was first constituted in
1951, performs the functions broadly enshrined in Article 280 of the Indian Constitution
For most of the post-independence era, the existence of the Planning Commission
injected centralising dependence in more ways than one. The Planning Commission
became a parallel institution for the transfer of resources from the Union of States. While
the focus of the Finance Commission remained on the revenue account, the Planning
Commission was concerned predominantly with the capital account. Successive Finance
Commissions commented on this as being inconsistent with the spirit of the Constitution
in the devolution of resources. There were other developments, like the 73rd and 74th

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Amendments of the Constitution in 1992 giving status to Panchayat Raj institutions and
Urban Local Bodies with specific functions assigned to them under the 11th and 12th
schedules.
As coordinating entities between the central and subnational governments, two key
institutions have remained: the National Development Council constituted in 1952 to
oversee the work of the Planning Commission (to approve their five-year plans and their
mid-term appraisals), and the Inter-State Council, set up following a Constitutional
Amendment in 1990, based on the recommendations of the Sarkaria Commission Report.
Centre-state relations and their dynamics have kept pace with the changing needs of the
time. India has changed remarkably in its economic policies and its governance rubric.
THE ROLE OF THE FINANCE COMMISSION IN INDIA’S FEDERAL

ARCHITECTURE
The Finance Commission has an important role to play in India’s overall federal
architecture. In fact, it may be older than the Constitution of India. Article 280 of the
Constitution says the Finance Commission was formed to define the financial relations
between the central government of India and the individual state governments.
The Finance Commission broadly assesses the overall gross tax revenues of the union:
cesses, surcharges and non-tax revenue are netted out from gross tax revenue to arrive
at the net divisible pool (NDP). Following a constitutional amendment in 2000, the
divisible pool now consists of all taxes of the union and not merely income tax and excise
duty. Thus, in deciding the distribution of the corpus contained in the net divisible pool,
the Finance Commission undertakes consultations and visits all subnational
governments, and receives their memorandums/submissions as well as those of the
union government. Bearing in mind the needs of the central and subnational
governments, the Commission then decides on what percentage out of the net divisible
pool should be assigned to the subnational governments and thereby, leaves the balance
to the central government.
TRENDS IN FISCAL TRANSFERS TO THE STATES OVER THE YEARS

At the core of fiscal federalism in India lie fiscal transfers from the central government to
subnational governments. Transfers are predominantly based on the recommendations
of the Finance Commission and consist of tax devolution and grants. With the initiation
of planned economic development and the centre’s interventions in a number of subjects
in the State List in the form of centrally sponsored schemes (CSS), a significant number
of transfers are taking place outside the recommendations of the Finance Commission.
Therefore, to gain a comprehensive view of central transfers, it is necessary to analyse
the aggregate transfers, i.e. those recommended by the Financial Commission and those
made outside of it. The study of these shows that vertical as well as horizontal balances
recommended by the Finance Commission can be counterbalanced to some extent by
the Union through the levy of cesses and surcharges, and through non-Commission
transfers.
The success of a federal system lies in its proportional revenue-raising capacity with
responsibility at different levels of the government. In India, however, vertical imbalances
exist historically, with the centre mobilising higher taxes and subnational governments
invested with greater responsibilities.
EMERGING CHALLENGES IN INDIA’S FISCAL FEDERALISM

 There are a number of challenges facing India’s fiscal federalism. First, the Seventh
Schedule of the Indian Constitution broadly demarcates the functions of governance
into three lists. Over time, the Concurrent List has sought to occupy increasing space,

FEDERALISM
transgressing its earmarked borders and intervening in the subjects of subnational

governments.
 There have been other ways in which the original demarcation has been altered. Take,
for instance, the issue of entitlement-driven legislations. (MGREGA, NFSA, RTE)
 There is the issue of the incongruence of Article 282 of the Constitution with the letter
and spirit of the Seventh Schedule. The legitimacy of all centrally sponsored schemes,
most of which are in the domain of the states, emanates from the use or misuse
through recourse to Article 282.
 Another challenge is that of fiscal incongruity. The combined outstanding liabilities of
states and union territories have been on the rise since 2014. This is mainly due to
central policies concerning the Ujwal DISCOM Assurance Yojana (UDAY) and the Farm
Loan Waiver.
 Another emerging challenge is that cesses and surcharges are becoming a
disproportionate proportion of the overall divisible revenue, with non-tax revenues
being kept outside the divisible pool. These are worrisome issues, and there should be
some mechanism to ensure that the basic spirit of the devolution process should not
be undercut by clever financial engineering or by the manipulation of methods that
makes them technical and legally tenable, but perhaps not morally so.
 Finally, there is the issue of the goods and services tax (GST). Since the Council decides
the central goods and services tax (CGST) and state goods and services tax (SGST)
rates, it ensures that the states are significant partners even on issues such as
macroeconomic engagement, and in deciding tax rates. However, on the flip side,
states have lost the autonomy to decide the tax rates of subjects that fall within the
State List. Previously, state governments used to fix tax rates by taking into account
their spending requirements, revenue base, etc. The inability of states to fix tax rates
to match their development requirements implies greater dependence on the centre
for funds.
VIEWS OF COMMISSIONS AND COMMITTEES ON CENTRE-STATE

RELATIONS IN INDIA
a. The number of centrally sponsored schemes should be

restricted to flagship programmes of national and regional
importance. Accordingly, the Commission recommended
reduction in the number of these schemes and their
funding in a phased manner, as well as flexibility in the
guidelines governing their implementation to suit state-
Punchhi Commission specific situations.
- Commission on b. It also recommended a comprehensive review of all
Centre-State transfers to the states, particularly through centrally-
Relations, headed by sponsored schemes, with a view to minimising the
Justice M.M. Punchhi component of discretionary transfers.
(2010) c. There should be a consultation process between the union
and states via the Interstate Council for legislation on
concurrent subjects.
d. The National Integration Council (NIC) should be provided
“teeth” so that it can take some actions in the event of
communal violence. However, it rejected constitutional
status for NIC.
Report of the Sub- a. The Sub-Group recommended that the existing centrally
Group of Chief sponsored schemes should be restructured and their

FEDERALISM
Ministers on number reduced to a maximum of 30 schemes. All these

Rationalisation of schemes would be “umbrella schemes”, with every scheme
Centrally Sponsored having a large number of components with a uniform
Schemes, under the funding pattern. As far as possible, except for a few core
Convenorship of Shri components, the decision to implement components
Shivraj Singh within a scheme should be left to the state government,
Chauhan (2015) thereby allowing states maximum choice among
components. If there are multiple schemes in a sector, the
approach should be to consolidate all such schemes into a
single “umbrella scheme”.
GRIEVANCES OF STATES TOWARDS CSS

 Encroachment of State’s functions- as the CSS were framed on the subjects listed
in the States list of the seventh schedule.
 Proliferation of schemes- A large number of Schemes results in spreading
resources thin and thereby adversely impact-desired outcomes.
 Problem of ‘one size fit all’- Given significant variation across States in terms of
development indicators and resource endowments, many schemes are simply not
relevant to many States.
 Limited flexibility- with the states in implementation of these schemes, despite the
features of flexi funds introduced in recent history.
 Inadequate deliberations with states- before introduction of new schemes and
often the states’ financial health is not given due consideration.
STEPS TAKEN TOWARDS RATIONALIZATION OF CSS

 States taken into deliberation- From 2014-15 onwards, direct transfers to State
implementing agencies have been done away with, and all transfers to States for
Centrally sponsored schemes are now being routed through the Consolidated Fund
of the State.
 Reduced number of CSS- from 66 to 28 and they were divided into three categories.
 Increased choice given to states- to select optional schemes they want to
implement. Also, while designing the CSS, the Central Ministries shall permit
flexibility in the choice of components to the States as available under the Rashtriya
Krishi Vikas Yojana (RKVY).
 Reduced rigidity in usage of funds- The flexi-funds available in each CSS has been
raised from 10% to 25% for the States and 30% for the UTs of the overall annual
allocation under each Scheme.
 Evaluation of CSS- Approval of the schemes is being made co-terminus with the
Finance Commission cycle. NITI Aayog is in process of evaluation of all the CSS.

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Total outstanding liabilities of states and union territories in India, 2001-20
Cesses and surcharges in India, 2009-18

Indian polity has evolved beyond recognition. When the Constitution of India was drawn
up, the interdependence among states, fostered by technology and migration had not
gathered pace. The autonomy of states in a pre-globalised era is vastly different from that
found in an era where both migration and technology erode the boundaries of states
unperceptively. Not undermining the importance of global value chains (GVCs), the time
has come to develop and foster the Indian value chain. Products, processes and services
commenced in one state could involve several states before it reaches the final
consumer.
National priorities and notable policy initiatives like Swachh Bharat, the New Education
Policy, Ayushman Bharat and Swachh Jal through Jal Jeevan Mission constitute an integral
part of the changing dynamics and nature of responsibilities between the centre and the
states. The issues of National Priority transcend boundaries as they are designed to
address the basic tenets of growth multipliers, benefitting every segment of society and
addressing welfare tenets on health, housing and employment as core national priorities.
There are several points of action to be considered. For example, it is important to take
another look at the Seventh Schedule – the allocation of centre-state responsibilities –
in today’s contemporary context. Unless the contours of the schedule are redrawn, some
of the incongruities between the contours of the Schedule and Article 282 of the
Constitution and the stand-alone legislation of the subjects will remain cluttered and
opaque.
A far more credible policy for the rationalisation of centrally sponsored schemes
and central outlays is also needed. Several committees have attempted to do so in the
past, but the outcome has been elusive. This is even more relevant since the role
of the National Institution for Transforming India (NITI Aayog), which is primarily
a think tank institution and not a financial body, remains somewhat unclear in the
financial sphere. There is no central entity with an overview of the centrally-
sponsored schemes and how many and in what form many of these could be
amalgamated with central sector outlays.
Further, with the abolition of the Planning Commission, many economists and policy
makers have argued that there exists an institutional vacuum. While the National
Development Council (NDC) is performing an important function, states have pleaded for
a credible institution to act as a link for policy dialogue with the centre of government,
as in many countries around the world. In Australia, for example, states came together
in 2005 to set up the Council for the Australian Federation to jointly represent their
interests in Canberra. India has an institutional entity – the Inter-State Council – how to
rejuvenate and rekindle it deserves serious consideration.
Another area of incongruity is the fiscal story. As mentioned above, one of the terms of
reference made to the Fifteenth Finance Commission is to review the current level of debt
of the union and the states and to recommend a fiscal consolidation roadmap for sound

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fiscal management. Reforms in public finance management (PFM) systems are a

continuous process. Previous Finance Commissions have made recommendations on
various aspects of the PFM systems of both the union and states, focusing on budgetary
and accounting processes, financial reporting, etc.
It is important now to rethink the design and structure of a genuine fiscal partnership,
which should not merely be a race to garner more resources, but a creative attempt to
move towards a vibrant Indian value chain that can catapult India’s growth rate closer to
the quest for double-digit growth. Times of economic slowdown must be viewed
anecdotally as they are transient in nature and cannot impair India’s vision, both with
regard to its potential and its historical compulsions. It is necessary to recast the ideology
in a more contemporary context; only then will the practice become more transparent,
and India will benefit from congruence between its precepts and practice.
Legislative responsibility Executive responsibility
LIST I Union Union
LIST II State State
LIST III Both State
The highlighting features of the report:
14th FC 15 FC Remarks
the Fifteenth Finance Commission

continued with the recommendation of
Vertical the previous Commission relating to
42 41
distribution vertical division of taxes, and adjusted the
States’ share to 41% to exclude the share
of Jammu and Kashmir.
Horizontal
Distribution
1971
(17.5%)
2011
Population
(15.0%)
2011
(10.0%)
Income Distance 50.0% 45.0%
Area 15.0% 15.0%
Forest cover 7.50% 10.0%
it has used two additional factors —

demographic performance and tax effort.
Demographic the inverse of fertility rate hence showing

NA 12.5%
Performance sensitivity to the concerns of these States.
Tax Efforts NA 2.5%

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8. 6TH SCHEDULE
Sixth schedule to the constitution provides power to tribal communities to administer the
tribal areas in Assam, Meghalaya, Tripura and Mizoram under the provision of article
244(2) and 275(1) of the constitution. Article 244 of provides special system of
administration for certain areas designated as ‘scheduled areas’ and ‘tribal areas. Article
275 makes provisions for statutory grants to be charged on Consolidated Fund of India.
Such grants also include specific grants for promoting the welfare of the scheduled tribes
or for raising the level of administration of the scheduled areas in a state.
ADVANTAGES OF INCLUSION IN 6TH SCHEDULE

 Autonomous District Councils (ADC): ADCs are bodies representing a district to
which the Constitution has given varying degrees of autonomy within the state
legislature. Each autonomous district council consisting of 30 members, including
nominated and elected members.
 Autonomous region: If there are different Scheduled Tribes in an autonomous
district, it can be divided into autonomous regions.
 Legislative Power: ADCs are empowered to make legislative laws with due approval
from the governor.
 Limitation to power of Parliamentary or state legislature over autonomous
regions: Acts passed by Parliament and state legislatures may or may not be levied in
these regions unless the President and the governor gives her or his approval.
 Judicial powers: councils can constitute village courts within their jurisdiction to hear
trial of cases involving the tribes.
 Regulatory power: The district council can establish, construct or manage primary
schools, dispensaries, markets, ferries, fisheries, roads and so on in the district. It can
also make regulations for the control of money lending and trading by non-tribal. But
such regulations require the assent of the governor.
 Tax revenue collection: - The district and regional councils are empowered to assess
and collect land revenue and to impose certain specified taxes. They can also receive
grants-in-aids from the Consolidated Fund of India to meet the costs of schemes for
development, health care, education, roads and regulatory powers to state control.
ISSUES WITH SIXTH SCHEDULE

 No Decentralization of powers and administration: For example, in Bodo
Territorial Area districts, there is only district council which elects few people who
enjoy unbridled power. Thus, units should be created that will represent people at all
strata.
 Legislative power of state over councils: The laws made by the councils require the
assent of governor. This process has no time limits which delayed the legislations for
years. Also, Para 12 (A) of the Sixth Schedule clearly states that, whenever there is a
conflict of interest between the District Councils and the state legislature, the latter
would prevail.
 Conflict in discretionary powers of governor: There are differing views over the
discretionary power of governors with respect to the administration of these areas.
Thus, conflict is there on requirement of consultation of governor with council of
ministers.
 Lack of codification of customary law: Customary laws need to be codified and
brought into practical use to ensure protection of tribal cultural identity.

FEDERALISM
 Lack of skilled professionals: Almost all Councils do not have access to planning
professionals which results in ad-hoc conceiving of development projects without
proper technical and financial consideration.
 Financial dependency: Autonomous councils are dependent on their respective state
governments for funds in addition to the occasional special package from the Centre.
There is no State Finance Commission for recommending ways to devolve funds to
District Councils and Regional Councils.
 Lack of development: Although 6th schedule was enacted to give more benefit to the
people and bring fast paced development, yet due to no panchayats or parishad at
people level, they have no power and money which non-6th schedule areas have for
implementation of various schemes like MGNREGA etc.
 Corruption: Financial mismanagement and rampant corruption have often been
detected in the functioning of different Councils under the Sixth Schedule provision.
WAY FORWARD
 Creation of elected village councils in all areas and ensuring accountability of Village
Councils to Gram Sabha.
 Ensure regular election conducted by the State Election Commission.
 Recognize Gram Sabha under law and specify its powers & functions.
 Ensure women and other ethnic minorities are not excluded from representation in
council.
 Bring transparency in planning, implementation and monitoring of developmental
programmes.
9. SCHEDULED AREAS UNDER FIFTH

SCHEDULE
 Article 244 (1) states that provisions of Fifth Schedule shall apply to the administration
and control of the Scheduled Area and Scheduled Tribes in any State other than the
States of Assam, Meghalaya, Tripura and Mizoram.
 Purpose of Scheduled Areas is to preserve tribal autonomy, their culture and
economic empowerment, to ensure social, economic and political justice, and
preservation of peace and good governance.
 Fifth Schedule has been called “A Constitution within a Constitution” by late Dr.
B.D. Sharma, former Commissioner for Scheduled Castes and Scheduled Tribes.
SAMATHA V STATE OF ANDHRA PRADESH

 Constitution itself requires that land in Scheduled Areas should remain with
the Adivasis to preserve their autonomy, culture and society - Hence,
government lands, forest lands and tribal lands in the scheduled area cannot be
leased out to non-tribals or to private industries.
 Government cannot lease out lands in scheduled areas for mining operations
to non-tribals as it is in contravention of the Fifth Schedule.
 Court asked state to immediately issue title deeds to tribals in occupation of
their lands.
 73rd Constitution Amendment and Andhra Pradesh Panchayati Raj (Extension
to Scheduled Areas) Act designates Gram Sabhas to safeguard and preserve
community resources and thereby reiterated the need to give the right of self-
governance to tribals.
 Mining activity in scheduled area can be taken up only by Andhra Pradesh
State Mineral Development Corporation or cooperative of tribals, and then

FEDERALISM
only if they comply with Forest Conservation Act, 1980 and Environment Protection
Act, 1986.
 Fifth Schedule has been designed, in furtherance of Article 15(4) and Article 46,
to protect tribals from social injustice and exploitation. Thus, it is state’s constitutional
duty to take positive and stern measures for the survival and preservation of the
integrity and dignity of tribals.
 To further the objectives of fifth schedule, Tribes Advisory Council (TAC) have
been constituted in 10(Ten) states having Scheduled Areas therein namely Andhra
Pradesh, Telangana, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya
Pradesh, Maharashtra, Odisha and Rajasthan. Even states like West Bengal, Tamil
Nadu and Uttarakhand which does not have any notified Scheduled Area also have
constituted Tribes Advisory Council.
 Tribes Advisory Council shall consist of not more than 20 members of whom, as
nearly as may be, three-fourths shall be representatives of Scheduled Tribes in State
Legislative Assembly provided that if number of representatives of STs in State
Assembly is less than number of seats in TAC to be filled by such representatives,
remaining seats shall be filled by other members of those tribes.
CRITERIA FOR DECLARING AN AREA AS A SCHEDULED AREA

 First Scheduled Areas & Scheduled Tribes Commission (Dhebar Commission,
1960) laid down following criteria for declaring any area as a ‘Scheduled Area’ under
Fifth Schedule:
o Preponderance of tribal population, which should not be less than 50 percent
o Compactness and reasonable size of the area
o Underdeveloped nature of the area and
o Marked disparity in the economic standard of the people, as compared to the
neighbouring areas.
o More recently, a viable administrative entity such as a district, block or taluk, has
been also identified as an important additional criterion.
 According to the Ministry of Tribal Affairs, ‘these criteria are not spelt out in the
Constitution of India but have become well established.
 They embody principles followed in declaring Excluded and Partially Excluded Areas
under Government of India Act, 1935, as well as those contained in Schedule B of
recommendations of Excluded and Partially Excluded Areas Sub Committee of
Constituent Assembly and those outlined by the Scheduled Areas and Scheduled
Tribes Commission 1961.
ROLE OF GOVERNOR – FIFTH SCHEDULE

 Governor of each state having Scheduled Area furnish a report to President
annually, or whenever needed regarding administration of Scheduled Areas. The
executive power of Union shall extend to the giving of directions to the State as to the
administration of such areas.
 Governor has rule-making powers regarding number of members, mode of
appointment, and functioning of Tribes Advisory Council (TAC).
 TAC renders advice to Governor regarding welfare and advancement of
Scheduled Tribes in State when asked.
 Governor can restrict application of any Central or State legislation to Scheduled
Area, either completely or partially subject to such exceptions and modifications as
notified.

FEDERALISM
 Governor may make regulations for the peace and good government of
Scheduled Area which includes regulations to
o Prohibit or restrict transfer of land by or among members of Scheduled Tribes in
such area.
o Regulate allotment of land to members of Scheduled Tribes in such area.
o Regulate carrying on of business as moneylender by persons who lend money to
members of Scheduled Tribes in such area.
 To carry out above regulations for peace and good government of Scheduled
Area:
o Governor may repeal or amend any central or state law or any existing law
applicable to Scheduled Area
o Governor requires prior consultation with TAC, and assent of President is necessary
for regulations to be brought into force.
ROLE AND FUNCTION OF TRIBES ADVISORY COUNCIL

 Paragraph 4 of Fifth Schedule requires constitution of a Tribes Advisory Council in
each State which has a Scheduled Area. Such TAC can also be constituted in other
States which have large tribal populations, if the President so directs.
 Function of TAC is to provide advice to Governor, when he seeks it, on matters
relating to welfare and advancement of Scheduled Tribes in the State. Such advice is
not binding upon Governor.
 It is compulsory for Governor to consult TAC before making any Regulations
relating to governance in Scheduled Areas, including land alienation, land transfer,
and control of moneylending. Again, the provision requires a ‘consultation’ rather than
consent, but as has been held in several Court judgments that any such consultation
must be meaningful and must inform decision-making process in a substantial way.
CONCERNS – GOVERNOR’S POWER UNDER FIFTH SCHEDULE – SC

JUDGMENT
 Governors are often unaware about state of tribal people. Even mandatory annual
Reports by Governors to President regarding administration of Scheduled Areas under
Para 3 of Fifth Schedule are irregular.
 They comprise largely stale narrative of departmental programs without even a
passing reference to crucial issues in administration of Scheduled Areas.
 Lack-luster performance of TAC in many states such as irregular meetings having
insufficient quorum.
OVERALL CONCERNS ON TRIBAL DEVELOPMENT

Despite some protective measures and developmental efforts, emerging tribal scenario
characteristically continues to manifest:
 Increasing tribal alienation on account of slipping economic resources like land, forest,
common property resources.
 Displacement and dispossession of life-support systems.
 General apathy of official machinery.
 Escalating atrocities, at times related to assertion of rights.
 Growing clout of market forces; and,
 Meagre advancement through planned development efforts.

FEDERALISM
MUNGEKAR COMMITTEE REPORT

 Mungekar Committee Report on Standards of Administration and Governance
in the Scheduled Areas suggested including reviving institutions of self-governance,
effective delivery mechanism, creation of critical infrastructure, Tribal Sub-plan,
implementation of the Scheduled Tribes and the Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 and Governors Report.
WAY FORWARD: The scenario calls for a major shift towards entrusting, enabling and
empowering the tribal people to look after their own welfare and address issues of
development through their own initiative. The extant constitutional-cum-legal-cum-policy
framework has been enormously strengthened by the enactment of the Provisions of the
Panchayats (Extension to the Scheduled Areas) Act, 1996, a charter of autonomous tribal
governance, embodying rights in favour of tribal communities coupled with respect for
their ethos.
10. PANCHAYATS (EXTENSION TO SCHEDULED

AREAS) ACT, 1996
PESA Act was enacted to extend Panchayati raj system to Fifth Schedule areas. PESA lays down
the exceptions and modifications necessary in the law, both the constitutional provisions as
well as the State Panchayati raj legislations, while extending the Panchayati raj institutions to
Scheduled Areas. The States having Scheduled Areas were required to enact state legislation
within a year of the passage of PESA in the Parliament.
IMPORTANT HIGHLIGHTS
 Article 243M of Constitution, while exempting Fifth Schedule areas from Part IX of
Constitution (Panchayats), provides that Parliament through law can extend its
provisions to Scheduled and Tribal Areas.
 Based on Bhuria Committee report of 1995, Parliament enacted Panchayats
(Extension to Scheduled Areas) Act, 1996 (PESA) to extend Part IX of the Constitution
with certain modifications and exceptions to the Scheduled V areas.
 At present Scheduled V areas exist in 10 States viz. Andhra Pradesh, Chhattisgarh,
Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha,
Rajasthan and Telangana.
 Ministry of Panchayati Raj is the nodal Ministry for implementation of the provisions
of PESA in the States.
 Election to PRI - All posts of Chairpersons of Panchayati Raj Institutions (PRIs) in the
areas covered under PESA are reserved for tribal community and only persons
belonging to tribal community can contest for these posts.
WHY STATE SPECIFIC LEGISLATIONS ARE NEEDED TO IMPLEMENT
PESA?
 Entry 5 of State List under VIIth Schedule - Local government, constitution and
powers of municipal corporations, improvement trusts, districts boards, mining
settlement authorities and other local authorities for the purpose of local self-
government or village administration.
 Thus, necessary changes in accordance with the provisions of PESA needs to be carried
out in the State level Panchayati Raj Legislations.
 However, since PESA defines the substantive content of the law, in terms of Article
243-M of the Constitution, the amendments/ laws enacted at the State level must
necessarily conform to the spirit and the letter of PESA.

FEDERALISM
SPIRIT OF PESA LIES IN CONSULTATION WITH GRAM SABHA

 Supremacy of Customary Law & Local Traditions - State legislation on the
Panchayats shall be in consonance with the customary law, social and religious
practices and traditional management practices of community resources.
 Every Gram Sabha competent to safeguard and preserve the traditions and
customs of the people, their cultural identity, community resources and the
customary mode of dispute resolution.
 Gram Sabha to give primacy to the community in the management of its
community resources.
 Prior Consultation with Gram Sabha or Panchayat at appropriate level necessary
before:
o Acquisition of land in the Scheduled Area for development projects
o Re-settling or rehabilitating persons affected by such projects in the Scheduled Areas.
o Grant of prospecting license or mining lease for minor minerals in the Scheduled Areas
o Auction of minor minerals for exploitation in the Scheduled Areas
FOLLOWING THREE TYPES OF POWERS HAVE BEEN GIVEN TO A
GRAM SABHA UNDER PESA
1. Developmental: consultation before land acquisition, prevent land alienation, power
to enforce prohibition, prior approval of all developmental projects and control over
tribal sub-plan, power to issue utilization certificate for developmental expenditure,
selection of beneficiaries of poverty alleviation and other schemes of individual
benefits, control over institutions and functionaries of social sectors.
2. Dispute resolution as per traditional laws and customs: collective resolution of
disputes based on customs, traditional laws and religious beliefs of tribal areas.
3. Ownership and management of natural resources: maintaining ownership of local
tribal community over water resources, common lands, minor forest produce, minor
minerals, etc. as well as effective implementation and monitoring of related laws.
OTHER IMPORTANT POWERS GIVEN TO GRAM SABHA/PRIS UNDER
PESA ACT
1. Safeguard and preserve the traditions and customs of the people, their cultural
identity, community resources and the customary mode of dispute resolution.
2. Approve plans, programs and projects for social and economic development before
such plans, programs and projects are taken up for implementation by the Panchayat
at the village level.
3. Identification or selection of beneficiaries under the poverty alleviation and other
programs.
4. Certification of utilisation of funds by the Panchayat for the plans, programs and
projects.
5. Right to be consulted before acquisition of land in the Scheduled Areas for
development projects and before re-settling or rehabilitating persons affected by
such projects in the Scheduled Areas.
6. Right to plan and manage minor water bodies in the Scheduled Areas.
7. Prior Recommendations to grant prospecting licence for mining minor minerals
including auction of minor minerals in the Scheduled Areas.
8. Enforce prohibition or Regulate or Restrict the sale and consumption of any intoxicant.
9. Grant ownership of minor forest produce.
10. Prevent alienation of land in the Scheduled Areas and restore any unlawfully alienated
land of a Scheduled Tribe.
11. Manage village markets.

FEDERALISM
12. Exercise control over money lending to the Scheduled Tribes, institutions and
functionaries in all social sectors and plans for sub-tribes.
IMPORTANCE/BENEFIT OF PESA
 Effective implementation of PESA will bring development & deepen democracy in Fifth
Schedule Areas.
 Enhance people’s participation in decision making.
 Better control over the utilisation of public resources for tribals and forest dwellers.
 Reduce alienation of land in tribal areas.
 Reduce poverty and out-migration among tribal population as they will have control
and management of natural resources which will help in improving their livelihoods
and incomes.
 Minimise exploitation of tribal population as they will be able to control and manage
money lending, consumption & sale of liquor and sell their produce in village markets.
 Promote cultural heritage through preservation of traditions, customs and cultural
identity of tribal population.
VIRGINIUS XAXA COMMITTEE’S RECOMMENDATIONS FOR EFFECTIVE
IMPLEMENTATION OF PESA ACT
 Promote small sized water-harvesting structures instead for large dams.
 Impose penalties on officials if delayed implementation of Forest Rights Act or PESA.
 Prevent all kinds of tribal land alienation by making Gram Sabha’s consent compulsory
for any type of land acquisition, even if the government wants land for its own use.
 Earlier Vijay Kelkar Committee suggested that unused Government land should be
sold off/leased off to get more money and reduce fiscal deficit. Xaxa Committee asked
Government to use such land for tribal resettlement.
 After mines are exhausted, return the land back to original owner.
 In Scheduled Areas, permit only tribals to exploit mineral resources. Policy makers
should learn lessons from Niyamagiri episode.
 Appoint a judicial commission to investigate such “naxal cases” registered against
tribals and their (non-tribal) supporters.
 Avoid making Salwa Judum like policies to combat left wing extremism.
11. ONE NATION, ONE LANGUAGE

If you believe that the idea of "One Nation and One Language" is novel to India, you are
mistaken. One Nation and One Language was an idea that our country's liberation heroes
first introduced to us. Although there is only one official language in our country, forcing
that language on someone else would be wrong. Every citizen of India has the right to
freedom of speech and expression, according to Article 19(a) of the Indian Constitution.
It means all the citizens have right to express his views, thoughts, opinions freely by words
of mouth, painting, writing or any other mode. There are so many languages in our
country that are spoken by the people. However, if Hindi language is made a national
language then it will be very difficult for people to adopt it. It is true that we can not force
anyone to speak a one language because every state has its own language like Bhojpuri,
Rajasthani, Punjabi, Marwari etc.
WHY THIS MIGHT WORK?

 Lingual uniformity will go a long way in paving the way for strengthening the fraternity
in the country.
 Administrative efficiency will be drastically improved as a result of "one nation one
language".

FEDERALISM
o Considerable time is "wasted" in translations of executive procedures and training

of governmental human resource.
o It also going to go a long way in saving a lot of revenues for the government.
 Better delivery of services will be ensured especially in Health sector.
a. Language barrier can lead to misdiagnosis; one language can overcome such issue
and ensure quality care and patient safety.
WHY THIS MIGHT NOT BE SUCH A GOOD IDEA?

 Violation of preamble: It will directly go against the dignity of an individual to force
any other language.
o FRATERNITY assuring the dignity of the individual and the unity and integrity of the
Nation.
 Goes against the fundamental rights guaranteed under article 29
o Article 29 of the Constitution of India states that any class of citizens who have their
own specific language, script and culture will have the right to protect it.
 Will be detrimental to the diversity of languages in India.
o According to census 2011, there are 19,569 mother tongues in India, thus imposing
one language is against the principle of diversity.
 Violation of federal structure of India
o As per 2011 Census, people in only 12 out of 36 states and UTs had chosen Hindi as
first choice for communication. Thus, imposing Hindi as language is against idea of
cooperative federalism
 Might aggravate regionalism into secessionism
o Imposition of One language has historically led to division of a country.
o For instance, imposition of Urdu on East Pakistan was major reason behind creation
of Bangladesh as a nation
India is a country of different languages which are spoken by the people and every
language has it own importance and this is the identity of our country. Article 29 of the
Constitution of India states that any class of citizens who have their own specific
language, script and culture will have the right to protect it. And it is absolutely not
possible that we force a language on people, because everyone has right which is given
by the Constitution. Yet if something like happens, then the right of the individual will be
violate.
12. INTER STATE BOUNDARY DISPUTES

India has witnessed various inter-state boundary disputes since its independence, which
have posed challenges to governance, administration, and interstate relations. These
disputes arise due to historical, cultural, administrative, and resource-related factors.
This article provides an overview of the history of state reorganization, recent examples
of inter-state boundary disputes, reasons for their continuation, and suggests a way
forward for their resolution.
HISTORY OF STATE REORGANIZATION

At independence, states were categorized as PART A, PART B, PART C, and PART D states.
The State Reorganization Act of 1956 led to the creation of 14 states and 6 Union
Territories (UTs).
Changes in state boundaries and the nature of UTs have occurred since then.

FEDERALISM
RECENT EXAMPLES OF INTER-STATE BOUNDARY DISPUTES

 Tussle over Belagavi:
o Dispute between Karnataka and Maharashtra over the inclusion of Belagavi in
Karnataka.
o Mahajan Committee recommended retention of Belagavi in Karnataka, but the
dispute persists.
 Punjab Claims Chandigarh:
o Joint capital of Punjab and Haryana since the Punjab Reorganization Act of 1966.
o Punjab seeks transfer of Chandigarh to Punjab, leading to ongoing contention.
 Inter-state Disputes in North-East:
o Assam has had boundary disputes with Nagaland, Meghalaya, Arunachal Pradesh,
and Mizoram.
o Divisions of these states were based on administrative decisions, leading to
disagreements.
 Assam-Mizoram Border Dispute:
o Dispute over the boundary along 165 km stemming from historical notifications and
demarcations.
 Assam-Arunachal Border Dispute:
o Bifurcation of plains and hills in 1873 and subsequent transfer of land in 1951 led
to disputes.
REASONS FOR CONTINUATION OF DISPUTES

 Frequent reorganization of states leading to changing boundaries.
 Inefficacy of forums like the Inter-State Council and Zonal Council in resolving disputes.
 Non-compliance with committee reports, judicial orders, or administrative decisions.
 Political exploitation of border issues for personal gains.
IMPACT OF BORDER DISPUTES

 Economic blockades disrupting supply chains and logistics.
 Escalation of violence and damage to public property.
 Disturbance of public order along the disputed borders.
 Demands for new states and heightened regional identities.
WAY FORWARD
 Establish district-level committees to settle inter-state boundary disputes.
 Strengthen forums for resolving disputes and ensure compliance with
recommendations.
 Encourage dialogue and amicable solutions for long-standing disputes.
Conclusion: Inter-state boundary disputes in India have persisted due to historical,
administrative, and political factors. To find lasting resolutions, a multi-pronged approach
involving committee interventions, improved forum functioning, and effective dialogue is
necessary. By addressing these disputes, India can foster peaceful coexistence, enhance
governance, and promote stronger interstate relations.
13. INTER STATE COUNCIL

Introduction: The Inter-State Council is an important constitutional body in India that
facilitates coordination and cooperation among states and the central government.
Established under Article 263 of the Indian Constitution, the council plays a vital role in

FEDERALISM
fostering harmonious federal relations, addressing inter-state issues, and promoting

cooperative federalism. This article explores the constitutional provisions related to the
Inter-State Council, highlights the challenges it faces, and presents potential avenues for
improvement.
 Article 263: The foundation of the Inter-State Council is laid out in Article 263 of the
Indian Constitution. It empowers the President to establish such a council to inquire
into and advise upon disputes and other inter-state matters.
 Composition: The council consists of the Prime Minister, Chief Ministers of all states,
Chief Ministers of Union Territories, and other central ministers concerned with the
subjects under discussion.
 Functions and Powers: The council's primary function is to investigate and deliberate
on inter-state disputes, issues of common interest, and matters affecting the
coordination of policies and actions. It has the authority to make recommendations to
resolve these issues and provide guidance for effective cooperation.
CHALLENGES FACED BY THE INTER-STATE COUNCIL

 Limited Institutional Power: The Inter-State Council lacks statutory backing and its
recommendations are not binding. This limits its effectiveness and undermines the
implementation of its suggestions.
 Infrequent Meetings: The council meets irregularly, often resulting in delayed
discussions and resolutions of inter-state disputes. This hampers the timely resolution
of pressing issues and affects inter-state relations.
 Inadequate Cooperation: Some states exhibit a lack of willingness to engage
constructively in the council's proceedings, leading to a hindrance in achieving
consensus-based decisions.
PATHWAYS FOR IMPROVEMENT

 Legal Framework: Providing a statutory basis for the Inter-State Council and
recognizing its recommendations as binding would enhance its authority and ensure
effective implementation of its decisions.
 Regular Meetings: Establishing a fixed schedule for council meetings, preferably on
an annual basis, would ensure a more structured and timely dialogue between the
central government and states. This would expedite the resolution of inter-state
disputes and promote better coordination.
 Strengthening Cooperation: Encouraging greater participation and cooperation
from all states is essential. Fostering an environment of trust and emphasizing the
shared responsibilities and benefits of cooperative federalism can enhance the
effectiveness of the council.
 Enhanced Role in Policy Formulation: Expanding the council's mandate to include
policy formulation on key subjects such as economic development, infrastructure, and
social welfare would enable it to address crucial issues that impact multiple states and
facilitate better inter-state coordination.
The Inter-State Council holds significant potential in promoting cooperative federalism
and resolving inter-state disputes in India. While certain challenges impede its
effectiveness, adopting measures such as providing a legal framework, ensuring regular
meetings, strengthening cooperation, and expanding its policy formulation role can
bolster its functioning. By strengthening the Inter-State Council, India can reinforce
cooperative federalism, foster inter-state harmony, and enhance the nation's governance
framework.

3
SEPARATION OF
Chapter POWERS
1. Meaning of Separation of Powers
1. MEANING OF SEPARATION OF POWERS

The separation of power is also known as Trans Politica. The doctrine of separation of
power is the forerunner to all the constitutions of the world which came into existence
since the days of the Magna carta. The theory of doctrine of separation of power was first
propounded by Montesquieu in as early as in 1747 published in his book namely 'Espirit
des Louis' (The spirit of the laws) Montesquieu found that if the power is concentrated in
a single person's hand or a group of people then it results in a tyrannical form of
government.
As per Montesquieu liberty cannot be protected unless and until there is a separation of
power. To avoid this situation with a view to checking the arbitrariness of the government
he suggested that in the power of governance there should clear cut division of power
between the three organs of the state i.e. executive, legislature and the judiciary.
In general, the meaning of separation of power can be categorized into three
features:
 Person forming a part of on organs should not form the part of other organs.
 One organ should not interfere with the functioning of the other organs.
 One organ should not exercise the function belonging to another organ.
QUOTE
“I say, that Power must never be trusted without a check.” ― John Adams.
In his book, ‘The Spirit of the Laws’ (1748), Montesquieu enunciated and explained his
theory of separation of powers. If the legislative and executive powers are combined in
the same organ, the liberty of the people gets jeopardized because it leads to tyrannical
exercise of these two powers.
“Power corrupts and absolute power tends to corrupt absolutely” – Lord Action.

SEPARATION OF POWERS
CONSTITUTIONAL PROVISIONS
NEED FOR SEPARATION OF POWER

 When the power of the government is concentrated in one hand there are chances of
maladministration, corruption, nepotism and abuse of power.
 Hence there is a need for Separation of power to prevent autocratic rule in the country,
helps create an efficient administration, prevents the legislature from enacting
arbitrary or unconstitutional laws and to safeguard the individual liberty.
FUNCTIONAL OVERLAP AMONG ORGANS OF THE GOVERNMENT

OVERLAPPING POWERS OF LEGISLATURE
WITH JUDICIARY WITH EXECUTIVE
 Impeachment and the removal  The heads of each governmental ministries

of the judges. are members of the legislature.
 Through a no-confidence vote, it can dissolve
the Government.

 Power to amend laws declared  Power to assess the works of the executive.
ultra vires by the Court and  Impeachment of the President.
revalidating it.  The council of ministers on whose advice the
 In case of breach of its privilege President and the Governor acts are elected
and it can punish the person members of the legislature.
concerned.
OVERLAPPING POWERS OF THE EXECUTIVE
WITH JUDICIARY WITH LEGISLATIVE
 Making appointments to the office of  Power to promulgate ordinance which

Chief Justice and other judges. has the same force of the Act made by
 Powers to grant pardons, reprieve, the Parliament or the State legislature.
respite or remission of punishments or  Authority to make rules for regulating
sentence of any person convicted of their respective procedure and conduct
any offence. of business subject to the provisions of
 The tribunals and other quasi-judicial this Constitution.
bodies which are a part of the  Powers under delegated legislation.
executive also discharge judicial
functions.
OVERLAPPING POWERS OF THE JUDICIARY
WITH EXECUTIVE WITH LEGISLATIVE
 Under Article 142, the Supreme Court  Judicial review, i.e. the power to review
functions as an Executive in order to executive action to determine if it
bring about the complete justice. violates the Constitution.
 Unamendability of Constitution under
basic structure.
OVERLAPPING POWERS OF THE EXECUTIVE
WITH JUDICIARY WITH LEGISLATIVE
 Making appointments to the office of  Power to promulgate ordinance which

Chief Justice and other judges. has the same force of the Act made by
 Powers to grant pardons, reprieve, the Parliament or the State legislature.
respite or remission of punishments or  Authority to make rules for regulating
sentence of any person convicted of their respective procedure and conduct
any offence. of business subject to the provisions of
 The tribunals and other quasi-judicial this Constitution.
bodies which are a part of the  Powers under delegated legislation.
executive also discharge judicial
functions.
OVERLAPPING POWERS OF THE JUDICIARY
WITH EXECUTIVE WITH LEGISLATIVE
 Under Article 142, the Supreme Court  Judicial review, i.e. the power to review
functions as an Executive in order to executive action to determine if it
bring about the complete justice. violates the Constitution.

 Unamendability of Constitution under

basic structure.
ISSUES WITH FUNCTIONAL OVERLAPPING

 Unaccountability: One of the demerits of overlapping powers, is that a particular
organ cannot be held accountable for its decisions. Eg. Judicial verdicts in 2G and Coal
Block allocation case.
 Erosion of faith: Repeated interventions of one organ into another’s functioning can
diminish the faith of the people in the integrity, quality, and efficiency of the other
organs.
 Accumulation of power: It undermines the spirit of democracy as too much
accumulation of powers in organs of government undermines the principle of check
and balance.
 Adverse effect on development: Excessive infringement on each other jurisdiction
may impede smooth functioning of government and hinder public service and overall
development.
CHECKS AND BALANCES

There is a system of checks and balances wherein the various organs impose checks on
one another by certain provisions. Checks and balances ensure that no one organ
becomes all-too powerful. The Constitution guarantees that the discretionary power
bestowed on any one organ is within the democratic principle.
 The judiciary has the power of judicial review over the actions of the executive
and the legislature.
 The judiciary has the power to strike down any law passed by the legislature if it
is unconstitutional or arbitrary as per Article 13 (if it violates Fundamental Rights).
 It can also declare unconstitutional executive actions as void.
 The legislature also reviews the functioning of the executive.
 Although the judiciary is independent, the judges are appointed by the executive.
 The legislature can also alter the basis of the judgment while adhering to the
constitutional limitation.
JUDICIAL PRONOUNCEMENTS ON SEPARATION OF POWERS
COMPARISON OF SEPARATION OF POWERS IN USA

 The doctrine of separation of powers forms the foundation on which the whole
structure of the constitution is based. It has been accepted and strictly adopted in
U.S.A.

 The doctrine of separation finds its home in U.S. It forms the basis of the American
constitutional structure.
 Article I vest the legislative power in the congress; Article II vests executive power in
the President and Article III vests judicial power in the Supreme Court.
 The framers of the American constitution believed that the principle of separation of
powers would help to prevent the rise of tyrannical government by making it
impossible for a single group of persons to exercise too much power.
 Accordingly, they intended that the balance of power should be attained by
checks and balances between separate organs of the government.
 This alternative system existing with the separation of prevents any organ to
become supreme.
CONCLUSION
In the Indian situation, the principles of constitutional restraint and confidence have been
implemented in such a manner that no institution can, by means of a specific or
necessary clause, usurp the duties or powers delegated to another institution and cannot
detach itself from the basic roles that belong to the organ in compliance with the
Constitution.
A Parliamentary structure with a rigid division of powers is unnecessary and
unsustainable for a democratic politics and complex population such as India.
Nevertheless, the institutional partnership of the three government institutions is
feasible with judicial and measured constitutional functional overlap. Such cooperation
bridges the legislative, executive and judicial divide that makes Government operate
smoothly.

4
Chapter EXECUTIVE
1. President
2. Death Penalty and clemency
3. Governor
4. Ordinance
1. PRESIDENT
Relevant Articles
 Article 52: "There shall be a President of India"
 Article 53: Executive Power of the president
 Article 54: Election of the President
 Article 55: Manner of Election of President
 Article 71: Matters relating to election of President and Vice President
EVOLUTION OF THE OFFICE OF THE PRESIDENT

 Rajendra Prasad
o Unopposed
o Rapport with Nehru
o Major disagreement on Hindu Civil Code
o Exercised Absolute Veto on PEPSU Appropriation Bill.
 S Radhakrishnan
o Regional Balance
o Precedent of VP as President
 Zakir Hussain
o Era of PM's President
 V V Giri
o Indira Gandhi Vs Syndicate
o Conscience Vote
o 1st time 2nd preference votes were counted
 Fakhruddin Ali Ahmed

o Endorsed Emergency without any enquiry
 N. Sanjeeva Reddy
o Only Unopposed
 Giani Zail Singh

o Skirmishes with Rajiv Gandhi
o Exercised Pocket Veto on Post Office Amendment Bill
 R Venkatraman

EXECUTIVE
o Nominated on account of differences between RG and Giani Zail Singh
o Exercised Absolute veto on Salaries and Pension of MP
 Shankar Dayal Sharma

 K R Narayanan
o 1st Dalit President, garnered more than 91 % of the votes.
o Office handled coalition era politics.
 A P J Abdul Kalam
o BJP Backed
o Popular president
o Suspensive veto on Office of Profit Bill
 Pratibha Patil
o First Women president
 Pranab Mukherjee
o Activist President
HOW SHOULD WE LOOK AT THE PRESIDENT?

 As a constitutional Head?
o Similar to English crown
o Nothing without the aid and Advice of the Council of Minsters (CoM)
o Votaries of this view: B. r Ambedkar, Granville Austin
 Important role
o Required to preserve, protect, defend constitution and serve people of the
country.
o Unspecified reserve of power
 Powerful
o Not just figurehead
o Super-ministerial powers
o K M Munshi
POWERS WITH THE PRESIDENT OF INDIA

 Legislative:
o Article 79: President is the part of the parliament
 Can president send messages to the parliament without the advice of the CoM
(Unclear).
o Article 85: Dissolution of the House of People
o Exercising Veto
 Rajendra Prasad - PEPSU Appropriation Bill

 Venkat Raman - Salaries and Pensions of MP
 Ordinance:
o Provision which is not available in any liberal democracy.
o Re-promulgation without efforts towards legislation.
 Judicial powers
o Subject to Judicial review (Examining wisdom behind decision)

EXECUTIVE
BINDING ADVICE Vs DISCRETIONARY POWERS (UNSPECIFIED

POWERS)
 UN Rao Vs Indira Gandhi (1971): Even after Lok Sabha Dissolution, CoM continues in
caretaker format. President will continue to work under aid and advice of the CoM.
 Choosing party in hung parliament
 Dissolution of Lok Sabha (After the passage of No Confidence Motion)
 Not bound by CoM advice without Lok Sabha Majority
 In Exercising Suspensive Veto
 In returning advice once
 In Seeking information under Article 78.
 Disqualification of MPs - Advice of Election Commission
So an activist President can
 Return advice
 Seek more information
 Can increase public engagements
o Pranab Mukherjee opened Rashtrapati Bhawan for public
o APJ Abdul Kalam
Precedents established from 1950-2011

 Entitled to question appointment, bills in limited manner
o Comment on the state of affairs
o Muted criticism
 Can show displeasure to the Prime Minister in private

 Article 75(2) not invocable until Article 75(2) has been met
 Entitled to insist Prime Minister on confidence vote in stipulated time.
 Receives opposition leaders to take note of the formal protests.
 Even Chief ministers invoke presidents moral authority to safeguard federalism.
EMERGENCY POWERS
 President's rules was used more than 60 times between 1965 and 1980. (Total 120
times)
 Sarkaria commission states that the provision was used 13 times when ministry
enjoyed confidence.
 1965 (Kerala, Blot on Nehru's Democratic credentials) --> 1977 (Dismissal of all 9
congress states, misuse) --> 1980 (Indira Gandhi dismissed Janta Governments) -- >
1992 (3 BJP governments dismissed, Secularism)
VALID USAGE
 Peace and harmony - Punjab (Khalistan)
 Unity and Integrity of India - 3 BJP Governments
 Political crises - UP, Bihar (2002, 2005)
ISSUES
 "Breakdown of the constitutional machinery is not defined.
 Misuse of the "directions from the Centre" - vagueness
 Biased reports from the governor
 Parliamentary law remains operative even after the rule ends.

EXECUTIVE
SR BOMMAI Vs UOI 1994

 Losing Lok Sabha elections is no ground.
 Its not an absolute power, Material evidence should exist
 SC can restore status quo ante.
 Article 356 and dissolution of assembly are not concomitant.
 What is required is the breakdown of the constitutional and not administrative
machinery.
RAMESHWAR PRASAD CASE

Governors interpretation cannot override the legislatures majority.
ARUNACHAL PRADESH (2016)

 SC restored the dismissed government for the first time.
 Governor has no freedom to choose when to deploy discretionary power.
 Governor can act without the advices of CoM only when the later looses majority.
 Governor should stay away from the business of assembly.
NCRWC
 Mandatory floor test before imposing Article 356
 Proclamation along with annexure specifying the grounds of constitutional
breakdowns.
 The mechanism shouldn’t be deleted but be used as a last resort.
 Appointment of the governor with CM consultation.
 No dissolution of the legislature before the proclamation laid down in the parliament.
WAY FORWARD
 Sparingly be used.
 In cases of law and order challenges, Article 355 should be used.
 Governor should try possibility of alternate governments.
 Report by the governor should be publicly laid down.
Deleting the mechanism should never be the first impulse, but rather the final option,
employed only when all other possibilities have been exhausted, for within its intricate
design lies the potential for both remedy and regret.
2. DEATH PENALTY AND CLEMENCY

GANDHI: KILL CRIME NOT CRIMINALS
 Important Supreme Court Judgments
o Bachan Singh v. State of Punjab, 1980: Consider aggravating and mitigating
factors of crime and the accused. Use Death Penalty only in 'rarest of rare cases'.
o Shatrughan Chauhan v. Union of India, 2014: Undue, inordinate and
unreasonable delay in death penalty execution amounts to torture and a ground
for commutation of sentence
 Arguments for:
o Deployed rarely
 8 people have been executed in last 15 years.

o Rarest of the rare doctrine limits the usage.
o India still faces the issue of Terror and Heinous crimes.

EXECUTIVE
o It has a deterrent effect.
 Arguments against:
o Arbitrariness
 "Rarest of the rare" is vague

 Judge centric variations
 Deployment of pardoning power
o Irreversibility
 Wrong evidence
o Human Rights violation
o No deterrent effect.
o Economic/ Privilege bias
3. GOVERNOR
 Discretionary powers of the Governor
o Article 163: Discretion to act beyond aid and advice of CoM
o Article 200: Reservation of Bill for president
o Article 356: President's rule report
 Appointment of the Governor

o Nomination vs Election debated in assembly -> Went for Canadian system
o 1st ARC:
 Burnt out politicians and people with low integrity shouldn’t be appointed.
 Mandatory consultation with opposition leader.
o Sarkaria commission
 Amend Article 155 to mandate consultation with CM

o NCRWC
 Committee consisting of OM, LS Speaker, HM and state Cm.

 Transparent consultation.
 No civil servants or defence chiefs.
o SC observations
 Defeated candidates (VV Giri, Gadgil)

 Men from center's ruling party
 Removal of the Governor
o Guided by Article 156: Pleasure of the President
o We have seen arbitrary, untimely in some cases mass removals.
o Sarkaria:
 5 years of undisturbed tenure else there should be a compelling reason.

 President must get explanation from (VP + LS speaker/retired CJI)
 Termination must be laid doen before both the houses.
o Punchhi
 The procedure laid down for impeachment of President, mutatis mutandis can
be made applicable for impeachment of Governors as well.
o SC in Bp Singhal Case
 No governor can be removed because of ideological mismatch or central govt.

loses confidence in the governor.

EXECUTIVE
 Article 156 should not be the reason but its use should be reasonable.
 Invitation to form government
o Sarkaria:
 Pre-poll alliance
 Largest single party + others support
 Post poll alliance with everyone joining the government.
 Post poll alliance with some outside support.
 Report under Article 356
o Sarkaria: It must be "speaking document" and must iclude corroborting
evidences.
o SR Bommai Guidelines.
 Dismissal of Chief Minister

o SC in SR Bommai vs UoI
 Floor test first is a must

 No dissolution of the government if it enjoys majority.
 Judicial review to check mala fide intent.
 Edit Speech
o 2017: Tripura governor Tathagat Roy
o 2018: Kerala Governor P Santhanam omitted parts
o 2023: R. N. Ravi, the governor of Tamil Nadu, altered the prepared speech.
o Article 179(2)(b): Governors obligation to read out
 CoM obligation to not include any objectionable remark.

 Governor not entitled to edit the speech unless critical of her own conduct.
 Reservation of the Bills
o Time limit necessary for governor to decide assent/reserve bill for the president.
 Discretionary Powers
o Punchhi Commission: Exercise of the discretionary power must be dictated by
reason, activated by good faith, tempered by caution".
4. ORDINANCE
In India, the central and state legislatures are responsible for law making, the central and
state governments are responsible for the implementation of laws and the judiciary
(Supreme Court, High Courts and lower courts) interprets these laws. However, there are
several overlaps in the functions and powers of the three institutions. For example, the
President has certain legislative and judicial functions and the legislature can delegate
some of its functions to the executive in the form of subordinate legislation.
Ordinance making is one such provision which diffuses the line between legislature and
executive. They enable the government to take immediate legislative action in desperate
times. Article 123 of the Indian Constitution grants the President of India certain Law
making powers i.e. to Promulgate Ordinances when either of the two Houses of the
Parliament is not in session which makes it impossible for a single House to pass and
enact a law. Ordinances may relate to any subject that the parliament has the power to
make law, and would be having the same limitations.
But executive (Both central and state) have often misused this power. Nothing epitomises
the re-promulgation of the ordinances better than the famous “Bihar case”. Which was
about the promulgation of 256 ordinances between 1967 and 1981 in Bihar. This included

EXECUTIVE
11 ordinances that were kept alive for more than 10 years and famously dubbed as
ordinance raj.
So, instances like these clearly indicate the misuse of legislative powers by the executive
which were meant to be used only rarely and under limited circumstances. So, in this
regard we will understand the following:
 Article 123 and Article 213 confers power to promulgate ordinance on the President
and the Governor respectively.
 Under the Constitution, limitations exist with regard to the Ordinance making power
of the executive:
o Legislature is not in session: The President can only promulgate an Ordinance
when either of the two Houses of Parliament is not in session.
o Immediate action is required: The President cannot promulgate an Ordinance
unless he is satisfied that there are circumstances that require taking ‘immediate
action’.
o Parliamentary approval during session: Ordinances must be approved by
Parliament within six weeks of reassembling or they shall cease to operate. They
will also cease to operate in case resolutions disapproving the Ordinance are
passed by both the Houses.
Why frequent resorting to Ordinance Route?
 Reluctance to face the legislature on particular issues.
 Lack of majority in the Parliament.
 Repeated and wilful disruption by opposition parties.
Issues
 The executive’s power to issue ordinances, goes against the Philosophy of Separation
of powers between the Legislature, Executive and Judiciary
 It bypasses the democratic requirements of argument and deliberation.
 Re-promulgation defeats the constitutional scheme under which a limited power to
frame ordinances has been conferred on the President and the Governors.
 It poses threat to the sovereignty of Parliament and the state legislatures which have
been constituted as primary lawgivers under the Constitution. The Constitution has
provided for Separation of Power where enacting laws is the function of the legislature.
The executive must show self-restraint and should use ordinance making power only
as per the spirit of the Constitution and not to evade legislative scrutiny and debates
IMPORTANT CASES RELATED TO ORDINANCE

 RC Cooper vs. Union of India, 1970: SC held that the President’s decision could be
challenged on the grounds that ‘immediate action’ was not required; and the
Ordinance had been passed primarily to by-pass debate and discussion in the
legislature.
 AK Roy vs. Union of India, 1982: SC argued that the President’s Ordinance making
power is not beyond the scope of judicial review. Later in case of Venkata Reddy v.
State of Andhra Pradesh (1985) Supreme court over ruled its own decision and held
that the Satisfaction of the President cannot be called in question.
 DC Wadhwa vs. State of Bihar, 1987: SC said 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. It was examining a case where a state

EXECUTIVE
government repromulgated a total of 259 Ordinances and some of them for as long
as 14 years.
 Krishna Kumar Singh vs. State of Bihar, 2017: Supreme Court held that the failure
to place an ordinance before the legislature constitutes abuse of power and a
fraud on the Constitution. It makes mandatory for an ordinance to be tabled in the
legislature for its approval.
WAY FORWARD
 In Nagraj Judgment, SC has observed “The power to issue an ordinance is not an
executive power but it’s the power of the executive to legislate on the grounds
provided for in article 123”.

5
Chapter PARLIAMENT
1. Parliament
2. Parliamentary Committee
3. Role of Speaker
4. Anti Defection Law
5. Upper House
6. Office of Profit
7. Concept of Privileges and types of Privileges
8. Legislative Councils
9. Reservation for women in politics
10. Parliamentary committees
1. PARLIAMENT
FUNCTIONS
 Enactment of legislation
o Highest deliberative forum
 Representation
o Represents the will of the people
 Ensures accountability of the executive

 Electoral
o Election of the President and the Vice President
 Financial
o Annual Financial Statement
o Tax by the authority of law
o Expenditure charged on CFI requires sanction
o Financial Emergency only after Parliamentary approval.
 Judicial
o Impeachment of President, VP, SC/HC Judges.
CHALLENGES: 3DS: DEBATE, DIALOGUE, DISSENT

 Average number of sittings has come down from 103 (1952) to 56 (2022)
 Time lost has gone up from 5% (1985) to around 30% now.
 Lack of debates
o 103rd CAA (EWS) passed without any debate.
 Drastic reduction on time spent on budget discussion
o Kangaroo, Guillotine
 No private member bill has been passed since 1970 (Total only 14)

PARLIAMENT
 Weak committee system.

 Women representation = 14.4% (South Asia including Pakistan >12%, Global around
14%)
 Disruption (Obstructionism) added on to the three D's.
 Ability to debate--> Ability to shout.
 Corruption and criminalization.
 Ineffective youth parliament.
UNDERLAYING CAUSES OF ABOVE CHALLENGES

 Anti defection law discourages votes according to conscience
 Lack of recorded voting reduces accountability
 Speaker-party affiliation manifests in partisan behaviour
 Lack of calendar gives full discretion to the government.
REFORMS
 Ethical
o Conde of Conduct for MP's (Nolan Committee)
o Strengthening of Ethics committee
o Penalty for unruly behaviour.
 Logistical
o Proper training
o Minimum number of days
 Rajya Sabha - 100 days

 Lok Sabha - 120 Days
o Linking salaries to the performance
 Political Parties:
o Pre-poll coalition (2nd ARC)
 Midterm realignment must seek fresh mandate

o Constructive vote of No confidence
 Overthrow only if majority supports prospective successor.
2. PARLIAMENTARY COMMITTEE
WHY DO WE NEED COMMITTEES?
 Detailed scrutiny (Parliament does not have that much time)
 Important for building consensus
 Can accommodate diverse stakeholders along with public feedback.
 Unlike parliament, they function through out the year.
 They enforce accountability on executive
o Public accounts committee
o DRSC
WHY INDIA DOES NOT HAVE AN EFFECTIVE COMMITTEE SYSTEM?

 Not all bills are being referred to the committees
o 60% (14th LS), 70% (15th LS), 30% (16th LS)
 Low attendance

PARLIAMENT
 Yearly membership doesn’t allows for specialization

 Lack of training and support staff
SHOULD THEY BE OPEN TO PUBLIC?

 Yes: It will enhance their accountability and make public politically literate.
 No: Closed doors discussions required for free and fair debate and on sensitive issues.
WAY FORWARD
 UK model of mandating all bill be referred to the committees
 Full time sector specific research staff be made available
 There should be a law for the appointment to the committees
 Increasing tenure to allow specialization
 NCRWC has recommended committees on Constitutional Amendment Bills and
National Ecnomoy.
3. ROLE OF SPEAKER
 Securing the neutrality of the Speaker is a question that experts in India have been
grappling with for 60-plus years. A watchful Parliament forms the foundation of a
well-functioning democracy. The presiding officers of Parliament are the key to
securing the effectiveness of this institution. The MPs look to them to facilitate debate,
protect their rights and uphold the dignity of Parliament.
 How is the position of Speaker in Britain?
o In Britain, the promise of continuity in office for many terms is used to ensure the
Speaker’s impartiality. By convention, political parties (usually) do not field a
candidate against the Speaker at the time of general elections. And the Speaker can
continue in office, until deciding otherwise. By convention, the Speaker also gives
up the membership of his/her political party.
WHAT IS THE ROLE OF THE SPEAKER IN INDIA?

 Presiding Officer: Maintains order and decorum in the House, and ensures that the
proceedings are conducted in accordance with the rules and procedures.
 Decision-making: The Speaker decides on the admissibility of questions, motions,
and amendments, and also decides on the allocation of time for discussions and
debates.
 Committee Formation: The Speaker appoints the members and chairpersons of
various parliamentary committees, such as the Committee on Public Accounts, the
Committee on Estimates, and the Committee on Privileges.
 Casting Vote: In case of a tie during a voting, the Speaker has the power to cast the
deciding vote.
 Disqualification of members: The Speaker has the power to disqualify a member of
the Lok Sabha on the grounds of defection, misconduct, or violation of parliamentary
rules.
 Maintenance of Order: The Speaker has the power to suspend or expel a member
who violates the rules of the House or behaves in a disorderly manner.
 Parliamentary Affairs: The Speaker is responsible for the administration of the Lok
Sabha, including the preparation of the annual budget, allocation of funds, and the
recruitment of staff.

PARLIAMENT
Hence, we can see that the Speaker of the Lok Sabha plays a crucial role in ensuring the
smooth functioning of the parliament and maintaining the integrity of the democratic
process in India.
What are the mechanisms to ensure the neutrality of Speaker in India?
 His salaries and allowances are fixed by Parliament. They are charged on the
Consolidated Fund of India
 His work and conduct cannot be discussed and criticised in the Lok Sabha except
on a substantive motion.
 Powers of regulating procedure or conducting business or maintaining order in the
House are not subject to the jurisdiction of any Court.
 Only exercise a casting vote in the event of a tie. This makes the position of Speaker
impartial.
 He is given a very high position in the order of precedence. He is placed at seventh
rank, along with the Chief Justice of India
Issues associated with speaker
 With no security in the continuity of office, the Speaker is dependent on his or
her political party for re-election.
 The Anti-Defection Law assigns the responsibility of deciding whether a member
should be disqualified to the Speaker, who has significant discretion. However, this
discretion has often been exploited by the ruling party to eliminate dissenting voices.
 Determination of money bill: It has been criticised for certifying bills such as Aadhaar
Bill etc. as Money Bill, though it may not have met the strict criteria laid out in the
Constitution.
 It is common for Indian Speakers to have occupied ministerial roles shortly
before or after their term. As a result, even if there is no evidence to substantiate
such allegations, it is not unexpected for Speakers in India to be accused of
partisanship.
 The challenge posed by coalitions is twofold.
o Firstly, the growing number of parties has led to a reduction in the amount of time
each party has to articulate its interests during discussions.
o Secondly, there has been a decline in the frequency of annual sittings of
Parliament/Legislatures.
o Rise in the number of political parties and varied political interest has made it
harder for the Speaker to find consensus between members on use of disciplinary
powers
 Unparliamentary conduct: Members seek to use unparliamentary means such as
disruptions etc. for attaining the indulgence of the Speaker.
So, it is advisable to do the following:
 Implementation of the UK rule of giving up party memebrship.
 The responsibility of the Speaker in dealing with defections, splits, and mergers should
be assigned to an impartial entity such as the Election Commission or a neutral body
outside the legislature.
 To ensure a smooth and uncontested re-election process, it is recommended to
establish a tradition of re-electing the Speaker without any opposition.
 Bar on future political offices except President and Vice President.

PARLIAMENT
4. ANTI DEFECTION LAW

The anti-defection law provides for disqualification of a legislator if he votes contrary to
the party whip. As a result, members are compelled to obey the party whip, in order to
avoid losing their seat in the House.
PROVISIONS
 The Tenth Schedule also known as Anti-defection Law, was inserted in the Constitution
in 1985, by the 52nd Amendment Act.
 It lays down the process by which legislators may be disqualified on grounds of
defection by the Presiding Officer of a legislature based on a petition by any other
member of the House.
 It seeks to provide a stable government by ensuring the legislators do not switch sides.
 The law applies to both Parliament and state assemblies.
DISQUALIFICATION UNDER ADL

 Members
o If the member voluntarily gives up the membership of the party, he shall be
disqualified
o If a legislator votes in the House against the direction of his party and his action is
not condoned by his party, he can be disqualified.

 Independent Members: He becomes disqualified to remain a member of the House
if he joins any political party after such election.
 Nominated Members: If he joins any political party after the expiry of six months
from the date on which he takes his seat in the House.
EXCEPTIONS
 Legislators may change their party without the risk of disqualification in certain
circumstances:
 If there is a merger between two political parties and two-thirds of the members of a
legislature party agree to the merger, they will not be disqualified.
 If a person is elected as the speaker of Lok Sabha or the Chairman of Rajya Sabha then
he could resign from his party and re-join the party once he demits that post.
ISSUES WITH ADL

 The law raises questions on the role of a legislator.
o It restrains legislators from expressing their conscience in the House.
o It breaks the link of accountability between the voter and the elected
representative.
o It disturbs the balance of power between the executive and the legislature, by
constraining the ability of a member to hold the government accountable.
o It leads to major decisions in the House being taken by a few party leaders and
empowers party leaders to compel legislators to vote as per their instructions.
ROLE OF THE SPEAKER

 No time frame to take decision
 Partisan role of the same.

PARLIAMENT
o Misuse of voluntarily giving up the membership provision
 Even without formally resigning, speakers have inferred this from the conduct.
o Does not applies to pre poll alliances
o Cant prevent mass defections
o Has killed the practice of private member bills
WAY FORWARD
 Dinesh Goswami Committee (1990): ADL should be decided by the
President/Governor by Election Commission.
 Law commission recommended the removal of Exemption for merger.
 NCRWC: There should be a bar on defectors holding public office (91st CA, 2003)
 Hashim Abdul Halim committee recommended defining clearly "Voluntarily giving
up"
5. UPPER HOUSE
1919 – Montagu Chelmsford reforms – Council of States – 1954 (RS)
4th Schedule - Number of Seats in RS:
ROLE OF RAJYA SABHA

 Federal linking institution
 Review + re evaluation of proposals
 Deliberation
 Vulnerable representation (∵ PR’ Sys)
 Nomination of Expert members
 Tax subjective from state to union List (Art 249)
Should Rajya Sabha have equal representation for all states ? like (US) Oh YES!
 Because Lok Sabha is already linked to Population therefore no need.
 9 states have only 1 seats.
 10 states take up 70% of the seats.
 Resolution under Article 249 can be passed even if bottom 14 states oppose
 This step was also recommended by Punchhi Commission .
ISSUES
 No equal representation of the states
 Lok Sabha can juggernaut through Rajya Sabha as it has double membership
 It can be bypassed by the Money Bill mechanism
 Domicile diluted removed in 2003

o Not rep of State’s socio economic conditions
o Not aware of ground realities
o Allegiance to Pol Parties

PARLIAMENT
DELIMITATION COMMISSION
Central government has constituted the Delimitation Commission for the purpose of
delimitation of Assembly and Parliamentary constituencies in the Union territory of
Jammu and Kashmir and the States of Assam, Arunachal Pradesh, Manipur and Nagaland.
Delimitation literally means the act or process of fixing limits or boundaries of territorial
constituencies in a country or a province having a legislative body. The job of delimitation
is assigned to a high power body. Such a body is known as Delimitation Commission or a
Boundary Commission.
Under Article 82, the Parliament enacts a Delimitation Act after every Census which
establishes a delimitation commission. Under Article 170, States also get divided into
territorial constituencies as per Delimitation Act after every Census.
In India, such Delimitation Commissions have been constituted 4 times – in 1952, 1963,
1973 and 2002. In 2002, the 84th Constitutional Amendment was used to freeze the
process of delimitation for Lok Sabha and State assemblies till at least 2026. As a result,
the Delimitation Commission could not increase the total seats in the Lok Sabha or
Assemblies. It may be done only after 2026. This had led to wide discrepancies in the size
of constituencies, with the largest having over three million electors, and the smallest less
than 50,000.

PARLIAMENT
Issues arising out of Unequal Representation

 The present delimitation, based on 2001 census, has been undertaken after 30 years.
The population has increased by almost 87% and the nature of constituencies in the
country, by and large, had become malapportioned.
 Dilution of the principle of “One Citizen One Vote”- e.g. the average MP from
Rajasthan represents over 30 lakh people while the one in Tamil Nadu or Kerala
represents less than 18 lakh. Increasing burden on the Representatives- An MP today
represents more than four times the number of voters than what an MP did in 1951-
52, when the first general elections were held
 Don’t include changing dynamics-In 1988, the voting age was lowered from 21 to 18
via 61st Amendment Act. This led to a substantial increase in the size of each
constituency. Further, Migration to urban or industrialized areas has made such
increase skewed in direction and intensity.
 The perception of one region controlling the others or ignoring cultural and social
aspirations may invoke popular agitations. Also it creates a divide of politically
important vs. unimportant states for the political parties. It also creates demand for
smaller states.
Implications if the limitation freeze is lifted
 Concerns of family planning remains- where the states will be apprehensive towards
such measures as it may reduce their seats in Parliament.
 Control of Presiding Officers of House- who find it extremely difficult to conduct the
proceedings of the House. Their directions and rulings are not shown proper respect,
and disruptions of proceedings aggravate the problem. The sudden increase in
numbers will further aggravate this matter.
 Working of the house- It will be subjected to severe strain because the hourly window
for the Zero Hour, Question Hour etc. will be too small for increased members.
6. OFFICE OF PROFIT
The term is not defined in the Indian Constitution. Both parliament and State Legislatures
can amend the list of offices kept out side the purview of OOP.
Parliament made THE PARLIAMENT (PREVENTION OF DISQUALIFICATION) ACT, 1959
ADVANTAGES OF OOP
 Enables the Separation of Power
 Ensures the independence of MPs/MLAs
 Removes Conflict of Interest.
RULES FOR DETERMINATION OF OOP

 Pradyut Bordoloi Vs Swapan Roy (2001)
o Govt controls appointment, removal
o Office has remuneration
o Body in which office is held has any executive functions
 Allot land, release money, licenses

o Office enables holders to influence by way of patronage.
 Jaya Bachchan Case

o Whether Post capable of yielding profit
o The person actually receives allowances or not is immaterial.

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WAY FORWARD
 UK practice of designating whether an office is OOP or not at the time of creation of
office.
 Government undertaking distributing/controlling funds should be OOP.
 MPLADs/MLALADs be abolished.
7. CONCEPT OF PRIVILEGES AND TYPES OF

PRIVILEGES
The Constitution (under Art. 105 for Parliament, its members & committees /Art. 194 for
State Legislature, its members & committees) confers certain privileges on legislative
institutions and their members to:
 Protect freedom of speech and expression in the House and insulates them against
litigation over matters that occur in these houses
 Protect against any libel through speeches, printing or publishing
 Ensure their functioning without undue influence, pressure or coercion
 Ensure sovereignty of Parliament
Currently, there is no law that codifies all the privileges of the legislators in India.
Privileges are based on five sources: i) Constitutional provisions ii) Various laws of
parliament (iii) Rules of both the houses iv) Parliamentary conventions v) Judicial
interpretations.
Whenever any of these rights and immunities is disregarded, the offence is called a
breach of privilege and is punishable under law of Parliament. • However, there are no
objective guidelines on what constitutes breach of privilege and what punishment it
entails.
TYPES OF PRIVILEGES
 Collective
o Exclude strangers from proceedings. Hold a secret sitting of the legislature
o Freedom of press to publish true reports of Parliamentary proceedings. But, this

does not in case of secret sittings
o Only Parliament can make rules to regulate its own proceedings
o There is a bar on court from making inquiry into proceedings of the house
(speeches, votes etc.)
 Individual
o No arrest during session and 40 days before and 40 days after the session.
Protection available only in civil cases and not in criminal cases
o Not liable in court for any speech in parliament
o Exempted from jury service when the house is in session.
CHALLENGES WITH RESPECT TO PRIVILEGES

 Conflicts with FR-> judiciary intervenes on the basis of arbitrariness.
 Against 'Constitutionalism' or doctrine of limited powers. Absence of codified
privileges gives unbridled power to house to decide when and how breach of privilege
occurs.
 Discredits separation of powers, as speaker acts as complainant, advocate and the
judge. Penal action in cases of breach of privileges unwarranted, unless there is an
attempt to obstruct the functioning of the house or its members.

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 The 'sovereign people of India' have restricted right to free speech while 'their
representatives' have absolute freedom of speech in the houses. Courts must revisit
earlier judgments to find right balance between Fundamental Rights of the citizens
and privileges of legislature.
 Invoked on grounds of defamation by individual members, while judicial remedy
available under defamation and libel law.
 The decisions of the speaker may be influenced by his/her political affiliations.
 US has abolished the penal provisions while UK has abolished the privileges
altogether.
WAY FORWARD:
 Constituent Assembly envisaged the system of uncodified privileges based on British
House of Commons, as only temporary. Therefore, there is a need for proper
codification of privileges. E.g. Australia passed Parliamentary Privileges Act in 1987,
clearly defining privileges, the conditions of their breach and consequent penalties.
 The decisions of the speaker may be influenced by his/her political affiliations.
Therefore, the trial must be conducted by a competent, independent and impartial
tribunal.
 Must only be invoked by legislature when there is "real obstruction to its functioning".
Breach of privilege invoked for genuine criticism of members of the house or due to
political vendetta, reduces accountability of elected representatives.
CODE OF CONDUCT
 Rajya Sabha has CoC since 2005, Lok Sabha Doesn’t have any CoC
 Rajya Sabha CoC
o Public interest should over ride private interest in case of a conflict.
o MP's should guard against conflict of interest (members and families)
o Should not participate in debates where there is direct conflict.
 Never to accept any fee, remuneration, benefit for vote/bills/ resolution.

 Rule 293: Register of members interest.
o Formed as per ethics committee
o RTI accessible
8. LEGISLATIVE COUNCILS
o Article 168 of the Constitution of India deals with the creation of Legislative Councils
in the states. It states that the Parliament may, by law, provide for the establishment
of a Legislative Council in a state if the Rajya Sabha, by a resolution supported by
two-thirds of the members present and voting, passes a resolution to that effect.
o Article 171 of the Constitution of India deals with the composition of the Legislative
Councils. It states that the Legislative Council of a state shall consist of not more
than one-third of the total strength of the State Legislative Assembly, and not less
than 40 members. The members of the Legislative Council are indirectly elected by
the members of local bodies, such as municipalities and panchayats.
 Why They Have Been in News:
o There has been a debate over the relevance of Legislative Councils in India. Some
people argue that they are an outdated institution that has no place in a modern

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democracy. Others argue that they play an important role in providing checks and
balances on the power of the State Legislative Assembly.
o Another factor is the proposal to abolish Legislative Councils in some states. For
example, the government of Uttar Pradesh has proposed to abolish the Legislative
Council in the state.
 Arguments in favor of the relevance of Legislative Councils:
o They can provide a more deliberative forum for lawmaking.
 The State Legislative Assembly is often seen as being too focused on short-term
political considerations, while the Legislative Council can provide a more long-
term perspective.
 For example, the Legislative Council in Karnataka played a key role in the passage
of the Karnataka Education Act, 1983, which introduced a number of reforms to
the state's education system.
o They can represent the interests of different sections of society, such as the
Scheduled Castes and Scheduled Tribes, who may be underrepresented in the
State Legislative Assembly.
 For example, the Legislative Council in Bihar has a number of seats reserved for
Scheduled Castes and Scheduled Tribes. These seats ensure that these
communities have a voice in the state legislature.
o They can provide a forum for debate and discussion on important issues, which can
help to improve the quality of legislation.
 For example, the Legislative Council in Uttar Pradesh held a number of debates
on the issue of land acquisition, which helped to shape the state's land
acquisition policy
 Arguments against the relevance of Legislative Councils:
o They can be seen as an undemocratic institution, as they are not directly elected by
the people.
o They can be seen as a waste of money, as they add an extra layer of bureaucracy to
the state government.
o They can be seen as being ineffective, as they often have limited powers.
9. RESERVATION FOR WOMEN IN POLITICS

WHAT IS WOMEN RESERVATION BILL?
 The Women’s Reservation Bill proposes to reserve 33% of seats in the Lok Sabha and
State Legislative Assemblies for women.
FEATURES
 The allocation of reserved seats shall be determined by such authority as prescribed
by Parliament.
 One third of the total number of seats reserved for Scheduled Castes and Scheduled
Tribes shall be reserved for women of those groups in the Lok Sabha and the legislative
assemblies.
 Reserved seats may be allotted by rotation to different constituencies in the state or
union territory.
TIME LINE
 For the first time in 1996 ,it was introduced in the Lok Sabha as the 81st Amendment
Bill by the then Deve Gowda led United front government . Bill failed to get approval

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in the house and was referred to a joint parliamentary committee. JPC submitted its
report, however bill lapsed with the dissolution of the Lok Sabha.
 In 1998 , the bill was again introduced by the Atal Bihari Vajpayee led NDA government,
but in absence of required support it again lapsed.
 The Bill was subsequently reintroduced in 1999, 2002 and 2003, but failed to pass
due to lack of majority.
 In 2008, bill was again introduced as 108th constitution Amendment Bill. It was
passed in Rajya Sabha but eventually lapsed after dissolution of the 15th Lok sabha.
 Despite the promises made in election manifesto of 2014 as well as 2019 , there is no
development in this regard as such.
How many women are in Parliament?

 About 14% of the members in Indian Parliament are women, the highest so far.
 According to the Inter Parliamentary Union, India has a fewer percentage of women
in the lower House than its neighbours such as Nepal, Pakistan, Sri Lanka and
Bangladesh – a dismal record.
Arguments in favour of the Bill

 Affirmative action is imperative to better the condition of women since our society
in general and political parties in particular are inherently patriarchal.
 Despite the belief of the constituent assembly that every section would be represented
proportionally, women are still under represented in Parliament.
 Reservation to women would ensure a strong lobby arguing for issues that are being
conveniently ignored.
 Reservation at panchayat level have shown positive results, despite being termed
as rubber stamp (*in some cases) , women’s are more likely to invest in goods which
are crucial for women and children.
 The prevalent social tribulations like crime against women, skewed sex ratio, low
LFPR and poor health indices require more women in the roles of policy and decision
making.
Arguments against the Bill
 Opponents argue that it would perpetuate the unequal status of women since they
would not be perceived to be competing on merit.
 They also contend that this policy diverts attention from the larger issues of
electoral reform such as criminalisation of politics and inner party democracy.
 Reservation of seats in Parliament restricts choice of voters to women candidates.
 Rotation of reserved constituencies in every election may reduce the incentive for
an MP to work for his constituency as he may be ineligible to seek re-election from
that constituency.
 Women’s interests cannot be isolated from other social, economic and political
strata.
To Conclude
 To start with, some proponent suggest that reservation should be provided for women
in political parties.
 Some has also suggested to have dual member constituencies (where constituencies
will have two MPs, one of them being a woman).
 Until and unless women are not a part of the policy making process, they cannot raise
their voice for fellow women. This would result in a vicious cycle with this debate

PARLIAMENT
continuing for centuries. So, this is high time to finish this visible and unsaid inequality.
Democracy cannot live a long life in an unequal society.
10. PARLIAMENTARY COMMITTEES

Parliament has the primary responsibility of making laws and holding the government
responsible for its actions. As representatives of citizens, MPs pass laws, oversee the
working of the government and the efficient allocation of public funds. Parliamentary
Committees act as a mechanism that helps in improving the effectiveness of Parliament.
Over the years, responsibilities of the government have increased significantly.
Government expenditure and legislation have become technical and complex in nature.
While a significant amount of Parliament’s work gets done on the floor of the House, it is
difficult for Parliament to scrutinise all government activities in the House in a limited
time. Thus, Parliamentary Committees were constituted to examine proposed legislation,
government policies and expenditure in detail. They also examine petitions from the
public, check whether rules framed by the government are in consonance with Acts of
Parliament, and help manage the administration of Parliament. Deliberations in
Committees present several advantages.
Committees can get inputs from experts and stakeholders on various matters.
Their ability to devote more time on each item allows them to examine matters in greater
detail. They also help parties reach consensus on various issues.
However, there are several areas where Committees need strengthening. For example,
all Bills are not referred to Committees. They are thinly staffed and do not have full-time
technical expert support. Some Committees may not seek evidence from experts on
important Bills. Further, attendance of MPs in Committee meetings is about 50%, which
is lower than the 84% attendance seen during the Parliament sittings.
WHY ARE PARLIAMENTARY COMMITTEES NEEDED?

Parliamentary committees are an integral part of the legislative process in India, and they
serve several important functions. Here are some key reasons why parliamentary
committees are needed in India:
1. Detailed examination of bills: and other matters referred to them by the Parliament.
This allows for a thorough review of legislation, including its various aspects such as
legal, technical, financial, and policy implications. The committees can also seek inputs
from experts and stakeholders, which helps in making informed decisions about the
proposed legislation.
2. Oversight of executive actions: They review the policies, programs, and actions of
government departments and agencies to ensure that they are being implemented
effectively and efficiently, and to hold the government accountable for its actions. This
helps in ensuring transparency and accountability in the functioning of the
government.
3. Examination of budgetary allocations: They examine the estimates of expenditure,
proposals for new spending, and the outcomes of past spending to ensure that public
funds are being utilized efficiently and effectively. This helps in ensuring that taxpayer
money is being spent wisely and in the best interests of the public.
4. Public participation: They often invite inputs from the public, civil society
organizations, and other stakeholders, and conduct public hearings on important
issues. This allows for a diverse range of perspectives to be taken into account in the
decision-making process and promotes participatory democracy.
5. Expertise and specialization: This allows for in-depth examination of complex
issues, as the committees can draw on the knowledge and experience of their

PARLIAMENT
members. It also helps in bridging the gap between legislation and implementation,
as the committees can provide valuable insights and recommendations for effective
implementation of laws.
6. Efficient and specialized functioning: Parliamentary committees are smaller and
more focused than the full Parliament, which allows for more efficient and specialized
functioning. Committees can delve into issues in detail, conduct hearings, and interact
with stakeholders, which may not be possible in the larger forum of Parliament. This
leads to a more comprehensive and informed decision-making process.
Overall, parliamentary committees play a crucial role in the Indian legislative process by
providing a platform for detailed examination, oversight, public participation, and
specialized expertise. They contribute to the effective functioning of democracy by
ensuring that legislation is thoroughly reviewed, government actions are scrutinized, and
public interests are represented.
Types of committees:
There are various types of Parliamentary Committees in India which look at matters
such as government expenditure, legislation, government policies and schemes, and
administration of Parliament. They can be categorised into Departmentally Related
Standing Committees, financial committees, administrative committees, accountability
committees, and ad hoc committees.
Departmentally Related Standing Committees (DRSCs)
 DRSCs were constituted in 1993 to assist Parliament in scrutinising funds allocated to
Ministries. They also examine Bills referred to them by Parliament and analyse other
relevant policy issues. There are 24 DRSCs that oversee the working of a Ministry or
group of Ministries.
 They are composed of 31 members: 21 from Lok Sabha and 10 from Rajya Sabha.
These DRSCs are constituted for a period of one year. Financial Committees
Parliament regulates government expenditure to ensure that public finances are used
efficiently.
 Such financial oversight is a complex and technical task. Financial committees facilitate
this task for Parliament. They are the:
o Committee on Public Accounts, Committee on Public Undertakings, and Estimates
Committee.
o The Committee on Public Undertakings and Public Accounts consist of 22 members:
15 from Lok Sabha and seven members from Rajya Sabha.
o The Estimates Committee is composed entirely of Lok Sabha MPs. It has 30
members who are elected by the House. Members are elected for a period of one
year.
Financial Committees
No. of Members Nominated

Name of the Committee Tenure
Members or Elected
Estimates Committee 30 1 year Elected by the Lok Sabha
Public Accounts Committee 22(15LS+7RS) 1 year Elected by the two

House(s)
Committee on Public 22(15LS+7RS) 1 year Elected by the two

Undertakings House(s)

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Administrative Committees Both Houses of Parliament also require significant

administrative support for their day-to-day functioning. The Houses have set up different
Committees, such as the Business Advisory Committee which helps decide the daily
agenda of Parliament. Table 1 provides a list of administrative Committees in Parliament.
COMMITTEES FUNCTIONS
Business Advisory Committee Recommends time to be allocated for the

discussion of Bills and other business
Committee on Private Members' Examines all Private Members’ Bills after their
Bills and Resolutions introduction.
Committee on Government Scrutinises the assurances, promises, and

Assurances undertakings given by Ministers.
Rules Committee Considers matters of procedure and conduct of

business in the House
Committee of Privileges Examines questions involving breach of rights,

privileges, and immunities enjoyed by MPs
Committee on Ethics Oversees the moral and ethical conduct of MPs
Committee on Absence of Members Examines leave applications of MPs.

from the Sittings of the House
Joint Committee on Offices of Profit Examines the composition of other committees

and recommends what offices may disqualify a
person from becoming an MP.
Joint Committee on Salaries and Examines salaries and allowances of MPs.

Allowances of MPs
Committee on the Welfare of SCs Examines measures taken by the government to

and STs improve the status of Scheduled Castes and
Tribes
Committee on Empowerment of Recommends measures to improve the status

Women and conditions women.
Library Committee Advises on the improvement of Parliamentary

library.
House Committee Advises on matters related to residential

accommodation of MPs.
General Purposes Committee Advises on matters concerning the affairs of the

House referred to it by the Chairperson.
Accountability Committees
 Apart from financial Committees and DRSCs, three other Committees ensure
government accountability towards Parliament and citizens. These are the Committee

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on Government Assurances, the Committee on Subordinate Legislation, and the

Committee on Petitions.
Ad Hoc Committees
 Ad Hoc Committees are appointed by either House or the presiding officers from time-
to-time for a specific purpose. They cease to exist when they finish the task assigned
to them and submit a report. Some Ad Hoc Committees include: the Railway
Convention Committee, and Select Committees formed to examine specific Bills.
How is the Functioning of the Committees?
 Departmentally Related Standing Committees Departmentally Related Standing
Committees (DRSCs) meet to examine the expenditure of all Ministries, Bills referred
to them, and policies or issues selected by them. These meetings are conducted while
Parliament is in session or during inter-session periods. While it is difficult to analyse
the quality of deliberations in these sittings, the number of sittings held by various
DRSCs can be used as an indicator to measure the quantity of work done by them.
Figure 1 shows the average number of sittings for 10 Committees which examine the
largest (by expenditure) Ministries/Departments.
Note that the Committees on Defence, Finance, and Home Affairs have seen a decrease
in average number of sittings from the 14th to the 16th Lok Sabha, whereas the
Committee on Chemicals and Fertilizers has seen an increase.
Examining Demands for Grants
 After the Budget is presented, the DRSCs examine the Demands for Grants of all
Ministries under its purview. Demands for Grants refer to the detailed estimates of
expenditure of each Ministry. DRSCs study allocations to schemes and programmes,
spending by the Ministry, and the policy priorities of the Ministry.
 After this examination, the Committee compiles its recommendations in the form of a
Report which is laid in both Houses of Parliament. These recommendations help MPs
understand the implications of financial allocations. They also allow for a more
informed debate and analysis of Demands for Grants in Lok Sabha.
Negative numbers suggest that the report was presented after the Demand for Grants
were voted upon. In 2009 and 2014, all reports on the Demands were presented a few
months after they were voted in the House. Note that these were election years, and in
these years the budget presented by the new government was passed in the month of
July.
The new DRSCs were not formed by then. The primary objective of reports on Demands
for Grants is to help MPs examine government expenditure better. Therefore, it is
necessary for MPs to have sufficient time to study these reports before the discussion in
the House. The data suggests that in many cases MPs do not have sufficient time to study
these reports.

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Examining Bills
 Once a Bill has been introduced in Parliament, it may be referred to a DRSC for detailed
scrutiny. The Bill can be referred to a Committee either by the Speaker of Lok Sabha,
or the Chairperson of Rajya Sabha. It is sent to the DRSC that reviews the working of
the Ministry under which the Bill is introduced. After concluding its examination, the
DRSC lays its report in Parliament. The recommendations of the DRSC on the Bill may
also be discussed in the House.
 Note that a Bill passed by one House can still be referred to a Committee by the other
House. For instance, in the 16th Lok Sabha, the Motor Vehicles (Amendment) Bill, 2016,
and the Real Estate (Regulation and Development) Bill, 2013 were referred to a DRSC
as well as a Select Committee.
 DRSCs were given the responsibility of scrutinising Bills because Parliament does not
have the time and expertise to analyse each Bill in detail, on the floor of the House.
However, the trend shows that fewer Bills are being referred to Committees as
compared to previous Lok Sabha.
Examination of Issues
 Every year, DRSCs select subjects for detailed examination. These subjects could be on
existing or potential issues that could come up in the sectors that the DRSC looks at,
or implementation of programmes by the relevant Ministry. For example, some of the
subjects identified for examination by DRSCs constituted for 2019-20 include: state of
the Indian economy, implementation of the Ayushman Bharat Yojana, and digital
payment and online security measures for data protection.
Reports submitted by DRSCs
 After examining Bills, Demands for Grants, and issues, DRSCs prepare reports and
table them in Parliament. Subsequently, the DRSCs also submit Action Taken Reports
which show the recommendations accepted by the government, and the progress
made on them. The acceptance rate varies across Committees. During the 16th Lok
Sabha, 2,038 sittings were held by DRSCs and they submitted 1,111 reports. On
average, DRSCs published one report in 1.8 sittings. Average sittings taken to publish
one report vary across DRSCs. However, it is difficult to evaluate quality of these
deliberations without analysing each report.
Expert witnesses and research support

 To aid in their study, members of DRSCs can consult with expert witnesses,
stakeholders, and government officials. Engaging with experts and stakeholders

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enables Committee members to better understand the details of complicated issues,

and the potential impact of a policy or legislation.
 Note that Committees invite witnesses to testify before them at their own
discretion.
o For instance, the DRSC that examined the Right to Education Bill, 2008, which
guarantees free education to all children ages six to 14, did not invite any expert
witnesses.
 Apart from consulting experts, Committees can also invite comments from the
wider public.
o For example, the Committee on Labour and Employment published a press release
inviting public comments on the Occupational, Safety, Health and Working
Conditions Bill, 2019. Public comments help Committees consider the wider
implications of a Bill or policy.
 However, it is up to the discretion of the Committee whether or not they chose
to invite public comments.
 Currently, the technical support available to Parliamentary Committees is
limited to a secretariat that helps with matters such as scheduling meetings and
note taking.
o The National Commission to Review the Working of the Constitution (2002) had
highlighted the lack of research support and specialist advisors with the DRSCs.4 It
recommended that funds should be secured to assist these Committees in
conducting inquiries, holding public hearings, and collecting data. Note that
Committees in other countries such as the UK, USA, and Canada can retain
specialist advisors (such as lawyers, economists, and statisticians) to assist in
specific inquires.
Attendance of Members
 Parliamentary Committees hold several meetings to conduct in-depth analysis of
various issues through extensive deliberations among Members. Success of the
Committee system depends on the participation of Members in these meetings.
Though Committee meetings are conducted in a closed-door environment, Lok Sabha
publishes the attendance of Members in these meetings. Sixteen of the 24 DRSCs are
administered by Lok Sabha and other eight by Rajya Sabha. Figure 7 shows the
attendance of members during 2009-14 for the 16 DRSCs serviced by Lok Sabha. On
average, 49% members were present for meetings of these Committees between this
period.

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WAY FORWARD
Committees in India, like any other organization or system, can be improved
through various measures. Here are some suggestions:
 Diverse and Competent Membership: which brings a wide range of expertise and
perspectives. This ensures that the committee is able to effectively address the issues
at hand and make informed decisions.
 Transparent and Inclusive Processes: including clear rules of procedure, open
meetings, and opportunities for public input. This promotes accountability, fairness,
and wider stakeholder engagement.
 Adequate Resources and Support: including budgetary allocations, administrative
assistance, and access to relevant information and data. This enables committees to
function effectively and efficiently.
 Timely Completion of Work: Committees should have a defined timeline for
completing their work and submitting their recommendations or reports. This
prevents undue delays and ensures that the committee's work is timely and relevant.
 Implementation of Recommendations: should be seriously considered and
implemented by the relevant authorities. This helps ensure that the committee's
efforts result in tangible outcomes and real impact.
 Regular Monitoring and Evaluation: Committees' performance should be regularly
monitored and evaluated to assess their effectiveness and identify areas for
improvement. This helps in continuously enhancing the functioning of committees
and making necessary adjustments.
 Capacity Building and Training: to enhance their skills, knowledge, and
understanding of the committee's mandate and processes. This helps in improving
their performance and overall effectiveness.
 Review and Revision of Committee Structures: Periodic review and revision of
committee structures, mandates, and processes can help identify gaps and areas for
improvement. This may involve restructuring or redefining committees to align with
changing needs and priorities.
 Utilization of Technology: Committees can leverage technology for better
communication, coordination, and documentation. This may include the use of online
platforms for meetings, document sharing, and data analysis, which can streamline
committee processes and enhance efficiency.
By implementing these measures, committees in India can be improved to function more
effectively and contribute positively to decision-making and policy formulation processes.

6
Chapter JUDICIARY
1. Supreme Court
2. Judicial Activism/ Over-reach
3. Collegium and Appointments
4. Public Interest Litigation (PIL)
5. Government Litigations
6. National Judicial Infrastructure Corporation (NJIC)
7. Criminal Justice System (CJS)
8. Under trials
9. Alternate Dispute resolution
10. Lok Adalat
11. Gram Nyayalas
12. Tribunals in India
 Justice hurried is Justice buried.

 Justice delayed is Justice denied.
 2018 study indicates that failure to deliver timely justice costs 9% of the GDP
1. SUPREME COURT
CONSTITUTIONAL ARTICLES
 Article 131: Original Jurisdiction
 Article 132-134: Appellate Jurisdiction
 Article 136: Special Leave Petition
 Article 137: Review of Own Judgments
 Article 142: Orders for doing complete justice
Judicial Review: Articles 13(2), 32, 226, 245.
CONTEMPT OF COURT
Maneka Gandhi Case:
 "Procedural Due Process"
 Procedure under Article 21 must be "Just fair and reasonable"
 Breathed life into Article 21
 Clipped legislatures power to provide for arbitrary procedures.
2. JUDICIAL ACTIVISM/ OVER-REACH

Judicial Activism (Positive connotation): Assertive role by judiciary to force other
organs to discharge constitutional functions.
 Control over arbitrariness of application of Article 356.

JUDICIARY
 Creation of Basic Structure doctrine.

 Law and Order initiatives:
o Ban on tinted glass in vehicles
o Vishakha guidelines.
 Creation of Uniform Policy

o Dengue, Health
o Cleanliness of Agra (Taj Mahal)
 Cancellation of 2G spectrum allocation and Coal blocks.

 Environment pollution control: Ganga, Air Pollution
REASONS FOR INCREASING JUDICIAL ACTIVISM

 Written constitution - power of Judicial Review
o Power of Judicial Review is vested in many articles such as 13, 32,131-136, 143, 226,
145, 246, 251, 254 and 372.
 Wider interpretation given to Article 21 ("Due process" and "Life" and "Liberty")
 Increasing Human rights discourse.
 Inactivism of other branches (Legislature and Executive)
 Culture of country has led to Judiciary being highly venerated and hence
strengthening its legitimacy.
 Growth of corruption leading to Deficits in good governance.
 Rise of civil society (NGOs and Pressure groups)
 Judicial Globalization: Judges around the world have been looking beyond their own
states' jurisprudence to international law and the decisions of foreign courts in order
to apply domestic law.
Judicial Over-reach (Negative connotation): Takes up the powers of executive or
legislature (Judiciary in Executive and Legislature avatar). Realizing fully well that it can
not fill the lacunae left by these institutions.
 Instances of Judicial Over reach:
o A constitution bench of the Supreme Court has pronounced its long-awaited verdict
on the appointment of chief election commissioner (CEC) and election
commissioners (ECs). This order has decreed that the appointments should be
made by the president of India based on advice from a committee comprising the
prime minister, the leader of opposition in the Lok Sabha and the chief justice of
India.
o Mandating the government to form a collegium for the appointment of
o SC suggested Delhi Metro reserve premium seats for the rich at 5 times the normal
prices.
o NEET was declared illegal and unconstitutional by the Supreme Court of India in
2013.
 However, it was restored after a five-judge Constitution bench recalled the earlier
verdict and allowed the Central Government and the Medical Council of India
(MCI) to implement the common entrance test until the court decides afresh on
its validity.
o Liquor ban on Highways.
o Exclusion of tourists from core areas of Tiger reserves.
o Arun Gopal Vs UoI (2017): SC fixed timings for crackers and prohibited the Non-
Green crackers.

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o MC Mehta Vs UoI (2018): Ban on sale of BC IV vehicles.
o Subhash Kashinath Mahajan Vs UoI (2018): Amended the PoASC/ST Act, 1988.
o Rajesh Sharma Vs UP (2017): Amended the section 498A to "prevent its misuse".
 Why Judiciary should avoid Overreach?

o Competence of Judiciary on matters of policy making is questionable
 Because these issues are Poly Centric.

 Judiciary is not a "responsible" and "accountable' institution.
o Distracts judiciary from its core areas of concern on which it has competency.
o It violates the fundamentals of Separation of powers.
o It leads to continued negligence of the core challenges being faced by Executive and
legislature. (Causing Pendency)
o It impacts the day to day functioning of the executive (Especially when Article 142 is
used)
 What should Judiciary do?
o Judiciary should remain embedded to the constitution and law by following the
virtues of "Discipline" and "restrain".
o It should device mechanism to inspect PILs/SLPs before being admitted.
o There is need to adopt the internal accountability mechanism for frivolous

judgements.
Evaluation of the performance of the Supreme Court.
 As a protector of constitution – Initially SC was passive, but later on because of
executive overreach, Supreme Court became active towards its obligations. The
doctrine of basic structure was invented by SC to check emasculation of the
constitution by executive which was bent on diluting the essential features of the
constitution itself.
 Guardian of Fundamental Rights: Initially SC did not appear as a ‘sentinel qui vive’
(Guard with arms) of the FRs, allowed executive to dilute the FRs for the
implementation of DPSPs. Emergency was the darkest hour in the history of Supreme
Court. When Supreme Court’s action was needed the most, it failed to protect the
rights of the people. One of the blot on SC is the judgement in Habeous Corpus case.
(ADM Jabalpur Vs Shrikant Shukla case). After emergency, there have been change
in the approach, 1st reflected in Maneka Gandhi case 1978. It overruled its
judgement in AK Gopalan case, held that the doctrine of due process of law is inherent
in the doctrine of procedure established by law. Because of activist judges like P N
Bhagawati, Supreme Court instituted PIL (Public Interest Litigations), which
strengthened the rights of the weaker section. Since then, working with civil society,
judiciary has strengthened human rights in India. Supreme Court has interpreted the
meaning of Right to Life liberally to provide various rights. Though SC has
strengthened the rights in India, but it has not been able to bring any concrete change
in the situation. e.g. Supreme Court’s judgement in Sabarimala case could not be
implemented on the ground because of lack of support from the governments as well
as civil society.
 As a federal court. As per Art 131, Supreme Court has original jurisdiction for the
resolution of the disputes between center and state and among states. In this context,
Supreme Court has been able to play its constitutional role. Though constitution
restricts Supreme Court in case of inter-state water disputes, yet when required
Supreme Court did intervene using the powers under Art 136. Whatever progress is
observed in resolution of Kaveri water issue, it is because of SC. After remaining silent

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on many occasions which include the misuse of Art 356, SC in S R Bommai case
declared federalism as a basic structure and restricted the misuse of Art 356.
 SC as a protector of Rule of Law. SC has mixed record in context of rule of law. The
rule of law implies checking the arbitrariness of executives, it also includes checking
the corruption and criminalization. SC working with civil society and election
commission took initiatives to reduce the influence of money and muscle power in the
elections. Similarly, it has tried to uphold the rule of law in the cases of corruption like
2G spectrum. It is because of SC that some amount of trust has emerged in Indian
political system.
THREE MAJOR CONCERNS (FACED INTERNALLY BY THE COURT)

 The first major issue is the idea of the CJI as the “master of the roster”: There
have been instances where cases having far-reaching consequences for the nation and
the institution had been assigned by the Chief Justice of this Court selectively to the
Benches “of their preferences” without any rational basis for such assignment.”
 Another issue is the recent fascination of the Supreme Court for the “sealed
cover” as a means of receiving information about cases, having used it in three highly-
documented litigations in the past few months.
 The third issue is about post-retirement appointments: Any pre-retirement
judgments can be influenced by post-retirement assignments. Therefore it is clear that
such appointments really compromise the independence of the judiciary. They raise
potential conflicts of interest, if not in reality, certainly in matters of perception.
3. COLLEGIUM AND APPOINTMENTS

Context: The appointment and transfer of judges in India's higher judiciary, including
the Supreme Court and High Courts, have always been a subject of intense scrutiny and
debate. The Collegium system, which is based on the recommendation of a group of
senior judges led by the Chief Justice of India, has been the predominant mode of
appointments to the higher judiciary since the 1990s. While the Collegium system has
been praised for ensuring the independence and expertise of the judiciary, it has also
faced criticism for lack of transparency and accountability. This article aims to analyze the
Collegium system in India, examining its strengths and weaknesses, and exploring
potential reforms to improve the system's effectiveness and accountability.
WHY IS THE PROCEDURE TO APPOINT JUDGES TO HIGHER JUDICIARY

IMPORTANT?
The procedure to appoint judges to the higher judiciary is important in India for several
reasons:
 Separation of Powers: One of the fundamental principles of the Indian Constitution
is the separation of powers between the three branches of government. The judiciary,
as an independent and impartial institution, acts as a check on the powers of the
executive and legislature. The appointment of judges through a transparent and
objective process ensures that the judiciary remains independent and free from
external influence.
 Quality of Judiciary: The appointment of competent and qualified judges is crucial for
maintaining the quality and integrity of the judiciary. A rigorous and transparent
appointment process helps ensure that only the most deserving candidates are
selected for judicial positions.
 Public Confidence: The appointment of judges through a transparent process helps
maintain public confidence in the judiciary. When the appointment process is

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perceived as fair and unbiased, it enhances the credibility of the judiciary and its
decisions.
 Accountability: The appointment process also ensures accountability of judges. If a
judge is found to be unfit for the position, he or she can be removed through a due
process of law.
So we can understand that the procedure to appoint judges to higher judiciary is
important in India as it helps ensure the independence, quality, accountability, and
credibility of the judiciary, which is crucial for upholding the rule of law and protecting
the rights of citizens.
Important Constitutional Provisions regarding appointment of Supreme Court
Judges
 Appointment - Article 124(2) - Every Judge of the Supreme Court shall be appointed
by the President by warrant under his hand and seal.
 Resignation - Article 124(2)(a) - A Judge may by writing under his hand addressed to
the President resign his office.
 Removal – Article 124(4) - A Judge of the Supreme Court shall not be removed from
his office except by an order of the President passed after an address by each House
of Parliament supported by a majority of the total membership of that House and by
a majority of not less than two-thirds of the members of that House present and voting
has been presented to the President in the same session for such removal on the
ground of proved misbehaviour or incapacity.
 Oath – Article 124(6) – A person appointed as Judge of Supreme Court shall make and
subscribe before the President, or some person appointed in that behalf by him, an
oath or affirmation according to the form set out for the purpose in the Third Schedule.
 Bar on Practicing – Article 124(7) - A person who has held office of Judge of SC shall
not plead or act in any court or before any authority within the territory of India.
So clearly the constitution of India does not provides for a collegium system for
appointment but for appointment by the president as far as Higher Judiciary is
concerned. So where has this system come from?
The collegium system has evolved by way of several enactments and judicial
pronouncements.
Initially:
 The appointment of judges to the Supreme Court (SC) and high courts (HCs) has been
mandated in Article 124(2) and 217(1) of the Constitution respectively.
 The provisions provide that the power to appoint the judges vests with the President,
“in consultation” with the Chief Justice of India (CJI) for the SC, and “in consultation”
with the CJI, the governor of the concerned state and the Chief Justice (CJ) of the
concerned HC, for HC appointments.
 Previously, the inclusion of the President in “consultation with the CJI” was for
namesake and the appointments to the higher judiciary was the prerogative of the
executive.
CHANGES INTRODUCED THROUGH 1ST JUDGES CASE

 This unfettered power in the hands of the executive was challenged in Union of India
v Sankalchand Himmatlal Sheth (1977) where the SC observed that the term
“consultation” in Article 222(1) should be interpreted by reading in “real, substantial
and effective consultation based on full and proper materials placed before the Chief
Justice by the Government”.
 1st Judges case:

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o Several years later, in SP Gupta vs Union of India (1981) (‘First Judges’ Case’) the
majority opined that “judicial independence” is a part of the basic structure of the
Constitution. However, it was held that the view of the CJI in appointments and
transfers is non-determinative. Highlighting “executive primacy”, the court held
that “consultation” in Article 217(1) does not mean “concurrence”. It also made
clear that the role of the CJI is merely consultative and the final decision vests with
the government.
 2nd Judges Case:
o In Supreme Court Advocates-on-Record Association vs Union of India (1993)
(‘Second Judges’ Case’), it was ruled that “consultation” in Constitution connotes
“concurrence” and held that the CJI has primacy in appointments and transfers, and
that his power was held to be “unique, singular and primal”.
o Further, it was stated that the opinion of the CJI is not of his own, but of the
"collegium", consisting of the CJI and the next two senior judges in line.
 3 Judges Case:
rd
o The comprehensive working of the collegium was unanimously clarified by the SC

in, In Re Presidential Reference (1998) (‘Third Judges’ Case’).
o As per this ruling, the collegium would consist of the CJI and four senior judges
in line for the SC, and the CJ and two senior judges in line for the HCs.
 NJAC Struck Down
o In 2014, the constitution was amended through 99 constitutional Amendment Act.
It provided for national Judicial Appointment Commission for appointment and
transfer of High court judges and appointment of Supreme Court judges.
o Composition (CJI+2 Senior most Judges of SC + Law Minister+2 eminent
persons) was held violative of separation of powers. Executive would dominate over
judiciary in matters of appointment.
o Impinged upon the independence of the judiciary (violation of Basic Structure).
However, The Collegium system in India has come under attack for several reasons.
Here are some specific instances that highlight the criticism of the Collegium
system:
LACK OF TRANSPARENCY
 The decisions of the Collegium is published on website of Supreme Court but does not
reveal:
o methodology or reasons provided for transfer or promotion of judges;
o ground to select senior lawyers for appointment as Judges of SC or HC.
o In 2018, four senior judges of the Supreme Court publicly criticized the
Collegium system for lack of transparency in the appointment of judges. The judges
held a press conference and claimed that the allocation of cases by the Collegium
was arbitrary and opaque. They also raised concerns about the lack of transparency
in the appointment of judges to the higher judiciary.
 Allegations of nepotism: The Collegium system has been accused of nepotism and
favoritism in the appointment of judges.
o In 2017, a controversy erupted when the Collegium recommended the
appointment of Justice KM Joseph to the Supreme Court. The government
returned the recommendation, and it was alleged that Justice Joseph's appointment
was blocked due to his ruling against the government in a case related to
President's rule in Uttarakhand.

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 Lack of diversity: The Collegium system has also been criticized for lack of diversity
in the appointment of judges.
o In 2018, it was revealed that there were no judges from the Scheduled Castes or
Scheduled Tribes in the Supreme Court. This led to calls for the Collegium to be
more inclusive in its appointment process.
 Delay in appointments: The Collegium system has been criticized for causing delays
in the appointment of judges.
o In 2023, Vacancy in High Courts stood at 37% (406 posts vacant out of a sanctioned
strength of 1,098).
o Critics blamed the Collegium system for the delay in appointing judges to fill these
vacancies.
 Lack of accountability: The Collegium system has been accused of lack of
accountability in the appointment of judges.
o In 2019, the Supreme Court Collegium recommended the appointment of two
judges who were facing allegations of sexual harassment.
o This led to a public outcry, with critics claiming that the Collegium was not taking
the allegations seriously and was not being held accountable for its decisions.
MERITS OF COLLEGIUM
 Ensures Independence of Judiciary as mandated in Article 50 – from interference of
the Executive.
o Views of SC & HC Judges taken in writing.
 Prevalence of Majority Opinion favours democratic process of appointment.

 Reservations of even two Judges of Collegium taken seriously and halts
appointment process for doubtful candidates.
 Allows talented lawyers from the bar to be appointed as Judges of HC/SC.
How to improve?
 A clear appointment policy should be adopted minimizing human discretion.
 Collegium should be transparent regarding furnishing reason - seniority/ merit
 Higher judiciary should diversify collegium by including Women, minority and civic
society groups.
 Older judges with shorter tenure is often ineffective.
 Collegium should have permanent secretariat and minutes of the meetings should be
subject to RTI.

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 Collegium should accept applications for appointment (as followed in UK)
4. PUBLIC INTEREST LITIGATION (PIL)

PILs are often in the news in India because they are frequently used to address issues of
public concern and significance. PILs allow any individual or organization to approach the
court for the protection of public interest, and they can be used to address a wide range
of issues that affect society as a whole, such as corruption, environmental degradation,
human rights violations, and consumer protection, among others.
THE CONCEPT OF PIL

PIL stands for Public Interest Litigation, which is a type of legal action taken in a court of
law for the protection of public interest. PIL allows individuals or organizations to
approach the court to seek legal remedies on behalf of the public at large, where
there may be a violation of rights or harm caused to the community as a whole. The
concept of PIL was first introduced in India in the 1980s as a means of promoting
access to justice for the poor and marginalized sections of society. It has become an
essential tool for social activists, NGOs, and other concerned citizens to seek legal
remedies for issues that affect the larger public, such as environmental degradation,
human rights violations, corruption, and consumer rights, among others. PIL has played
a crucial role in shaping India's legal landscape and promoting social justice by providing
a platform for the common citizen to raise their voice against injustice and inequality.
EMERGENCE OF PIL
The concept of Public Interest Litigation (PIL) emerged in the Indian jurisprudence in the
1980s as a means of providing access to justice to the poor and marginalized sections of
society. In the early 1970s, a group of social activists and lawyers in India began to
challenge the traditional legal system's formalities and complexities, which made it
difficult for ordinary people to approach the courts for justice. These activists advocated
for the creation of a legal mechanism that would allow individuals or organizations to
approach the court to seek legal remedies on behalf of the public at large.
The Supreme Court of India, in its landmark judgment in the case of S.P. Gupta v. Union
of India (1981), recognized the concept of PIL and expanded the scope of locus standi
(the right to appear before a court) to include anyone who seeks to enforce public rights
or interests. This judgment paved the way for the growth of PIL in India, and since then,
PIL has become an important tool for social activists, NGOs, and other concerned citizens
to seek legal remedies for issues that affect the larger public.
Over the years, the Indian judiciary has played a proactive role in expanding the scope
of PIL and has used it to address a wide range of issues, such as environmental
degradation, human rights violations, corruption, consumer rights, and the protection of
heritage sites, among others. PIL has become an essential part of India's legal landscape
and has helped to promote social justice and equality by providing a platform for the
common citizen to raise their voice against injustice and inequality.
WHO CAN FILE A PIL?

Under Article 32 of the Indian Constitution, in the supreme court, Article 226 in the High
Court, and Section 133 of the Criminal Procedure Code in the magistrate court, any
citizen can file a public case by filing a petition. However, the petitioner must prove to the
court’s satisfaction that the petition is being filed in the public interest and not as a
frivolous litigation by a busybody. The court may take cognizance of the matter and
proceed with Suo motu, or any public-spirited individual may file a petition.
The concept of “Locus Standi” has been relaxed in the case of PILs so as to enable
the Hon’ble Court to look into grievances that are filed on behalf of those who are poor,

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illiterate, deprived or disabled and are unable to approach the courts themselves. A PIL
can only be brought against the Central, state, or municipal governments and not
against any individual. The Governmental and Parliament of India, each State’s
Government and Legislature, and all local or other authorities within the territory of India
or under the control of the Government of India are all included in the definition of a
state.
There have been several famous cases of Public Interest Litigations (PILs) in
India, which have had a significant impact on the country's legal landscape and
society as a whole. Some of the most prominent ones are:
Vishaka v. State of Rajasthan (1997): This PIL was filed to address the issue of sexual
harassment of women in the workplace. The Supreme Court of India laid down
guidelines for the prevention of sexual harassment of women at the workplace, which
became known as the Vishaka Guidelines.
MC Mehta v. Union of India (1986): This PIL was filed to address the issue of pollution
in the River Ganga. The Supreme Court of India issued several orders to stop industries
from dumping effluents into the river and to improve the water quality of the river.
Olga Tellis v. Bombay Municipal Corporation (1985): This PIL was filed to address
the issue of slum eviction in Mumbai. The Supreme Court of India held that the right to
livelihood is a fundamental right, and slum dwellers cannot be evicted without
providing alternative accommodation.
Bandhua Mukti Morcha v. Union of India (1984): This PIL was filed to address the
issue of bonded labor in India. The Supreme Court of India laid down guidelines for the
abolition of bonded labor and directed the government to take several measures to
rehabilitate bonded laborers.
Common Cause v. Union of India (2017): This PIL was filed to address the issue of
passive euthanasia. The Supreme Court of India held that individuals have the right to
die with dignity, and laid down guidelines for the administration of passive euthanasia.
These cases are just a few examples of the many famous PILs in India that have had a
significant impact on the country's legal and social landscape. PILs have been used to
address a wide range of issues, from environmental degradation and human rights
violations to corruption and consumer protection.
SIGNIFICANCE OF PIL
 Affordable legal remedy – In Public Interest Litigation (PIL) vigilant citizens of the
country can find an inexpensive legal remedy because there is only a nominal fixed
court fee involved in this.
 Accessibility of justice – This is done by relaxing the traditional rule of locus standi.
Any public spirited citizen or social action group can approach the court on behalf of
the oppressed classes.
 Addressing larger public issues – through the so-called PIL, the litigants can focus
attention on and achieve results pertaining to larger public issues, especially in the
fields of human rights, consumer welfare and environment.
 Instrument of social change – PIL is working as an important instrument of social
change. It is working for the welfare of every section of society. PIL has been used as
a strategy to combat the atrocities prevailing in society. It’s an institutional initiative
towards the welfare of the needy class of the society. In Vishaka v. State of Rajasthan
Supreme court has laid down exhaustive guidelines for preventing sexual harassment
of working women in place of their work.

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 Monitoring of state institutions – such as jails, women’s protective homes, juvenile

homes, mental asylums, and the like. Through judicial invigilation, the court seeks
gradual improvement in their management and administration.
 Checks and balances – Provides a tool in the hands of the judiciary along with
enhanced participation of the public to keep tab on executive and administrative
actions.
 Devising new kind of reliefs and techniques of fact finding – By fashioning new
kinds of reliefs under the court’s writ jurisdiction. For example, the court can award
interim compensation to the victims of governmental lawlessness. In most of the cases
the court has appointed its own socio-legal commissions of inquiry or has deputed its
own official for investigation. Sometimes it has taken the help of National Human
Rights Commission or Central Bureau of Investigation (CBI) or experts to inquire into
human rights violations.
CHALLENGES
 Disturbing the constitutional balance of power- Although the Indian Constitution
does not follow any strict separation of power, it still embodies the doctrine of checks
and balances, which even the judiciary should respect. However, the judiciary on
several occasions did not exercise self-restraint and moved on to legislate, settle policy
questions, take over governance, or monitor executive agencies.
 Frivolous use – PIL has become a tool for harassment as a result of the large number
of insignificant cases that are filed by people with the minimal court fee. Numerous
false PILs have been filed to obtain publicity for unworthy causes. Even chief justice of
India D.Y. Chandrachud noted that PIL has become tool for harassment and several
experts are of opinion that the letter ‘P’ has been substituted for publicity and private
as against the original intention of Public.
 Primacy to PIL cases over other cases – The debates over the limits of Judicial
Activism in the area of PIL, have been vigorous. A private members bill entitled “Public
Interest Litigation (Regulation) Bill, 1996” was tabled in the Rajya Sabha. The statement
of objectives and reasons stated that PIL was misused in the name of providing justice
to the poor sections of the society and also that PIL cases were given more priority
over other cases which led to pending of several “general section cases” in the court
for years. However, the bill was not passed.
 Pendency of PIL cases – Adjudication takes several years as PIL cases further
aggravate the challenges of already burdened judiciary.
 Overuse-induced non-seriousness– PIL should not be the first step in redressing all
kinds of grievances even if they involve public interest. In order to remain effective, PIL
should not be allowed to become a routine affair which is not taken seriously by the
Bench, the Bar, and most importantly by the masses. The overuse of PIL for every
conceivable public interest might dilute the original commitment to use this remedy
only for enforcing human rights of the victimised and the disadvantaged groups. If civil
society and disadvantaged groups lose faith in the efficacy of PIL, that would sound a
death knell for it.
CONCLUSION
Supreme court has framed guidelines
PIL has an important role to play in the civil justice system in that it affords a ladder to
justice to disadvantaged sections of society, some of which might not even be well-
informed about their rights. Furthermore, it provides an avenue to enforce diffused rights
for which either it is difficult to identify an aggrieved person or where aggrieved persons
have no incentives to knock at the doors of the courts. PIL could also contribute to good

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governance by keeping the government accountable. Last but not least, PIL enables civil
society to play an active role in spreading social awareness about human rights, in
providing voice to the marginalized sections of society, and in allowing their participation
in government decision making.
Plausible solution lies in introspection and exercise of rationality by the various stake
holders. Firstly judiciary must exercise caution and restrain while entertaining the PILs ,
i.e. PILs should be admitted only when they comply with the guidelines of the SC.
Frivolous PILs should be discouraged and penalised. There is need for sensitization of the
lawyers and social activists too. Last but not least executive inaction creates space for
such judicial activism so if the concern is blurring of the separation of power, executive
must also act proactively.
5. GOVERNMENT LITIGATIONS
GOVERNMENT IS THE BIGGEST LITIGANT ACCOUNTING FOR
AROUND 5O% OF ALL CASES IN THE COURTS.
The government becomes the biggest litigant due to its broad scope of activities and
roles. Factors contributing to this include administrative functions, regulatory
frameworks, public interest litigation, disputes with citizens and organizations,
administrative and judicial review, constitutional matters, protecting government
interests, and large-scale programs and projects. Governments engage in legal
proceedings to handle policy implementation, regulatory enforcement, defense of
government officials, and safeguarding public assets. Interactions with citizens,
businesses, and organizations often lead to disputes and legal challenges. Compliance
with laws and regulations can also result in conflicts and litigation. Governments are
responsible for upholding the constitution and face constitutional matters and
intergovernmental disputes. Overall, the multifaceted responsibilities of the government
generate a wide range of legal issues, making it a significant litigant.
Impact of Government litigations?
 Public exchequer
 Mechanical litigation
 Government litigation crowds out the private citizen from the court system.
 It adds to the woes of already overburdened judiciary.
National Litigation Policy (2010)
 Transform government into an Effective and responsible litigant.
 It rejected the complete dependency on courts or Government as compulsive litigator
(instead focus lay on ADR)
 Aim of the policy was to reduce the average levels of pendency time frame from 15
years to 3 years.
 It envisaged the setting up of empowered committees to monitor accountability
Failure of the Policy
 Lacked any measurable outcomes.
 Lacked any impact assessment mechanism.
 Ambiguous role and power of empowered committee.
Measures to reduce government litigations
 Petty and unimportant cases should go to ADR.
 Intra governmental or Inter departmental cases should go the Quasi-Judicial Bodies.
 Repealing of Obsolete laws.

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 Strict control on corruption to avoid judicial intervention.

 Strengthening internal monitoring process to reduce quantum of appeals.
It provides information relating to judicial proceedings/decisions of all computerized

district and subordinate courts of the country. Introduction and indicative notes feature
on website and mobile application.
Live streaming of the court proceedings is a double edged sword:
 Positives:
o Chances of misinterpretation of the court order reduces.
o Loss of information during trial.
 Negatives:
o Judges under public scrutiny increases the stress
o Judges would be vulnerable to rhetoric.
6. NATIONAL JUDICIAL INFRASTRUCTURE

CORPORATION (NJIC)
Judicial infrastructure or lack thereof was one of the least discussed aspects of judicial
reforms in India. Dilapidated buildings, overcrowded courtrooms, no designated waiting
rooms, unusable washrooms, absence of information signages, etc., are the grim realities
lawyers, litigants, and court staff have been forced to cope with.

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The present state of court infrastructure is a testament to the fact that this governance
framework has not been successful in its objective of improving infrastructure. Therefore,
the CJI’s office and the executive must strive to identify the challenges that prevented
these bodies from achieving their mandates and ensure that NJIC does not become a
mere consolidation of the existing governance structure.
The concerns highlighted above – the lack of an updated policy document laying down
the standards of infrastructure and the need for a diverse, interdisciplinary and dedicated
governance framework are only the tip of the iceberg. Other complex issues that slow
down the progress of court infrastructure, that the NJIC will have to find solutions for,
include coordination between the judiciary and the executive for funding, allotting land,
and constructing the buildings.
NATIONAL COURT OF APPEAL

Vice-President M Venkaiah Naidu has suggested that the Supreme Court institute four
regional Benches to tackle the enormous backlog of cases, and to ensure their speedy
disposal. Naidu also endorsed the recommendation of the Law Commission of India that
the top court should be split into two divisions.
Need for division of the Supreme Court into a Constitution Bench at Delhi and
Cassation Benches in four regions at Delhi, Chennai/Hyderabad, Kolkata and Mumbai
(2009).
In the early decades of the Republic, the Supreme Court of India, too, functioned largely
as a constitutional court, with some 70-80 judgments being delivered every year by
Constitution Benches of five or more judges who ruled, as per Article 145(3) of the
Constitution, on matters “involving a substantial question of law as to the interpretation
of [the] Constitution”. This number has now come down to 10-12. Due to their heavy
workload, judges mostly sit in two- or three-judge Benches to dispose of all kinds of cases;
these include several non-Constitutional and relatively petty matters such as bans (or
lifting of bans) on films, or allegations that a Commissioner of Police is misusing his
powers.
Why an NCA is needed?
 SC was mainly meant to be a constitutional Court, but it has been over-burdend with
appellate cases. (Article 145(3))
 Geographical location limits accessibility (Article 39A)
 It can filter cases and only constitutional law/Federal issues cases will end up in SC.
 International trends points in the same direction (Practice of Cassation courts)
Demerits
 Aura of Supreme Court as Apex Court will decline.
 It will require major amendment to the constitution (Article 130)
 Enough benches to deal with cases
 Staff Shortage
Recommendations
 Fast track courts, additional courts, Family courts
 Increasing ICT capabilities
 ADR and Lok Adalat
 Uniform methodology to collect data and streamlining court processes.

JUDICIARY
7. CRIMINAL JUSTICE SYSTEM (CJS)

Criminal justice is the delivery of justice to those who have been accused of committing
crimes. The criminal justice system is a series of government agencies and institutions.
Goals include the rehabilitation of offenders, preventing other crimes, and moral support
for victims. The primary institutions of the criminal justice system are the police,
prosecution and defense lawyers, the courts and the prisons system.
ISSUES WITH INDIA'S CJS

 Criminal Law is a British Legacy
 Delays and Uncertainties creates absence of deterrent.
 Wide discretion to police and prosecution
o Low technical training of police
 Cases under Sec 377 (Struck down) and 124A (eclipsed) still being fille.
o Politicization of the Police.
 Overburdened, understaffed
Recommendation
 Procedural and Substantive Law Reforms
o Indian Penal Code re written into 4 codes
o Social Offences Code
 No Police Intervention
o Correctional Offences Code
o Economic Offences Code
o IPC
 Institutional Reform of Police Processes

o Professional, Technical
 Bigger and more responsible role to victims

o Quick competition of trial
Other Recommendation Legal Reforms:

 Focus should be on adopting Alternate Dispute redressal.
 Information and Communication Technology
 All Indian Judicial Services
 Repealing redundant laws
 New legislative enactments should be in simple language
 Creation of law abiding society based on a system of Incentive and Sanctions.
Custodial Death/ Violence Reforms
 Disregards of Fundamental Rights
 60% of the arrests are unnecessary
 India does not have any anti-torture legislation.
o India is a signatory to UN Convention against Torture (1997)
 Custodial violence is not criminalized.

DK Basu
 SC: 11 directives- fixing responsibility during arrest.
 Prior sanction by the state government is required to investigate the conduct of police.
 Robust Witness protection scheme.

JUDICIARY
NHRC: Custodial violence and torture is so rampant that it has become routine.
Why it happens?
 Short supply of investigative officers.
o Specialization not possible
 Feature films valorize Extra-Judicial methods.

 Public perception about law delaying justice
o Disha Cae, Hyderbabd
 "Recovery Evidence" - testimony leads to recovery of material objects which are

admissable
Way Forward:
 Gatekeepers model:
o Selected inmates trained to identify prisoners at the risk of suicide, would refer to
treatment/Supportive Services.
o Mental illness and substance abuse affects around 80% of the inmates.
 Buddy System:
o Listeners - Social Support
o Periodic telephonic conversations with friends and family.
 NHRC :
o Set up Police complaints authority as per Prakash Singh Judgment
o Law Commission Report: Sustaining injury in custody should be added.
 CRPF "Chaupal System"

o Prevents tress buildup
o People interact with uniformed forces without hesitation when they are in civil
dress.
 TN Government
o 1 day/week off to police personnel as mandated by Model Police Act.
o Around 50 % of the police personal do not get even one day off.
8. UNDER TRIALS
The recent pull-up by the Supreme Court on the Centre for its lack of initiative in releasing
undertrials has shed light on a significant issue within India's criminal justice system. The
National Crime Records Bureau (NCRB) report provides alarming statistics regarding the
high percentage of undertrials in jails across the country.
According to the NCRB report:
 Approximately 70% of the people in jails are undertrials, indicating that they have not
been convicted of any crime.
 In some states like Bihar, the figure rises to a staggering 80%.
 Shockingly, about 25% of undertrials have been in prison for more than one year.
Several reasons contribute to this concerning situation:
 Overburdened Judiciary: The sheer volume of pending cases and delays in the
judicial process contribute to a prolonged stay of undertrials in prison.
 Disadvantaged Sections: Around 50% of undertrials come from disadvantaged
sections of society, which limits their ability to seek legal help and their financial
capacity to afford bail bonds.

JUDICIARY
To address this issue, certain solutions have been proposed:

 Amendment to the Code of Criminal Procedure (CPC): In 2005, the CPC was
amended to include Section 436A, which mandates that prison officials regularly
review the status of undertrials to determine whether they have spent enough time in
custody to warrant release. Implementing this provision effectively could help
expedite the release of eligible undertrials.
 Increasing Awareness: Raising awareness about the rights of undertrials and
ensuring that legal aid is accessible to all can help protect their interests and facilitate
their release.
 Gram Nyayalayas: Establishing Gram Nyayalayas, or village courts, at the grassroots
level can provide quick and affordable justice, reducing the burden on higher courts
and expediting the trial process.
Addressing the issue of undertrials languishing in jails is crucial for upholding the
principles of justice and ensuring that individuals are not subjected to unnecessary
incarceration. By implementing the proposed solutions and focusing on the timely and
fair disposal of cases, India can take significant strides towards a more efficient and
equitable criminal justice system.
Lower Judiciary issues:
1. Very high level of Pendency - 4.3 Crore cases (out of total pending 5 Crore)
a. Data on National Judicial Data Grid
2. Lack of proper training for adjudication
3. Recruitment marred by - nepotism, corruption
4. Lack of credibility mainly resulting from lack of talent
5. Decline in quality of HC/SC judges as quite a large number of judges from district
courts are promoted to Higher Judiciary.
Fast Track courts
 Inadequate infrastructure, IT,
 Lack of victim protection
 Ill-equipped forensics
 Lack of training to prosecutors and judges
 Inadequate number of Judges
 No legislative foundation or procedure for time bound disposal of cases.
o FAST TRACK COURTS ARE NOT SPECIAL COURTS.
WAY FORWARD FOR JUDICIARY:

The steps to improve the Judiciary at all levels will have to be taken across the
spectrum.
Union Government Judiciary Other stake holders
 Building Infrastructure  Bringing transparency  Bar association -

 Capacity building of in internal functioning enforcement of code of
judges and training  Ensuring discipline and conduct
 Reviewing outdated accountability of judges  Civil Society

laws  Tackling Corruption o Legal awareness
 Making judicial impact  Supporting govt for o Legal aid
assessment of laws reforms o Strengthen ADRs
 Adequate financing  RTI implementation

JUDICIARY
 Increasing judge-  Judicial standards and

population ratio accountability Bill
(Currently 18 per 1 lakh) o Ordinary citizens can
 Technological directly intervene
improvement o Code of conduct for
 New litigation policy as judges
govt is the major litigant
 Gram Nyalaya Act
implementation
 ADRs
 Greater legal awareness
 Strengthening legal aid
 Police reforms
 Criminal justice system
o Malimath committee
- "Plea bargaining
should be promoted"
 Reduction in number of
vacations
 Increasing number of
courts, evening courts,
Fast track courts
9. ALTERNATE DISPUTE RESOLUTION

 Arbitration Act 1996 provides for Negotiation, Mediation and Re-conciliation.
 CPC mandates that no fees shall be charged from a person who want to plead.
 Establishments of Tribunals and fast Track courts
Non adversarial mechanism - involves people working co-operatively: According to
Gandhian Principle.
CJI: ADR is essential to raise the goal of justice.
4 KINDS OF ADR
 Arbitration:
o Submitted to tribunal
o Mostly binding
o Usually does not results in appeals.
o Very little judicial intervention
o It is a formal system and decisions are binding.
 Conciliation
o Impartial third party assists to reach
o Non-binding
o Parties may accept/reject recommendation
o It emphasizes on mutually agreed settlement
o This is less formal than Arbitration
o Non-binding decision.

JUDICIARY
 Mediation
o Impartial
o Does not decides dispute
o Helps parties communicate
o Control of outcomes with parties
o Helps to talk third party
o No decision is taken
 Negotiation
o Discussion with 3rd party
o Non Binding
ADVANTAGES:
 Direct control on solutions
 More creative solutions are possible
 Special Expertise is utilized
 Viable economic, procedural flexibility is available.
 Save time
 Confidentiality.
ARBITRATION
Arbitration process in India is enabled through two legislations
 Arbitration and conciliation Act, 1996
 New Delhi International arbitration center Act, 2019
These two acts create a binding mechanism which is enforceable through courts.
AMENDMENT BROUGHT IN 2019

 Arbitration council of India
o Independent body
o Tasked with promotion of ADR
o Grading of arbitral institutions and arbitrators
o To act as a repository of Judgements
 Both Indian and International

o Maintenance of Uniform standard of Arbitration across the country.
 Appointment of Arbitrators by a Supreme Court designated arbitral Institutions.

 Removes time restriction on institutional commissions.
 Written submissions within 6 months of the appointment of the arbitrators (Earlier
None)
Positives of the Amendment Act
 Makes the process time bound and facilitates Ease of Doing Business.
 It has the prospects of creating India as a global Arbitration hub
 Resolution of disputes within India instead of preferred locations in London, Singapore
and Hongkong.

JUDICIARY
Concerns regarding the Amendment Act

 The appointments mainly consist of Secretaries of various departments of the
Government of India.
10. LOK ADALAT

It is a kind of ADR system in India which is devoid of too much focus on legal technicalities.
These are organized by NALSA and presided over by the retired judges/social activists/
legal professionals. It is organized at all levels and its award is binding and final. There is
no system of court fee and flexible procedure is adopted. Consent of both the parties is
taken to transfer a case to the Lok Adalat.
ADVANTAGES:
 Based on the idea of consensus and compromise which enables lasting and
satisfactory solutions.
 Speedy and cost effective process.
 Finality clause (of the judgments) leads to perpetual disposal of the cases.
 Devoid of any technicalities and extremely informal.
 Reduces the burden of the court.
 Conciliatory role of Lok Adalats
o Poor pitted against deep pockets - Banks, insurance companies.
o Case is coercively settled for paltry sum in favour of the powerful (Bhopal gas
Tragedy)
o Speed enhances the idea of justice.
LIMITATIONS:
 Since its organized in open court, it breeches the confidentiality of the litigants.
 They are not completely informal as these are organized within the ambit of traditional
courts.
 There is a lack of awareness regarding this process within people.
How to improve the situations?
 Establishment of permanent Lok Adalats in all districts, PSUs and departments for
pending cases.
 Accreditation of NGOs for legal literacy.
 Sensitization of Judicial Officers.
 Dissemination of Information about the Lok Adalat hearings.
11. GRAM NYAYALAS

Structure: For every category group of Gram Panchayats at intermediate level.
Appointment: State Government in consultation with High Courts (Nyayadhikari)
 They have the same power, enjoy same salary and benefits of a Judicial Magistrate
of First Class.
Jurisdiction: Civil as well Criminal
No sentence greater than 2 years in imprisonment can be awarded. (No Death sentence
and life imprisonment)

JUDICIARY
Issues being faced by the Gram Nyayalayas (State Government apathy):

 Setting up of the Gram Nyayalayas is not mandatory for the states as per the Gram
Nyayalayas Act, Hence only 15 states have notified them and about half of those are
yet to be operationalized.
 Negligible reduction in pendency
 Functions mostly as a part time and sits less frequently.
 Their jurisdiction is concurrent with regular courts.
 Shortage of Human resources and funds.
o The central assistance given to a Gram Nyayalaya lasts for three years. After three
years of its operation, it survives on State grants only.
12. TRIBUNALS IN INDIA

Tribunals are quasi-judicial bodies constituted either through an Act of Parliament or through
an Executive Order of the Government. They provide a platform for faster adjudication as
compared to traditional courts, as well as expertise on certain subject matters. Tribunals by
faster adjudication reduce courts’ workload, expedite decision making and provide an
alternate judicial forum manned by lawyers and experts.
HOW TRIBUNALS BECAME PART OF INDIAN CONSTITUTION?

 Swaran Singh Committee acknowledged the mounting arrears in the High Courts
and inserted Article 323A & 323B by the Constitution (Forty-Second Amendment)
Act, 1976.
 There is a distinction between Article 323-A and 323-B as Article 323A gives
exclusive power to the Parliament and Article 323B gives power to the concerned State
Legislature and Parliament.
 Based on the Constitution 42nd Amendment, Parliament enacted The Administrative
Tribunals Act, 1985 under which Central and State Administrative Tribunals have
been constituted.
 Supreme Court has clarified that the subject matters under Article 323B are not
exclusive, and legislatures are empowered to create tribunals on any subject matters
under their purview as specified in the Seventh Schedule of the Constitution.

JUDICIARY
ESSENTIALS OF TRIBUNAL TRAPPINGS OF COURT
 It should be a quasi-judicial body  Authority to determine cases initiated by

 It should be under an obligation to parties
act judicially  Sitting in public
 It should have some “trappings of a  Power to compel attendance of witnesses
court”  to examine the witnesses on oath
 It should be constituted by the  duty to follow fundamental rules of
state evidence (though not strict rules of Evidence
 State should confer on it the power Act)
to adjudicate upon disputes  provisions for imposing sanctions by way of
These criteria are not exhaustive but imprisonment, fine, damages
illustrative.  give prohibitory or mandatory orders to
enforce obedience.
CONSTITUTIONALITY OF TRIBUNALS
 Constitution 42nd Amendment added PART XIVA – TRIBUNALS – Article 323A & 323B.
 This led to enactment of The Administrative Tribunals Act, 1985.
 Administrative Tribunals Act provides for exclusion of jurisdiction of Courts except
Supreme Court under Article 136.
 Sampath Kumar case: Constitution bench of Supreme Court had to determine the
constitutionality of the above provision:
 Court held that creation of ‘alternative institutional mechanisms’, which were as
competent as High Courts, would not violate basic structure of Constitution.
 Passed directions about qualifications of tribunal members, manner of appointment,
etc.
 For appointment process, recommendations of High Powered Selection Committee
(chaired by Chief Justice of India or his/her designate) must be ordinarily followed,
unless reasons for not following them are furnished.
 Different Opinions also prevailed
 Sakinala Harinath v State of Andhra Pradesh - Andhra Pradesh High Court stated
that removing powers of judicial review of High Courts and Supreme Court, would be
violative of the basic structure doctrine.
 R.K. Jain v Union of India - Supreme Court also criticised the rationale behind the
decision in Sampath Kumar and emphasized that the power of judicial review of the
High Court under Article 226 cannot be excluded even by a constitutional amendment.
L. CHANDRA KUMAR v UNION OF INDIA

 Seven Judge Constitution Bench conclusively held that the power of the High Courts
under Article 226 and 227 to exercise judicial superintendence over the decisions of
all courts and tribunals, is a part of the basic structure of the Constitution.
 All decisions of Tribunals, whether created pursuant to Article 323A or Article 323B of
the Constitution, will be subject to the writ jurisdiction of the High Court under
Articles 226/227 of the Constitution, before a Division Bench of the High Court within
whose territorial jurisdiction the particular tribunal falls.
 The court also suggested remedying the issue of malfunctioning of tribunals by
setting up an INDEPENDENT AGENCY for their administration, preferably in the form
of a single nodal ministry.

JUDICIARY
EXECUTIVE DOMINANCE IN SELECTION COMMITTEE

SC JUDGMENT - ROJER MATHEW VS SOUTH INDIAN BANK AND OTHERS (2019) –
CONSTRAINTS
 Selection Committee to pick members of Tribunals filled entirely by persons
nominated by Central Government.
 Deliberate Attempt to keep Judiciary Away from Search-cum-Selection
Committee from the process of selection and appointment of members, vice-
chairman and chairman of tribunals.
 Results in violation of Judicial Independence.
 Dominance by Executive reflects bias as government is a litigating party in most
Tribunals.
 Most Selection Committee having only one Judge and two Members from
Executive
 Results in Denial of Equality & Executive Dominance
 Against Separation of Powers
 Non-Judicial Member becoming President Chairman or Chairperson makes
Judicial Members a minority.
MADRAS BAR ASSOCIATION SERIES CASE – INDEPENDENCE OF TRIBUNAL – (SUGGESTION)

 Constitution Bench dealing with the validity and appointment of members to the
National Company Law Tribunal (NCLT) under the Companies Act, 1956, held that the
selection committee should comprise:
o Chief Justice of India or his nominee (as chairperson, with a casting vote),
o A senior Judge of the Supreme Court or Chief Justice of the High Court, and
o Two Secretaries in the Ministry of Finance and Ministry of Law and Justice
respectively.
o Subsequent Constitution Bench decisions in Madras Bar Association (2014), Rojer
Mathew (2019) and the decision of the Madras High Court in Shamnad Basheer
have repeatedly held that principles of the Madras Bar Association (2010) are
applicable to the selection process and constitution of all tribunals in India.
POST SC JUDGMENT, GOVERNMENT FRAMED NEW RULES

 After the Judgment, the Finance Ministry notified - 'Tribunal, Appellate Tribunal and
other Authorities (Qualifications, Experience and other Conditions of Service of Members)
Rules, 2020.
THE PROBLEM WITH 2020 RULES FOR TRIBUNALS

 Denial of Equality - The judiciary does not have an equal say as there is only one
judicial member and two executive members.
 To deny executive an upper hand in appointments of members of tribunals, The Court
in Madras Bar Association series case (2010)ordered to have two judges of the
Supreme Court to be a part of the four-member selection committee.
 Executive Dominance – Earlier, the Search-cum-Selection Committees for Tribunals
were dominated by bureaucrats and nominees of Central Government, with a nominal
representation to the Chief Justice of India. The Court observed that lack of judicial
dominance in the Search-cum-Selection Committee is in direct contravention of the
doctrine of separation of powers and is an encroachment on the judicial domain.

JUDICIARY
 Non-Judicial Member can become President Chairman or Chairperson - This

makes Supreme Court Judge a minority in selection committee as even members are
from executive branch of the government.
NEED TO RATIONALISE TRIBUNALS

 The Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021 – has
scrapped number of Tribunals as part of government’s policy to rationalise tribunals
in phases.
 Data Collected from Finance Ministry Highlights
 Tribunals neither contribute in reduction of workload for the High Courts,
 Nor does the Tribunals provide faster justice delivery and
 Overall Tribunals come at an expense to the exchequer.
 The term of office for the Chairperson and members of Tribunals will be 4 years,
subject to an upper age limit of 70 years for the Chairperson, and 67 years for
other members.
 A person should be at least 50 years of age to be eligible for appointment as a
Chairperson or member.
PROBLEMS WITH RATIONALISATION OF TRIBUNALS

 Decreased number of Tribunals and Appellate Tribunals for specific sectors will lead
to increased work load.
 This may increase disposal time for new cases due to increased pendency.
 Non-appointment of members to many tribunals may delay the adjudication process.
 Executive Dominance in Tribunals Appointment Committee may impact quality of
judgment
 Minimum Age for Members or Chairpersons of Tribunals to be at least 50 years – this
may discourage young talent.
 Supreme Court had earlier directed that advocates with 10 years of experience be
made eligible to be appointed as a judicial member.

7
Chapter ELECTIONS
1. Pol Parties under RTI
2. State Funding of elections
Universal Adult Suffrage, which grants all adult citizens the right to vote, is a fundamental
aspect of democracy. The Election Commission (EC) of India plays a crucial role in
ensuring the effective implementation and achievement of Universal Adult Suffrage. Here
are some key points highlighting the achievements of the EC in relation to Universal Adult
Suffrage:
 Mammoth Logistics: The EC successfully manages the mammoth logistics involved in
conducting elections in India. With a diverse population spread across a vast
geographical area, the EC coordinates the deployment of election officials, security
personnel, and resources to ensure the smooth conduct of elections in every corner
of the country.
 Free and Fair Elections + Model Code of Conduct (MCC): The EC is committed to
conducting free and fair elections. It enforces the Model Code of Conduct, which
outlines ethical standards for political parties and candidates during elections. The EC
takes proactive measures to prevent malpractices, ensure a level playing field, and
maintain the integrity of the electoral process.
 Issuance of Voter Cards + National Voter Service Portal: The EC facilitates the
issuance of voter identity cards to eligible citizens, making it easier for them to exercise
their right to vote. The National Voter Service Portal provides online services for
citizens, including registration verification, locating polling booths, and accessing
electoral information, ensuring greater accessibility and convenience.
 Accessible Polling Booths: The EC works towards ensuring accessible polling booths
for all voters. It takes steps to make polling stations physically accessible, providing
facilities such as ramps, signage, and other necessary accommodations to enable
individuals with disabilities or special needs to vote with ease.
 Anonymity of Voter: The EC maintains the secrecy and anonymity of voters, a crucial
aspect of democratic elections. Measures are in place to safeguard the privacy of
voters and protect them from any form of intimidation or coercion while exercising
their voting rights.
 Awareness among Citizens: The EC actively promotes awareness among citizens
about the importance of voting, voter registration, and the electoral process. It
conducts voter education programs, awareness campaigns, and outreach initiatives to
ensure citizens are well-informed, empowered, and motivated to participate in the
democratic process.
Through its achievements in managing logistics, ensuring free and fair elections, issuing
voter cards, providing accessible polling booths, maintaining voter anonymity, and
promoting citizen awareness, the EC has played a significant role in upholding Universal
Adult Suffrage in India. Its efforts contribute to the inclusive and participatory nature of
Indian democracy, allowing every eligible citizen to exercise their right to vote and shape
the nation's governance.

ELECTIONS
Legislations enabling the electoral democracy in India

 RPA 1950: Electoral rolls, Voter qualifications, allocation of seats in Lok Sabha and
State legislative assemblies, Delimitation of constituencies, Manner of Seat filling by
union territories to represented in Rajya Sabha, Bar on jurisdiction of civil courts.
 RPA 1951: Actual conduct, PP registration, qualifications & Disqualifications dispute
reg elections, corrupt practices, by – elections, EC Powers
 Part (prevention of Disqualification Act) 1959 – Dop exempted from disqualification
 Delimination Act: 1952, 1962, 1972, 2002
RPA, 1951
Made in exercise of article 327

A 327/328 - Parliament /SL can make rules for elections to Parliament /SL
A 324 - EC (26 NOV 1949)
ABOUT
1. Conduct of elections
2. Adm machinery sit
3. Qualifying/disqualify for membership
4. Corrupt practices + offences + disputes resolution
5. Regn of Pol. Parties
ELECTION OFFENCES
1. Gratification for electors to vote/refrain for candidate to or not withdraw
nomination.
2. Appear on grounds of religion, race, Caste, Community, language.
3. Direct/indirect interference with free exercise of electoral right.
4. Increasing Enmity/natured on grounds of RRCCL
5. Propagation of practice communalism & Sati glorification.
6. Booth capturing
7. Assistance of govt. servant
8. Publication of false statement of fact about personal character of any candidates.
RECENT AMENDMENTS
1. Sec 8(4) – repealed

ELECTIONS
2. Insertion: Sec 126 A = banned publishing of exit polls till election =over .(48 hours
before)
3. Insertion : Sec 62 (2) = person post detention allowed to contest elections
4. Sec 20 A = NRI (via postal ballet = not allowed)
Important Sections of RPA
1. Sec 8 – disqualifies for offences
2. Sec 33 A – Affidavit for candidate to file about any case where accused for offence w)
>,2 years.
3. Sec 29 C – parties to report funding
4. Sec 123 – corrupt practices
5. Sec 125 – punishment for imprisonment for term fine <,6 mos or for declaring
wrong info.
CEC Appointment
1. By Executive appt. – Subj to provisions of law by part.
o SC in Anoop Baranwal has unanimously ruled that a high-power committee
consisting of the Prime Minister, Leader of Opposition in Lok Sabha, and the Chief
Justice of India must pick the Chief Election Commissioner (CEC) and Election
Commissioners (ECs).
2. Constitution does not specifies any qualifications
3. Post retirement appointment not ruled out.
4. No clarity about power division b/w CECs and other ECs.
ECI demands following reforms
 Constitution
o Constitutional protection for all 3 EC
o Automatic elevation of senior most EC as CEC
o Freedom from Law Ministry
o Expenditure be charged on the CFI
 LOGISTICS
o Independent Secretariat. for itself, not draw from DOPT
 RPA
o RPA = SEC 126 A = (already) = elec media (Tv, audio)+ Social media + (to be added) =
PRINT MEDIA.
o Bribery and Paid news be made an electoral offence.
 LOGISTICS
o Introduction of totalizer machines to enhance secrecy. (14 booths together)
1. POL PARTIES UNDER RTI

The issue of bringing political parties under the purview of the Right to Information (RTI)
Act has been a topic of considerable debate in India. While proponents argue that
transparency and accountability are essential in the functioning of political parties,
opponents raise concerns about potential misuse and interference in internal democratic
processes. This article explores the arguments for and against bringing political parties
under RTI, examining the implications and potential consequences.
Why
 Allotted govt land at subsidized rates, free time on AIR, Doordarshan

ELECTIONS
 Direct link between political parties & Govt.

 Under Reporting of expenses & Money Power
 Will enhance the Credibility.
 Strengthen internal democracy.
 Countries like Bhutan and Germany have already implemented this.
Why Not?
 Malicious intent by rivals
 New organization and documentation required.
 Divulging of too much of information can distort internal democracy.
The question of whether political parties should be brought under the ambit of the RTI
Act in India is a complex and contentious one. While transparency and accountability are
crucial pillars of democracy, it is important to strike a balance that ensures the efficient
functioning of political parties and protects their privacy and autonomy. A nuanced
approach that addresses concerns while upholding democratic values and the principles
of good governance is essential. Any decision in this regard must carefully consider the
potential benefits and drawbacks, safeguarding the democratic fabric of the country
while promoting transparency and accountability in the political sphere.
2. STATE FUNDING OF ELECTIONS

INTRODUCTION
State funding of elections is a concept that has been debated in several democracies
around the world. It refers to the provision of financial resources to political parties and
candidates by the government. This article examines the pros and cons of state funding
of elections, considering factors such as transparency, influence, internal democracy,
representation, and potential drawbacks.
Money is central to the issue of political corruption in India and political parties are
suspected to be the largest and most direct beneficiaries. Corruption in elections reduces
accountability, distorts representation, and introduces asymmetry in policymaking and
governance.
This necessitates transparency in electoral funding. The issues in electoral funding
in India are:
 Opacity in donations: Political parties receive majority of their funds through
anonymous donations (approximately 70%) through cash. Also, parties are exempted
from income tax, which provides a channel for black money hoarders.
 Lack of action against bribes: The EC sought insertion of a new section, 58B, to RPA,
1951 to enable it to take action if parties bribe voters of a constituency, which has not
come to light.
 Unlimited corporate donations: The maximum limit of 7.5% on the proportion of the
profits a company can donate to a political party has been lifted, thus opening up the
possibility of shell companies being set up specifically to fund parties.
 Allowing foreign funding: Amendment of the Foreign Contribution (Regulation) Act
(FCRA) has opened the floodgates of foreign funding to political parties, which can lead
to eventual interference in governance.
 Lack of transparency: Despite provisions under section 29 of RPA, 1951, parties do
not submit their annual audit reports to the Election Commission. Parties have also
defied that they come under the ambit of RTI act.
Consequences of lack of transparency in electoral funding

ELECTIONS
 Quid pro quo: Donors to political campaigns can demand for favourable laws and
policies, favourable government contracts, and exceptionalism in law enforcement as
returns on their investments.
 Hampers political equality: Lobbying for advantageous laws can simply redistribute
advantages to particular groups instead of allocating them more fairly and
productively. This hampers political equality as money power determine legal rules
which could otherwise be formulated with broader concern for all the members of an
electorate.
 Criminalization of politics: When black money becomes the source, it brings the
criminal elements into the fold of politics.
 Free and fair elections cannot happen if political outcomes are determined by the
financial capacity of candidates. This discourages genuine candidates from contesting,
and winning elections.
The case for state funding of elections Various committees have suggested state funding
of elections as a way to reduce role of money in elections. Recently, a private member’s
bill has also been introduced that seeks implementation of state funding of elections.
Arguments in favor of state funding of elections
 State funding increases transparency inside the party and also in candidate finance,
as certain restrictions can be put along with state funding.
 State funding can limit the influence of wealthy people and rich mafias, thereby
purifying the election process.
 It will check quid-pro-quo and can help curb corruption.
 Through state funding the demand for internal democracy in party, women
representations, representations of weaker section can be encouraged as it gives level
playing field to all.
 In India, with high level of poverty, ordinary citizens cannot be expected to contribute
much to the political parties. Therefore, the parties depend upon funding by corporate
and rich individuals.
 Various committees including Indrajit Gupta Committee 1998, Law Commission of
India, 2nd ARC, National Commission to Review the Working of the Constitution, have
favored state funding.
Arguments against state funding of elections
 Through state funding of elections, the tax payers are forced to support even those
political parties or candidates, whose view they do not subscribe to.
 State funding encourages status quo that keeps the established party or candidate in
power and makes it difficult for the new parties and independent candidates.
 State funding increases the distance between political leaders and ordinary citizens as
the parties do not depend on the citizens for mobilization of party fund.
 Political parties tend to become organs of the state, rather than being parts of the civil
society.
 It may lead to candidates running for elections just for the sake of availing monetary
benefits.
 There is a possibility of state funding being used as a supplement and not as a
substitute of candidate’s own expenditure

ELECTIONS
 Nominal fee of Rs 10 k to discourage frivololes parties

 Regular Organizational Elections
 Legal expenditure limite + within 30 days from results
SUPREME COURT REFORMS

1. Adr Case (2002) - Mandatory to provide info at the time of nomination
2. Jan Chaukidari - Lawful police/Judicial custody can not contest stand.
3. Lily Thomas Case - 8(4) Unconstitutional
4. Negative voting - NOTA
5. Subramanian Swamy - VVPAT
6. EC to frame guidelines for freebies & manifest
7. Ban on caste rallies
8. 2015 - Election can be nullified if criminal record not disclosed even after result.
Pre 1996 reforms
1. Voting age: 2118
2. 1998 – Increment in the number of proposers;
3. 1989 – EVM provisions
4. 1989 – Adjournment of poll if booth capturing.
5. 1993 – EPIC
Post 1996 reforms
1. President and Vice president elections – proposers
2. Requisitioned for election duty – staff
3. Postal ballot – 1999
4. Criminal antecedents – 2003
5. Rs election – domicile req removed open ballot instead of secret ballot.
6. Exemption of travelling expenditure.
7. Free Supply of electoral rolls + air time
8. Parties Signage features (1st = 2004, an 2009 GE)7
Post 2010 reforms
1. Appellate authority within distt. against orders of electoral registration officer = DM
and then chief electoral officer.
2. NOTA Option
3. Citizens outside Ind (Residing) – Electoral roll
4. Jail / Police Custody – allowed to contest.
5. Sec (8/4) - Uncnal
6. Culling on election expenditure.
7. Photo on EVM, Ballot paper.
8. Cash donation <2000
9. Cap on corp. contained removed

ELECTIONS
10. Electroral bonds
11. Foreign Contribution allowed
Model Code of Conduct
 1st issued EC in 1971 – used in 1971 in 1991.
 It has no statutory backing – consensus driven code.
 To achieve level playing field, clashes
 Operational (Announcement of election schedule – announcement of result)
Features
1. Guidelines for conduct of political parties as well as candidates
2. Ministers/Pub offices can’t combine office visit by electioneering
3. Issue of advertisements at the cost of public ex - chequer = PROHIBITED
4. No new grants/ schemes + Scheme left to take off on filed implementation
If can’t wait, approach + Scheme yet to take off in on field implementation.
5. 2013: Added Election Manifesto = should suggest means to achieve promises +

prohibition on promises that extent undue influence.
EC – CVIGIL app = audio and visual evidence of mal practices
Should Model code of conduct be included in RPA? Yes!
1. Some already have statutory backing
a. violation of secrecy of voting
b. Enmity between community.
2. Will make MCC justiciable in court
3. Will enable Election Commission to take adequate action.
4. Regulate act’y in social media.
5. 2013 PSC on law and Justice too recommended the same
Should Model code of conduct be included in RPA? No
1. Legal codification often results in needless litigation
a. We require impartial watchdogs
2. It will just increase the delays
3. Will result in declining power of Election Commission
SC in UOI v/s Harbane Singh Jalai observed that codification will not be suitable.
Election commission also believes the same.
What can be done?
1. Already state backing -  quantum of punishment.
2. Social Media  IT Act
3. Use of Whip office
4.  Awareness among pol. Parties
CRIMINALISATION OF POLITICS
LS = 33% MPs have criminal cases; 21% - Serious Crimes

ELECTIONS
VOHRA Committee report

 Criminal gangs under the aegis of Political Parties.
Why RPA can’t handle criminalization of politics?
1. High level of pendency in Courts of law – Sec 8 requires conviction.
2. No Clear follow up if false affidavits are filed.
3. ECI has no power to call off elections based on offences.
4. Can’t curb Money/Muscle power – donations split to ev
5. MCC enforceable
SC = Part: Bring Strong Law; PP- Publish Online Details of criminal cases
CG: Exclusive counts ~FTCs;
EC: Obtain & Disclose info; (ADR 2 PUCL Case)
Miscellaneous
1. EVM

ELECTIONS
Right to Recall
 Remove elected official.
o Example of direct democracy
 Vedic: “RAJDHARMA” = lack of effective governance  removal
 MN Roy proposed this in 1944.
MP, Bihar, CG HRY (2020- Bill): 1st Recall UP (1947)
Why do we need Right to Recall?
 Enhanced accountability
 Check on Corruption and Campaign expenditure
 Induces some elements of Direct Democracy
But at the same time it might:
 Destabilize govt. as pol. Tool
 Increasing expenditure and election fatigue.
So what can we do?
 Built in safeguards eg. Initial petition + e voting to decide
 Should represent true mandate
o No recall if only a small margin
o No recall if Frivolous.
 Chief Petition officers should be within Election commission.
Role of Media
1) Info discrimination – arrangements, violations.
2) Enforcing MCC & Other laws
3) Voter education & Participation
4) Govt Media – Prasad Bharati – free broadcast time to recog parties + awareness +in
remotest comers
5) Compliance with electoral laws: RPA, 1951
a. SEC 126: Prohibits any election matter on TV etc. 48 hrs – Conducted
b. SEC 126A: Prohibits conduct of exit poll & result discrimination 1st
c. SEC 127A: Details of printer & Publisher on pamphlets & posters
d. SEC 171 H (IPC): Prohibits expenditure w/o authority of candidates.
SIMULATENOUS ELECTIONS in SA, Sweden

Election Commission proposed- 1983
1952, 1957, 1962, 1967 – Simultaneously held.

ELECTIONS
Constitution of India states that both Parliament and State Legislatures to make laws on
election matter
Parliament – almost all matter; SL – Supplementary
Election Petition to authority as determined by legislature 1966- By HC alone. Appellate
to SC only.
EC Appt all authority except presiding officer = By Distt election officer.
Authority in an election
 Chief Electoral officer (State)
 Distt Election officer (Distt)
 Returning officer (constituency
 Electoral Registration officer (constituency – rolls)

8
Chapter LOCAL GOVERNANCE
1. PRI
2. Gram Sabha
3. Urban Local Bodies
1. PRI
“The system of democracy at the top cannot be successful unless one builds on it the
foundation from below. – JLN

LOCAL GOVERNANCE
73 Constitutional Amendment Act, 1992

 State Finance Commission, State Election Commission
 Subj, Taxn
 Reservation
 Elections – 5 yrs.
2. GRAM SABHA
ART 243A
SOME STATES
Function
 Vigilance
  Unity, Harmony
 Assist to Implement schemes, Volu Labour
 Consider Budget + Audit report
 Report on Admn
 Proposal of fresh taxn
 Select Beneficiaries
Problems
 Large Unwieldy Body
o ARC-2 Ward Sabha
 Disregard of agenda, preplanned issue.
 Wrong info by panchayat secretary, copies Not given
 Dome of elites
 Factionalism
 Women  in meetings

LOCAL GOVERNANCE
Suggestions
 Ward Sabhas (ARC 2 recommendation)
 Mandatory Meetings
 Increasing RTI Awareness
 Power to recall (Implemented through state acts)
 NGOs to manage meetings.
PRI ISSUES
i) Lack of Political will to implement in letter and spirit. E.g. = Bihar = Elections after 23
years after SC direction.
ii) Social environment impairments –partichary, feudalism, caste system. E.g. =

DHOOLA RATNAM = Panchyat martyr (AP)
o Woman, Challenges upper castes in election
o Alt FPS diverting ration
o Murdered
iii) Decentralized Corruption
iv) Poor Delegation of FFF
v) Bureaucratic resistance = “Collector raj”, not

“Panchyati Raj”
vi) Parallel bodies: eg. DRDA – ARC2: abolish

“Water user groups” by world bank – Outside PRI
vii)  State Control
viii) Inadequate capacity building

ix) Insufficient Gram Sabha
x) MP LADS, MLALADI
2nd ARC Recommendation on PRI
1) ART 243 G : replace “may” with ”shall”
2) Distt. Council to serve as Distt. Govt.
3) Strengthen voice Legislative council consisting of member elected by local bodies.
4) SEC= Appt. by CM + Speaker (LA) + Opposition leader
5) Institutional sharing mech Between CEC, SEC
6) Capacity building of PRI personnel
7) Including council for social science encouraged to fund R&D on aspects of thing.
8) Separate standing commerce in SL on local Bodies.
9) Abolish provision of approval of budget by District Administration.
10) For new laws, add “local govt. memorandum” indicating functions to be performed
by LB.
11) Govt. to draft framework law on principles of:
o Subsidiarity
o Democratic decentralization
o Delineation of functions
o Devolution in real terms
o Convergence

LOCAL GOVERNANCE
o Citizen centricity
12) Wind up MPLADS, MLALADS, DRDA
13) Awareness thru folk art, media, street plays.
14) Local body ombudsman
15) SFC = reco.
SG CONTROL OVER PRI

Need: PRI = Legal creations of state therefore Smooth functioning ensure
balanced development. State Government can provide technological, administrative
and financial support.
1) SG power to inspect & supervise, examine records + issue instructions.
2) Key personnel at all 3 tiers by State Government.
3) Power to:
Supersede = negligence of duties, irregularities, mar-admn
Dissolve = Safeguards also- show cause to PRI, only on grounds in Act,
elecn
w/in 6 mes.
Suspend = DC given power.
Remove personnel.
4) State Government can order inquiries, investing
5) Financial powers – accepts annual budget, admn reports, audit of accounts
min/max via tied grants.
PRI FINANCES
SG CONTROL OVER PRI FINANCE
WEAK FINANCIAL BASE: ES also noted – compared to either federal polity.

1) Don’t exploit taxation powers fully reluctant ∵ vote bank politics populism.
2) No capital mkt exposure.
3) Insufficient + tied grants – unsuited to needs.

LOCAL GOVERNANCE
4) Inerratic taxes
5) Grants released subject to per considerations.
2 ARC Recommendation on SFC:
1) Constituted after 5th year or at earlier time.

2) Act by state 40 provide qualifications of members.
3) Action Taken Report placed within 6 months.
4) Incentive to states to  devolution to 3rd tier.

5) Common formats as record by 12th FC to be used.
6) SFC should also recommend funding for staffing of ULB.
7) Mechanism to review implements of SFC reco.
8) SFC carry out through analysis of finances of LB + concrete reco.
9) SFC evolves transparent norms for devolution + include area wise indices for
backwardness.
3. URBAN LOCAL BODIES

National commission on urbanisation (1985) under CHARGES CORREA
recommendations mostly incorporated in 74th CAA 1992. No hierarchy in urban
government like PRIs wave.
NAGAR PANCHAYAT: For transitional area – req utmost care to set up: because
1) Cost of admn of NP is higher than PRI
2) Taxes increases in municipal area
3) No Gram Sabha here
4) Denial of benefits of rural devotion programme eg. MGNREGA
5)

LOCAL GOVERNANCE
PROBLEMS OF ULB
1) Increasing Urbanization eg. Urban sprawls, slums, increasing crimes against
women, poor infra, juvenile delinquency, poverty, urban unemployment.
2)
3) Increasing growth of “urban villages” .
2nd ARC recommendation

1) New national commission to deal with new issues
2) 3 tier local self govt. – Muni council/corp + indirect elections

Ward commerce

Area sabha = all residence
Ward committee to be devolved proper functions
3. Mayor – direct election, apt cabinet from amongst elected cooperators eg. Us city
manager model
4. Respect of apt of muni communication to corporation.
ULB FINANCES
INCOME
TAXES Property Tax, Professional Tax, Vehicle/animal

Octroi removed after GST
Non-Tax Fees, fines, earnings from bodies
Loan Borrowings
CIS grants
Expenditure
 Administration
 Education
 Public health
 Supply of water, sanitation, sewage
 Municipal works
 Public safety
STATE GOVERNMENT CONTROL

1) TAXATION: SG exempt any personal properly  |  | abolition req. SG
approval. Suspend prohibition when unfair tax.
2) EXPENDITURE: SG can fix limits
3) BUDGET: Form + manner
4) LOANS: Fixed mode, period of repayt

LOCAL GOVERNANCE
5)
6) Acct. & AUDIT: manner + audit by SG finery.

Reasons for weak finance:
1) Leakage tax evasion, poor connection
2) Poor capacity bldg. of finance
3) They revenues not tapped – eg. Despite rear estate boom, property tax
4) Ineffective – Post – Mortem audit
5) Reluctance to tax – ES
6) Inadequate + tied grants
7) ART 285: Prohib SG from taxing union’s properties
ARC 2 REFORMS
1) Property tax: Tax on annual rental value  annual capital value
2) Cost of tax collection  enable GIS
3) Property tax  review + even FC : 2500  12k ₹
4)  Fines on offences eg. Encroachment.
5) Adopt citizen characters.
Reqd. reforms:
1) Apply fiscal fed principles to SG – ULB
2) Incentivize for prompt payment of taxes – eg. DEL – property tax
3) Setup Municipal financial corporation in each state
4) Strengthen SFC, Local body ombudsman.
5) Explore congestion tax – eg. London, Singapore
6) Set up UIDF – RIDF, tax free muni bonds.

9
GOVERNANCE &
Chapter MISCELLANEOUS
1. The Digital Personal Data Protection Bill, 2023
2. Changes in IAS cadre rules
3. Civil Service Reforms
4. Mission Karmayogi
5. Coherent Policymaking
6. Voluntary Organisations
7. FCRA (Amendment) Act, 2020
8. Pressure Groups
9. Social Audit
10. Self Help Groups
11. Cooperatives
12. Citizens’ Charter
13. Unintended Consequences of Anti-Corruption Laws
14. Need for law against wrongful arrest
15. Standing Committee Criticises Programs for Denotified Tribes
16. National Commission for De-notified, Nomadic and Semi-Nomadic Tribes
17. Right to Information Act
18. Aspirational District Program
19. Corporate Social Responsibility
20. Independent Regulatory Bodies
21. Regulatory Impact Assessment
22. Grievance Redressal Mechanism
1. THE DIGITAL PERSONAL DATA PROTECTION

BILL, 2023
In the digital age, personal data has become an integral aspect of our lives, shaping how
we interact, consume, and even perceive the world around us. This transformation has
led to an increased focus on safeguarding individuals' rights and privacy in the realm of
data usage and processing. The concept of personal data, its uses, and the regulatory
frameworks that govern it have gained paramount significance in this context.
WHAT IS PERSONAL DATA?

 Personal data is information that relates to an identified or identifiable individual.
Why is Personal Data Used/Processed?
 Businesses as well as government entities process personal data for delivery of goods
and services.
 Processing of personal data allows understanding preferences of individuals, which
may be useful for customisation, targeted advertising, and developing
recommendations.

GOVERNANCE & MISCELLANEOUS
 Processing of personal data may also aid law enforcement. Unchecked processing
may have adverse implications for the privacy of individuals, which has been
recognised as a fundamental right.
It may subject individuals to harm such as financial loss, loss of reputation, and
profiling.
Currently, India does not have a standalone law on data protection. Use of personal
data is regulated under the Information Technology (IT) Act, 2000.
KEY FEATURES OF THE BILL

 Definitions:
o Personal data is defined as any data about an individual who is identifiable by or
in relation to such data.
o Processing has been defined as wholly or partially automated operation or set of
operations performed on digital personal data. It includes collection, storage, use,
and sharing.
 Applicability:
o The Bill applies to the processing of digital personal data within India where such
data is: (i) collected online, or (ii) collected offline and is digitised. It will also apply
to the processing of personal data outside India if it is for offering goods or services
in India.
 Consent:
o Personal data may be processed only for a lawful purpose after obtaining the
consent of the individual. A notice must be given before seeking consent.
o The notice should contain details about the personal data to be collected and the
purpose of processing.
o Consent may be withdrawn at any point in time.
o Consent will not be required for ‘legitimate uses’ including: (i) specified purpose
for which data has been provided by an individual voluntarily, (ii) provision of
benefit or service by the government, (iii) medical emergency, and (iv) employment.
For individuals below 18 years of age, consent will be provided by the parent or the
legal guardian.
 Rights and duties of data principal:
o An individual whose data is being processed (data principal), will have the right to:
(i) obtain information about processing, (ii) seek correction and erasure of personal
data, (iii) nominate another person to exercise rights in the event of death or
incapacity, and (iv) grievance redressal.
 Obligations of data fiduciaries:
o The entity determining the purpose and means of processing, (data fiduciary), must:
(i) make reasonable efforts to ensure the accuracy and completeness of data, (ii)
build reasonable security safeguards to prevent a data breach, (iii) inform the Data
Protection Board of India and affected persons in the event of a breach, and (iv)
erase personal data as soon as the purpose has been met and retention is not
necessary for legal purposes (storage limitation). In case of government entities,
storage limitation and the right of the data principal to erasure will not apply.
 Transfer of personal data outside India:
o The Bill allows transfer of personal data outside India, except to countries restricted
by the central government through notification.
 Exemptions:

o Rights of the data principal and obligations of data fiduciaries (except data security)
will not apply in specified cases. These include: (i) prevention and investigation of
offences, and (ii) enforcement of legal rights or claims. The central government
may, by notification, exempt certain activities from the application of the Bill. These
include: (i) processing by government entities in the interest of the security of the
state and public order, and (ii) research, archiving, or statistical purposes.
 Data Protection Board of India:
o The central government will establish the Data Protection Board of India. Key
functions of the Board include: (i) monitoring compliance and imposing penalties,
(ii) directing data fiduciaries to take necessary measures in the event of a data
breach, and (iii) hearing grievances made by affected persons. Board members will
be appointed for two years and will be eligible for re-appointment. The central
government will prescribe details such as the number of members of the Board and
the selection process. Appeals against the decisions of the Board will lie with
TDSAT.
 Penalties:
o The schedule to the Bill specifies penalties for various offences such as up to: (i) Rs
200 crore for non-fulfilment of obligations for children, and (ii) Rs 250 crore for
failure to take security measures to prevent data breaches. Penalties will be
imposed by the Board after conducting an inquiry.
SOME ISSUES IN THE LEGISLATIVE PROPOSAL

 Undermining the Right to Information
o The DPDP Bill 2023 suggests replacing Section 8(1)(j) with just “information which
relates to personal information”.
o This will undermine the RTI 2005. To give just one example, the current requirement
for public servants (including judges, and Indian Administrative Service officers) to
disclose their immovable assets will likely be off limits. This is indeed “information
related to personal information”, but it serves a larger public interest (for example,
to identify public servants with disproportionate assets).
 Exemptions to the State may have adverse implications for privacy
o The Bill may enable unchecked data processing by the State, which may violate the
right to privacy
o Whether overriding consent for purposes such as benefit, subsidy, license, and
certificates is appropriate
 The Bill does not regulate harm arising from processing of personal data
 Right to data portability and the right to be forgotten not provided
o The right to data portability allows data principals to obtain and transfer their
data from data fiduciary for their own use, in a structured, commonly used, and
machine-readable format. It gives the data principal greater control over their data.
o The right to be forgotten refers to the right of individuals to limit the disclosure of
their personal data on the internet.
 The Bill provides that the central government may restrict the transfer of
personal data to certain countries through a notification.
 The Bill provides that members of the Data Protection Board of India will
function as an independent body.
 Provisions related to children
o Definition of child different from other jurisdictions

o Taking verifiable parental consent may require verification of everyone’s age on

digital platforms
o Lack of clarity on what constitutes detrimental to well-being of a child
As the landscape of data usage and digital interaction continues to evolve, it is imperative
for India to establish a forward-looking and adaptable data protection framework that
safeguards individual privacy, promotes innovation, and supports responsible data
practices. Building upon the proposed Data Protection Bill, there are several crucial steps
and considerations that can pave the way for a comprehensive and effective legislative
approach:
 Comprehensive Definitions and Scope: Further refine and clarify the definitions of
key terms such as "personal data," "processing," and "legitimate uses" to prevent
ambiguity and provide a solid foundation for the law's implementation. Consider
international best practices to ensure alignment with global data protection standards.
 Strengthen Consent Mechanisms: Enhance the provisions related to obtaining and
managing consent. Ensure that individuals have clear and informed choices about the
use of their data. Develop user-friendly methods for obtaining and managing consent,
particularly in the context of online interactions.
 Balancing Exemptions: While exemptions are necessary for specific situations,
carefully delineate the scope and conditions under which they apply. Strike a balance
between safeguarding individual rights and enabling the State and other entities to
perform necessary functions for public welfare and security.
 Addressing Data-Related Harms: Introduce provisions that explicitly address the
potential harms arising from the processing of personal data. Establish mechanisms
for individuals to seek redressal and compensation in case of data breaches,
unauthorized sharing, or misuse of personal information.
 International Data Transfers: Refine provisions related to the transfer of personal
data outside India. Ensure that any transfer of data is subject to robust safeguards and
conditions, especially when dealing with countries lacking adequate data protection
regulations.
By embracing these steps and considerations, India can lay the foundation for a
comprehensive and adaptive data protection legislation that safeguards individual rights
while enabling the responsible and innovative use of data for the benefit of society and
the digital economy.
2. CHANGES IN IAS CADRE RULES

Central government has proposed amendment in IAS Cadre Rules, 1954 for deputation of
officers at centre.
CHANGES MADE IN DEPUTATION RULES

 States should make available officers for central deputation.
 In case of disagreement between centre and states, State shall give effect to the
decision of the Centre “within a specified time.”
 In case of delay in deputation by state government, the officer shall be relieved from
the date specified by central government.
 In certain specific situations where services of cadre officers are required by the
Central government in “public interest”, the State shall give effect to its decisions,
within a specified time.

CONCERNS OF CENTRE
 Most states are not meeting the Central Deputation Reserve (CDR) requirement
 Minimum number of officers is not available to the Centre from All India Services for
deputation.
 Lack of officer’s impacts routine work.
STATES HAVE OPPOSED THE CHANGES IN IAS CADRE RULES ON THE

FOLLOWING GROUNDS
 Impacts State’s Autonomy as earlier the deputation was based on consensus
between centre and centre. Now it is a forced decision on the states.
 Misuse by Centre The provision of releasing All India Service (AIS) officers by states in
“specific situations” and in public interests may be misused for political gains. Ex.
centre can unilaterally depute Chief Secretaries or Principal Secretaries of States either
to centre or to other states especially prior to state elections.
 No Consultation with States – The Amendment unilaterally mandates the State
government to make such several officers available for deputation as prescribed
under Central Deputation Reserve.
 Confrontational Federalism - Taking unilateral decisions might impact the healthy
atmosphere which promotes cooperative federalism and increasing friction between
centre and states (ruled by opposition parties) and this may further fuel
confrontational federalism.
 Dampen the morale of AIS Officers – contemplated changes have grave implications
for the independence, security and morale of IAS officers.
 Deputation to Centre Against the Officer’s Wish – Instances of the past confirms
that IAS Officers can be deputed to centre as punishment postings as the officers
themselves may not wish to go on central deputation due to poor working conditions
in junior-level posts, an opaque and arbitrary system of empanelment for senior-level
posts, and lack of security of tenure at all levels.
 State’s may decrease intake of IAS Officers – reduce the number of IAS cadre posts
and their annual intake of IAS officers. Further states prefer officers of the State Civil
Services to handle as many posts as possible. Thus, increasing political slugfest with
AIS Officers may impact their morale and in future bright students may not want to
become part of Indian bureaucracy.
WAY FORWARD
Speaking to the Constituent Assembly on October 10, 1949, Sardar Patel said, “The Union
will go, you will not have a united India if you have not a good All India Service which has
the independence to speak out its mind, which has a sense of security.” Thus, the center
must heed the advice of India’s first Home Minister and ensure that the spirit of
cooperative federalism is not disturbed through the proposed changes in IAS Cadre Rules
of 1954.
3. CIVIL SERVICE REFORMS

The Prime Minister’s recent remarks in Parliament criticising the pervasive influence of
IAS officers on our system of governance merits reflection on the functioning of
bureaucracy. In this backdrop, let us go through the challenges faced by bureaucracy and
the need for bureaucratic reforms based on contemporary realities.
STRENGTHS OF THE CIVIL SERVICE IN INDIA

 Hierarchy

 Division of work
 Decisions based on rules & regulations
 Absence of political bias in service delivery
 Field experience,
 Extensive networking,
 Awareness of the formal and informal socio-economic networks in the field
 Role in national integration
 Uniform standards of administration.
 Political neutrality and objectivity
 Secular and sectarian outlook
 Competence and professionalism
RECENT REFORMS IN CIVIL SERVICES

 Changes in cadre allocation policy to preserve national character of civil services.
 Mission Karmayogi to improve human resource development and structured training
of civil services.
 Lateral entry of professionals in bureaucracy.
 Two months attachment as assistant secretary in central government
departments before new officers joins their cadres.
 Compulsory retirement of tainted officers.
 Constitution of National Recruitment Agency for hiring on Group B and other lower
civil services.
CHALLENGES IN CIVIL SERVICES

1. Asymmetry of power: Due to systemic rigidities, needless complexities and over-
centralisation make public servants ineffective and helpless in achieving positive
outcomes.
2. Corruption is a matter of concern particularly at the cutting-edge levels of the
bureaucracy.
3. Perceptible lack of commitment in public servants towards redressal of citizens’
grievances.
4. Red-tapism and unnecessary complex procedures add to the hardship of citizens.
5. Government servants are rarely held to account and complaints to higher authorities
usually go unheeded.
6. General attitude of many public functionaries is one of arrogance and indifference.
7. Frequent transfers of officers reduce their effectiveness and dilute their accountability.
8. Unholy nexus between unscrupulous politicians and officers leading to poor
governance.
ATTRIBUTES OF AN IDEAL BUREAUCRACY

1. It is valued by ministers and is a superb source of expert, objective policy advice.
2. It delivers world class, customer focused services, day-in and day-out, frequently in
partnership.
3. It attracts best talents from every area of society.
4. Civil servants are honest, objective, impartial and act with integrity.
5. Civil servants are accountable, result-oriented and transparent in its dealings.

6. Civil servants are proud of and passionate about their work, committed to doing
what they have to do with the pace that India needs and expects in 21st century,
with professional skills.
7. Every part of which commands the confidence and respect of the public it serves.
ATTRIBUTES OF A GOOD ADMINISTRATOR

1. Willingness to assume responsibility.
2. A steadily enlarging ability to deal with more problems.
3. A strong bent toward action.
4. A good listener.
5. Effective with people.
6. Capacity to build his own strength by building the competence of his organisation.
7. Capacity to use his institutional resources
8. Avoiding using power or authority for their own sake.
9. Welcoming reports of troublesome things.
10. A good team-worker.
11. A good initiator.
IMPORTANT STEPS TO REFORM BUREAUCRACY

However, the civil services are still not adequately equipped to function efficiently and
competitively in a dynamic economy. There is a need for reorientation on the following
grounds:
 Ensure stability of officers by constituting Autonomous Civil services Board to address
politicisation of bureaucracy. (2nd ARC & Hota Committee)
 Set up an Ombudsman to investigate grievances of pre-mature transfers of civil
servants. (2nd ARC & Hota Committee)
 Need for simplification of Rules, Regulations and Procedures, Single Window
Mechanism, Time bound delivery of services, Citizen Charters, E-Governance
Initiatives.
 Adequate focus on training at all levels of civil servants. Special focus should be
inclusion of soft skills at those functioning at cutting edge levels.
 Strengthen Accountability to outcomes rather than procedures.
 Reduce citizens’ interface through Single Window Mechanism. Ensuring time bound
delivery of services.
 Recognising the outstanding work of serving civil servants including through National
awards; Remove cause of dissatisfaction such as Poor working conditions, Unfair
personnel policies, Political Interference etc.
 Focus on “Minimum Government, Maximum Governance” by merging departments or
Ministries with overlapping functions.
 Promote specialisation of work and domain competency for civil servants.
 Promote lateral entry to encourage private sector participation for transfer of
knowledge and best practices.
 Need to strengthen external accountability of the officers through governance tools -
Citizens Charters, RTI, Service Delivery Surveys, Citizen Report Cards, CPGRAMS etc.
 Need for demarcation between Error of Judgement and Corruption to infuse risk
taking behaviour among the Civil servants.
 Need for enacting a comprehensive civil service law. (2nd ARC).

 The administrative machinery needs to respond to the changing times thereby

enabling the government to discharge its responsibility efficiently and effectively. The
Civil Service system needs to keep pace with the changing expectations of citizens
propelled through socio-economic and growth in technology.
4. MISSION KARMAYOGI
National Program for Civil Services Capacity Building (‘NPCSCB’) – Mission Karmayogi aims
to improve government's human resource management practices and augment capacity
of civil servants by using the state-of-the-art infrastructure.
 Mission Karmayogi aims to prepare the Indian Civil Servant for the future by making
them more creative, constructive, imaginative, innovative, proactive, professional,
progressive, energetic, enabling, transparent and technology enabled.
 Empowered with specific role-competencies, the civil servant will be able to ensure
efficient service delivery of the highest quality standards.
MISSION KARMAYOGI WILL HAVE THE FOLLOWING SIX PILLARS

(i) Policy Framework
(ii) Institutional Framework
(iii) Competency Framework
(iv) Digital Learning Framework (Integrated Government Online Training Karmayogi
Platform (iGOT-Karmayogi)
(v) electronic Human Resource Management System (e-HRMS), and
(vi) Monitoring and Evaluation Framework
INSTITUTIONAL FRAMEWORK APPROVED TO IMPLEMENT &

MONITOR THE PROGRAM
 Prime Minister’s Public Human Resource Council (PMHRC): chaired by PM to drive
and provide strategic direction to civil service reforms and capacity building.
 Cabinet Secretariat Coordination Unit: to monitor implementation, align
stakeholders and provide mechanism for overseeing capacity building plans.
 Capacity Building Commission:
o Exercise functional supervision over central training institutions for capacity building
o Assist Human Resource Council to prepare and approve Annual Capacity Building Plans
o Create shared learning resources -internal and external faculty and resource centres.
o Coordinate and supervise the implementation of the Capacity Building Plans with the
stakeholder Departments.
o Recommend on standardization of training and capacity building, pedagogy and
methodology
o Set norms for common mid-career training programs across all civil services.
o Suggest policy interventions - HR Management and Capacity Building for government.
 Special Purpose Vehicle (SPV, an autonomous company) under Companies Act,

2013: It will own and operate all the digital assets created for the capacity building.
 Program Management Unit (PMU) - provide program management and support
services to the department.
iGOT-KARMAYOGI PLATFORM
 Will provide effective digital e-learning material.

 Training of Civil Servants at various Academies will be restructured to include optimum

use of the digital learning platform of iGOT.
HOW WILL MISSION KARMAYOGI BENEFIT CIVIL SERVANTS?

1. Transition from 'Rules based' to 'Roles based HR Management – help in aligning work
based on competencies and requirements
2. Calibrate all civil service positions to a Framework of Roles, Activities and
Competencies (FRACs) approach and ensure delivery of services accordingly.
3. Provide opportunity to civil servants to continuously build and strengthen
their Behavioral, Functional and Domain Competencies.
PRINCIPLES FOR EFFECTIVE GOVERNANCE FOR SDG

United Nations Committee of Experts on Public Administration has come out with the
following principles which countries need to embrace in their development for
achievement of SDG. Governance is defined by World Bank as the traditions and
institutions by which authority is exercised in a country. This includes:
1. The process by which governments are selected, monitored and replaced.
2. The capacity of the government to effectively formulate and implement sound policies.
3. The respect of citizens and the State for the institutions that govern economic and
social communications among them.
1. Effectiveness: The capacity to realise organizational or individual objectives.

Effectiveness requires competence, sensitivity and responsiveness to specific, concrete,
human concerns and the ability to articulate these concerns, formulate goals to
address them and develop and implement strategies to realise these goals.
 Promotion of a professional
public sector workforce.
 Strategic human resources
management.
To perform their functions
effectively, institutions  Leadership development
and training of civil servants.
need to have sufficient
a. Competence expertise, resources and  Performance management.
tools to deal adequately  Results based management.
with the mandates under
 Financial management and
their authority
control.
 Efficient and fair revenue
administration.
 Investment in e-government.
 Strategic planning and

To achieve their intended foresight.
results, public policies are  Regulatory impact analysis.
to be coherent with one
 Promotion of coherent
b. Sound another and founded on
policymaking.
policymaking true or well-established
grounds, in full accordance  Strengthening national
with fact, reason and good statistical systems.
sense  Monitoring and evaluation
systems.

 Science-policy interface.
 Risk management
frameworks.
 Data sharing
To address problems of  Centre of government

common interest, coordination under the Head
institutions at all levels of of State or government.
government and all 
in Collaboration, coordination,
c. Collaboration sectors should work integration and dialogue
together and jointly with across levels of government
non-State actors towards and functional areas.
the same end, purpose and  Raising awareness of the
effect SDGs.
 Network based governance.
 Multi-stakeholder
partnerships.
2. Accountability: Refers to requirement that officials answer to stakeholders on the

disposal of their powers and duties, act on criticisms or requirements made of them
and accept responsibility for failure, incompetence or deceit.
 Promotion of anti-corruption
policies, practices and
bodies.
 Codes of conduct for public
officials.
To serve in the public
interest, civil servants are  Competitive public
to discharge their official procurement.
a. Integrity duties honestly, fairly and  Elimination of bribery and
in a manner consistent trading in influence.
with soundness of moral  Conflict of interest policies.
principle.
 Whistle blower protection.
 Provision of adequate
remuneration and equitable
pay scales for public
servants.
To ensure accountability
and enable public scrutiny,  Proactive disclosure of
institutions are to be open information.
and candid in the  Budgetary transparency.
execution of their
b. Transparency  Open government data.
functions and promote
access to information,  Registries of beneficial
subject only to the specific ownership.
and limited exceptions as  Lobby registries.
are provided by law.

To retain trust in Promotion of independence of

government, oversight regulatory agencies.
agencies are to act
Arrangement for review of
c. Independent according to strictly
administrative decisions by
Oversight professional
courts or other bodies.
considerations and apart
Independent audit.
from and unaffected by
others Respect for legality.
3. Inclusiveness
To ensure that all human

beings can fulfil their
potential in dignity and 
Promotion of equitable fiscal
and monetary policy.
equality, public policies are
a. Leaving no one to consider the needs and  Promotion of social equity
behind aspirations of all segments  Data disaggregation.
of society, including the
 Systematic follow-up and
poorest and most
review.
vulnerable and those
subject to discrimination.
 Promotion of public sector

workforce diversity.
To respect and promote
 Prohibition of discrimination
human rights and
in public service delivery.
fundamental freedoms for
b. Non- all, access to public service  Multilingual service delivery.
discrimination is to be provided on  Accessibility standards.
general terms of equality,  Cultural audit of institutions.
without distinction of any
 Universal birth registration.
kind.
 Gender responsive
budgeting.
 Free and fair elections.

To have an effective State,
all significant political  Regulatory process of public
groups should be actively consultations.
c. Participation involved in matters that  Multi-stakeholder forums
directly affect them and  Participatory budgeting
have a chance to influence
 Community driven
policy.
development.
To promote government  Fiscal federalism.

that is responsive to the
 Strengthening rural and
needs and aspirations of all
urban governance.
d. Subsidiarity people, central authorities
 Strengthening municipal
should perform only those
finance and local finance
tasks which cannot be
systems.
performed effectively at a

more intermediate or local  Enhancement of local

level capacity for prevention,
adaptation and mitigation of
external shocks.
 Multilevel governance
To promote prosperity and  Sustainable development

quality of life for all, impact assessment.
institutions should
 Long term public debt
construct administrative
e. Intergenerational management.
acts that balance the short-
equity  Long term territorial
term needs of today's
planning and spatial
generation with the longer
development.
term needs of future
generations.  Ecosystem management.
5. COHERENT POLICYMAKING
Coherent policymaking is a key aspect of effective governance for sustainable
development. This has received significant interest with adoption of 2030 SDGs.
BENEFITS OF COHERENT
1. Helps in pursuit of multiple policy goals in a coordinated way.
2. Minimises trade-offs and contradictions
3. Maximises synergies.
4. Leads to increased levels of efficiency and effectiveness when taking a broader view
of government.
5. Absence of coherence may result in many governance problems such as
compartmentalisation, fragmentation, competing and incoherent objectives and
inconsistent policy mix.
DIMENSIONS OF COHERENT POLICYMAKING

1. Horizontal coherence: between sectors or cross-cutting issues in multiple sectors.
2. Vertical coherence: between local plans, national policy and international
agreements.
3. International coherence: between policy domains in different countries addressing
trans-boundary spillover effects.
BARRIERS TO COHERENCE
1. Insufficient communication
2. Lack of adequate funding.
3. Barriers to exchange of knowledge or information.
4. Lack of spaces to meet and coordinate.
5. Conflict of interests and mandates.
6. Blurred lines of accountability
7. More time-consuming processes
8. Uprooting of existing routines and practices.
9. Difficulty measuring impact and/or effectiveness.

10. Loss of control/influence/autonomy

11. Dilution of priorities.
6. VOLUNTARY ORGANISATIONS
NGOs are non-profit organization that operates independently of any government
support. NGOs are also referred as civil societies and are organized on community lines,
national and international levels to serve social or other goals including humanitarian or
environment causes.
IMPORTANT ROLE PLAYED BY NGOS AND CIVIL SOCIETY

ORGANISATIONS IN DEVELOPMENT PROCESS
 Key Drivers of inter-governmental negotiations – ranges from regulation of
hazardous wastes to a global ban on land mines and the elimination of slavery.
 Promotes legal reforms – pushes government to undertake important reforms
through legislations affecting rights and services for vulnerable sections of the society.
 Helps in Capacity Building and filling development deficit in diverse sectors -
health, education, environment awareness, social inclusion, skill enhancement etc.
 Helps alleviation of Poverty & Hunger
 Supplements electoral democracy - by updating governments regularly of public
opinion in favour of certain issues or concerns on certain welfare schemes.
 Ensures Community Participation by raising awareness on important national,
Regional or Local Issues – helps to strengthen participatory democracy in India.
 Helps government to understand challenges of industry – e.g.: Finance Ministry
organise sessions with FICCI, IFCI to understand concerns and challenges of different
industrial sector
 Competition among civil societies is beneficial and productive for citizens &
government.
 Provides platform for vulnerable sections to raise their voice – e.g., concerns of
prostitutes, LGBT, HIV victims, victims of custodial torture, manual scavenging, Dalit
violence
 Ensures Women Empowerment by providing livelihood measures
 Voluntary sector can bring a fresh perspective and ability to develop alternative
solutions.
CRITICISM OF NGOs
 Unnecessary PIL filed in Courts without sufficient evidence. This has led to an
increase of PIL culture in the High Courts & Supreme Court.
 Promote Vested Interests of groups whom they wish to support.
 Elite capture of NGOs: They often function as agencies for the glorification of
individuals.
 Some NGOs involved in misuse of foreign funding received under FCRA.
 Create additional pressure on the government by providing misleading
arguments.
 Cannot be said to be truly democratic as they represent very small section of the
society including those who fund their functioning.

WAY FORWARD
 Strengthen voluntary sector and facilitate an enabling framework for voluntary sector
and rebuild faith and appreciation towards it.
 A nodal ministry for voluntary sector should be created to ensure uniform reporting
guidelines and to open one single registration window for all development
organisations. It would also focus on formulating laws and legislations that are in line
with the policy. It will also ensure a platform for a continuous dialogue between
government and voluntary sector.
 Capacity building must be carried out to ensure working standards and adaptability.
Sense of volunteerism and feeling of doing good must be restored among youth.
 Behavioral change of government officials and corporate sector towards the voluntary
sector is also necessary to maintain a mutual respect between the sectors.
 Government should encourage Voluntary sector participation in national programs
and ensure mutual trust.
 A National Accreditation Council should be established that will assure quality
standards adherence, accountability, transparency and trust in the Voluntary sector.
 A clear definition for Voluntary sector needs to be established. As loose inclusion of
entities such as private hospitals, religious associations, schools, sports club, RWAs
along with Voluntary Organisations has swelled perceived numbers and their
credibility. Thus, a clear delineation of these entities is required.
 Provisions of FCRA Amendment Act, 2020 needs to be eased to enable procurement
of funds from foreign agencies. This will help in sustenance of them.
7. FCRA (AMENDMENT) ACT, 2020

NGOs and voluntary sector have raised many concerns against the amendments to
the FCRA (Amendment) Act, 2020. They allege that the provisions will stifle the sector
and make it harder for them to operate.
SALIENT FEATURES
1. Forbids a recipient of foreign contribution from transferring the same to any other
entity.
2. Reduces the limit of usage of foreign contribution for administrative expenses from
50% to 20%.
3. Centre can direct an organisation to not utilise foreign contributions pending an
inquiry on suspected violations.
4. Foreign contributions must be deposited in FCRA account created in the specified
branch of the Scheduled Bank, which was later notified as New Delhi Branch of SBI.
5. Centre to obtain Aadhaar numbers of key functionaries of organisation for
approval.
6. Suspension of NGOs in case of non-compliance.
7. Surrender of FCRA registrations.
ARGUMENTS IN FAVOUR
1. Some foreign powers and non-state actors continue to take up activities that
amount to interference in the internal polity of the country with ulterior designs.
2. Ensuring effective monitoring and for ensuring accountability of the recipient
association, the transfer of foreign contribution has been prohibited.

3. NGOs are expected to grow on the strength of their own genuine work undertaken
for fulfilling societal needs.
4. NGOs lack inner democracy and siphon off to pay the owners of NGOs very high
salaries. Thus, reducing limit on administrative expenses is necessary.
5. Some NGOs were routing foreign contributions to other entities. Approval to receive
foreign contribution is granted for a specified purpose. However, if diversion of
funds is allowed, it will be difficult to monitor the ultimate purpose for which funds
are utilised.
6. FCRA is sovereignty and integrity legislation, with the over-riding purpose to ensure
that foreign money does not dominate public life as well as political and social
discourse in India.
7. It is difficult to monitor foreign contributions when branches are receiving foreign
contributions are spread across the country. To make it easy for NGOs in complying
with this requirement Centre has put in a system that accounts can be opened
without needing to physically visit Delhi.
CRITICISM OF THE AMENDMENT

1. Provisions are blanket in nature.
2. It is wrong to colour all foreign contributions as terror financing or for illegal activity
such as money laundering.
3. Many Indian citizens want to contribute for the development of their country.
4. Against equality: Policy keeps making access to FDI easier at the same time foreign
contribution regulations are being made harsher.
5. Choosing only one bank, one branch in one city for foreign contribution does not
seem logical.
6. Centre cannot have a free pass in the name of national security. Centre needs to
show and establish how national security is affected and how it is subserving
terrorism etc.
7. The blanket ban on transfer of assets such as money and donations
8. Many NGOs are doing exceptional work across the country and they are harmless
as they have never been found to be violating any legislation.
WAY FORWARD
A balance must be drawn between object sought to be achieved by legislation and
rights of the voluntary organisations to have access to have foreign funds.
8. PRESSURE GROUPS
Pressure groups are organisations that attempt to influence government policies but do
not directly control or share political power. These organisations are formed when people
with common occupation, interest, aspirations or opinions come together to achieve a
common objective.
The recent withdrawal of controversial farm laws has highlighted the role of pressure
groups in our polity and democratic functioning.
THERE ARE TWO TYPES OF PRESSURE GROUPS (PG)

Sectional Pressure Groups
 Promoting the interests of a particular section or group of society such as trade unions,
business associations or professional bodies.
 Their principal concern is the betterment and well-being of their members.

 E.g.: Women's Rights Organisation, India against Corruption, FICCI, All India Kisan
Sabha etc.
PROMOTIONAL PRESSURE GROUPS

 They promote collective rather than selective good and aim to help groups other than
their own members.
 Example: a group fighting against bonded labour fights for those who are suffering
under such bondage.
 E.g.: Backward and Minority Communities Employees Federation is largely made up of
government employees that campaigns against caste discrimination and addresses
the problems of its members who suffer discrimination. But its principal concern is
with social justice and social equality for the entire society.
PRESSURE GROUPS EXERT THEIR INFLUENCE BY

 Gaining public support and sympathy by carrying out information campaign and
meetings
 Organising protest activities or strikes (at times with the support of industrialists) –
forcing government to take note of the demands
 Lobbying state members and the Parliament via petitions, letters and deputations.
 Consulting with ministers or senior public servants.
 Hiring professional lobbyists by business groups to advance their corporate agenda.
 Taking legal action through injunctions or appeals to higher courts.
 Campaigning for, or opposing, certain candidates at elections.
PRESSURE GROUPS STRENGTHEN POLITY BY

 Provide platform to vulnerable sections in channelizing their grievances.
 Refine and shape the demands of various sectors of polity, society and economy.
 Acts as a channel of communication between government and sections of society.
 Pressure groups offer an alternative source of advice to the government.
 Promote debate and deliberations on important issues India’s national interest.
 Holding government accountable and responsive to the needs of the citizens.
 Governments are better informed of the electorate’s sensitivities to their specific
policies.
 Overall strengthens Indian democracy by playing participatory role.
CONCERNS
 Forces the government to take measures which may be detrimental to national
interests.
 The use of direct action by pressure groups such as strikes by unions, demonstrations,
blockades, pickets can cause hardship to the community in general.
9. SOCIAL AUDIT
The Ministry of Social Justice and Empowerment has formulated a scheme, namely
Information-Monitoring, Evaluation and Social Audit (I-MESA) in FY 2021-22. Under this
scheme, Social Audits are to be conducted for all the schemes of the Department starting
FY 2021-22. These social audits are done through Social Audit Units (SAU) of the States
and National Institute for Rural Development and Panchayati Raj. Even the Department
of Rural Development has institutionalized social audits in major schemes of Rural

Development, starting with National Social Assistance Program and Pradhan Mantri Awas
Yojana-Gramin.
WHAT IS SOCIAL AUDIT?

 Social audit is a process of reviewing official records and determining whether state
reported expenditures reflect the actual monies spent on the ground.
 Social audit is a process in which, details of the resource, both financial and non-
financial, used by public agencies for development initiatives are shared with the
community, often through a public platform.
 Review of official records also helps to determine the gap in state reported
expenditure and accrual money spent on ground. This overall helps to enforce
accountability and transparency and enable public to scrutinise development
initiatives especially at local level in Panchayats and Municipalities.
INSTITUTIONALISING SOCIAL AUDIT IN GOVT. SCHEMES

 National level - Mahatma Gandhi National Rural Employment Guarantee Act
(MGNREGA) was the first Act to mandate Social Audits by the Gram Sabha of all the
projects taken up in the Gram Panchayat.
 State level - Few States have taken up social audit –
o Pradhan Mantri Aawas Yojana-Gramin (PMAY-G) audits are done in Uttar Pradesh,
Meghalaya and West Bengal.
o National Social Assistance Program (NSAP) audits are done in Andhra Pradesh and
West Bengal.
o Meghalaya Legislature has enacted ‘The Meghalaya Community Participation and
Public Services Social Audit Act, 2017’ which mandates social audit in 26 different
schemes in Education, Health, Rural Development and other areas.
NEED & BENEFIT OF SOCIAL AUDIT

The main reason for the push for social audit is the huge disconnect between what people
want and what people get. As soon as social audit kicks in, it exercises its control over the
policy developers and implementers in the following manner:
 A check on corruption: SA’s uncovers irregularities and malpractices in the public
sector and maintains oversight on government functioning, thus reducing leakages
and corruption.
 Timely Monitoring, feedback and Course-correction measures on performance
at local level.
 Accountability and transparency: Ensures accountability and transparency in
working of local government bodies and reduces trust gap between people and local
governments.
 Participative and democratic process: SA promotes participation of people in
implementation of programs and makes people more forthcoming for social
development activities.
 Identifies Gaps in Implementation - allows the civil society to identify the gap
between the desired and actual impact of any project/program/service implemented.
 Strengthens functioning of Gram Sabha: SA gives voice and influencing power to
the Gram Sabha, the lynchpin of rural governance structure.
 Generates demand for rural economy by highlighting governance gaps: Serves as
the basis for framing the management’s policies by raising demands in a socially
responsible and accountable manner by highlighting the real problems.

 Strengthens Disadvantaged and Vulnerable Groups and helps in facilitating

Good Governance.
 Encourages grass-root democracy by enhancing local participation.
 Improves and institutionalises professionalism: SA boosts professionalism in
public bodies by forcing Panchayats to keep proper records and accounts of the
spending made against the grants received from the government and other sources.
 Collective platform for Social Cohesion: SA provides a collective platform such as a
social audit Gram Sabha, for people to express their common needs, resulting into
social cohesion.
CHALLENGES OF SOCIAL AUDIT

 Lack of Infrastructure at ground level to address grievances made by public during
scrutiny.
 Lack of administrative and political will in institutionalising social audit mechanisms.
 Lack of stringent penal action against those creating hurdles in the process.
 Lack of educated and well-informed citizenry to undertake regular audits.
 Lack of technical and managerial capacity such as book-keeping, accounting.
 Unwillingness of public officials at ground level to share the reality of developmental
process.
 Lack of uniform process of social audit across states due to language and cultural
barriers.
 No Benchmarking of Social Audit Mechanism for comparison purpose across districts.
 Difficult to gauge social impact assessment of government programs without any
uniform or fixed criteria.
 For state officials, it is a time-consuming exercise – hence need for special officers at
village level only for the purpose of Social Audit.
WAY FORWARD
Social audit as a transparent, participatory and active evaluation process has the
potential to encounter the corruption that plagues anti-poverty programs. Thus, as a step
towards good governance, social audit’s concepts, approaches, strategies and adaptable
methodologies need to be propagated and percolated.
CAG should develop mechanisms to conduct social audit of public welfare schemes.
10. SELF HELP GROUPS

Self-help group is a method of organising the poor people and the marginalized to come
together to solve social or economic problem.
STEPS TAKEN BY GOI TO PROMOTE SHGS IN INDIA

 The idea of galvanizing group of women for their economic development was first
tapped through Aajeevika - National Rural Livelihoods Mission (NRLM) launched in
2011.
 In November 2015, the program was renamed Deendayal Antyodaya Yojana (DAY-
NRLM).
 NRLM with the help of World Bank enabled the rural poor to increase household
income through sustainable livelihood enhancements and improved access to
financial services.

 National Rural livelihood Mission is India’s flagship program to reduce poverty by

mobilizing poor rural women into self-help groups and building community
institutions of the poor.
 India’s SHG movement has evolved from small savings and credit groups that sought
to empower poor rural women, into one of the world’s largest institutional platforms
of the poor.
SHG-BANK LINKAGE PROGRAM

 It was introduced by NABARD in 1992 has ensured growth of SHGs in bridging the
financial network gap and spreading banking facilities among poor.
 SHGs follow ‘Panchsutras’:
1. Conduct of regular group meeting
2. Regular savings within the group
3. Internal lending based on the demand of members
4. Timely repayment of loan and
5. Maintenance of proper books of accounts
IMPORTANT ROLE PLAYED BY SHGs

 Credit Mobilisation through Micro-financial Institutions
 Financial Inclusion - Savings led microfinance model has now become the largest
coordinated financial inclusion program in the world.
 Strengthening women empowerment as 90% of SHG’s consist of women exclusively
– Ex. Kerala’s Kudumbashree, Women SHGs can avail of Mudra or NABARD assistance
under Dhaanyalakshmi scheme.
 Helped to counter Left Wing Extremism through Scheme for promotion of Women
SHGs (WSHGs) in backward & LWE districts of India of NABARD.
 Facilitating poverty alleviation by providing livelihood opportunities – E.g.,
Livelihood and Enterprise Development Programs (LEDPs)
 Improve financial and social status of women and make them self-reliant
 Ensuring Rural Development
 Strengthening of grass root democracy by acting as a pressure group in gram
Panchayats.
 Fighting social ills such as dowry and alcoholism. E.g., Jeevikadidi.
 Strengthening human resources by promotion of education, health and capacity
building.
 Promotion of training & capacity building programs - through seminars &
workshops for the benefit of SHGs with the help of NABARD.
 Generate Social Capital by providing a platform to address individual concerns.
 Enhanced political participation in local bodies.
IMPORTANT STEPS TAKEN BY NABARD TO PROMOTE SHGs

 Financing of Joint Liability Groups (JLGs) - JLGs basically are Credit groups of
small/marginal/tenant farmers/ asset less poor who do not have proper title of their
farmland. Regular savings by the JLG members is purely voluntary and their credit
needs are met through loans from financial institutions and such loans could be
individual loans or group loans against mutual guarantee. Apart from extending
refinance support of 100% to the financing Banks, NABARD also extends financial
support for awareness creation and capacity building of all stakeholders under the
Scheme.

 NABARD Financial Services Ltd. (NABFINS) – NABARD aims to promote NABFINS as

Model Microfinance Institution to set standards of governance among the MFIs.
 Micro Enterprise Development Program (MEDPs) - NABARD has been supporting
need-based skill development programs (MEDPs) for matured SHGs which already
have access to finance from Banks. MEDPs are on-location skill development training
programs which attempt to bridge the skill deficits or facilitate optimization of
production activities already pursued by the SHG members. Grant is provided to
eligible training institutions and SHPIs to provide skill development training in
farm/off-farm/service sector activities leading to establishment of micro enterprises
either on individual basis or on group basis.
 Livelihood and Enterprise Development Programs (LEDPs) – Considering the
limited impact of skill upgradation trainings, LEDPs was launched to conduct livelihood
promotion programs in clusters through intensive training for skill building, refresher
training, backward-forward linkages and handholding & escort supports. It also
encompasses the complete value chain and offers end-to-end solution to the SHG
members. Implemented on a project basis covering 15 to 30 SHGs in a cluster of
contiguous villages where from SHG members may be selected.
 Scheme for promotion of Women SHGs (WSHGs) in backward & LWE districts of
India - implemented across 150 backward and Left-Wing Extremism (LWE) affected
districts of the country since March-April 2012. The scheme aims at saturating the
districts with viable and self-sustainable WSHGs by involving anchor agencies who
shall promote & facilitate credit linkage of these groups with Banks, provide
continuous handholding support, enable their journey to livelihoods and take the
responsibility for loan repayments. Under the Scheme, in addition to working as an
SHPI, the anchor agencies are also expected to serve as a banking / business facilitator
for the nodal implementing banks. ‘Women SHG Development Fund’ has been set up
to facilitate implementation of the scheme and to support cost of publicity, training &
other capacity building initiatives.
 Collaboration with NRLM is being regularly maintained and enhanced for the
support of SHG BLP. Coordinated efforts like conduct of National level seminars and
workshops, mutual dialogues and capacity building of stakeholders on SHG BLP have
now become very regular. Coordinated efforts in following areas have particularly
proved immensely fruitful.
CHALLENGES FOR SHGs

 Information asymmetry results in SHG members unable to enter profitable
ventures.
 Women members find it difficult to break the shackles of patriarchy and rise above
their social obligations.
 Non-co-operative Attitude of the Financial Institutions towards SHGs in availing
finance.
 Sustainability and the quality of operations of the SHGs have been a matter of
considerable debate.
 Exploitation by Strong Members within SHG: In many SHGs, strong members try to
earn a lion’s share of the profit of the group, by exploiting the ignorance and illiterate
members.
CHALLENGES DURING COVID

 During COVID, SHGs faced challenges in their regular functioning – regular meeting to
evolve measures for savings.

 Lack of earnings during COVID has dented economic sustainability of SHG-BLP has
resulted in defaults and increased bad debts.
WAY FORWARD
 Despite the challenges, Women Self Help Groups in India have risen to the
extraordinary challenge of COVID-19 pandemic by meeting shortfalls in masks,
sanitizers and protective equipment, running community kitchens, fighting
misinformation and even providing banking and financial solutions to far-flung
communities.
 Women SHGs should now avail the opportunity of digital banking and expand their
revenues by undertaking digital marketing of products through Amazon, Flipkart, etc.
 Thus, steps should be taken to promote digital and financial literacy for SHGs and
banks and financial institutions should extend facility in repayment of bank loans.
11. COOPERATIVES
Supreme Court using ‘Doctrine of Severability’ has struck down parts of Constitution 97th
Amendment which deals with co-operative societies as it did not follow the process laid down
in Article 368(2) of the Indian Constitution.
CONSTITUTION NINETY SEVENTH AMENDMENT

 Article 19(1)(c): Freedom to form cooperatives
 Article 43B in DPSC (PART IV) cast duty on state promotion of voluntary formation,
autonomous functioning, democratic control and professional management of
co-operative societies.
 PART IXB – was added in the constitution which provided for Article 243ZH to Article
243ZT for professional management of co-operative societies by state legislature,
determining the functioning and tenure of members of Board along with their regular
election, audit and accounts, maximum number of directors in each society,
reservation for seats for SCs, or STs, and women, multi-state co-operatives and
application of Part IX-B to Union Territories.
 Did not define cooperatives.
REASON TO ENACT CONSTITUTION 97TH AMENDMENT

In the Constitution, cooperatives are expressly provided in State List and kept expressly
outside the realm of Union List. It was expected that cooperatives will function under the
State Laws.
Cooperatives were seen as an alternative model of economic growth as a middle path
between the private sector and public sector. Its growth was envisaged for securing social
and economic justice and equitable distribution of the fruits of development. Some of
the challenges facing the cooperative sector are:
 Regional disparity in cooperative development: Cooperative structure has
managed to flourish only in a handful of States like Maharashtra, Gujarat, Karnataka
etc. Currently, central government provides equity and credit support to cooperative
societies. This benefit thus gets concentrated in few states where cooperatives have
developed. Regions where cooperatives are developed are already relatively well-off
states; there is a need to focus on development of cooperatives in poorer parts of the
country.
 Issues of membership: Inability to ensure active membership, speedy exit of non-
user members, lack of member communication and awareness building measures

 Governance challenges: Serious inadequacies in governance including that related

to Boards’ roles and responsibilities
 Cooperatives not seen as economic institutions: A general lack of recognition of
cooperatives as economic institutions both amongst the policy makers and public at
large
 Inability to attract and retain competent professionals leading to poor services
and low productivity.
 Lack of efforts for capital formation particularly that concerning with enhancing
member equity and thus member stake
 Lack of cost competitiveness arising out of issues such as overstaffing, a general top-
down approach in forming cooperatives including the tiered structures
 Politicization and excessive role of the government chiefly arising out of the
loopholes and restrictive provisions in the Cooperative Acts
 Irregular elections make office bearers remaining in office indefinitely, reducing their
accountability and increase corruption.
 Thus, need was felt for fundamental reforms in the functioning of co-operatives to:
o Revitalize the institutions to ensure their contribution in the economic development
of the country.
o Serve the interests of members and public at large.
o Ensure their autonomy, democratic functioning and professional management.
SC JUDGEMENT IN RAJENDRA N SHAH CASE

 Earlier Gujarat High Court had ruled that, “co-operative societies” are placed under
Entry 32 of the State List and hence was within state’s jurisdiction to legislate. So, any
change in that status by the Centre would require the ratification by at least one-half
of the state legislatures as per Article 368(2) of the Constitution. It also affected federal
principles and was against the basic structure of the Constitution. Thus, 97th
Constitutional Amendment was invalidated.
 Supreme Court upheld the Gujarat High Court judgment but did not strike down Part
IXB in its entirety. The Court by applying Doctrine of Severability held Article 243ZI to
243ZQ as unconstitutional leaving aside Article 243ZR and 243ZS.
 Supreme Court struck down part IX B of the Constitution related to cooperative
societies but declared the part related to multi-State cooperative societies both within
the various States and in the Union territories of India as valid.
 The Court also referred Kihoto Hollohan judgment where Doctrine of Severability
was applied on Tenth Schedule to render Paragraph 7 of Tenth Schedule of the Indian
Constitution as invalid.
 However, the minority judgment questioned the independent workability of Article
243ZR & 243ZS without other provisions of PART IXB and declared the entire PART IXB
as constitutionally invalid.
SUGGESTIONS FOR STRENTHENING COOPERATIVES

1. States should amend their cooperative legislations in the spirit of Model Cooperatives
Act proposed by Brahm Prakash committee. Such a law should be member centric
and based on cooperative principles.

2. For enhancing member participation: Definition of ‘Active members’ should be

introduced in cooperative legislations, right to vote and contest should be given only
to active members and enabling provision for speedy exit of non-user members.
3. Effectiveness of Boards: Cooperative legislations should clearly define role and
responsibilities of cooperative’s board vis-à-vis that of paid executives/managers.
4. Enhancing Professionalism: Cooperatives should be enabled for co-option of
experts, subject matter experts. Also, any person elected as a Director on the Board
should undergo a set of prescribed training programs.
5. Checking Politicisation: Cooperatives law should provide for rotational retirement
of Board members and restriction on contribution to political and religious
organisations.
6. Enhancing competitiveness: Cooperatives should have freedom to decide their
organizational structure and staffing policies, they should be enabled to form joint
ventures, partnerships etc. with cooperatives and other corporates and have flexibility
in business decisions, mobilizing funds etc.
7. State Governments should put in place a policy framework for facilitating the
functioning of cooperatives with free and fair means. States should refrain from
deputing officers to occupy key positions in cooperatives.
8. Full income tax exemption is therefore recommended for all cooperative societies.
This will be a major incentive for the cooperatives to strengthen their capital base.
9. The office of registrar of cooperatives should be restructured as a developmental
office which handholds and guides cooperatives.
A well-functioning cooperative sector can work wonders especially in agricultural and
rural development sector. The example of Amul needs to be kept in mind. Steps need
to be taken to empower cooperatives further.
12. CITIZENS’ CHARTER

A Model Panchayat Citizens Charter/ framework for delivery of the services across the 29
sectors, aligning actions with localised Sustainable Development Goals (SDGs) has been
prepared by Ministry of Panchayati Raj (MoPR) in collaboration with National Institute of
Rural Development &Panchayati Raj (NIRDPR). The Citizen Charter would ensure
transparent and effective delivery of public services for sustainable development and
enhanced citizen service experiences, deepening inclusive and accountable Local Self
Governments by incorporating diverse views while designing and delivering services.
IMPORTANCE OF CITIZENS’ CHARTER

Citizen's Charter is a document which represents a systematic effort to focus on the
commitment of the Organisation towards its Citizens in respects of Standard of Services,
Information, Choice and Consultation, Non-discrimination and Accessibility, Grievance
Redress, Courtesy and Value for Money. This also includes expectations of the
Organisation from the Citizen for fulfilling the commitment of the Organisation.
COMPONENTS OF CITIZEN CHARTER

1. Vision and mission statement
2. Service standards/Procedures
3. Grievance redressal mechanisms

SEVOTTAM MODEL
Sevottam is an assessment and improvement model that has been developed with the
objective of improving the quality of public service delivery in the country. The Second
ARC in its 12th Report on “Citizen Centric Administration had recommended that Union
and State Government organisations having public interface should mandatorily
implement the seven-step model. The word "Sevottam" is a combination of two Hindi
words: Seva (Service) and Uttam (Excellent). It means “Service Excellence”, emphasizing
the idea of “Service”. It symbolizes the change in mindset within the Government, from
administration and control to service and enablement.
The Seven Steps are:
1. Define your services and identify your clients
2. Set standards and norms for each service
3. Develop capability to meet the set standards
4. Perform to achieve the standards
5. Monitor performance against the set standards
6. Evaluate impact through an independent mechanism
7. Continuous improvement based on monitoring and evaluation
The key components of Sevottam have the following objectives:
1. Successful implementation of Citizen’s Charters
o Opening channel to receive citizens’ inputs to improve service delivery
o Charter to publicly declare information on citizens' entitlements
o making citizens better informed and
o Empowering them to demand better services.
2. Service Delivery Preparedness and achievement of Results

o Learning to manage key inputs for good service delivery
o Building capacity to continuously improve service delivery
o An organization can have an excellent performance in service delivery only if it is
o Identify services rendered, the service delivery process, its control and delivery
requirements.
3. Sound Public Grievance Redress Mechanism
o Increased satisfaction of citizens through improved grievance redressal mechanism

o Determination of organisations’ response to citizens’ grievance should also improve

continuously.
ROLE OF CITIZEN CHARTER IN PUBLIC ADMINISTRATION

 Provides for standards of Service Delivery to citizens
 Empowers citizens by creating a professional and customer-oriented environment
for the delivery of services.
 Boosts accountability and transparency in the delivery of public services.
 Provides for Grievance Redressal mechanism for public institutions and offices.
 Enhance good governance by improving the effectiveness of organizations by having
measurable standards.
 Augment quality of services delivered by incorporating an internal and external
monitoring entity.
 Facilitates participatory democracy by making administration citizen centric.
 Promotes collaboration of all sections of community without any prejudice.
 Develops yardsticks for monitoring and evaluation of service delivery.
PROBLEMS WHICH STILL PERSISTS

 Considered as mere formality without any periodic evaluation of its implementation.
 It has become a routine activity of government department without any accountability.
 Workforce unaware about the content and spirit of the Charter for which it is
envisaged.
 Lack of awareness campaigns to propagate the usage of citizens’ charter.
 Unrealistic and impractical standards set by the government for delivery of services.
 Absence of periodic evaluation.
 Inadequate training to frontline functionaries.
 In majority of cases charters were not formulated through a consultative process.
WAY FORWARD
 Citizens and staff need to be consulted at every stage of formulation of charter.
 Orientation of staff about the salient features
Mandatory implementation of SEVOTTAM Model as recommended by Second ARC will
help to improve Citizen Charters in India along with continuous evaluation of
unaddressed citizens’ grievances.
13. UNINTENDED CONSEQUENCES OF ANTI-

CORRUPTION LAWS
“Bribe-switching”, a paper by American researchers Jamie Bologna Pavlik and Desiree Desier
to describes about the unintended consequences of a strong anti-corruption law in United
States. This can be applicable even for India.
WHAT IS GENERALLY PERCEIVED?

 When a strong anti-corruption law is implemented by the government, then corrupt
activities including taking bribes by public servant decreases.
 It is also a general perception that decrease in corruption by public servants improves
the economy and this is also reflected in improving GDP.

ON THE CONTRARY, THERE ARE UNINTENDED CONSEQUENCES OF

STRICT IMPLEMENTATION OF ANTI-CORRUPTION LAWS
 No Decline in Corruption - There was no real decrease in the level of corruption
among public officials as bribe taking activities shifts to illegal market due to strict
implementation of such laws.
 Cost of Receiving Bribe - Receiving of bribes by the public servant either through legal
market or illegal markets depends on the relative cost of receiving bribes through
either route (legal or illegal).
 Resorting to Illegal Market - When the cost of extracting bribes in the legal market
increases due to strict anti-corruption laws, this makes public officials to resort to the
illegal market for obtaining bribes.
 Impact – Pendency in getting approval for projects due to lack of payment of bribe.
This makes officials to focus their efforts on approving projects in the illegal market
that bring them bribe revenue at a lower risk of getting caught red-handed.
 Thriving Illegal Economy – Due to strict implementation of anti-corruption laws,
public officials resorts to illegal market to maximise bribery revenue. This has
significantly increased the size of black economies in United States.
14. NEED FOR LAW AGAINST WRONGFUL

ARREST
In cases where accused are falsely or maliciously implicated, then there should be a legal
mechanism for providing compensation to the accused and such investigative officer should
be subject to disciplinary proceedings.
THERE CAN BE TWO INSTANCES REGARDING SUCH IMPLICATION

1. Where a person is falsely implicated based on distorted facts by the investigating
agencies.
2. When a person was implicated and put in jail. However, he had to be released as the
investigative agencies could not gather sufficient evidence to prosecute such person.
COMPENSATION MUST BE PROVIDED IN FIRST INSTANCE BECAUSE

 The accused had gone through physical discomfort when he was placed in jail.
 Of mental agony suffered by the person and his entire family.
 Social Stigma caused to the person and his family (especially in rural areas) – they also
get ostracized from the society. This also impacts the emotional wellbeing of the child
of such family.
 Compensation must also be provided to under-trial prisoners because of the
extremely slow judicial process which takes 8 to 10 years for a person to be finally
released due to lack of evidence or other aspects.
IS THERE ANY LEGAL MECHANISM AGAINST WRONGFUL

PROSECUTION IN INDIAN LAWS?
 Section 358 of Cr.P.C. provides for a paltry fine of Rs. 1,000/- to be provided to persons
who are wrongfully arrested. Such compensation must be paid by the person who
asked the police officer to arrest such persons.
 If the person who is to pay such compensation refuses or fails to pay, then such person
shall be sentenced to simple imprisonment for such term not exceeding 30 days as
the Magistrate directs, unless such sum is sooner paid.

 Section 211 of Indian Penal Code provides for false charge of offence made with
intent to injure - Whoever, with intent to cause injury to any person, institutes any
criminal proceeding against that person, or falsely charges any person with having
committed an offence, knowing that there is no just or lawful ground for such
proceeding or charge against that person, shall be punished with imprisonment of
either description for a term which may extend to 2 years, or with fine, or with both.
 And if such criminal proceeding be instituted on a false charge of an offence
punishable with death, imprisonment for life, or imprisonment for seven years or
upwards, shall be punishable with imprisonment of either description for a term which
may extend to 7 years, and shall also be liable to fine.
WHAT NEEDS TO BE DONE?

 Implement Law Commission’s 277th Report - Wrongful Prosecution (Miscarriage
of Justice): Legal Remedies – By Enacting Specific Legal Provision - for redressal of
cases of wrongful prosecution to provide relief to the victims of wrongful prosecution
in terms of monetary and non-monetary compensation (such as counselling, mental
health services, vocational / employment skills development etc.) within a statutory
framework.
 Enact Law to Compensate in cases of Miscarriage of Justice - Internationally, the
issue of wrongful prosecution, incarceration, and conviction of innocent persons is
identified as ‘miscarriage of justice’ that takes place after a person has been wrongfully
convicted but is later found to be factually innocent basis a new fact/proof coming to
light. The International Covenant on Civil and Political Rights (‘ICCPR’, ratified by India)
also creates an obligation on the State parties to enact a law to compensate the victims
of such miscarriage of justice.
 Wrongful Prosecution’ to be the standards of Miscarriage of Justice – Law
Commission’s report looks at the issue from the context of Indian Criminal Justice
system and recommends ‘wrongful prosecution’ to be the standards of miscarriage of
justice, as against ‘wrongful conviction’ and ‘wrongful incarceration’.
 ‘Wrongful prosecution’ would include cases where the accused is not guilty of the
offence, and the police or the prosecution engaged in some form of misconduct in
investigating or prosecuting the person. It would include both the cases where
o the person spent time in prison as well as where he did not; and
o cases where the accused was found not guilty by the trial court or where the
accused was convicted by one or more courts but was ultimately acquitted by the
Higher Courts.
 Need to establish a Special Court in each district to adjudicate upon the claims for
compensation for wrongful conviction. The Cause of Action for such compensation
shall be malicious prosecution or prosecution done in bad faith i.e., malafide.
 Compensation provided must be in the form of monetary value and non-monetary
value (pecuniary and non-pecuniary) to rehabilitate the victims back in the society.
Non-Pecuniary assistance includes services such as counselling, mental health
services, vocational or employment skill development and similar activities.
CHALLENGES IN IMPLEMENTING SUCH A LAW

 Determining Compensation for different types of cases and for number of years spent
in jail for wrongful prosecution.
 Inclusion of Under-trials in the compensation mechanism.
 Determining a uniform compensation across rich and poor states in India.
 Delay in providing compensation as it will also be subject to litigation and appeal.

 Providing the money for compensation – will it provided by the centre or respective
state governments.
WAY FORWARD
 Recommendations of Law Commission must be considered and a law must be enacted
to provide for compensation in case of miscarriage of justice.
 Compensation mechanism needs to be discussed with state governments for sound
implementation.
15. STANDING COMMITTEE CRITICISES

PROGRAMS FOR DENOTIFIED TRIBES
Department Related Parliamentary Standing Committee on Social Justice and Empowerment
has criticised the functioning of the development program for de-notified, nomadic and semi-
nomadic tribes.
DENOTIFIED TRIBES
 Denotified Tribes (DNTs) are communities that were ‘notified’ as being ‘born
criminals’ during the British regime under a series of laws starting with the Criminal
Tribes Act of 1871.
 These Acts were repealed based on the recommendation of Ananthasayanam
Ayyangar Committee, 1949 by the Indian Government in 1952, and these communities
were accordingly "De-Notified”.
 In India, roughly 10% of the population is Denotified and Nomadic. Renke commission
estimated their population to be around 10.74 crore based on 2001 Census.
 While the number of Denotified Tribes is about 150, the population of Nomadic Tribes
consists of about 500 different communities. A few of these communities which were
listed as de-notified were also nomadic.
 Nomadic and semi-nomadic communities are defined as those who move from one
place to another rather than living in one place all the time.
 Most Denotified Tribes (DNTs) are spread across the Scheduled Castes (SC), Scheduled
Tribes (ST) and Other Backward Classes (OBC) categories. However, some DNTs are
not covered in any of the SC, ST or OBC categories.
 Ministry of Social Justice and Empowerment had notified in March 2019 to
constitute Development and Welfare Board for Denotified, Nomadic and Semi-
Nomadic Communities chaired by Sh. Bhiku Ramji Idate.
HIGHLIGHTS OF THE REPORT OF PARLIAMENTARY COMMITTEE ON

SOCIAL JUSTICE & EMPOWERMENT
 Budgetary Allocation Remains Unutilised - Scheme for economic empowerment of
DNT communities formulated to provide coaching, health insurance, facilitate
livelihood and financial assistance for construction of homes for the members of DNT,
with total outlays of Rs 200 crore for the period of five years from 2021-22 to 2025-26
were unutilised. However, due to non-spending of even a single rupee in 2021-22 has
resulted in reduction of budgetary allocation to Rs 28 crore for 2022-23 against the
budgetary allocation of Rs 50 crore for 2021-22.
 Delay in Scheme Formulation for welfare of Denotified, Nomadic and Semi
Nomadic communities.
 No Decision Taken by Department to place DNTs under SC/ST/OBC Categories.

16. NATIONAL COMMISSION FOR DE-NOTIFIED,

NOMADIC AND SEMI-NOMADIC TRIBES
National Commission for De-notified, Nomadic and Semi-Nomadic Tribes (NCDNT) was
constituted by Government of India in February 2014 to prepare a state-wise list of castes
belonging to De-notified, Nomadic and Semi-Nomadic Tribes.
MAIN RECOMMENDATIONS OF (NCDNT) ARE

1. Setting up of a Permanent Commission at the Centre for Denotified, Nomadic and
Semi-Nomadic Communities.
2. Setting up of a Separate Department/Directorate for DNT/NT communities in States.
3. Define NT and DNT. Uniformity in categorization of DNT/NT as SC/ST/OBCs across
the States/UTs. Issue of single caste certificate. Sub-quota for DNT/NT/SNT within
the quota of SC/ST/OBCs.
4. Caste based Census in respect of DNT/NT/SNT communities in 2021 Census.
5. Creating awareness among DNT/NT/SNT communities for their inclusion in
mainstream.
6. Sensitization of different government officials, law enforcing authorities and local
bodies so that DNT/NT/SNT do not get differential treatment and benefits of
mainstream schemes reach to DNT/NT/SNT communities.
7. Schemes focusing DNT/NT/SNT communities for their health, education, housing,
traditional art, traditional expertise.
8. Livelihood of DNT/NT/SNT communities is largely dependent on the forests. Review
"Indian Forest Act" and "Wildlife Protection Act" to give them their natural habitats.
ISSUES & CONCERNS OF DE-NOTIFIED, NOMADIC AND SEMI-

NOMADIC TRIBES
 No Permanent Commission for DNTs: The government felt that setting up a
permanent commission would be against the mandate of existing commissions for
SCs (National Commission for Scheduled Castes), STs (National Commission for
Scheduled Tribes) and OBCs (National Commission for Backward Classes). The
government therefore set up the DWBDNCs under the Societies Registration Act, 1860
under the aegis of Ministry of Social Justice and Empowerment for the purpose of
implementing welfare programs.
 Lack of Constitutional Support: These tribes somehow escaped the attention of our
Constitution makers and thus got deprived of the Constitutional support unlike
Scheduled Castes and Scheduled Tribes.
 No categorisation: A number of these tribes are categorised under SC, ST and OBC,
many are not. However, 269 DNT communities are not covered under any reserved
categories.
 No money spent in 2021-22 under the Scheme for economic empowerment of DNT
communities. Budgetary allocation has been reduced to Rs 28 crore for 2022-23
against the budgetary allocation of Rs 50 crore for 2021-22.
 Vulnerable & Wrongly Stigmatised: Historically, Nomadic Tribes and De-notified
Tribes never had access to private land or home ownership. The National Commission
to Review the Working of the Constitution (NCRWC), 2002 held that DNTs have been
wrongly stigmatised as crime prone and subjected to high handed treatment as
well as exploitation by the representatives of law and order and general society.

 There are issues with the functioning of the Development and Welfare Board for
De-notified, Nomadic and Semi-Nomadic Communities (DWBDNC).
MEASURES FOR THEIR WELFARE

1. The National Commission for De-notified, Nomadic and Semi-Nomadic Tribes
(NCDNT) was constituted in 2006 - Renke Commission.
2. Scheme for economic empowerment of DNT communities: It has been formulated
to provide coaching, health insurance, facilitate livelihood and financial assistance for
construction of homes for the members of DNT.
3. National Commission for Denotified Nomadic and Semi-Nomadic Tribes, chaired
by Bhiku Ramji Idate has submitted its report in May 2018. The commission has
identified these communities state-wise, assessing their development status and has
recommended ways to uplift them. The commission recommended the setting up
of a permanent commission for these communities.
4. The Development and Welfare Board for De-notified, Nomadic and Semi-
Nomadic Communities (DWBDNC) has been set up in 2019 under the Societies
Registration Act, 1860 of Ministry of Social Justice and Empowerment. A committee has
been set up by the NITI Aayog to complete the process of identification.
5. Ethnographic studies of DNCs are being conducted by the Anthropological Survey of
India, with a budget of Rs 2.26 crore sanctioned.
6. Schemes for DNT: The Ministry of Social Justice and Empowerment is implementing
the following schemes for the welfare of the DNTs:
(i) Dr. Ambedkar Pre-Matric and Post-Matric Scholarship for DNTs. This Centrally
Sponsored Scheme was launched w.e.f. 2014-15 for the welfare of those DNT
students who are not covered under SC, ST or OBC.
(ii) Nanaji Deshmukh Scheme of Construction of Hostels for DNT Boys and Girls
17. RIGHT TO INFORMATION ACT

(A) LEGISLATIVE INTENT OF RTI ACT
 The RTI Act provides for setting up of the practical regime of Right to Information for
citizens to secure the right to access to information held by or under the control of
public authorities.
 The legislative intent behind the enactment of the RTI Act is to -
o Foster transparency & accountability in the working of every Public Authority.
o Fulfils rights of citizens to seek information from public authorities.
o Bridging gap between information provider and the information seeker.
o Enhance efficiency in administration of public authorities.
o Mitigate corruption
o Promote good governance
o Harmonise citizens’ rights with preserving national security
(B) THREE TIER SYSTEM UNDER RTI ACT

FIRST TIER
 Central Assistant Public Information Officer/Central Public Information Officer
(CAPIO/CPIO) - provides information to an RTI applicant within 30 days of the receipt
of a request as per section 7, unless:
o it is exempted from disclosure under section 8; or

o relates to a third party or
o held by another Public Authority – in such instance, application to be transferred

within 5 days of receipt of application
SECOND TIER
 The Second tier is designated as the First Appellate Authority (FAA).
 An RTI applicant:
o who does not get the required information within 30 days
o is aggrieved by the decision of CPIO
May within 30 days – file his first appeal FAA – officer senior in rank to CPIO
THIRD TIER
 At the third tier, the Central Information Commission has been established as the
apex appellate authority under the RTI Act 2005.
 Second appeal can be filed before the Central Information Commission against the
order of FAA, if the RTI Applicant is not satisfied or receives no order from FAA within
90 days.
(C) FILING ANNUAL REPORT BY CIC & SIC – RTI ACT

 Central Information Commission has come up with Annual Report for 2019-20.
 The Central and State Information Commissions shall prepare and forward yearly
report to respective central and state governments about implementations of RTI Act.
 Information related to public authorities (Reply to RTI Applications) shall be collected
by each Ministry and their Departments shall be forwarded to CIC & SIC.
 Annual Report of Central Information Commission - laid before both Houses of
Parliament
 Annual Report of State Information Commission - laid before House/s of State
Legislature (including Legislative Council).
The Annual Report must contain the following information:
 Number of requests made to each Public Authority.
 Number of decisions where applicants were denied access to information including
documents.
 Provisions of RTI Act (e.g.: under Section 8) under which information was denied and
number of times information was denied.
 Number of appeals referred to the Central Information Commission or State
Information Commission for review - the nature of the appeals and the outcome of
the appeals.
 Particulars of any disciplinary action taken against any officer.
 Amount of charges collected by each Public Authority under this Act.
Increase in Rejection Rates
 The CIC’s annual report covers more than 2,000 public authorities across the Central
government as well as the union territories.
 An analysis of CIC macro-data from Central ministries shows that the Home Ministry
had the highest rate of rejections, as it rejected 20% of all RTIs received.
 The Agriculture Ministry’s rejection rate doubled from 2% in 2018-19 to 4% in 2019-20.
The Delhi Police and the Army also saw increases in rejection rates.

Exemption from disclosure of information affect the sovereignty

and integrity of India, the security, strategic, scientific or
Section 8
economic interests of the State, relation with foreign State or lead
to incitement of an offence.
Information can be denied if it involves an infringement of

Section 9
copyright subsisting in a person other than the State.
Section 11 Third Party Information
RTI Act not to apply on intelligence and security organisations

Section 24
specified in the Second Schedule of the RTI Act.
(D) UNDERSTANDING ‘STATE’ & ‘PUBLIC AUTHORITY’

STATE – ARTICLE 12 PUBLIC AUTHORITY – RTI ACT
 Definition of State under Article 12 is  RTI Act, 2005 gives citizens the right to
part of PART III – FUNDAMENTAL secure access to information under the
RIGHTS. control of public authorities, to
 In the case of Ajay Hasia v. Khalid promote transparency and
Mujib Sehravardi, the Supreme Court accountability in the working of every
laid down the relevant tests to public authority.
determine the existence of State  RTI Act explains “Public Authority” as
agency or instrumentality: any authority or body or institution of
o If the entire share capital of the self- government established or
corporation is held by Government, constituted—
it indicates that the corporation is o by or under the Constitution
an instrumentality or agency of o by any other law made by
Government. Parliament
o Where the financial assistance of o by any other law made by State
the State is so much as to meet Legislature
almost entire expenditure of the
o by notification issued or order made
corporation – reflects governmental
by the appropriate Government,
character.
and includes any
o Whether the corporation enjoys a
i. Body owned, controlled or
monopoly status which is State
substantially financed.
conferred or State protected.
ii. Non-Government organization
o Whether the State has a ‘deep and
substantially financed, directly or
pervasive’ control over it.
indirectly by funds provided by
o If the functions of the entity are of the appropriate Government.
public importance and closely
 M.P. Varghese v. Mahatma Gandhi
related to governmental functions.
University - Kerala High Court

o If a department of Government observed that the definition of ‘public

itself is transferred to a corporation. authority’ has a much wider
However, the Supreme Court added that meaning than that of the term ‘State’
these tests were not exclusive and were under Article 12 of the Constitution.
merely indicative. The matter must be  The Court further observed that the
decided on case basis whether on facts definition of ‘State’ under Article 12 is
the body is financially, functionally, primarily in relation to enforcement of
and administratively dominated by, or fundamental rights through courts.
under the control of the Government and  Whereas the RTI Act, 2005 is for
such control must be pervasive and not providing an effective legislative
mere regulatory. If these conditions are framework for “effectuating the right
met, then a body can be called ‘State’ to information” as recognised under
under Article 12. Article 19 of the Constitution.
 Thus, to fall within the concept of
public authority, there must be
certain nexus regarding control and
finance of public authority over the
activity of private body or an institution
or an organisation.
PUBLIC AUTHORITIES UNDER RTI

 Private University Receiving Significant Government Funding - The State
Information Commission (SIC) in Odisha has declared Kalinga Institute of Industrial
Training (KIIT), a deemed to be university as a “public authority” under the Right to
Information Act, 2005 as it receives significant funds from state government as per
CAG’s Report.
 NGOs Substantially Financed by Govt. - Supreme Court has held that non-
governmental organisations (NGOs) “substantially” financed by the government fall
within the preview of Right to Information Act, 2005. The court defined “substantial” as
a “large portion” of amount. SC held that NGOs which receive considerable finances
from the government or are essentially dependent on the government fall under the
category of “public authority” defined in Section 2(h) of the Right to Information (RTI)
Act of 2005.
 Office of CJI under RTI - Five Judge Bench of Supreme Court of India in a unanimous
decision held that the office of Chief Justice of India is a public authority. The Court
held that judicial independence and accountability goes hand in hand and
transparency of office of CJI does not undermine judicial independence. The Court
however held that RTI cannot be used as a tool of surveillance and information sought
must not violate CJI’s Right to privacy.
 Political Parties - CIC in its 3rd June 2013 decision has ascertained that Political Parties
are also Public Authorities because they fulfil the criteria defined in the RTI Act for a
body to be declared as public authority. However, political parties have refrained from
providing information under RTI Act.
WHY POLITICAL PARTIES SHOULD COME UNDER RTI?

 Substantially funded by taxpayer’s money
 Political parties are provided free airtime on state owned television, Doordarshan, and
radio, Akashwani during elections.
 Election Commission provides free of cost Electoral Rolls to Political Parties.
 Income Tax Exemptions to Political Parties under Section 13A of Income Tax Act.

 Spending by state on various facilities and activities of political parties including

security of candidates during elections.
 Disclosure of information by political parties will serve larger public interest as parties
fights election and hold power in the government.
 According to NCRWC - Political parties are indispensable to any democratic system and
play the most crucial role in the electoral process in setting up candidates and
conducting election campaigns.
 Are Public Authorities under CIC’s control? - If an organisation comes under RTI it
does not mean that the organisation in under the control of the Information
Commission. The Commission’s mandate is merely to ascertain fulfilment of RTI’s
objectives and ensure provision of information sought by citizens unless such
information is prohibited from being disclosed under RTI Act. Even the President’s
Secretariats, Prime Minister’s Office and Secretariats of both the houses of Parliament
are currently under the RTI. Therefore, being under the RTI does not imply that these
highest institutions of our democracy are under the control of CIC.
BENEFITS OF RTI ACT

 Accountability - Empowers Citizens to hold government accountable for non-
performance of their duties by providing citizens access to government files and
records.
 Exposes acts of corruption and scandals - egg: Adarsh Housing Society Case, 2G
case, Commonwealth Games Case etc.
 Allows citizens to participate in decision making process and shape public opinion
through access to important information.
 Helps marginalised and vulnerable sections in demanding their basic rights and
access to important government services and welfare schemes.
 Discloses steps taken by governments in times of crisis – e.g.: food, medicines,
healthcare facilities provided during pandemic or disasters, steps taken during COVID,
natural disasters.
 Filing of writ petitions in Courts against instances of misgovernance, non-
implementation of various rules or laws or even schemes, lack of access to
government services etc.
 Expose extent of criminalisation of politics and helped in de-criminalising Indian
politics through important SC judgments
 Transfer of Funds through Electoral Bonds
 RTI Act has ensured application of Article 19 of Universal Declaration of Human
Right.
CONCERNS WITH RTI ACT

 RTI Amendment 2019:
o Removed security of tenure of Central and State Chief Information Commissioner
and other Information Commissioners – which earlier was fixed under RTI Act.
o Salary, allowance and terms of service to be prescribed by central government.
Earlier it was at par with Chief Election Commissioner and Election Commissioner.
 Low Awareness Levels particularly among marginalised sections about rules and
process of RTI Applications and where to file them.
 Non-uniform RTI Rules & procedures across States, inconvenient mode and non-
uniform fee across the States.

 Unsupportive attitudes of Public Information Officers (PIOs) are leading to

unsatisfactory and poor-quality replies.
 Ritualistic approach' by First Appellate authority (FAA), huge pendency and
leniency towards PIOs at Information Commission level.
 Intimidation and threat by the person in power and by political parties
 Ineffective record management system particularly in state field offices/
departments.
 Inadequate training to PIO & FAAs particularly on key order/judgments of
Information commissions and courts.
 Increased workloads on PIOs due to understaffed positions of PIOs.
 Increasing RTI Appeals - Many State Information Commissions do not have sufficient
Information Commissioners lead to piling of RTI Appeals.
RIGHT TO INFORMATION V. OFFICIAL SECRETS ACT

Union government prohibited retired officials of security and intelligence organisations
from publishing anything about their work or organisation without prior clearance from
the head of the organisation. Even serving civil servants are barred from expressing their
opinion on policy matters and criticising government.
IMPORTANT PROVISIONS OF OFFICIAL SECRETS ACT

 The OSA, 1923 broadly deals with two aspects:
o Penalty for Spying or espionage, dealt with in Section 3 of the Act.
o Disclosure of other secret information of the government, which is dealt with in

Section 5.
Under Section 5, both the person communicating the secret information, and the
person receiving the information, can be punished by the prosecuting agency.
 OSA targets officials and civilians who have documents/code/materials etc. which
can be classified as “secret information.”
 Secret Information - The secret information can be any official code, password,
sketch, plan, model, article, note, document or information.
 Since the classification of secret information is so broad, it is argued that the colonial
law is in direct conflict with the Right to Information Act.
 Spying or leaking information from prohibited place is also punishable under OSA,
1923. Prohibited Place as per OSA can include the following:
o Any establishment of military, defence, naval or air force.
o Military Telegraph, Wireless Communication or any channel of communication

declared as prohibited place by the government.
o A place storing munitions of war, sketch, model, plan etc. Against enemies or
otherwise.
o Any channel of communication through land, water, sea declared as prohibited
place.
o Any place used for gas, water or electricity work declared as prohibited place
o Such other place declared by the government.
OBSERVATION OF SUPREME COURT - RTI V OSA

 The issue was raised in the matter of Rafael Jets. The Court held that RTI Act confers
on ordinary citizens the ‘priceless right’ to demand information even in matters
affecting national security and relations with a foreign state.

 Referring to Section 8(2) of the RTI Act, Court held that the government cannot refuse
information if disclosure in public interest overshadows certain ‘protected interests.
 SC pointed out three provisions of RTI Act, 2005 which clearly overrides the OSA
in certain situations:
o Section 22 of the RTI Act declares that the RTI will have an “overriding effect” over
OSA, 1923.
o Section 24 mandates even security and intelligence organisations to disclose
information on corruption and human rights violations.
o Section 8(2) compels the government to disclose information “if public interest in
disclosure outweighs the harm to protected interests.
INDIAN ARMY CAN GET EXEMPTION FROM RTI

Indian Ex-Services League, an association of ex-servicemen, family pensioners and next-of-kin
of the armed forces personnel has written to PM Narendra Modi against exempting Indian
Army from RTI Act.
REASON FOR REQUEST

 RTI helps to maintain transparency in the functioning of the Indian Army.
 RTI acts as a powerful tool for family members of serving officials and veterans to seek
information from the government or to seek documents or service records of army
officials.
 RTI Act helps to address myriad grievances of army personnel and their family
members regarding service issues or pension matters.
 It has been observed that seeking information through RTI has reduced litigation in
Court.
 Section 8 and 9 of RTI Act provides adequate protection for sensitive information which
the Army do not want to disclose.
SECTION 24 OF RTI ACT – EXEMPTS CERTAIN CENTRAL

INVESTIGATIVE AGENCIES
 The provisions of RTI Act shall not apply to the intelligence and security organisations
specified in the Second Schedule of the Act.
 However, information pertaining to allegations of corruption and human rights
violations shall not be excluded of such central investigative agencies.
 Information about allegations of violation of human rights shall only be provided after
the approval of the Central Information Commission.
 Such information shall be provided within 45 days from the date of the receipt of
request.
 Central Government by amendment may add or omit any intelligence or security
organisation from the Second Schedule. Such amendment shall be laid before each
House of Parliament.
DIGITAL INDIA CAMPAIGN
Digital India campaign aims to ensure that services by Government are made available
electronically to all citizens.
 This objective is achieved by strengthening online infrastructure and improving
internet connectivity or to make India digitally empowered in the field of technology.
 Digital India campaign was launched in 2015 to ensure that government services are
made available to citizens electronically by
o improved online infrastructure,

o by increasing internet connectivity,
o By making the country digitally improved in the field of technology.
 The initiative includes plans to connect rural areas with high-speed internet networks.
 Digital India consists of three Core Components –
o Developments of secure and stable infrastructure,
o Delivering Digitally, &
o Ensuring Universal Digital Living
KEY INITIATIVES UNDER DIGITAL INDIA

 Aadhaar Enabled Payment System (AEPS) - It is a payment service based on an
individual’s Aadhaar.
 MyGov platform - promotes participatory governance by providing citizens an
opportunity to voice their opinions in policy making and recommendations.
 National Mission in Education through ICT (NMEICT) - is a centrally sponsored
scheme which aims to leverage the potential of ICT in education through teaching and
learning processes in institutions for higher education.
 Pradhan Mantri Jan-Dhan Yojana (PMJDY): It provides access to services of financial
nature at affordable rates to boost financial inclusivity and encourage savings. The
services accessible under the PMJDY are savings accounts, loan services, pension,
insurance, etc.
 Smart Cities Mission under Digital India umbrella promotes conceptualisation and
realisation of cities that have a strong basic infrastructure and promote sustainable,
safe and inclusive development for its residents.
 E-Pathshala - Under the aegis of NCERT, ePathshala is a platform to disseminate
educational resources through mobile app and website.
 E-Prison –envisions digitisation and integration of all activities that are related to
prison and prisoner management for jails through an application suite. It is a one-stop
solution for citizens to digitally apply for visitation, note grievances, use a portal for
buying goods created by prisoners, etc. For the prison management system, the
project aids in surveillance and management of prisoners, administrative tasks,
resource optimisation, etc.
 Farmer Portal – It is designed to be a one-stop destination to gain relevant
information related to agriculture, risk management, animal husbandry, aquaculture,
weather, programs& schemes etc.
 Goods and Services Tax Network (GSTN) - IT system of the GST portal and acts as
the backbone of the GST system and acts as the core database for it. The network
helps the government follow financial transactions and helps the taxpayers with GST
registration, maintenance of tax details, etc.
 Khoya Paya - is an initiative under Digital India to engage citizens to inform and
exchange information on children who are missing and found. The platform is
developed by the Ministry of Women and Child Development along with the
Department of Electronics and Information technology where citizens can report
missing and found children with the help of texts, photos, videos, and other means
through smart phones. The Khoya Paya portal can be linked to the CCTNS project to
help apprehend criminals as well as solve cases of missing minors.
 Kisan Suvidha Portal & mobile application disseminates relevant information to
farmers regarding weather, market prices, plant protection, inputs, weather alerts, go-
downs and storages and market-related information such as conducive markets,
market rates, quantity demands, etc.

 E-court’s project monitoring website has been created to aid courts with automated
decision-making and decision-support system.
 UMANG - provides a single platform for all Indian Citizens to access pan India e-Gov
services ranging from Central to Local Government bodies.
 Indian Computer Emergency Response Team (CERT-In) -CERT-In has three roles:
1. Raise awareness about cyber security and provide technical assistance to combat
India’s cyber security concerns.
2. Provide System Administrators and users with technical advice to respond to cyber
security incidents.
3. Releases research, guidelines, advisories, best practices and other technical documents
related to security awareness.
 Government e-Marketplace (GeM) - The users of this marketplace are state and
central government ministries and departments, public sector undertakings, local
bodies and autonomous institutions.
 Crime and Criminal Tracking Network & Systems (CCTNS) aims at creating a system
that is comprehensively integrated to enhance the efficiency of policing through a
creation of a nation-wide networking infrastructure for the evolution of IT-enabled
highly efficient tracking system around the investigation and detection of crimes and
criminals.
IMPLEMENTATION CHALLENGES
 Number of Roadblocks like digital illiteracy, poor infrastructure, low internet speed,
lack of coordination among various departments, data security etc.
 Lack of digital literacy & awareness There should be adequate awareness building
for people living in rural areas so that they can be a part of digital India and reap the
benefits of the Internet.
 Poor Readiness: India fares poorly in UN E-Government readiness Index due to poor
Telecommunication Infrastructure and Human Capital. Focus must be on bridging the
Digital Divide by enhancing the rural tele density and imparting digital literacy to the
people.
 Bureaucratic Resistance: The bureaucratic resistance due the threat of job losses
should be overcome by demonstrating the potential benefits of e-Governance.
 Poor Skill sets: Technical and manageriall skills needs to be improved by focussing on
the capacity building and sill development of the government employees.
 Lack of Business Process Reengineering: Business process re-engineering is a
business management strategy and focuses on the analysis and design of workflows
and business processes within an organization. As recommended by 2nd ARC, the
government departments must undertake BPR to make their procedures more
compliant with ICT projects.
 Technological Solutions: - All states must adopt uniform software for release of funds
for schemes like MGNREGA.
 Strengthening Cyber-Security Measures –Ensuring Cyber Security of e-governance
initiatives is necessary for which the government must strengthen cyber security
measures.
 Role of Private Sector Neglected: The private sector expertise must be harnessed
through implementation of E-governance projects through Public Private Partnership
Mode.

 Local Language content: The non-availability of digital services in local languages is

also a major concern. There is a need to ensure that E-governance projects are also
able to support the local languages for the benefit of people.
 Lack of Monitoring and Evaluation: Regular monitoring would lead to continuous
improvement in the E-Governance projects.
 Lack of Integrated Database: As recommended by Economic Survey, there is a need
for a single integrated database which can provide holistic and complete information
about the Indian citizens.
WAY FORWARD
 With significant strides already made in the Digital India program, it is now time for the
government to transform its approach and aspire to become fully digital.
 The success of Digital India will be a major factor in enhancing the country’s economic
growth by improving social and financial inclusiveness, citizen engagement, as well as
efficiency and accountability in governance and delivery of services.
18. ASPIRATIONAL DISTRICT PROGRAM

In an independent appraisal report, United Nations Development Program (UNDP) India
has lauded the Aspirational Districts Program (ADP) as ‘a very successful model of local
area development ’that ‘should serve as a best practice for several other countries where
regional disparities in development status persist for many reasons’.
ASPIRATIONAL DISTRICT PROGRAM

 The ‘Transformation of Aspirational Districts’ Program aims to expeditiously improve
the socio-economic status of 117 districts from across 28 states.
 The three core principles of the program are –
1. Convergence (of Central & State Schemes),
2. Collaboration (among citizens and functionaries of Central & State Governments
including district teams), and
3. Competition among districts.
 Driven primarily by the States, this initiative focuses on the strengths of each district,
and prioritizes the attainable outcomes for immediate improvement.
 Districts will be ranked on their "incremental progress" through Delta Ranking.
 The Aspirational Districts program, through real-time monitoring and proactive course
corrections, reinforces the mechanisms of cooperative & competitive federalism
between the Centre and the States, down to the districts.
 NITI Aayog has entered partnership with Tata Trusts, and Bill & Melinda Gates
Foundations (ID Insight) to assist the districts in enumerating improvement in key
performance indicators a through household survey.
FOCUS THEMES – ADP

The program focuses on 5 main themes which have a direct impact on quality of life and
economic productivity of citizens.
Themes Weight Allotted
Health & Nutrition 30%
Education 30%
Agriculture & Water Resources 20%

Financial Inclusion & Skill Development 10%
Basic Infrastructure 10%
19. CORPORATE SOCIAL RESPONSIBILITY

Corporate social responsibility (CSR) refers to the way through which a company achieves
balance of economic, environmental & social imperatives (Triple-Bottom-line-Approach)
while at the same time addressing the expectations of shareholders & stakeholders.
Companies Act, 2013 has elaborated on the use of CSR Funds for social welfare programs
for the benefit of Indian society.
IS CSR SIMILAR TO SOCIAL PHILANTHROPY?

 Idea of CSR emanated from concept of social philanthropy and it helps in achieving
the purpose set out in Part IV of Constitution especially ideas enshrined in Article 38
and 39.
 Article 38 mentions about promotion of welfare of people by securing and
protecting the social order, by minimizing the inequalities in income, status,
facilities and opportunities.
 As per Article 39, the state shall ensure for its citizens
i. adequate means of livelihood,
ii. proper distribution of community resources for the welfare of all specially the
weak,
iii. Distribution of wealth equitably in the society for the common good of all.
 Thus, the concept of CSR instils in a company the idea of social responsibility
integrated with its motive of profit making. CSR activities also help them to integrate
ethical, social, and environmental concerns of our society with their day-to-day work.
TRIPLE BOTTOM LINE APPROACH

 Triple Bottom Line approach extends corporates’ responsibilities beyond profits to
social and environmental concerns thereby ensuring sustainable development.
 The Approach focuses on 3 P’s –
1. People: Promote Social Impact of Business through fair wages to employees,
check on child Labour, Human Rights abuses etc.
2. Planet: Reduce Environmental impact of business by adopting green technologies.
3. Profit: Traditional measure of corporate profit and loss.
WHICH COMPANIES QUALIFY FOR CSR ACTIVITIES?

 A company meeting the following requirements as prescribed under the Companies
Act is liable to contribute 2% of its average net profit for social welfare during any
financial year
1. If a company has a net worth of Rs. 500 crores or more, or
2. If the turnover of a company is Rs. 1,000 crores or more, or
3. If the net profit of a company is Rs. 5 crore or more
 Such a company shall constitute a ‘Corporate Social Responsibility Committee’ of
the Board consisting of three or more directors, out of which at least one director shall
be an independent director.

DOES THE LAW PROVIDE FOR ANY SPECIFIC AREAS FOR SPENDING
FOR CSR ACTIVITIES BY A COMPANY?
 Schedule VII of the Companies Act, 2013 provides an inclusive list of areas such
as:
o To eradicate extreme hunger and poverty
o To promote education
o Promotion of gender equality and women empowerment
o Reducing child mortality and improving maternal health
o Combating human immunodeficiency virus, acquired immune deficiency

syndrome, malaria and other diseases
o Ensuring environmental sustainability
o employment enhancing vocational skills
o social business projects
o contribution to the Prime Minister's National Relief Fund or any other fund set up
by the Central Government or the State Governments for socio-economic
development and relief
o Contribution for the welfare of the Scheduled Castes, the Scheduled Tribes, other
backward classes, minorities and women
 Since the list provided is an inclusive list and not an exhaustive list, hence a company
can also spend on other activities for the welfare of the society as approved by its
Board of Directors which is not prohibited under the Act or Rules framed by the
government.
WHICH ACTIVITIES OF A COMPANY SHALL NOT BE TREATED AS AN

EXPENDITURE INCURRED FOR CSR?
 Such works which the company generally undertakes in their normal course of
business.
 Any welfare projects, program or activities pursued by a company beyond Indian
Territory shall not be construed as expenditure incurred towards CSR.
 Such projects, programs or activities which benefit only the employees of the
company, and their families shall not be considered as CSR activity.
 Contribution of any amount directly or indirectly to any political party shall not be
considered as CSR activity.
CHALLENGES – IMPLEMENTING CSR

 The lack of resources, including finances, human capital, knowledge, and expertise,
has been reported to be a common barrier to CSR implementation.
 Budgets for implementing CSR are often inadequate and outcompeted by other
projects which guarantee higher return on investments.
 Most companies have not formed CSR Committee as mandated by Companies Act to
formulate and recommend CSR Policy.
 Provisions allowing CSR Funds to be transferred for government purposes such as PM-
Cares defeats its very purpose due to opaqueness of PM-CARES.
 Widens regional disparity as maximum expenditure is in industrialised areas, poor
states and north-eastern states receive minimal funds for social needs.
 Lack of proper utilisation of CSR Funds by corporates results in its wastage
 Non-compliance and poor enforcement of CSR Norms due to lack of clear obligations.

WAY FORWARD
Recommendations of Injeti Srinivas Committee must be implemented which suggested
for introduction of penal provisions for non-implementation of CSR funds along with
provision to deposit unspent CSR amount into an escrow account. Triple Bottom Line as
a balanced approach towards Corporate Social Responsibility focusing on People, Planet
and Profit holds key towards achieving ethical corporate governance in India.
20. INDEPENDENT REGULATORY BODIES

With the onset of LPG reforms, there was an onset of increased private sector
participation in Indian economy and public life. The state in India faced a challenge as it
was one hand a direct participant in the economy which build roads, operated trains, ran
PSUs in various sectors and it was on the other hand framing rules & standards for other
private players in the economy. This created a conflict of interest as private players always
felt that rules will be set in such a manner that disproportionately favour the PSUs in
India.
Thus, to keep an arm’s length between regulators and ministries which operate PSUs,
many sectors in the Indian economy have seen the growth of Independent Regulators.
These regulators were statutorily made independent to give private sector confidence.
1. Finance related: IREDA, RBI, SEBI, PFRDA, IBC etc.
2. Electricity: CERC, SERC
3. Railways: Rail Development Authority etc.
ISSUES IN REGULATORY BODIES

 Regulatory framework across various public utility industries lacks a consistent and
coherent approach.
 Lack of uniformity and predictability in powers and functions of regulators.
 Lack of consistency in selection procedure of members of regulatory bodies.
 Issues of independence and accountability of regulators.
 Lack of clarity on budgetary allocation for functioning of regulatory bodies.
 Mechanisms for appealing against orders passed by regulators
 Varying mandates of regulators: For ex. Regulator in port sector is mandated to set
tariffs only whereas regulators in electricity sector have much wider powers of
licensing, market development and imposing penalties apart from tariff fixation. The
telecom and gas sector regulators are assigned to promote competition which is not
part of the responsibilities of port or electricity regulators.
 Diverse sectoral approaches have resulted in an uneven regulatory environment
 Considerable delays in setting up of regulatory institutions and processes.
 Efficiency and quality of regulation affects economic participation of developing
countries.
1. Dilutes political control over important policy decisions.
2. Increases technocracy: Many of the regulators are specialists, however, they are
unelected and not accountable to people directly.
WAY FORWARD
Suggestions of Damodaran Committee for Regulatory Reforms.

REGULATORY ARCHITECTURE
 Carving out clear mandate for new regulatory authority:
o Before setting up a new regulatory organisation, adequate thought should be given
to the need for such an organisation, the ability to man that organisation and to
invest it with functional autonomy.
o Setting up of new regulatory organisation should not be a knee-jerk response to a
situation, but a well thought out plan of Ministry to move away from writing out and
implementing regulations.
 Appointments& Supervision of regulatory authorities:
o Appointments of persons to head regulatory organisations should be attempted in
a far more transparent manner.
o There should be a transparent system in which regulatory bodies are accountable
to an appropriate Parliamentary Committee.
 Autonomy of regulatory authorities:
o Genuine functional autonomy needs to be given to regulatory authorities.
o Financial autonomy of regulators needs to be ensured where regulatory
organisations are not dependent on departments for financial support.
 Self-evaluation by regulatory organisations:
o Each regulatory organisation should undertake self-evaluation of it once in 3 years
and put out the conclusions in public domain for informed discussion.
 Steps should be taken so that regulators function under the overall framework of
democratically elected government. However, this direction should be on broad policy
directions and not day to day interference. For ex. MoU signed between Ministry of
Finance and RBI for Inflation Targeting which makes RBI accountable to control
inflation between 4 +- 2%.
BOOSTING EFFICACY OF REGULATORY PROCESS

 Ensuring effective consultation through a two-stage process wherein revised drafts are
also put up for consultation. This would ensure misinterpretations of regulations do
not exist.
 Cases of systemic importance need to be dealt with on a priority basis by regulatory
bodies.
 Regulatory review authority: Existing body of regulations should be reviewed for
contemporary relevance, clarity and continuity. This can be accomplished by creating
Regulation Review Authority in each organisation which will continuously examine
stock of existing regulations and weed out those that do not have continuing use.
 Regulatory Impact Assessment should be done for every proposed regulation.
 Recommendations of NITI Aayog:
1. Need for a uniform approach to common issues of regulatory bodies. Niti Aayog's
draft Regulatory Reform Bill should be finalised and passed by parliament.
2. Enable and handhold businesses on regulatory compliance.
21. REGULATORY IMPACT ASSESSMENT

 It is an evidence-based tool to support public decision making. It is a systematic
appraisal of how a proposed policy is likely to affect certain categories of
stakeholders and outcomes.

 This tool can be applied to primary legislation or secondary regulation of Central

and State governments, independent regulators, regional governments and local
authorities.
 It is mostly used during the policy formulation stage. It is not a substitute for political
decision making and does not replace judgement or the balancing act between
values and preferences that public choices imply. Rather, it informs final choice of
decision makers with evidence and inputs from stakeholders.
 The overall strategy in which RIA is embedded is 'better regulation'. The strategy is
anchored to three building blocks of learning from evidence:
1. Proportionality or targeting
2. Knowledge utilization
3. Integration with other policy instruments and institutional design.
22. GRIEVANCE REDRESSAL MECHANISM

Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law
and Justice brought 111th Report on ‘Strengthening of Grievance Redressal Mechanism of
Government of India’. The Committee has identified the shortcomings and suggested
measures to facilitate effective and efficient redressal of public grievances. The Committee
believes that an efficient and effective grievance redressal mechanism ensures accountability
and increases citizen satisfaction, both of which are key elements of good governance.
IMPORTANCE OF GRIEVANCE REDRESSAL MECHANISMS

1. Grievance Redressal Mechanism of an organisation is an instrument to measure its
efficiency and effectiveness.
2. Provides important feedback on the working of the organisation.
3. Ensures timely delivery of services
GRIEVANCE REDRESSAL MECHANISM OF THE GOVERNMENT OF

INDIA AT THE APEX LEVEL
 There are primarily two designated nodal agencies in the Central Government
handling these grievances. These agencies are:
1. Department of Administrative Reforms and Public Grievances, Ministry of
Personnel, Public Grievances and Pensions
2. Directorate of Public Grievances, Cabinet Secretariat.
DEPARTMENT OF ADMINISTRATIVE REFORMS & PUBLIC GRIEVANCES

(DARPG)
 Nodal agency for policy initiatives on public grievances redress mechanism & citizen
centric initiatives.
 Role of DARPG: undertake citizen centric initiatives in the fields of administrative
reforms and public grievances to
o ensure quality delivery of public services to the citizen in a hassle-free manner and
o eliminate the causes of grievances.
 Allocation of Business Rules, 1961, allocates to DARPG the responsibility for Policy,
Coordination and Monitoring of issues relating to
o Redress of Public Grievances in general and
o Grievances pertaining to Central Government Agencies, in particular.

 In accordance with federal principle of governance, the grievances relating to States

are forwarded to concerned State Government for appropriate action.
 Towards this end, DARPG has established the Centralised Public Grievance Redress
and Monitoring System (CPGRAMS).
DIRECTORATE OF PUBLIC GRIEVANCES (DPG)

 DPG was set up in the Cabinet Secretariat in 1988. DPG was set up initially to look into
individual complaints pertaining to four Central Government Departments, but now is
handling grievances pertaining to 16 Central Government Organisations.
 DPG has been envisaged as an appellate body investigating grievances where the
complainant had failed to get redress at the hands of internal machinery and the
hierarchical authorities.
 Unlike the Department of AR&PG, DPG has been empowered to call for the files and
officers for discussion to ensure grievance handling has been done in a fair, objective
and just manner.
 DPG can also suggest suitable recommendations to be adopted by the concerned
Ministry/department which must implement them within one month.
GRIEVANCE REDRESSAL MECHANISM (CPGRAMS)

 CPGRAMS is an online portal available to public 24x7 to lodge their grievances against
the authorities on any subject related to service delivery. It is a single portal connected
to all the Ministries/Departments of Government of India and States.
 CPGRAMS also facilitates tracking grievances through a system generated Unique
Registration Number.
 The system enables Ministries/ Departments to take appropriate action and upload
the Action Taken Report (ATR) on the system which can be viewed by the citizens online
with the help of the unique registration number.
 Public grievances usually come in two forms: 1. Through the CPGRAMS; and 2. Through
post.
 The grievances received by post are digitized and sent both through the System as well
as by post to the Ministry/ Department/ State Government concerned.
CONCERNS EXPRESSED & RECOMMENDATIONS PROVIDED BY THE

COMMITTEE
RECOMMENDATIONS OF STANDING
CONCERNS EXPRESSED
COMMITTEE
Disposing Grievance without proper Comply Instructions of DARPG – and

closure along with suggestion to visit Ministries or Departments must give valid
another agency or subordinate office. reasons for closure.
CPGRAMS should play the role of

facilitator for the public without impinging
on the nature of federalism and forward
Most grievances received on CPGRAMS grievances to respective state government
relating to states are disposed and not or their department.
forwarded to respective states The performance of states on the portal can
be left to them but the facilitation
responsibility of the Centre cannot be shed
when a public grievance is registered.

Incorporate following in newer versions

of CPGRAMS - Opening channels for
Lack of Awareness among people
effective communication, promoting
about grievance redressal
productive relationship, Mitigating and
mechanisms in most government
preventing adverse impact on stakeholder
departments and their subordinate
caused by department’s operations, and
offices.
more importantly Making stakeholders part
of the process.
Need for More Analysis of Grievance

No efforts are made to hold Prone Areas and Departments - Major
satisfaction surveys to ascertain areas of grievances as recorded in CPGRAMS
outcome of measures to redress are employee related grievances,
grievances. harassment, atrocities, corruption, civic
amenities, labour issues etc.
Best Suggestions from Public must be

rewarded: feedback and suggestions on
performance of grievance redressal system
should be taken from the public to improve
Considerable variation across the effectiveness, efficiency and credibility of
organisations in number of grievances grievance redress mechanism and grievance
recorded, disposed off and pending prevention possibilities. Best suggestions
should be rewarded and their
implementation and value addition should
be highlighted for improving the credibility
of the system.
Strengthen Public Interface Mechanisms for

Location specific complaints are tough redress like Lok Adalats and Jan Sunvais,
to redress taking it to the doorstep of the people
needing redress.
CPGRAMS has not been uniformly

operationalized in all organizations.
There should be an overall
Also, wide variations are apparent
review/evaluation of the procedure of
across the Ministries/ Departments
handling grievances of the Ministries/
and other organizations in respect of
Departments/ Organisations in the
the extent of commitment, framework
Government of India.
and processes instituted and the
capacity to handle grievances.
The Committee recommends DARPG to

create a Dashboard on the website
pertaining to grievance redressal
comprising performance indicators such
DARPG in collaboration with BSNL,
as
operationalized a Feed Back Call
Centre on disposed COVID-19 related  average complaints per day,
public grievances received in  disposal rate,
CPGRAMS.  average disposal time,
 Excellent/ Satisfactory Feedback,
 Complaint shared from different
channels.

Ministries /Departments to undertake a

regular review of grievances, which are
raised in print and electronic media and
Ministries/Departments do not detect
include analysis in quarterly report
public grievances appearing in
submitted t DARPG. It should also ensure
newspapers for Suo-moto redressal.
that the review undertaken by them and the
action taken on the suggestions are put on
its website.
WAY FORWARD
 Timely ventilation and redressal of grievances are necessary for any citizen friendly
administration - Therefore, the Committee recommends that there should be an
overall review/evaluation of the procedure of handling grievances of the ministries/
departments/ organisations in the government of India.
 Gradual move towards One Nation –One Grievance redressal portal is a welcome step
- However, the committee recommends the department to ensure that certain
features are incorporated while integrating CPGRAMS with state portals, namely,
identifying right stakeholders for redressal, facility of auto forwarding delayed or
specific kind of grievances to right team/person, among others.

10
CONSTITUTIONAL &
Chapter STATUTORY BODIES
1. Election Commission
2. CAG
3. Finance Commission (Covered in Federalism)
4. Union Public Service Commission
5. Statutory Organizations
6. National Human Rights commission
7. National Green Tribunal
8. CBI
9. Lokpal & Lokayukta
1. ELECTION COMMISSION
The Supreme Court held that a committee comprising the Prime Minister, the Leader of
the Opposition and the Chief Justice of India will advise the President on appointments
to the Election Commission of India until Parliament enacts a law on the subject.
Election Commission of India (ECI) is a constitutional body (under Article-324) vested with
the responsibilities of superintendence, direction and control of conduct of elections. It
consists of a Chief Election Commissioner and two Election Commissioners.
Article 324 states that the Election Commission shall consist of Chief Election
Commissioner and such numbers of other Election Commissioners, if any, as the
President may from time to time fix and appointment of CEC and other ECs shall, subject
to provisions of any law made in that behalf by the Parliament, be made by the President.
STILL, APPOINTMENTS IN ECI IS ASSOCIATED WITH VARIOUS ISSUES

 lack of security of tenure for Election Commissioners (ECs).
o Article 324(5) of the Constitution protects only CEC from removal, except if the
manner and grounds of removal are the same as a judge of the Supreme Court.
However, ECs can be removed by the government on the recommendation of the
Chief Election Commissioner.
 The appointment of CEC and other ECs according to the Article 324, shall be done as
per the law made by the Parliament in this regard. However, no such law has yet been
made which leaves a “gap” and leaves the appointment of such a crucial post solely to
the executives.
 The constitution has not prescribed the qualifications (legal, educational,
administrative, or judicial) of the members of election commission.
 The constitution has not debarred the retiring Election commissioner from any further
appointment by the government.
 There is no clarity regarding the power division between the Chief Election
Commissioner and other Election Commissioners.
Reforming the Election Commission of India: A Concise Action Plan

CONSTITUTIONAL & STATUTORY BODIES
 Legislation for Appointment: Create a clear law outlining how the Chief Election
Commissioner and Election Commissioners are appointed, ensuring transparency and
fair selection.
 Qualifications Defined: Specify necessary qualifications and experience for
Commissioners, focusing on legal expertise, administrative competence, and integrity.
 Secure Tenure: Guarantee secure tenure for all Election Commissioners to prevent
arbitrary removals and political influence.
 Clear Powers Division: Clearly define roles and responsibilities of Chief Election
Commissioner and other Commissioners to prevent conflicts.
 Transparent Selection: Form a diverse selection committee including judiciary and civil
society to assess candidates fairly.
 Post-Retirement Rules: Introduce rules preventing retiring Commissioners from taking
immediate government positions to prevent conflicts of interest.
 Enhance Independence: Consider amending the Constitution to grant the Election
Commission greater autonomy from government influence.
 Capacity Building: Invest in regular training for Commissioners and staff to improve
their understanding of electoral processes and technologies.
 Public Awareness: Launch awareness campaigns to educate citizens about their voting
rights and the significance of elections.
 Ongoing Review: Periodically review and adapt the Commission's functioning to
address emerging challenges and maintain electoral integrity.
Implementing these focused reforms will bolster the Election Commission's credibility,
efficiency, and impartiality, strengthening India's democratic foundation.
2. CAG
BR AMBEDKAR: “most imp office u/cn, duties more imp than J”.
CONSTITUTIONAL PROVISIONS:
 148 - appt & oath
 149 - duties & powers
 150- Acts of (C&S) in form sp by prez  CAG advice
 151 report
AUDIT POWERS

EXPANDING POWERS
Addns in Role
 Performance audit
o Discretionary
o coal, 2G, NRHM
 never PPP INFRA, DISCOM audits
 Environmental Audits
 2014 judget –over pre bodies Using public resources Lodha comme - BCCI
 International auditing of UNHQ
WAY FORWARD
 Appointment of CAG through a collegium similar to one recommended in Anoop
Baranwal
 Strengthen economic expertise in CAG
 Assign a comptroller function
 Make CAG answerable to parliament.
3. FINANCE COMMISSION (COVERED IN

FEDERALISM)
4. UNION PUBLIC SERVICE COMMISSION

Suggestions
 Beyond recruitment ~ Civil Service think tank on Personnel management.
 Decentralization because of increasing workload.
 Need for bringing Openness, accountability, delivery
 Liaison w/representations for Spl designed tech  Courses for admn.
5. STATUTORY ORGANIZATIONS
GENERAL ISSUES OF STATUTORY ORGANIZATIONS
FUNCTIONAL
 Only recommendatory
 Political – Interference –
 Funding Dependent upon the parent ministry
 Lack of Independence - Investigation staff
 Overlapping, fns (NHRC,NCW,NCM)
  Complaints, staff
APPOINTMENT
 Prerogative of Executive
 Frequent removal and appointment
 No laid down objective criterion for appointment or removal
 Politically motivated appointments
 Personnel mainly from government (retired Civil Servants)

PARLIAMENTARY APATHY
 Delay in tabling reports
 Action taken reports not obligatory
 Time Lag b/w report submission place & Part Place
6. NATIONAL HUMAN RIGHTS COMMISSION

Supreme court called it a TOOTHLESS TIGER.
NHRC- SUCCESS
1. Awareness + human rights in curriculum.
2. Suo moto – Rahingya deportn by MHA, Chakma Community Arunachal Pradesh.
3. Encounter Killings & Custodial death – guidelines report to NHRC – 48 WS
4. Vocal in Opinion a/t laws – POTA, TADA – Scope for misuse.
5. ecoc, social, cultural – extreme poverty in kalahandi, Koraput
ISSUES
1. Can only reco- does not have backing of PO HRA- to penalize aulks which do NOT
implement its orders.
2. Does not extend to J&K.
3. Does not empower NHRC when HR vidaltions thru’ PVT Parties take place.
4. Composition –NO proven record of HR equal.
5. Limitation of 1 yr.
6. Restricted jurisdiction over Armed forces + cannot summon witnesses.
7. Limited resources- fine
8. Non fillings of vacancies.
9. Too many complaints.
10. Bureaucratic style of fning.
11. Majority decisions asks CG/ SG to investigate no investingn machinery.
RECO
1. Decisions should be made immediately –enforceable.
2. Military & security forces.
3. Compos- include civil society, HR activists.
4. Need independent cadre of staff of appropriate experience
5. Culture of HR through education.
Umbrella Human Rights Commission = Merge into 1+ Separate Divisions
 Duplication in effort, Overlapping Jurisn, conflicting opinion
 Will lead to faster action
HRCs are NOT panacea –effective only in a given set of circumstances – final
independence+ install autonomy.
#Extra j killings of 1500 persons in Manipur by police & armed forces.
7. NATIONAL GREEN TRIBUNAL

 Established under NGT Act 2010.

 Provides a specialized forum for speedy and effective disposal of cases pertaining to
environmental protection, forest conservation and seeking compensation for
damages to people/property due to violation of env laws/ permissions.
 4 regional + 1 principal Bench (DLI) +circuit benches.
 CIVIL cases
 No CPC and hence functions on Principles of Natural justice
 Principle of Sustainable Development
 Polluter pays principle
 Appeal to SC within 90 days.
IMPORTANT DECISIONS
 Yamuna Flood Plans- Art of Living festival
 Diesel cases > 10 yrs to not ply in DEL.
 Review bed – sand mining
 Solid waste managaement, No open burning of waste delhi-EPCA; Plastic ban < 50un-
Delhi.
Strengths
1. Don’t role in envt regulation.
2. Enforcement of legal rt + relief & compensation.
3. Path for evolution of environment jurisprudence  ADR.
4.  Litigation burden in higher courts.
5. Less formal, less expensive, faster.
6. Curbs envt damaging activities + EIA observed strictly.
7. Chairman +members = not eligible for reappointment hence Independent
judgment.
Challenges:
1. Should focus less on govt. move on adjudication.
2. Benches, fill vacancies
3. Decisions criticized obstacles to devt.
4. Absence of formula based mech in determining compensation.
5. Lack of human & finL resources.
6. FRA & WPA out of finisn.
7. Restricts finisn area of NGT +hampers fning issue linked directly to envt.
RECOs:
1. Govt. should laydown guidelines for effective exercise of powers by the NGT.
2. To filter frivolous cases reviewing petitions.
3. Implemn of NGT’s orders should be made binding on agencies being responsible e.g.
SPCB, CPCB.
4. Legal framework should reviewed &consolidated
5. Fill up vacancies
6. Regional benches  esp w/ high forest cover, mineral deposits.
7. Sys of longer bench in NGT –intra tribunal appears before.
8. CBI
Premier investigating police agency in IND

 Legal Power deserved DPSE Act 1946

 Concurrent & Co- extensive powers w/DPSE = Police Officers of UTs.
 Extend Jurisdiction w/ SG Consent.
CBI = Independent
NO
 Must report to some installation
 If not answerable – Corruption es
YES
 Used as instrument of intimidn &v pol bargain.
 No effective action a/t pol class.
 Convicted profue- ewaist & feudal bias.
Reforms
i)  Resources, intel sharing & Collection machinery.
ii) New CBI Act+ Functions + FinL autonomy+ staff
iii) LOK PAL – Provides for appt of director = good step
Dedicated CBI Cadre.
9. LOKPAL & LOKAYUKTA

FIRST ARC ON LOKPAL
The idea to constitute two-tier Lokpal and Lokayukta was first proposed by First
Administrative Reform Commission. As per the proposal,
 Lokpal should deal with complaints against Ministers and Secretaries of Central
Government as well as in the states.
 The Lokayukta, one for the Centre and one in each State, should attend complaints
against rest of the bureaucracy.
 Each government department should have a suitable machinery to receive and
investigate complaints and set in motion the administrative process to provide
remedies.
 The Lok Pal may either act on the complaints made by an affected citizen or on his
own cognition.
 He shall investigate cases related to maladministration, involving acts of injustice,
corruption and favouritism. The investigations and proceedings should be conducted
in private and should be informal in character.
 If there are criminal charges against a public official, he can bring it to the notice of the
Prime Minister or the Chief Minister and they can then set the machinery of law in
motion and inform the Lok Pal.

NCRWC ON LOKPAL
The National Commission to Review the working of the Constitution (NCRWC) made the
following recommendations on corruption and Lokpal:
 The Constitution should make the appointment of Lok Pal. But the office of the Prime
Minister should be kept out of the purview of the Lok Pal.
 The Petitions Committee of Parliament should be attached as the supplementary body
to the institution of Lok Pal for ventilation, investigation and to redress the grievances
of public against the administration.
 For fighting the corruption Public Interest Disclosure/ Whistle-Blower Act should be
enacted to protect the informants.
 A law should be framed for those public servants who are making a loss to the State
by malafide actions or omissions and be made liable to loss or damages.
 Benami property of public and non-public servants should be forfeited.
 The Commission suggested that accepting money or any other valuable consideration
to speak or vote in a particular manner in the Parliament should be considered into
the corrupt acts. For this purpose Article 105(2) of the Constitution which provides
immunity to MPs or MLAs under Parliamentary privileges must be amended.
LOKPAL AND LOKAYUKTA ACT, 2013

 The Lokpal & Lokayukta Act, 2013 establishes Lokpal for the Union and Lokayukta
for States to inquire into allegations of corruption against certain public functionaries.
 A complaint under the Lokpal Act must pertain to an offence under the Prevention of
Corruption Act against a public servant. When a complaint is received, the Lokpal may
order a preliminary inquiry by its Inquiry Wing, or refer it for investigation by any
agency, including the CBI, if there is a prima facie case.
 Thus, the Act provides for an Enquiry Wing and a Prosecution Wing headed by their
respective Directors.
 The inquiry Wing conducts preliminary inquiry into any offence alleged to have been
committed by a public servant punishable under the Prevention of Corruption Act,
1988.
 The Prosecution Wing can file a case in accordance with the findings of investigation
report, before the Special Court for prosecution of public servants in relation to any
offence punishable under the Prevention of Corruption Act, 1988.
 Jurisdiction of the Lokpal Act includes offices of Prime Minister, Ministers, members
of Parliament, officers belonging to Group A, B, C and D and officials of Central
Government.
WHAT ARE THE JURISDICTIONS AND POWERS OF LOKPAL?

 The Lokpal is vested with the power of search and seizure and powers under the Civil
Procedure Code for the purpose of conducting preliminary inquiry & investigation and
power of attachment of assets and taking other steps for eradication of corruption.
 Lokpal will have power of superintendence and direction over any central investigation
agency including CBI for cases referred to them by the Lokpal.
 Lokpal have jurisdiction to inquire allegations of corruption against Prime Minister,
Ministers, members of Parliament, officers belonging to Group A, B, C and D and
officials of Central Government.
 The Lokpal on receipt of a complaint, may order preliminary inquiry against any
public servant by its Inquiry Wing or any agency including the Delhi Special Police
Establishment.

 Lokpal shall refer complaints of corruption against public servants to Central

Vigilance Commission and the CVC after making preliminary enquiry –
o In respect of public servants belonging to Group A and Group B - shall submit its
report to the Lokpal.
o In case of public servants belonging to Group C and Group D - CVC shall proceed
in accordance with the provisions of the Central Vigilance Commission Act, 2003.
 Lokpal can also inquire against any society or trust or body that receives foreign
contribution above Rs.10 lakh.
 Lokpal Act creates Special Courts to hear and decide the cases arising out of the
Prevention of Corruption Act, 1988 or under the Lokpal Act involving public servants.
 The Special Courts shall ensure completion of each trial within a period of one year
from the date of filing of the case in the Court.
IF A CHARGE IS MADE AGAINST THE PM?

 Lokpal cannot inquire into any corruption charge against Prime Minister if the
allegations are related to international relations, external and internal security, public
order, atomic energy and space, unless a full Bench consisting of its chair and all
members, considers the initiation of a probe, and at least two-thirds of the members
approve it.
 Any such inquiry shall be held in camera and if Lokpal concludes that the complaint
deserves to be dismissed, the records of the inquiry shall not be published or made
available to anyone.
EXPENSES OF LOKPAL TO BE CHARGED ON CONSOLIDATED FUND OF

INDIA
 The administrative expenses of the Lokpal, including all salaries, allowances and
pensions payable to or in respect of the Chairperson, Members or Secretary or other
officers or staff of the Lokpal, shall be charged upon the Consolidated Fund of India
and any fees or other moneys taken by the Lokpal shall form part of that Fund.
CONCERNS & CHALLENGES

 Delay in appointment of Lokpal and Lokayuktas for states defeats the purpose of
establishing anti-corruption body.
 Delay in establishing Inquiry and Prosecution Wing further stalls anti-corruption
stance.
 The term “competent authority” to look into corruption charges for Prime Minister is
the Council of Minister and for member of Council of Minister is the Prime Minister.
This defeats the very purpose of investigating cases of corruption and violates rule of
law.
 Lokpal and CVC usually come into action after there is some scam, corruption, financial
irregularity and misappropriation.
WAY FORWARD
 Lokpal as an anti-corruption body should initiate proactive measures to ensure
preventive vigilance rather than merely reacting to cases of corruption.
 Preventive vigilance can be achieved with alertness and can be strengthened through
technology and experience. Along with technology and alertness- simplicity, clarity,
transparency in the processes will go a long way for preventive vigilance.

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Preface

All the best!!!

Rau’s IAS Team

12. UNIFORM CIVIL CODE (UCC) 39 4. ORDINANCE 84

11. ONE NATION, ONE LANGUAGE 70

MISCELLANEOUS 9. LOKPAL & LOKAYUKTA 198

1. REPRESENTATIVENESS AND LEGITIMACY OF

RAU’S IAS FOCUS SPECIAL EDITIONS | POLITY & GOVERNANCE 1

o Congress co-opted the members of other parties so that constitution becomes a

FEATURES OF INDIAN CONSTITUTION

RAU’S IAS FOCUS SPECIAL EDITIONS | POLITY & GOVERNANCE 2

2. Federalism: The Indian Constitution establishes a federal system of government,

2. CONTEMPORARY ISSUES IN INDIA UNDER

RAU’S IAS FOCUS SPECIAL EDITIONS | POLITY & GOVERNANCE 3

3. BASIC STRUCTURE OF THE INDIAN

RAU’S IAS FOCUS SPECIAL EDITIONS | POLITY & GOVERNANCE 4

PROCEDURE FOR AMENDMENT

EMERGENCE OF THE BASIC STRUCTURE

RAU’S IAS FOCUS SPECIAL EDITIONS | POLITY & GOVERNANCE 5

ELEMENTS OF THE BASIC STRUCTURE

RAU’S IAS FOCUS SPECIAL EDITIONS | POLITY & GOVERNANCE 6

RAU’S IAS FOCUS SPECIAL EDITIONS | POLITY & GOVERNANCE 7

CRITICISM OF THE DOCTRINE OF BASIC STRUCTURE

RAU’S IAS FOCUS SPECIAL EDITIONS | POLITY & GOVERNANCE 8

o Jewel Set of the constitution

 Ernest Barker: Keynote of constitution

 Human rights and Environmental laws.

 The internationalization of financial markets, of technology and of some

 Globalization induced homogeneity

RAU’S IAS FOCUS SPECIAL EDITIONS | POLITY & GOVERNANCE 9

o The Indian state has failed to end mass poverty.

o 15 (1) - Prohibition of discrimination on grounds of religion, race, caste, sex or place

o 27 - Freedom as to payment of taxes for promotion of any particular religion.

o 28 - Freedom as to attendance at religious instruction or religious worship in certain

o 30 - Right of minorities to establish and administer educational institutions.

o Elections conducted under the authority of Independent Election commission.

o Free press and vigorous public debate.

o Rule of Law, Sanctity of contracts.

RAU’S IAS FOCUS SPECIAL EDITIONS | POLITY & GOVERNANCE 10

o Some level of direct democracy at local level

 Poor Performance in substantive democracy

o Poor state of rural infra and agriculture

o Increasing economic inequality

o Misuse of administrative machinery

o Declining debates in parliament

o Lack of intra party democracy

o Electorate is not empowered

RAU’S IAS FOCUS SPECIAL EDITIONS | POLITY & GOVERNANCE 11

RAU’S IAS FOCUS SPECIAL EDITIONS | POLITY & GOVERNANCE 12

o that the Preamble is not a source of power nor a source of limitations

Written/ Written Unwritten Written Written Written Wr

Flexible/ Both Flexible Rigid Rigid Rigid Rig

Unitary / Federal with Unitary Federal Unitary Unitary Un

RAU’S IAS FOCUS SPECIAL EDITIONS | POLITY & GOVERNANCE 13

Parliamentary Parliamentary Parliamentary Presidential Semi Parliamentary Qu

Sovereignty Supremacy of Supremacy of Supremacy Supremacy of Par

Republic / Republic Constitutional Republic Republic Constitutional Rep

President Ceremonial Ceremonial Executive Executive Exe

Fundamental Yes Yes Yes No Yes Yes

EQUAL PROTECTION OF LAW

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EXHIBIT: SANABOINA SATYANARAYAN V. GOVT. OF A.P

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