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Contents
1. WHY DO WE NEED A CONSTITUTION .................................................................... 1
MAKING OF THE INDIAN CONSTITUTION: ............................................................................ 5
2. PHILOSOPHY OF THE CONSTITUTION ............................................................... 10
WHAT IS THE POLITICAL PHILOSOPHY OF OUR CONSTITUTION? .................................. 12
PROCEDURAL ACHIEVEMENTS ............................................................................................. 16
3. FUNDAMENTAL RIGHTS IN THE INDIAN CONSTITUTION ............................. 19
RIGHT TO FREEDOM ............................................................................................................... 20
RIGHT AGAINST EXPLOITATION ........................................................................................... 22
RIGHT TO FREEDOM OF RELIGION ....................................................................................... 22
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CULTURAL AND EDUCATIONAL RIGHTS ............................................................................. 23
RIGHT TO CONSTITUTIONAL REMEDIES ............................................................................. 24
DIRECTIVE PRINCIPLES OF STATE POLICY ......................................................................... 24
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DIRECTIVE PRINCIPLES .......................................................................................................... 25
RELATIONSHIP BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES ...... 25
4. EXECUTIVE ................................................................................................................ 28
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EXECUTIVE ............................................................................................................................... 28
WHAT ARE THE DIFFERENT TYPES OF EXECUTIVE? ......................................................... 29
PARLIAMENTARY EXECUTIVE IN INDIA .............................................................................. 29
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PROCLAMATION OF PRESIDENT’S RULE (ART. 356) ........................................................... 83
FINANCIAL EMERGENCY (ART. 360) ..................................................................................... 84
11. AMENDMENT OF CONSTITUTION ........................................................................ 85
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AMENDMENT PROCEDURE .................................................................................................... 85
AMENDMENTS IN BRIEF ........................................................................................................ 85
12. SEVENTH SCHEDULE (ARTICLE 246) ................................................................... 91
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LIST I—UNION LIST ................................................................................................................. 91
LIST II-STATE LIST ................................................................................................................... 95
LIST III—CONCURRENT LIST ................................................................................................. 98
13. POLITICAL= SYSTEM ............................................................................................ 102
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1
Why Do We Need A Constitution
Contents of The Chapter
§ MAKING OF THE INDIAN CONSTITUTION: ........................................................................ 5
What is a constitution? What are its decide what the laws will be. In principle, this
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functions? What role doesitper formsociety? question, who gets to decide, can be answered
How does a constitution relate to our daily in many ways: in a monarchical constitution,
existence? a monarch decides; in some constitutions like
The first function of a constitution is to
provide a set of basic rules allow for
minimal coordination amongst members of
p.
the old Soviet Union, one single party was
given the power to decide. But in democratic
constitutions, broadly speaking, the people get
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a society. to decide. But this matter is not so simple,
Because even if you answer that the people
Specification of decision making powers
should decide, it will not answer the question:
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A constitution is a body of fundamental how should the people decide? For something
that principles according to which a state is to be law, should everyone agree to it? Should
constituted or governed. But what should the people directly vote on each matter as the
these fundamental rules be? And what makes- ancient Greeks did? Or should the people
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them fundamental? Well, the first question- express their preferences by electing
you will have to decide is who gets to decide representatives? But if the people act through
what the laws governing the society should their representatives be elected? How many
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be? You may want rule X, but others may want should there be?
rule Y. How do we decide whose rules or This is the function of the constitution. It
preferences should govern us? You may think is an authority that constitutes government
the rules you want everyone to live by are the in the first place.
best; but others think that their rules are the In the Indian Constitution for example,
best. How do we resolve this dispute? So even it is specified that in most instances,
before you decide what rules should govern Parliament gets to decide laws and policies,
this group you have to decide: Who gets to and that Parliament itself be organised in a
decide? particular manner Before identifying what the
The constitution has provide an answer law in any given society is, you have to
to this question. It specifies the basic allocation identify who has the authority to enact it. If
of power in a society. It decides who gets to Parliament has the authority to enact laws,
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there must be a law that bestows this authority limited during times of national emergency
on Parliament in the first place. and the constitution specifies the
circumstances under which these rights may
Limitations on the powers of government
be withdrawn.
But this is clearly not enough. Suppose So the third function of a constitution is to
you decided who had the authority to make set some limits on what a government can
decisions. But then this authority passed laws impose on its citizens. These limits are
that you thought were patently unfair. It fundamental in the sense that government
prohibited you from practising your religion may never trespass them.
for instance. Or it enjoined that clothes of
certain colour were prohibited, or that you Aspirations and Goals of a Society
were not free to sing certain songs or that Most of the older constitutions limited
people who belonged to a particular group themselves largely to allocating decision-
(caste or religion) would always have to serve making power and setting some limits to
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others and would not be allowed to retain any government power. But many twentieth
property. Or that government could arbitrarily century constitutions, of which the Indian
arrest someone, or that only people of a certain Constitution is the finest example, also provide
skin colour would be allowed to draw water
from wells.
You would obviously think these laws
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an enabling framework for the government to
do certain positive things, to express the
aspirations and goals of society. The Indian
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were unjust and unfair. And even though they Constitution was particularly innovative in
were passed by a government that had come this respect.
into existence based on certain procedures Societies with deep entrenched
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there would be something obviously unjust inequalities of various kinds, will not only
about that government enacting these laws. have to set limits on the power of government,
Constitutions limit the power of government they will also have to enable and empower
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in many ways. The most common way of the government to take positive measures to
limiting the power of government is to specify overcome forms of inequality or deprivation.
certain fundamental rights that all of us For example, India aspires to be a society
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possess as citizens and which no government that is free of caste discrimination. if this is
can ever be allowed to violate. The exact our society’s aspiration, the government will
content an interpretation of these rights varies have to be enabled or empowered to take all
from constitution to constitution. But most the necessary steps to achieve this goal. In a
Constitutions will protect a basic cluster of country like South Africa, which had a deep
rights. Citizens will be protected from being history of racial discrimination, its new
arrested arbitrarily and for no reason. This is constitution had to enable- the government to
one basic limitation upon the power of end racial discrimination. More positively, a
government. Citizens will normally have the constitution may enshrine the aspirations of a
right to some basic liberties: to freedom of society. The framers of the Indian Constitution,
speech, freedom of conscience, freedom of for example, thought that each individual in
association, freedom to conduct a trade or society should have all that is necessary for
business etc. and practice, these rights can be them to lead a life of minimal dignity and
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social self-respect — minimum material well If one looks at constitutions around the
being, education etc. world, they differ in many respects — in the
The Indian Constitution enables the form of government they enjoin in many
government to take positive welfare measures procedural details. But they also share a good
some of which are legally enforceable. As we deal. Most modern constitutions create a form
go on studying the Indian Constitution, we of government that is democratic in some
shall find that such enabling provisions have respects, most claim to protect certain basic
the support of the Preamble to our rights. But constitutions are different in the
Constitution, and these provisions are found way they embody conceptions of natural
in the section on Fundamental Rights. The identity. Most nations are an amalgamation of
Directive Principles of State of Policy also a complex set of historical traditions; they
enjoin government to fulfil certain aspirations weave together the diverse groups that reside
of the people. within the nation in different ways. For
example, German identity was constituted by
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Fundamental identity of a people
being ethnically German. The constitution
Finally, and perhaps even most gave expression to this identity. The Indian
importantly, a constitution expresses the Constitution, on the other hand, does not
fundamental identity of a people.
The fourth function of a constitution is to
enable the government to fulfil the
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make ethnic identity a criterion for citizenship.
Different nations embody different
conceptions of what the relationship between
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aspirations of a society and create the different regions of a nation and the central
conditions for a just society. government should be. This relationship
This means the people as a collective constitutes the national identity of a country.
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and who should be governed that one forms a constitution performs. These functions
a collective identity. One has many sets of explain why most societies have a constitution.
identities that exist prior to a constitution. But But there are three further questions we can
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do not have one single document that can be not an instrument for the aggrandisement of
called the Constitution. Rather they have a their personal power. The final document
series of documents and decisions that, taken reflected the broad national consensus at the
collectively, are referred to a the constitution. time. Some countries have subjected their
So, we can say that constitution is the constitution to a full- fledged referendum,
document or set of documents that seeks to where all the people vote on the desirability
perform the functions that we mentioned of a constitution. The Indian Constitution was
above. never subject to such a referendum, but
But many constitutions around the world nevertheless carried enormous public
exist only on paper; they are mere words authority, because it had the consensus and
existing on a parchment. The crucial question backing of leaders who were themselves
is: how effective is a constitution? What makes popular. Although the Constitution itself was
it effective? What ensures that it has a real not subjected to a referendum, the people
impact on the lives of people? Making a adopted it as their own by abiding by its
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constitution effective depends upon many provisions. Therefore, the authority of people
factors. who enact the constitution helps determine in
part its prospects for success.
Mode of promulgation
This refers to how a constitution comes
into being. Who crafted the constitution and
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The Substantive
Provisions of a Constitution
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how much authority did they have? In many It is the hallmark of a successful
countries Constitutions remain defunct Constitution that it gives everyone in society
because they are crafted by military leaders some reason to go along with its provisions. A
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or leaders who are not popular and do not Constitution that, for instance, allowed
have the ability to carry the people with them. permanent majorities to oppress minority
The most successful constitutions, like India, groups with society would give minorities no
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South Africa and the United States, are reason to go along with the provision of the
constitutions which were created in the Constitution. Or a constitution that
aftermath of popular national movements. systematically privileged some members at
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Although India’s Constitution was formally the expense of others, or that systematically
created by a Constituent Assembly between entrenched the power of small groups in
December 1946 and November 1949, it drew society, would cease to command allegiance.
upon a long history of the nationalist If any group feels their identity is being stifled,
movement that had a remarkable ability to they will have no reason to abide by the
take along different sections of Indian society constitution. No constitution by itself achieves
together. The Constitution drew enormous perfect justice. But it has to convince -people
legitimacy from the fact that it was drawn up that it provides the framework for pursuing
by people who enjoyed immense public basic justice.
credibility, who had the capacity to negotiate Do this thought experiment. Ask yourself
and command the respect of a wide cross- this question: What would be the content of
section of society, and who were able to some basic rules in society, such that they gave
convince the people that the constitution was everyone a reason to go along with them?
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The more a constitution preserves the circumstances. You will notice the wisdom of
freedom and equality of all its members, the makers of the Indian Constitution in the
more likely it is to succeed. Does the Indian chapter on the Constitution as a living
Constitution, broadly speaking, give everyone document (Chapter 9}. The Indian
a reason to go along with its broad outlines? Constitution is described as ‘a living’
document. By striking a balance between the
Balanced institutional design
possibility to change the provisions and the
Constitutions are often subverted, not by limits on such changes, the Constitution has
the people, but by small groups, who wish to ensured that it will survive as a document
enhance their own power. Well crafted respected by people. This arrangement also
constitutions fragment power in society ensures that no section or group can, on its
intelligently so that no single group can own, subvert the Constitutioit
subvert the constitution. One way of such
MAKING OF THE INDIAN CONSTITUTION:
intelligent designing of a constitution is to
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ensure that no single institution acquires As far back as in 1928. Motilal Nehru and
monopoly of power. This is often done by eight other Congress leaders drafted a
fragmenting power across different constitution for India. In 1931, the resolution
institutions. The Indian Constitution, for
example, horizontally fragments power across
different institutions like the Legislature,
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at the Karachi session of the Indian National
Congress dwelt on how independent India’s
constitution should look, like. Both these
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Executive and the Judiciary and even documents were committed to the inclusion
independent statutory bodies like the Election of universal adult franchise, right to freedom
Commission. This ensures that even if one and equality and to protecting the rights of
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institutional design is: that a constitution must of colonial rule also helped develop an
strike the right balance between certain values, agreement over the institutional design. The
norms and procedures as authoritative, and Indian constitution adopted many
at the same time allow enough flexibility in institutional details and procedures from
its operations to adapt to changing needs and colonial laws like the Government of India Act
circumstances. Too rigid a constitution is 1935. Years of thinking and deliberation on the’
Likely to break under the weight of change; a framework of the constitution had another
constitution that is, on the other hand, too benefit. Our leaders gained confidence to learn
flexible, will give no security, predictability or from other countries, but on our own terms.
identity to a people. Successful constitutions Many of our leaders were inspired by the
strike the right balance between preserving ideals of French Revolution, the practice of
core values and adapting them to new parliamentary democracy in Britain and the
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Bill of right in the US. The socialist revolution elected their own representatives by
in Russia had inspired many Indians to think the method of proportional
o shaping a system based on social and representation with single
economic equality. Yet they were not simply transferable vote
imitating what others had done. At each step • The method of selection in the case of
they were questioning whether these things
representatives of Princely States was
suited our country. All these factors
to be determined by consultation.
contributed to the making of our Constitution.
The drafting of the document called the Composition of the
constitution was done by an assembly of Constituent Assembly
elected representatives called the Constituent As a consequence of the Partition under
Assembly. Elections to the Constituent the plan of 3 June 1947 those members who
Assembly were held in July 1946. It held its were elected from territories which fell under
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first sitting on 9 December 1946 and re- Pakistan ceased to be members of the
assembled as Constituent Assembly for Constituent Assembly. The numbers in the
divided Indian on 14 August 1947. Its Assembly were reduced to 299 of which 284
members were elected by indirect election by
the members of the Provisional Legislative
Assemblies that had been established in 1935.
p.
were actually present on 26 November 1949
and appended their signature to the
Constitution as finally passed. The
The Constituent Assembly was composed
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Constitution was thus framed against the
roughly along the lines suggested by the plan backdrop of the horrendous violence that the
proposed by the committee of the British Partition unleashed on the sub-continent. But
cabinet, known as the Cabinet Mission.
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or group of States were allotted seats learnt the right lessons from the unimaginable
proportional of their respective violence that accompanied Partition. The
population roughly in the ratio of Constitution was committed to a new
conception of citizenship, where not only
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six members from what then known as the be voters irrespective of religion, caste,
Scheduled Classes. In terms of the Congress education, gender or income). So, while the
dominated the Assembly occupying as many members felt no need at all to discuss the issue
as eighty-two per cent of the seats in the of who should have the right to vote, every
assembly after the Partition. The Congress other matter was seriously discussed and
itself was such a diverse party that it managed debated. Nothing can be a better testament to
to accommodate almost all shades of opinion the democratic commitment of this Assembly.
within it. 1. Jhaverbhai Vallabhai Patel (1875-
The Principle of Deliberation 1950) born: Gujarat. Minister of
Home, Information and Broadcasting
The authority of the Constituent in the Interim Government. Lawyer
Assembly does not come only from the fact and leader of Bardoli peasant
that it was broadly, though not perfectly, satyagraha. Played a decisive role in
representative. It comes from the procedures the integration of the Indian princely
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it adopted to frame the Constitution and the states. Later: Deputy Prime Minister.
values its members brought to their 2. Abul Kalam Azad (1888-1958) born:
deliberations. While in any assembly that Saudi Arabia. Educationist, author
claims to be representative, it is desirable that
diverse sections of society participate, it is
equally important that they participate not
p. and theologian; scholar of Arabic.
Congress leader, active in the national
movement. Opposed Muslim
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only as representatives of their own identity separatist politics. Later Education
or community. Each member deliberated upon Minister in the first union cabinet.
the Constitution with the interests of the whole 3. T.T. Krishnamachari (1899-19741
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nation in mind. There were often born: Tamil Nadu. Member Drafting
disagreements amongst members, but few of Committee. Entrepreneur and
these disagreements could be traced to Congress leader. Later: Finance
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should India adopt a centralised or Assembly. Lawyer, known for his role
decentralised system of government? What in the Champaran satyagraha. Three
should be the relations between the States and times the president of Congress. Later:
the centre? What should be the powers of the the first President of India.
judiciary? Should the Constitution protect 5. JaIpal Singh (1903-1970) born:
property rights? Almost every issue that lies Jharkhand a sportsman and
at the foundation of a modem state was educationist. Captain of the first
discussed with great sophistication. Only one national Hockey team. Founder
provision of the Constitution was passed President of Adivasi Maha Sabha.
without virtually any debate: the introduction Later: founder of Jharkhand Party.
of universal suffrage (meaning that all citizens 6. H. C. Mookherjee (1887-1956) born:
reaching a certain age, would be entitled to
Bengal. Vice— Chairman of the
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8. Baldev Singh (1901-1961) born: Governor of Uttar Pradesh.
Haryana A successful entrepreneur 14. Somnath Lahiri (1901-1984) born:
and leader of the Panthic Akali Party
in the Punjab Assembly. A nominee of
the Congress in the Constituent
p. West Bengal. Writer and editor.
Leader of the Communist Party of
India. Later: Member of West Bengal
Assembly. Later: Defence Minister in
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Legislative Assembly.
the Union Cabinet.
Procedures
9. Kanhaiyalal Maniklal Munshi (1887-
The Constituent Assembly had eight
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1956) born: Maharashtra. Chairman of the Congress and Gandhi, accusing, them of
the Drafting Committee. Social not doing enough for the upliftment of
revolutionary thinker and agitator Scheduled Castes. Patel and Nehru disagreed
against caste divisions and caste based on many issues. Nevertheless, they all worked
inequalities. Later: Law minister in the together. Each Committee usually drafted
first, cabinet of post-independence particular provisions of the Constitution
India. Founder of Republican Party of which were then subjected to debate by the
India entire Assembly. Usually an attempt was made
11. Shyama Prasad Mukherjee (1901- to reach a consensus with the belief that
1953) born: West Bengal. Minister for provisions agreed to by 411, would not be
Industry and Supply in the Interim detrimental to any particular interests. Some
Government. Educationist and provisions were subject to the vote. The
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Assembly met for one hundred and sixty six Assembly is the Objectives Resolution (the
days, spread over two years and eleven resolution that defined the aims of the
months. Assembly) moved by Nehru in 1946. This
resolution encapsulated the aspirations and
Inheritance of the nationalist movement
values behind the constitution. Based on this
But no constitution is simply a product resolution our Constitution gave institutional
of the Assembly that produces it. An Assem- expression to the fundamental commitments:
bly as diverse as the Constituent Assembly of equality, liberty, democracy, sovereignty and
India could not have functioned if there was a cosmopolitan identity.
no background consensus on the main
Institutional arrangements
principles the Constitution should enshrine.
These principles were forged during the long The third factor ensuring effectiveness of
struggle for freedom. a constitution is a balanced arrangement of the
In a way, the Constituent Assembly was institutions of government. The basic principle
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giving concrete shape and form to the princi- is that government must be democratic and
ples it had inherited from the nationalist committed to the welfare of the people.
movement. For decades preceding the prom- The Constituent Assembly spent a lot of
ulgation of the Constitution, the nationalist
movement had debated many questions that
were relevant to the making of the constitu-
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time on evolving the right balance among the
various institutions like the executive, the
legislature and the judiciary. This led to the
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tion the shape and form of government India adoption of the parliamentary form aid the
should have, the values it should uphold, the federal arrangement, which would distribute
inequalities it should overcome. Answers governmental powers between the legislature
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forged in those debates were given their final and the executive on the one hand and
form in the Constitution. Perhaps the best between the States and the central government
summary of the principles that the nationalist on the other hand.
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2
Philosophy of The Constitution
Contents of The Chapter
§ WHAT IS THE POLITICAL PHILOSOPHY OF OUR CONSTITUTION? ............................... 12
§ PROCEDURAL ACHIEVEMENTS ......................................................................................... 16
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merely consists of laws and that laws are one • Furthermore, we must attempt to
thing, values and morality, quite another. work out a coherent vision of society
Therefore, we can have only a legalistic, not a
political philosophy approach to the
Constitution. It is true that all laws do not have
a moral content, but many laws are closely
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interpretation of the key concepts of
the constitution. We must have a
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better grasp of the set of ideals
connected to our deeply held values.
embedded in the constitution.
For example, a law might prohibit
discrimination of persons on grounds of • Our final point is that the Indian
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a connection between laws and moral values. and raise to a higher theoretical plane,
One should look upon the constitution as a the justification of values embedded
document that is based on a certain moral in the Constitution. A philosophical
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between varying interpretations of the many democratic means to bring about social
core values in our polity. It is obvious that transformation. Moreover, for a hitherto
many of its ideals are challenged, discussed, colonised people, constitutions announce and
debated and contested in different political embody the first real exercise of political self-
arenas, in the legislatures. in party forums, in determination. Nehru understood both these
the press, in schools and universities. These points well. The demand for a Constituent
ideals are variously interpreted and Assembly. He claimed represented a collective
sometimes wilfully manipulated to suit demand for full self-determination because;
partisan short term interests. We must, only a Constituent Assembly of elected
therefore, examine whether or not a serious representatives of the Indian people had the
disjunction exists between the constitutional right to frame India’s constitution without
ideal and its expression in other arenas. external interference. Second, he argued, the
Sometimes, the same ideal is interpreted Constituent Assembly is not just a body of
people or a gathering of able lawyers. Rather,
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differently by different institutions. We need
to compare these differing interpretations. it is a ‘nation on the move, throwing away the
Since the expression of the ideal in the shell of its past political and possibly social
constitution has considerable authority it must structure, and fashioning for itself a new
be used to arbitrate in conflict of interpretation
over values or ideals. Our Constitution can
p.
garment of its own making.’ The Indian
Constitution was designed to break the
shackles of traditional social hierarchies and
perform this job of arbitration.
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to usher in a new era of freedom, equality and
Constitution as
justice.
Means of Democratic Transformation
This approach had the potential of
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It is widely agreed that one reason for changing the theory of constitutional
having constitutions is the need to restrict the democracy altogether: according to this
exercise of power. Modern states are approach, constitutions exist not only to limit
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excessively powerful. They are believed to people in power but to empower those who
have a monopoly over force and coercion. traditionally have been deprived of it.
What if institutions of such states fall into Constitutions can give vulnerable people the
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wrong hands who abuse this power? Even if power to achieve Collective good.
these institutions were created for our safety
Why do we need to go
and well-being, they can easily turn against
back to the Constituent Assembly?
us. Experience of state power the world over
shows that most states are prone to harming Why look backwards and bind ourselves
the interests of at least some individuals and to the past? That may be the job of a legal
groups. If so, we need to draw the rules of the historian — to go into the past and search for
game in such a way that this tendency of states the basis of legal and political ideas. But why
is continuously checked. Constitutions should students of politics be interested in
provide these basic rules and therefore, studying the intentions and Concerns of those
prevent states from turning tyrannical. who framed the Constitution? Why not take
Constitutions also provide peaceful, account of changed circumstances and define
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a new normative function of the Constitution? to the needs of religious and linguistic
In the context of America — where the minorities as well as historically
Constitution was written in the late 18th disadvantaged groups, and committed to
century— it is absurd to apply the values and building a common national identity. In short,
standards of that era to the 21st century. it is committed to freedom, equality, social
However, in India, the world of the original justice, and some form of national unity. But
framers and our present day world may not underneath all this, there is a clear emphasis
have changed so drastically. In terms of our on peaceful and democratic measures for
values, ideals and conception, we have not putting this philosophy into practice.
separated ourselves from the world of the Individual freedom
Constituent Assembly. A history of our
Constitution is still very much a history of the The first point to note about the
present. Constitution is its commitment to individual
freedom. This commitment did not emerge
in
Furthermore, we may have forgotten the
real point underlying several of our legal and miraculously out of calm deliberations around
political practices, simply because somewhere a table. Rather, it was the product of
continuous intellectual and political activity
down the road we began to take them for
granted. These reasons have now slipped into
the background, screened off from our
p.
of well over a century. As early as the
beginning of the nineteenth century,
Rammohan Roy protested against curtailment
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consciousness even though they still provide
the organizational principle to current of the freedom of the press by the British
practices. colonial state. Roy argued that a state
responsive to the needs of individuals must
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the Constituent Assembly debates and of expression is an integral part of the Indian
perhaps even further back in time to the Constitution. So is the freedom from arbitrary
colonial era. Therefore, we need to remember arrest. After all, the infamous Rowlatt Act,
and keep revisiting the political philosophy which the national movement opposed so
underlying our Constitution. vehemently, sought to deny this basic
freedom. These and other individual freedoms
WHAT IS THE POLITICAL such as freedom of conscience are part of the
PHILOSOPHY OF OUR CONSTITUTION? liberal ideology. On this basis, we can say that
It is hard to describe this philosophy in the Indian Constitution has a pretty strong
one word. It resists any single label because it liberal character. In the chapter on
is liberal, democratic, egalitarian, secular, and fundamental rights we have already seen how
federal, open to community values, sensitive the Constitution values individual freedom,
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It might be recalled that for over forty years they tend to have hierarchical relationships
before the adoption of the Constitution, every with one another (as in the case of caste).
single resolution, scheme, bill and report of Second, when these communities do see each
the Indian National Congress mentioned other as equals, they also tend to become rivals
individual rights, not just in passing but as a (as in the case of religious communities). This
nonnegotiable value. was a huge challenge for the makers of the
Constitution: how to make communities
Social Justice
liberal in their approach and foster a sense of
When we say that the Indian equal respect among them under existing
Constitution is liberal, we do not mean that it conditions of hierarchy or intense rivalry?
is liberal only in the classical western sense. It would have been very easy to resolve
In the book on Political Theory you will learn this problem by not recognising communities
more about the idea of liberalism. Classical at all, as most western liberal constitutions do.
liberalism always privileges rights of the
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But this would have been unworkable and
individuals over demands of social justice and undesirable in our country. This is not because
community ‘values. Indians are attached to communities more
The liberalism of the Indian Constitution than others. Individuals everywhere also
differs from this version in two ways. First, it
was always linked to social justice. The best
example of this is the provision for
p.
belong to cultural communities and every
such community has its own values,
traditions, customs and language shared by
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reservations for Scheduled Castes and its members. For example, individuals in
Scheduled Tribes in the Constitution. The France or Germany belong to a linguistic
makers of the Constitution believed that the community and are deeply attached to it.
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mere granting of the right to equality was not What makes us different is that we have more
enough to overcome age-old injustices open to acknowledged the value of
suffered by these groups or to give real communities. More importantly, India is a
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meaning to their right to vote. Special land of multiple cultural communities. Unlike
constitutional measures were required to Germany or France we have several linguistic
advance their interests. Therefore the and religious communities. It was important
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in
Again, this is something that you will mentioned already, they recognised
learn more about in Political Theory. The term that intercommunity equality was as
‘mutual exclusion’ means this: both religion necessary as equality between
and state must stay away from the internal
affairs of one another. The state must not in-
tervene in the domain of religion; religion
p. individuals. This was because a
person’s freedom and sense of self-
respect was directly dependent upon
the status of her community. If one
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likewise should not dictate state policy or
influence the conduct of the state. In other community was dominated by
words, mutual exclusion means that religion another, then its members would also
and state must be strictly separated. be significantly less free. If, on the
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What is the purpose behind strict other hand, their relations were
separation? It is to safeguard the freedom of equal, marked by an absence of
domination, then its members would
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lives of individuals, when they start dictating all religious communities such as the
how they should relate to God or how they right to establish and maintain their
should pray, individuals may have the option educational institutions. Freedom of
of turning to the modern state for protecting religion in India means the freedom
their religious freedom, but what help would of religion of both individuals and
a state offer them if it has already joined hands communities.
with these organisations? To protect religious • State’s Power of Intervention Second,
freedom of individuals, therefore, state must separation in India could not mean
not help religious organisations. But at the mutual exclusion. Why is it so?
same time, state should not tell religious Because, religiously sanctioned
organisations how to manage their affairs. customs such as untouchability
That too can thwart religious freedom. The deprived individuals of the most
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basic dignity and -self-respect. Such how much ahead India was
customs were so deeply rooted and compared to other nations. Can one
pervasive that without active state forget that affirmative action
intervention, there was no hope of programmes in the U.S. were begun
their dissolution. The state simply after the 1964 Civil Rights Movement,
had to interfere in the affairs of almost two decades after they were
religion. Such intervention was not constitutionally entrenched in India?
always negative. The state could also • Third against the background of
help religious communities by giving inter-communal strife, the
aid to educational institutions run by Constitution upholds its
them. Thus, the state may help or commitment to group rights (the
hinder religious communities right to the expression of cultural
depending on which mode of action particularity). This indicates that the
promotes values such as freedom and framers of the Constitution were
in
equality. In India separation between more than willing to face the
religion and state did not mean their challenges of what more than four
mutual exclusion but rather decades later has come to be known
principled distance, a rather complex
idea that allows the state to be distant
from all religions so that it can
p. as multiculturalism.
Universal franchise
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intervene or abstain from Two other core features may also be
interference, depending upon which regarded as achievements. First, it is no mean
of these two would better promote achievement to commit oneself to universal
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liberty, equality and social justice. We franchise, specially when there is widespread
have hitherto mentioned three core belief that traditional hierarchies in India are
features these can also be seen as the congealed and more or less impossible to
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achievements of our Constitution. eliminate, and when the right to vote has only
• First, our Constitution reinforces and recently been extended to women and to the
reinvents forms of liberal working class in stable, Western democracies.
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and be admitted to public office. The Motilal provisions. According to the Indian
Nehru Report (1928) reaffirms this conception Constitution, then, there is nothing bad about
of citizenship, reiterating that every person of this differential treatment. Although the
either sex who has attained the age of twenty- Constitution did not originally envisage this,
one is entitled to vote for the house of India is now a multi-lingual federation. Each
Representatives or Parliament. Thus from very major linguistic group is politically recognised
early on, universal franchise was considered and all are treated as equals. Thus, the
as the most important and legitimate democratic and linguistic federalism of India
instrument by which the will of the nation was has managed to combine claims to unity with
to be properly expressed. claims to cultural recognition. A fairly robust
political arena exists that allows for the play
Federalism
of multiple identities that complement one
Second, by introducing the articles another.
concerning Jammu and Kashmir (Art. 370) and
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National identity
the North-East (Art, 371), the Indian
Constitution anticipates the very, important Thus, the Constitution constantly
concept of asymmetric federalism. We have reinforces a common national identity. In the
seen in the chapter on federalism that the
Constitution has created a strong central
government. But despite this unitary bias of
p.
chapter on federalism, you have studied how
India strives to retain regional identities along
with the national identity. It is clear from what
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the Indian Constitution, there are important is mentioned above that this common national
constitutionally embedded differences identity was not incompatible with distinct
between the legal status and prerogatives of religious or linguistic identities. The Indian
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different sub-units within the same federation. Constitution tried to balance these various
Unlike the constitutional symmetry of identities. Yet, preference was given to
American federalism, Indian federalism has common identity under certain conditions.
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been constitutionally asymmetric. To meet the This is clarified, in the debate over separate
specific needs and requirements of some sub- electorates based on religious identity which
units, it was always part of the original design the Constitution rejects.
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to have a unique relationship with them or to Separate electorates were rejected not be-
give them special status. For example, the cause they fostered difference between
accession of Jammu and Kashmir to the Indian religious communities as such or because they
union was based on a commitment to endangered a simple notion of national unity
safeguard autonomy under Article 370 of the but because they endangered a healthy na-
Constitution. This is the only State that is tional life. Rather than forced unity, our Con-
governed by its own constitution. Similarly, stitution sought to evolve true fraternity, a goal
under Article 371A, the privilege of special dear to the heart of Dr. Ambedkar. As Sardar
status was also accorded to the North-Eastern Patel put it, the main objective was to evolve
State of Nagaland. This Article not only ‘one community’.
confers validity on preexisting laws within PROCEDURAL ACHIEVEMENTS
Nagaland, but also protects local. Many other
States too, are beneficiaries of such special All these five core features are what
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might be called the substantive achievements Constitution reads like a poem on democracy.
of the Constitution. However, there were also It contains the philosophy on which the entire
some procedural achievements. Constitution has been built. It provides a
• First, the Indian Constitution reflects standard to examine and evaluate any law and
a faith in political deliberation. We action of government, to find out whether it
know that many groups and interests is good or bad. It is the soul of the Indian
were not adequately represented in Constitution.
the Constituent Assembly. But the WE, THE PEOPLE OF INDIA, having
debates in the Assembly amply show solemnly resolved to constitute India a
that the makers of the Constitution SOVEREIGN, SOCIALIST, SECULAR,
wanted to be as inclusive in their DEMOCARATIC REPUBLIC and to secure
approach as possible. This open- to all its citizens:
endedness indicates the willingness JUSTICE, social, economic and political;
of people to modify their existing
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LIBERTY of thought, expression, belief, faith
preferences, in short, to justify and worship;
outcomes by reference not to self- EQUALITY of status and of opportunity;
interest but to reasons. It also shows
a willingness to recognise creative
value in difference and disagreement.
p.
and to promote among them all
FRATERNITY assuring the dignity of
the individual and the unity and integrity of
• Second, it reflects a spirit of
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the nation; IN OUR CONSTITUTENT
compromise and accommodation. ASSEMBLY this twenty-sixth day of
These words, compromise and November, 1949, do HEREBY ADOPT,
accommodation, should not always
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in
REPUBLIC ensure equal opportunity for all.
• The head of the state is an elected FRATERNITY
person and not a hereditary position. • All of us should behave as if we are
•
JUSTICE
Citizens cannot l discriminated on the
grounds of caste, religion and gender.
p. members of the same family. No one
should treat a fellow citizen as
inferior.
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Social inequalities have to be
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3
Fundamental Rights in the Indian Constitution
in
§ RIGHT TO CONSTITUTIONAL REMEDIES ......................................................................... 24
§ DIRECTIVE PRINCIPLES OF STATE POLICY ..................................................................... 24
§ DIRECTIVE PRINCIPLES ...................................................................................................... 25
p.
§ RELATIONSHIP BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES .. 25
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Right to Equality Right to liberty and Personal freedoms
Right to:
Ö Equality before law Ö Speech and expression
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India
Ö Equal access to shops, bathing ghats, Ö Reside and settle in any part of India
hotels etc. Practice any profession or to carry on any
Ö Equality of opportunity in employment occupation, trade or business.
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in
The word fundamental suggests that the crudest manifestations of inequality. This
these rights are so important that the has been abolished under the right to equality.
Constitution has separately listed them and The same right also provides that the state
made special provisions for their protection.
The Fundamental Rights are so important that
the Constitution itself ensures that they are not
p.
shall confer no title on a person except those
who excel themselves in military or academic
field. Thus right to equality strives to make
violated by the government.
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India a true democracy by ensuring a sense of
Fundamental Rights are different from equality of dignity and status among all its
other rights available to us. While ordinary citizens.
legal rights are protected and enforced by
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Constitution itself. Besides this, no organ of inequalities, what does equal opportunity
the government can act in a manner that mean?
violates them. Judiciary has the powers and
The Constitution clarifies that the
responsibility to protect the fundamental
government can implement special schemes
rights from violations by actions of the
and measures for improving the conditions of
government. Executive as well as legislative
certain sections of society: children, women,
actions can be declared illegal by the judiciary
and the socially and educationally backward
if these violate the fundamental rights or
restrict them in an unreasonable manner. classes. You may have heard about
However, fundamental rights are not absolute ‘reservations’ in jobs, and in admissions. You
or unlimited rights. Government can put would have wondered why there are
reasonable restrictions on the exercise of our reservations if we follow the principle of
fundamental rights. equality. in fact Article 16(4) of the constitution
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explicitly clarifies that a policy like reservation arrest. If arrested, the person has the right to
will not be seen as a violation of right to defend himself by a lawyer of his choice. Also,
equality. If you see the spirit of the it is mandatory for the police to take that
Constitution, this is required for the fulfilment person to the nearest magistrate within 24
of the right to equality of opportunity. hours. The magistrate, who is not part of the
Article 16 (4): Nothing in this article shall police, will decide whether the arrest is
prevent the State from making any provision justified or not.
for the reservation of appointments or posts This right is not just confined to a
in favour of any backward class of citizens guarantee against taking away of an
which, in the opinion of the State, is not individual’s life but has wider application.
adequately represented in the services under Various judgments of Supreme Court have
the State. expanded the scope of this right. The Supreme
Court has ruled that this right also includes
RIGHT TO FREEDOM
in
right to live with human dignity, free from
Equality and freedom liberty, are the two exploitation. The court has held that right to
rights that are most essential to a democracy. shelter and livelihood is also included in the
It is not possible to think of the one without right to life because no person can live without
thinking of the other. Liberty means freedom
of thought, expression and action. However
it does not mean freedom to do anything that
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the means of living, that is, the means of
livelihood.
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Preventive detention
one desires or likes. If that were to be
permitted then a large number of people will Ordinarily, a person would be arrested
not be able to enjoy their freedom. Therefore, after he or she has reportedly committed some
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freedoms are defined in such a manner that offence. However there are exceptions to this.
every person will enjoy her freedom without Sometimes a person can be arrested simply out
threatening freedom of others and without of an apprehension that he or she is likely to
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endangering the law and order situation. engage in unlawful activity and imprisoned
Article 21: Protection of life and personal for some time without following the above
liberty—No person shall be deprived of his mentioned procedure. This is known as
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life or personal liberty except according to preventive detention. It means that if the
government feels that a person can be a threat
procedure established by law.
to law and order or to the peace and security
Right to life and personal liberty of the nation, it can detain or arrest that person.
The foremost right among rights to This preventive detention can be extended
only for three months. After three months such
freedom is the right to life and personal liberty.
a case is brought before an advisory board for
No citizen can be denied his or her life except
review.
by procedure as laid down under the law.
Similarly no one can be denied his/her On the face of it, preventive detention
personal liberty. looks like an effective tool in the hands of the
government to deal with anti-social elements
That means no one can be arrested
or subversives. But this provision has often
without being told the grounds for such an
been misused by the government. Many
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people think that there must be greater ensure a fair trial in courts, the Constitution
safeguards in this law so that it may not be has provided three rights:
misused against people for reasons other than • no person would punished for the
that which are really justified. In fact, there is same offence more than once,
a clear tension between right to life and • no law shall declare any action as
personal liberty and the provision for illegal from a backdate, and
preventive detention. • no person shall be asked to give
Other freedoms: You can see that under evidence against himself or herself.
the right to freedom there are some other
rights as well. These rights however are not RIGHT AGAINST EXPLOITATION
absolute. Each of these is subject to restrictions In our country there are millions of
imposed by the government. people who are underprivileged and
For example right to freedom of speech deprived. They may be subjected to
in
and expression is subject to restrictions such exploitation by their fellow human beings.
as public order, peace and morality etc. One such form of exploitation in our country
Freedom to assemble too is to be exercised has been begar or forced labour without
peacefully and without arms. The government
may impose restrictions in certain areas
declaring the assembly of five or more persons
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payment. Another closely related form of
exploitation is buying and selling of human
beings and using them as slaves. Both of these
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as unlawful. Such powers can be easily are prohibited under the Constitution. Forced
misused by the administration. The genuine labour was imposed by landlords, money
protest against an act or policy of government lenders and other wealthy persons in the past.
by the people may be denied permission.
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punishable.
misuse becomes rare. In the Constituent The Constitution also forbids
Assembly itself, some members had expressed employment of children below the age of 14
their dissatisfaction about restrictions on
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the world who did not allow residents of their propagate one’s religion. This includes
countries to enjoy the right to freedom of persuading people to convert from one
religion. Persons following a religion different religion to another. However, some people
from that of the ruler were either persecuted resent conversions on the ground that these
or forced to convert to the official religion of are based on intimidation or inducement. The
the rulers. Therefore, democracy has always Consti-tution does not allow forcible
‘incorporated the freedom to follow the conversions. It only gives us the right to spread
religion of one’s choice as one of its basic information about our religion and thus attract
principle’. others to it.
Freedom of faith and worship Equality of all religions
In India, everyone is free to choose a Being a country which is home to several
religion and practice that religion. Freedom of religions, it is necessary that the government
religion also includes the freedom of must extend equal treatment to different
in
conscience. This means that a person may religions. Negatively, it means that govern-
choose any religion or may choose not to ment will not favour any particular religion.
follow any religion. Freedom of religion India does not have any official religion. We
includes the freedom to profess, follow and
propagate any religion. Freedom of religion
is subject to certain limitations. The
p.
don’t have to belong to any particular religion
in order to be a prime minister or president or
judge or any other public official. We have also
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government can impose restrictions on the seen that under the right to equality, there is a
practice of freedom of religion in order to guarantee that government will not
protect public order, morality and health. This discriminate on the basis of religion in giving
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means that the freedom of religion is not an employment. The institutions run by the state
unlimited right. The government can interfere will not preach any religion or give religious
in religious matters for rooting out certain education nor will they favour persons of any
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social evils. For example in the past, the religion. The objective of these provisions is
government has taken steps banning practices to sustain and nurture the principle of
like sati, bigamy or human sacrifice. Such secularism.
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minorities to maintain their culture. This • However, it must be noted that our
minority status is not dependent only upon Constitution does not make the
religion. Linguistic and cultural minorities are enjoyment of rights dependent or
also included in this provision. Minorities are conditional upon fulfilment of duties.
groups that have common language or in this sense, the inclusion of
religion and in a particular part of the country fundamental duties has not changed
or in the country as a whole, they are the status of our fundamental rights.
outnumbered by some other social section. Right to constitutional remedies is the
Such communities have a culture, language means through which this is to be achieved.
and a script of their own, and have the right Dr. Ambedkar considered the right to
to conserve and develop these. constitutional remedies as ‘heart and soul of
All minorities, religious or linguistic, can the constitution’, It is so because this right
set up their own educational institutions. By gives a citizen the right to approach a High
in
doing so, they can preserve and develop their Court or the Supreme Court to get any of the
own culture. The government will not, while fundamental rights restored in case of their
granting aid to educational institutions, violation. The Supreme Court and the High
discriminate against any educational Courts can issue orders and give directives to
institution on the basis that it is under the
management of minority community.
p.
the government for the enforcement of rights.
The courts can issue various special
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RIGHT TO CONSTITUTIONAL REMEDIES orders known as writs.
Habeas corpus: A writ of habeas corpus
One would agree that our Constitution means that the court orders that the arrested
contains a very impressive list of Fundamental
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satisfactory.
defended against any attack on these rights.
Mandamus: This writ is issued when the
Fundamental Duties of citizens court finds that a particular office holder is not
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orders a lower court or another authority to responsible for implementing these directives.
transfer a matter pending before it to the So, a separate list of policy guidelines is
higher authority or court. included in the Constitution. The list of these
Apart from the judiciary, many other guidelines is called the Directive Principles of
mechanisms have been created in later years State Policy.
for the protection of rights. You may have DIRECTIVE PRINCIPLES
heard about the National Commission on
Minorities, the National Commission on Goals
Women, the National Commission on Welfare of the people; Social, economic
Scheduled Castes, etc. These institutions and political justice;
protect the rights of women, minorities or
Raising the standard of living; equitable
Dalits. Besides, the National Human Rights
distribution of resources;
Commission has also been established by law
promotion of international peace
in
to protect the fundamental and other kinds of
rights. Policies
DIRECTIVE Uniform civil code; Prohibition of
PRINCIPLES OF STATE POLICY
The makers of our Constitution knew
that independent India was going to face
p.
consumption of alcoholic liquor;
Promotion of cottage industries;
Prevention of slaughter of useful cattle;
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many challenges. Foremost among these was Promotion of village panchayats.
the challenge to bring about equality and well-
being of all citizens.
Non-justiciable rights
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They also thought, that certain policy Adequate livelihood equal pay for equal
direction was required for handling these work (for men and women)
problems. At the same time, the Constitution Right against economic Exploitation.
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You may get some idea of the vision of that rights can be abridged for giving effect to
makers of our Constitution by looking at some Directive Principles. This argument assumed
of the Directive Principles shown below. that rights were a hindrance to welfare of the
The governments from time to time tried people. On the other hand, the court held the
to give effect to some Directive Principles of view that Fundamental Rights were so
State Policy. They passed several zamindari important and sacred that they cannot be
abolition bills, nationalised banks, enacted limited even for purposes of implementing
numerous factory laws, fixed minimum Directive Principles.
wages, cottage and small industries were
Right to Property
promoted and provisions for reservation for
the uplift of the scheduled castes and Behind the controversy about the
scheduled tribes were made. Such efforts to relationship between rights and directive
give effect to the Directive Principles include principles, there was one important reason: in
the right to education, formation of panchayati the Constitution, originally, there was a
in
raj institutions all over the country, partial fundamental right to ‘acquire, possess and
right to work under employment guarantee maintain’ property. But the Constitution made
programme and the mid-day meal scheme etc. it clear that property could be taken away by
RELATIONSHIP BETWEEN FUNDAMENTAL
RIGHTS AND DIRECTIVE PRINCIPLES
p.
the government for public welfare. Since 1950,
government made many laws that limited this
right to property. This right was at the centre
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It is possible to see both Fundamental of the long debate over the relationship
Rights and Directive Principles as comple- between rights and directive principles.
mentary to each other. Fundamental Rights Finally, in 1973, the Supreme Court gave a
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restrain the government from doing certain decision that the right to property was not part
things while Directive Principles exhort the of the basic structure of the Constitution and
government to do certain things. Fundamental therefore, parliament had power to abridge
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Rights mainly protect the rights of individuals this right by an amendment. In 1978, the 44th
while directive principles ensure the well- amendment to the Constitution removed the
being of the entire society. right to property from the list of Fundamental
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However, at times, when government Rights and converted it into a simple legal
intends to implement Directive Principles of right under. article 300 A.
State Policy, it can come in conflict with the This generated another complicated
Fundamental Rights of the citizen. debate. This related to the amendment of the
However, keeping in mind the societal Constitution. The government was saying that
needs that are greater than the individual Parliament can amend any part of the
interests, the government amended the Constitution. The court was saying that
Constitution to give effect to the Directive Parliament cannot make an amendment that
Principles of State Policy. This led to a long violated Fundamental Rights. This
legal battle. controversy was settled by an important
The executive and the judiciary took decision of the Supreme Court in
different positions. The government claimed Kesavananda Bharati case. In this case, the
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court said that there are certain basic features constitutional rights. Our Constitution
of the Constitution and these cannot be reflected this long tradition and listed the
changed by Parliament. fundamental rights. Since 1950, the judiciary
has functioned as an important protector of
Conclusion
rights. Judicial interpretations have expanded
In the writings of Jotirao Phuley (1827- the scope of rights in many respects. The
1890), a radical social reformer from government and administration of our
Maharashtra, we find one of the earliest country function within this overall
expressions of the view that rights include framework. Rights enforce limitations on the
both freedom and equality. During the functioning of the government and ensure
national movement, this idea of rights was democratic governance of the country.
further sharpened and expanded to
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4
Executive
Contents of Theadministration
Chapter is called the executive.
Executive is the branch of government
§ EXECUTIVE ........................................................................................................................... 28
§WHAT ARE THE DIFFERENT TYPES OF EXECUTIVE? responsible......................................................
for the implementation of laws29 an
§PARLIAMENTARY EXECUTIVE IN INDIA ........................................................................... 29
§ PRIME MINISTER AND COUNCIL OF MINISTERS ............................................................ 33
in
EXECUTIVE
In any organisation, some office holder
has to take decisions and implement those
decisions. We call this activity administration
or management. But administration requires
p. System based on the
principles of collective
System based on
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Semi Presidential
body at the top that will take policy decisions Parliamentary
system
Presidential
or the big decisions and supervise and Head of the
system President is
government is
coordinate the routine administrative
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minister as head
party in
who function as the chief administrators or the of the ment.
Legislature. government The President
executives of that organisation. Some office is usually
He is account- PM and his
holders decide the policies and rules and directly
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able to the
legislature. elected by the
regulations and then some office holders
The head of people.
implement those decisions in actual day to- the state
day functioning of the organisation. The word may be Constitutional
executive means a body of persons that look Monarch Monarchy Ceremonial
after the implementation of rules and Parlimentary
EXECUTIVE 29
The executive branch is not just about Russia has a semi-presidential system where
presidents, prime ministers and ministers. It president is the head of state and prime
also extends to the administrative machinery minister, who is appointed by the president,
(civil servants). While the heads government is the head of government. Germany has a
and their ministers, saddled with the overall parliamentary system in which president is
responsibility of government policy, altogether the ceremonial head of state and the chancellor
known as the political executive, those is the head of government. In a presidential
responsible for day to day administration a system, the president is the Head of state as
called the permanent executive. well as head of Government. In this system
the office of president is very powerful, both
WHAT ARE THE DIFFERENT
TYPES OF EXECUTIVE? in theory and practice. Countries with such a
system include the United States, Brazil and
Every country may not have the same most nations in Latin America.
type of executive. You may have heard about
in
In a parliamentary system, the prime
the President of the USA and the Queen of minister is the head of government. Most
England. But the powers and functions of the parliamentary systems have a president or a
President of the USA are very different from monarch who is the nominal Head of state. In
the powers of the President of India. Similarly,
the powers of the Queen of England are
different from the powers of the King of Nepal.
p.
such a system, the role of president or monarch
is primarily ceremonial and prime minister
along with the cabinet wields effective power.
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Both India and France have prime ministers, Countries with such system include Germany,
but their roles are different from each other.
Italy, Japan, United Kingdom as well as
To answer this question we will briefly Portugal. A semi-presidential system has both
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outline the nature of executive existing in some a president and a prime minister but unlike
of these countries. The USA has a presidential the parliamentary system the president may
system and executive powers are in the hands possess significant day-to-day powers. In this
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of the president. Canada has a parliamentary system, it is possible that sometimes the
democracy with constitutional m6narchy president and the prime minister may belong
where Queen Elizabeth II is the formal chief to the same party and at times they may
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of state and the Prime Minister is the head of belong to two different parties and thus,
government. In France, both the president and would be opposed to each other. Countries
the prime minister a part of the semi with such a system include France, Russia, Sri
presidential system. Lanka, etc.
The president appoints the prime
PARLIAMENTARY EXECUTIVE IN INDIA
minister as well as the ministers but cannot
dismiss them as they are responsible to the When the Constitution of India was
parliament. Japan has a parliamentary system written, India already had some experience of
with the Emperor as the head of the state and running the parliamentary system under the
the prime minister as the head of government. Acts of 1919 and 1935. This experience had
Italy has a parliamentary system with the shown that in the parliamentary system, the
president as the formal head of state and the executive can be effectively controlled by the
prime minister as the head of government. representatives of the people. The makers of
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the Indian Constitution wanted to ensure that President. In reality, the President exercises
the government would be sensitive to public these powers through the Council of Ministers
expectations and would be responsible and headed by the Prime Minister. The President
accountable. The other alternative to the is elected for a period of five years. But there
parliamentary executive was the presidential is no direct election by the people for the office
form of government. But the presidential of President. The President is elected
executive puts much emphasis on the indirectly. This means that the president is
president as the chief executive and as source elected not by the ordinary citizens but by the
of all executive power. There is always the elected MLAs and MPs. This election takes
danger of personality cult in presidential place in accordance with the principle of
executive. The makers of the Indian proportional representation with single
Constitution wanted a government that would transferable vote.
have a strong executive branch, but at the same The President can be removed from office
time, enough safeguards should be there to
in
only by Parliament by following the procedure
check against the personality cult. In the for impeachment. The only ground for
parliamentary form there are many impeachment is violation of the Constitution.
mechanisms that ensure that the executive will
be answerable to and controlled by the
legislature or people's representatives. So the
Constitution adopted the parliamentary
p. Do you know what the word shall means
here? It indicates that the advice is binding on
the President. In view of the controversy about
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the scope of the President’s powers, a specific
system of executive for the governments both mention was made in the Constitution by an
at the national and State levels. amendment that the advice of the Council of
Ministers will be binding on the President. By
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EXECUTIVE 31
we have made his position one of authority President acts on his (or her) own discretion.
and dignity. The constitution wants to create When the President thinks that the advice has
neither a real executive nor a mere figurehead, certain flaws or legal lacunae, or that it is not
but a head that neither reigns nor governs; it in the best interests of the country, the
wants to create a great figurehead...” President can ask the Council to reconsider the
decision. Although, the Council can still send
Discretionary Powers of the President
back the same advice and the President would
The President has no discretionary then be - bound by that advice, such a request
power under any circumstances? This will be by the President to reconsider the decision,
an incorrect assessment. Constitutionally, the would naturally carry a lot of weight. So, this
President has a right to be informed of all is one way in which the president can act in
important matters and deliberations of the his own discretion.
Council of Ministers. The Prime Minister is Secondly, the President also has veto
obliged to furnish all the information that the
in
power by which he can withhold or refuse to
President may call for. The President often give assent to Bills (other than Money Bill)
writes to the Prime Minister and expresses his passed by the Parliament. Every bill passed
views on matters confronting the country. by the Parliament goes to the President for his
President’s role in
Choosing the Prime Minister
p.
assent before it becomes a law. The President
can send the bill back to the Parliament asking
it to reconsider the bill. This ‘veto’ power is
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After 1977, party politics in India became limited because, if the Parliament passes the
more competitive and there have been many
same bill again and sends it back to the
instances when no party had clear majority in
President, then, the President has to give
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term was over, the next President, the importance of the Chairman of the Rajya
Venkataraman sent the bill finally back to the Sabha and takes over the office of the President
Parliament for reconsideration. By that time, when there is a vacancy by reasons of death,
the government that brought the bill before resignation, removal by impeachment or
the Parliament had changed and a new otherwise. The Vice President only until a new
government was elected in 1989. This President is elected, B. D. Jatti acted as
government belonged to a different coalition President on the death of Fakhruddin Ali
and did not bring the bill back before the Ahmed until a new President was elected.
Parliament. Thus, Zail Singh’s decision to Since 1989 major political changes have
postpone giving assent to the bill effectively presidential office. In the four parliamentary
meant that the bill could never become a law! elections held from 1989 to 1998, no single
Then, the third kind of discretion arises party or coalition attained a majority in the
more out of political circumstances. Formally, Lok acts as the President Sabha. These
in
the President appoints the Prime Minister. situations demanded presidential intervention
Normally, in the parliamentary system, a either in order to constitute, governments or
leader who has the support of the majority in to grant a request for dissolution of Lok Sabha
the Lok Sabha would be appointed as Prime a Prime Minister who could not prove
Minister and the question of discretion would
not arise. But imagine a situation when after
p.
majority in the House. It may thus be said that
presidential discretion is related to political
an election, no leader has a clear majority in conditions. There is greater scope for
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the Lok Sabha. Imagine further that after presidential assertiveness when governments
attempts to forge alliances, two or three are not stable and coalitions occupy power.
leaders are claiming that they have the support For the most part, the President is a
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of the majority in the house. Now, the formal power holder and a ceremonial head
President has to decide whom to appoint as of the - nation. You may wonder why then do
the Prime Minister. In such a situation, the we need a President? In a parliamentary
ar
President has to use his own discretion in system, the Council of Ministers is dependent
judging who really may have the support of on the support of the majority in the
the majority or who can actually form and run legislature. This also means that the Council
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EXECUTIVE 33
Size of the Council of Ministers majority in the Lok Sabha. Various political
parties have come together and formed a
Before the 91st Amendment Act (2003),
coalition that has majority in the House. In
the size of the Council of Minister was
such situations, a leader who is acceptable to
determined according to exigencies of time
most partners of the coalition becomes the
and requirements of the situation. But this led Prime Minister.
to very large size of the Council of Ministers.
Formally, a leader who has the support
Besides, when no party had a clear majority,
of the majority is appointed by the President
there was a temptation to win over the support
as Prime Minister. The Prime Minister then
of the members of the Parliament by giving
decides who will be the ministers in the
them ministerial positions as there was no
Council of Ministers. The Prime Minister
restriction on the number of the members of
allocates ranks and portfolios to the ministers.
the Council of Ministers. This was happening
Depending upon the seniority and political
in many States also. Therefore, an amendment
importance, the ministers are given the ranks
in
was made that the Council of Ministers shall
of cabinet minister, minister of State or deputy
not exceed 15 percent of total number of
minister. In the same manner, Chief Ministers
members of the House of People (or Assembly
of the States choose ministers from their own
the case of the States).
PRIME MINISTER AND
COUNCIL OF MINISTERS
p.
party or coalition. The Prime Minister and all
the ministers have to be members of the
Parliament. If someone becomes a minister or
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No discussion of government or politics Prime Minister without being an MP, such a
in India, would normally take place without person has to get elected to the Parliament
mentioning one office: the Prime Minister of within six months. But remember that the
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India. The President exercises his powers only most important feature of parliamentary
on the advice of the Council of Ministers. The executive is that the executive is routinely
Council of Ministers is headed by the Prime under the control and supervision of the
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he or she must either accept the decision or not been the case when governments have
resign. It is binding o all ministers to pursue been led by coalitions of political parties. Since
or agree to a policy for which there is collective 1989, we have witnessed many coalition
responsibility. In India, the Prime Minister governments in India. Many of these
enjoys a pre-eminent place in the government. governments could not remain in power for
The Council of Ministers cannot exist without the full term of the Lok Sabha. They were
the Prime Minister. The Council comes into either removed or they resigned due to loss of
existence only after the Prime Minister has support of the majority. These developments
taken the oath of office. The death or have affected the working of the
resignation of the. Prime Minister parliamentary executive.
automatically brings about the dissolution of In the first place, these developments
the demise, dismissal or resignation of a have resulted in a growing discretionary role
minister only creates a ministerial vacancy. of the President in the selection of Prime
The Prime Minister acts as a link between the Ministers. Secondly, the coalitional nature of
in
Council of Ministers on the one hand and the Indian politics in this period has necessitated
President as well as the Parliament on the much more consultation between political
other. It is this role of the Prime Minister which partners, leading to erosion of prime
led Pt. Nehru to describe him as he linchpin
of Government’. It is also the constitutional
obligation the Prime Minister to communicate
p.
ministerial authority. Thirdly, it has also
brought restrictions on various prerogatives
of the Prime Minister like choosing the
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to the President all decisions of the Council of ministers and deciding their ranks and
Ministers relating to the administration of the portfolios, Fourthly, even the policies and
affairs of the Union and proposals for programmes of the government cannot be
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legislation. The Prime Minister is involved in decided by the Prime Minister alone. Political
all crucial decisions of the government and parties of different ideologies come together
decides on the policies of the government. both as pre-poll and post-poll allies to form a
ar
Thus, the power wielded by the Prime government. Policies are framed after a lot of
negotiations and compromises among the
Minister flows from various sources: control
allies. In this entire process, the Prime Minister
over the Council of Ministers, leadership of
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EXECUTIVE 35
5
Legislature
Contents of The Chapter
§ INTRODUCTION ................................................................................................................... 35
§ RAJYA SABHA ....................................................................................................................... 36
§ LOK SABHA ........................................................................................................................... 36
§ HOW DOES THE PARLIAMENT MAKE LAWS? .................................................................. 38
in
§ HOW DOES THE PARLIAMENT CONTROL THE EXECUTIVE? ........................................ 39
legislature in India and their importance in the Parliament. Herein lies the democratic
democratic government. potential of the Parliament. It is recognized as
one of the most democratic and open forum
Why do we need a Parliament?
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of the legislature. It is the centre of all power to choose and dismiss the government.
democratic political process. It is packed with
Why do we need two
action; walkouts, protests, demonstration,
Houses of Parliament?
unanimity, concern and co-operation. All these
serve very vital purposes; Indeed, a genuine The term ‘Parliament’ refers to the
democracy is inconceivable without a national legislature. The legislature of the
representative, efficient and effective States is described as State legislature. The
legislature. The legislature also helps people Parliament in India has two houses. When
in holding the representatives accountable. there are two houses of the legislature, it is
This is indeed, the very basis of representative called a bicameral legislature. The two Houses
democracy. of the Indian Parliament are the Council of
Yet, in most democracies, legislatures are States or the Rajya Sabha and the House of
losing central place to the executive. In India People or Lok Sabha. The Consti-tution has
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given the States the option of establi-shing In the U.S.A., every state has equal
either a unica-meral or bicameral legislature. representation in the Senate. This ensures
At present only five States have a bica-meral equality of all the states. But this also means
legislature? that a small state would have the same
Countries with large size and much di- representation as the larger states. The system
versity usually prefer to have two houses of of representation adopted for the Rajya Sabha
the national legislature to give representation is different from that in the USA. The number
to all sections in the society and to give of members to be elected from each State has
representation to all geographical regions or been fixed by the fourth schedule of the
parts of the country. A bicameral legislature Constitution. What would happen if we were
has one more advantage. A bicameral legisla- to follow the American system of equality of
ture makes it possible to have every decision representation in the Rajya Sabha? Uttar
reconsidered. Every decision taken by one Pradesh with a population of 17.18.29 lakhs
house goes to the other house for its decision. would get seats equal to that of Sikkim whose
in
This means that every bill and policy would population is only 5.71 lakhs. The framers of
be discussed twice. This ensures a double the Constitution wanted to prevent such
check on every matter. Even if one house takes discrepancy. States with larger population get
a decision in haste, that decision will come for
discussion in the other house and
reconsideration will be possible.
p.
more representatives than States with smaller
population get. Thus, a more populous State
like Uttar Pradesh sends 31 members to Rajya
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RAJYA SABHA Sabha, while a smaller and less populous State
like Sikkim has one seat in the Rajya Sabha.
Each of the two Houses of the Parliament
Members of the Rajya Sabha are elected
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LEGISLATURE 37
the fields of literature, arts, social service, chance of being passed without the
science etc. support of the government.
LOK SABHA • Control Executive and ensuring its
accountability: Perhaps the most
The Lok Sabha and the State Legislative vital function of the Parliament is to
Assemblies are directly elected by the people. ensure that the executive does not
For the purpose of election, the entire country overstep its authority and remains
(State, in case of State Legislative Assembly) responsible to the people who have
is divided into territorial constituencies of elected them.
roughly equal population. One representative • Financial Function: Government is
is elected from each constituency through about spending a lot of money on
universal, adult suffrage where the value of various matters. Every Check your
vote of every individual would be equal to progress.
another. At present there are 543
in
• Do you think that composition of
constituencies. This number has not changed
Rajya Sabha has protected the
since 1971. The Lok Sabha is elected for a
position of States of India?
period of five years. This is the maximum. We
have seen in the chapter on the executive that
before the completion of five years, the Lok
Sabha can be dissolved if no party or coalition
p.
• Should indirect election of Rajya
Sabha be replaced by direct elections?
What would be its advantages and
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can form the government or if the Prime disadvantages?
Minister advices the President to dissolve the • Since 1971 the number of seats in the
Lok Sabha and hold fresh elections. Apart from Lok Sabha has not increased. Do you
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through the budget and annual Houses. Look at the charts showing the
financial statements. powers of Lok Sabha and Rajya Sabha.
• Representation: Parliament repre- Special Powers of Rajya Sabha
sents the divergent views of members
from different regional, social, The Rajya Sabha is an institutional
economic, religious groups of mechanism to provide representation to the
different parts of the country. States. Its purpose is to protect the powers of
• Debating Function: The Parliament is the States. Therefore, any matter that affects
the highest forum of debate in the the States must be referred to it for its consent
country. There is no limitation on its and approval. Thus, if the Union Parliament
power of discussion. Members are wishes to remove a matter from the State list
free to speak on any matter without (over which only the State Legislature can
fear. This makes it possible for the make law) to either the Union List or
Concurrent List in the interest of the nation,
in
Parliament to analyse any or every
issue that faces the nation. These the approval of the Rajya Sabha is necessary.
discussions constitute the heart of This provision adds to the strength of the Rajya
Sabha. However, experience shows that the
•
democratic decision making.
Constituent Function:
Parliament has the power of
The p.
members of the Rajya Sabha represent their
parties more than they represent their States.
Powers exercised only by the Lok Sabha:
re
discussing and enacting changes to
the Constitution. The constituent Then, there are powers that only the Lok Sabha
powers of both the houses are similar. exercises. The Rajya Sabha cannot initiate,
reject or amend money bills. The Council of
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LEGISLATURE 39
HOW DOES THE behind the legislation, the task of drafting the
PARLIAMENT MAKE LAWS? legislation begins. The draft of any bill is
The basic function of any legislature is prepared by the concerned ministry. For
to make laws for its people. A definite instance a bill raising the marriageable age of
procedure is followed in the process of making girls from 18 to 21 will be prepared by the law
law. Some of the procedure of law making are ministry. The ministry of women and child
mentioned in the Constitution, while some welfare may also be involved in it. Within the
have evolved from conventions. Follow a bill Parliament, a bill may be introduced in the Lok
through the legislative process and you will Sabha or Rajya Sabha by a member of the
clearly see that the law making process is House (but often a minister responsible for the
technical and even tedious. subject introduces the bill). A money bill can
A bill is a draft of the proposed law. There be introduced only in Lok Sabha. Once passed
can be different types of bills. When a non- there, it is sent to the Rajya Sabha.
in
minister proposes a bill, it is called private A large part of the discussion on the bills
member’s Bill. A bill proposed by a minister takes place in the committees. The
is described as Government Bill. Let us now recommendation of the committee is then sent
to the House. That is why committees are
see the different stages in the life of a bill.
Even before a bill is introduced in the
Parliament there may be a lot of debate on the
p.
referred to as miniature legislatures. This is
the second stage in the law making process.
In the third and final stage, the bill is voted
re
need for introducing such a bill. A political
party may pressurize the government to upon. If a non-money bill is passed by one
initiate a bill in order to fulfill its election House, it is sent to the other House where it
goes through exactly the same procedure.
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in
members; Zero Hour where members are free
leads and the House merely follows. Only if
to raise any matter that they think is important
the Parliament is active and vigilant, can it
(though the ministers are not bound to reply),
keep regular and effective check on the
executive. There are many ways in which the
Parliament can control the executive. But basic
to them all is the power and freedom of the
p.
half-an- hour discussion on matters of public
importance, adjournment motion etc. are some
instruments of exercising control.
re
legislators as people’s representatives to work Perhaps the question hour is the most
effectively and fearlessly. For instance, no effective method of keeping vigil on the
action can be taken against a member for executive and the administrative agencies of
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whatever the member may have said in the the government. Members of Parliament have
legislature. This is known as parliamentary shown great interest in question hour and
privilege. The presiding officer of the maximum attendance is recorded during this
ar
legislature has the final powers in deciding time. Most of the question aims at eliciting
matters of breach of privilege. The main information from the government on issues
purpose of such privilege is to enable the of public interest such as, price rise,
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members of the legislature to represent the availability of food grains, atrocities on weaker
people and exercise effective control over the sections of the society, riots, black-marketing
executive. etc. This gives the members an opportunity
to criticize the government, and represent the
Instruments of Parliamentary Control problems of their constituencies. The
The legislature in parliamentary system discussions during the question hour are so
ensures executive accountability at various heated that it is not uncommon to see
stages: policy making, implementation of law members raise their voice, walk to the well of
or policy and during and post implementation the house or walk out in protest to make their
stage. The legislature does this through the use point. This results in considerable loss of
of a variety of devices: legislative time. At the same time, we must
• Deliberation and discussion remember that many of these actions are
political techniques to gain concessions from
• Approval or Refusal of laws
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LEGISLATURE 41
government and in the process force executive misuse of funds on the basis of the report of
accountability. the Comptroller and Auditor General and
Approval and ratification of laws: Public Accounts committees. But the
Parliamentary control is also exercised legislative control is not only aimed at
through its power of ratification. A bill can financial propriety. The legislature is con-
become a law only with the approval of the cerned about the policies of the government
Parliament. A government that has the that are reflected in the budget. Through fi-
support of a disciplined majority may not find nancial control, the legislature controls the
it difficult to get the approval of the policy of the government.
Legislature. Such approvals however, cannot No Confidence Motion: The most
be taken for granted. They are the products of powerful weapon that enables the Parliament
intense bargaining and negotiations amongst to ensure executive accountability is the non-
the members of ruling party or coalition of confidence motion. As long as the government
has the support of its party or coalition of
in
parties and even government and opposition.
If the government has majority in Lok Sabha parties that have a majority in the Lok Sabha,
but not in the Rajya Sabha, as has happened the power of the House to dismiss the
during the Janata Party rule in 1977 and government is fictional rather that real.
N.D.A. rule in 2000, the government will be
forced to make substantial concessions to gain
p.
However, after 1989, several governments
have been forced to resign due to lack of
confidence of the house. Each of these
the approval of both the Houses. Many bills,
re
such as the Lok Pal Bill have failed enactment, governments lost the confidence of the Lok
Prevention of Terrorism bill (2002) was rejected Sabha because they failed to retain the support
by the Rajya Sabha. of their coalition partners.
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Financial control: As mentioned earlier, Thus, the Parliament can effectively con-
financial resources to implement the pro- trol the executive and ensure a more respon-
grammes of the government are granted sive government. It is however important for
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through the budget. Preparation and presen- this purpose, that there is adequate time at the
tation of budget for the approval of the disposal of the House, the members are
legislature is constitutional obligation of the interested in discussion and participate effec-
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government. This obligation allows the legis- tively and there is willingness to compromise
lature to exercise control over the purse strings amongst the government and the opposition.
of the government. The legislature may refuse In the two decades, there has been a gradual
to grant resources to the government. This decline in sessions of the Lok Sabha and State
seldom happens because the government Legislative Assemblies and time spent on
ordinarily enjoys support of the majority in debates. Moreover, the Houses of the
the parliamentary system. Nevertheless, Parliament have been plagued by absence of
before granting money the Lok Sabha can quorum, boycott of sessions by members of
discuss the reasons for which the government opposition which deprive the house the power
requires money. It can enquire into cases of to control the executive through discussion.
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6
Judiciary
Contents of The Chapter
§ INTRODUCTION ................................................................................................................... 42
§ APPOINTMENT OF JUDGES ................................................................................................. 43
§ ORIGINAL JURISDICTION ................................................................................................... 44
§ APPELLATE JURISDICTION ................................................................................................. 44
in
§ ADVISORY JURISDICTION ................................................................................................... 45
§ JUDICIARY AND RIGHTS ..................................................................................................... 45
§ JUDICIARY AND PARLIAMENT .......................................................................................... 46
INTRODUCTION
Many times, courts are seen only as
p.
The principal role of the judiciary is to
protect rule of law and ensure supremacy of
law. It safeguards rights of the individual,
re
arbitrators in disputes between individuals or
settles dispute in accordance with the law and
private parties. But judiciary performs some
ensures that democracy does not give way to
political functions also. Judiciary is an
individual or group dictatorship. In order to
important organ of the government. The
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JUDICIARY 43
in
political loyalty should not be the criteria for As far as the appointment of the Chief
appointments to judiciary. Justice of India (CJI) is concerned, over the
years, a convention had developed whereby
The judges have a fixed tenure. They
the senior-most judge of the Supreme Court
hold office till reaching the age of retirement.
Only in exceptional cases, judges may be
removed. But otherwise, they have security of
p.
was appointed as the Chief Justice of India.
This convention was however broken twice.
In 1973 A. N. Ray was appointed as CJI
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tenure. Security of tenure ensures that judges superseding three senior Judges. Again, Justice
could function without fear or favour. The M.H. Beg was appointed superseding Justice
Constitution prescribes a very difficult H.R. Khanna (1975).
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procedure for removal of judges. The Consti- The other Judges of the Supreme Court
tution makers believed that a difficult and the High Court are appointed by the
procedure of removal would provide security President after ‘consulting’ the CJI. This, in
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of office to the members of judiciary. effect, meant that the final decisions in matters
The judiciary is not financially of appointment rested with the Council of
dependent on either the executive or Ministers.
legislature. The Constitution provides that the This matter came up before the Supreme
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salaries and allowances of the judges are not Court again and again between 1982 and 1998.
subjected to the approval of the legislature. Initially, the court felt that role of the Chief
The actions and decisions of the judges are Justice was purely consultative. Then it took
immune from personal criticisms. The the view that the opinion of the Chief Justice
judiciary has the power to penalize those who must be followed by the President. Finally, the
are found guilty of contempt of court. This Supreme Court has come up with a novel
authority of the court is seen as an effective procedure: it has suggested that the Chief
protection to the judges from unfair criticism. Justice should recommend names of persons
Parliament cannot discuss the conduct of the to be appointed in consultation with four
judges except when the proceeding to remove senior-most judges of the Court. Thus, the
a judge is being carried out. This gives the Supreme Court has established the principle
judiciary independence to adjudicate without of collegiality in making recommendations for
fear of being criticized. appointments. At the moment therefore, in
§§§
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matters of appointment the decision of the The Supreme Court of India is one of the
group of senior judges of the Supreme Court very powerful courts anywhere in the world.
carries greater weight. Thus, in matters of However, it functions within the limitations
appointment to the judiciary, the Supreme imposed by the Constitution. The functions
Court and the Council of Ministers play an and responsibilities of the Supreme Court are
important role. defined by the Constitution. The Supreme
Removal of Judges Court has specific jurisdiction or scope of
The removal of judges of the Supreme powers.
Court and the High Court’s is also extremely
difficult. A judge of the Supreme Court or High ORIGINAL JURISDICTION
Court can be removed only on the ground of Original jurisdiction means cases that can
proven misbehavior or incapacity. A motion be directly considered by the Supreme Court
containing the charges against the judge must without going to the lower courts before that.
be approved by special majority in both Cases involving federal relations go directly
in
Houses of the Parliament. Removal of a judge to the Supreme Court. The Original
is a very difficult procedure and unless there Jurisdiction of the Supreme Court establishes
is a general consensus among Members of the it as an umpire in all disputes regarding
federal matters. In any federal country, legal
Parliament, a judge cannot be removed. It
should also be noted that while in making
appointments, the executive plays a crucial
role; the legislature has the powers of removal.
p.
disputes are bound to arise between the Union
and the States; and among the States
themselves. The power to resolve such cases
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This has ensured both balance of power and is entrusted to the Supreme Court of India. It
independence of the judiciary. So far, only one is called original jurisdiction because the
case of removal of a judge of the Supreme Supreme Court alone has the power to deal
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Court came up for consideration before the with such cases. Neither the High Court’s nor
Parliament. In that case, though the motion the lower courts can deal with such cases. In
got two-thirds majority, it did not have the this capacity, the Supreme Court not just settles
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support of the majority of the total strength of disputes but also interprets the powers of
the House and therefore, the judge was not Union and State government as laid down in
removed. the Constitution.
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JUDICIARY 45
moral turpitude by using public funds for involved in it. If the Court thinks that the law
private purposes and reckless disregard of or the Constitution has a different meaning
statutory rules” while serving as Chief Justice from what the lower courts understood, then
of Punjab and Haryana. Despite this strong the Supreme Court will change the ruling and
indictment, Ramaswamy survived the along with that also give new interpretation
of the provision involved.
parliamentary motion recommending
removal. The motion recommending his Article 137…… the Supreme Court shall
removal got the required two-third majority have power to review any judgment
among the members who were present and pronounced or order made by it. Article 144
voting, but the Congress party abstained from …….. All authorities, civil and judicial, in the
voting in the House. Therefore, the motion territory of India shall act in aid of the Supreme
could not get the support of one-half of the Court.
total strength of the House. The High Court’s too, have appellate
jurisdiction over the decisions given by courts
in
Writ Jurisdiction below them.
Any individual, whose fundamental ADVISORY JURISDICTION
right has been violated, can directly move the
Supreme Court for remedy. The Supreme
Court can give special orders in the form of
writs.
p. In addition to original and appellate
jurisdiction, the Supreme Court of India
possesses advisory jurisdiction also. This
re
The High Courts can also issue writs, but means that the President of India can refer any
the persons whose rights are violated have the matter that is of public importance or that
choice of either approaching the High Court which involves interpretation of Constitution
or approaching the Supreme Court directly.
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of appeal. A person can appeal to the Supreme two-fold. In the first place, it allows the
Court against the decisions of the High Court. government to seek legal opinion on a matter
However, High Court must certify that the of importance before taking action on it. This
case is fit for appeal, that is to say that it may prevent unnecessary litigations later.
involves a serious matter of interpretation of Secondly, in the light of the advice of the
law or Constitution. In addition, in criminal Supreme Court, the government can make
cases, if the lower court has sentenced a person suitable changes in its action or legislations.
to death then an appeal can be made to the
High Court or Supreme Court. Of course, the Read the articles quoted above. These
Supreme Court holds the powers to decide articles help us to understand the unified
whether to admit appeals even when appeal nature of our judiciary and the powers of the
is not allowed by the High Court. Appellate Supreme Court. Decisions made by the
jurisdiction means that the Supreme Court will Supreme Court are binding on all other courts
reconsider the case and the legal issues within the territory of India. Orders passed
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by it are enforceable throughout the length and Supreme Court the power of judicial review.
breadth of the country. The Supreme Court Besides, as we saw in the section on
itself is not bound by its decision and can at jurisdiction of the Supreme Court, in the case
any time review it. Besides, if there is a case of of federal relations too, the Supreme Court can
contempt of the Supreme Court, then the use the review powers if a law is inconsistent
Supreme Court itself decides such a case. with the distribution of powers laid down by
the Constitution. Suppose, the central
JUDICIARY AND RIGHTS government makes a law which according to
some States, concerns a subject from the State
The judiciary is entrusted with the task list. Then the States can go to the Supreme
of protecting rights of individuals. The Court and if the court agrees with them, it
Constitution provides two ways in which the would declare that the law is unconstitutional.
Supreme Court can remedy the violation of
In this sense, the review power of the Supreme
rights.
Court includes power to review legislations
• First it can restore fundamental rights on the ground that they violate fundamental
in
by issuing writs of Habeas Corpus; rights or on the ground that they violate the
mandamus etc. (article 32). The High federal distribution of powers. The review
Courts also have the power to issue power extends to the laws passed by State
•
such writs (articles 226).
Secondly, the Supreme Court can
declare the concerned law as
p.
legislations also. Together, the writ powers and
the review power of the Court make judiciary
very powerful. In particular, the review power
re
unconsti-tutional and therefore non- means that the judiciary can interpret the
operational (article 13). Constitution and the laws passed by the
Together these two provisions of the legislature. Many people think that this feature
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Constitution establish the Supreme Court as enables the judiciary to protect the
the protector of fundamental rights of the Constitution effectively and also to protect the
citizen on the one hand and interpreter of rights of citizens. The practice of entertaining
ar
Constitution on the other. The second of the PILS has further added to the powers of the
two ways mentioned above involves judicial judiciary in protecting rights of citizens.
review. Right against exploitation? This right
Sm
Perhaps the most important power of the prohibits forced labour, trade in human flesh
Supreme Court is the power of judicial review. and prohibits employment of children in
Judicial Review means the power of the hazardous jobs. But the question is: how could
Supreme Court (or High Courts) to examine those, whose rights were violated, approach
the constitutionality of any law if the Court the court? PIL and judicial activism made it
arrives at the conclusion that the law is possible for courts to consider these violations.
inconsistent with the provisions of the Thus, the court considered a whole set of cases:
Constitution, such a law is declared as
the blinding of the jail inmates by the police,
unconstitutional and inapplicable. The term
inhuman working conditions in stone
judicial review is nowhere mentioned in the
quarries, sexual exploitation of children, and
Constitution. However, the fact that India has
a written constitution and the Supreme Court so on. This trend has made rights really
can strike down a law that goes against meaningful for the poor and disadvantaged
fundamental rights, implicitly gives the sections.
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JUDICIARY 47
in
against politicians and bureaucrats in the
• Can the Parliament make laws that
hawala case, the Narasimha Rao, case, illegal
abridge fundamental rights while
allotment of petrol pumps case etc. Many of
enforcing directive principles?
these instances are the products of judicial
activism.
The Indian Constitution is based on a
p. During the period 1967 and 1973, this
controversy became very serious. Apart from
land reform laws, laws enforcing preventive
re
delicate principle of limited separation of detention, laws governing reservations in jobs,
powers and checks and balances. This means regulations acquiring private property for
that each organ of the government has a clear public purposes, and laws deciding the
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area of functioning. Thus, the Parliament is compensation for such acquisition of private
supreme in making laws and amending the property were some instances of the conflict
Constitution, the executive is supreme in between the legislature and the judiciary.
implementing them while the judiciary is
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Constitution. Despite such clear cut division This case is famous as the Kesavananda
of power the conflict between the Parliament Bharati case. In this case, the Court ruled that
and judiciary, and executive and the judiciary there is a basic structure of the Constitution
has remained a recurrent theme in Indian and nobody- not even the Parliament (through
politics. amendment)- can violate the basic structure.
Immediately after the implementation of The Court did two more things. First, it said
the Constitution began, a controversy arose that right to property (the disputed issue) was
not part of basic structure and therefore could
over the Parliament’s power to restrict right
be suitably abridged. Secondly, the Court
to property. The Parliament wanted to put
reserved to itself the right to decide whether
some restrictions on the right to hold properly various matters are part of the basic structure
so that land reforms could be implemented. of the Constitution. This case is perhaps the
The Court held that the Parliament cannot best example of how judiciary uses its power
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to interpret the Constitution. This ruling has These issues indicate how delicate the
changed the nature of conflicts between the balance between any two organs of the
legislature and the judiciary. The right to government is and how important it is for each
property was taken away from the list of organ of the government in a democracy to
fundamental rights in 1979 and this also
respect the authority of others.
helped in changing the nature of the
relationship between these two organs of Conclusion
government.
We have studied the role of the judiciary
Some issues still remain a bone of
contention between the two- can the judiciary in our democratic structure. In spite of the
intervene in and regulate the functioning of tensions that arose from time to time between
the legislatures? In the parliamentary system, the judiciary and the executive and the
the legislature has the power to govern itself legislature, the prestige of the judiciary has
and regulate the behavior of its members. increased considerably. At the same time, there
Thus, the legislature can punish a person who are many more expectations from the judiciary.
in
the legislature holds guilty of breaching Ordinary citizens also wonder how it is
privileges of the legislature. Can a person who possible for many people to get easy acquittals
is held guilty for breach of parliamentary and how witnesses change their testimonies
privileges seek protection of the courts? Can
a member of the legislature against whom the
legislature has taken disciplinary action get
p.
to suit the wealthy and the mighty. These are
some issues about which our judiciary is
concerned too. The Judiciary in India is a very
protection from the court? These issues are
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unresolved and are matters of potential powerful institution. This power has
conflict between the two. Similarly, the generated much awe and many hopes from
Constitution provides that the conduct of it. Judiciary in India is also known for its
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judges cannot be discussed in the Parliament. independence. Through various decisions, the
There have been several instances where the judiciary has given new interpretations to the
Parliament and State legislature have cast Constitution and protected the rights of
ar
aspersions on the functioning of the judiciary. citizens. As we saw in this chapter, democracy
Similarly, the judiciary too has criticized the
hinges on the delicate balance of power
legislatures and issued instructions to the
legislatures about the conduct of legislative between the judiciary and the Parliament and
Sm
business. The legislature see this as violating both institutions have to function within the
the principle of parliamentary sovereignty. limitations set by the Constitution.
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JUDICIARY 49
7
Local Governments
Contents of The Chapter
§ INTRODUCTION ................................................................................................................... 49
§ IMPLEMENTATION OF 73RD AND 74TH AMENDMENTS ................................................. 54
in
In a democracy, it is not sufficient to have Democracy is about meaningful
an elected government at the centre and at the participation. It is also about accountability.
Strong and vibrant local governments ensure
State level. It is also necessary that even at the
local level, there should be an elected
government to look after look after local
p.
both active participation and purposeful
accountability. It is at the level of local
government that common citizens can be
affairs.
re
involved in decision making concerning their
Why local Governments? lives, their needs and above all their
Both these stories are not isolated development.
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village and district level. Local government is They are also more concerned with what local
about government closest to the common government does or has failed to do as it has
people. Local government is about a direct bearing and impact on their day-to-
government that involves the day-to-day life day life. Thus, strengthening local government
and problems of ordinary citizens. Local is like strengthening democratic processes.
government believes that local knowledge and
Growth of Local Government in India
local interest are essential ingredients for
democratic decision making. They are also Let us now discuss how local
necessary for efficient and people-friendly government has grown in India and what our
administration. The advantage of local gov- Constitution says about it. It is believed that
ernment is that it is so near the people. It is self-governing village communities existed in
convention for the people to approach the local India from the earliest times in the form of
government for solving their problems both ‘sabhas’ (village assemblies). In the course of
§§§
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time, these village bodies took the shape of Therefore, for our leaders, independence
Panchayats (an assembly of five persons) and meant an assurance that there will be
these Panchayats resolved issues at the village decentralization of decision making, executive
level. Their role and functions kept on and administrative powers.
changing at different points of time. When the Constitution was prepared, the
In modern times, elected local govern- subject of local government was assigned to
ment bodies were created after 1882. Lord the States. It was also mentioned in the
Rippon, who was the Viceroy of India at that Directive Principles as one of the policy
time, took the initiative in creating these bod- directives to all governments in the country.
ies. They were called the local boards. How- Being a part of the Directive Principles of State
ever, due to slow progress in this regard, the Policy, this provision of the Constitution was
Indian National Congress urged the govern- non-justifiable and primarily advisory in its
ment to take necessary steps to make all local nature.
bodies more effective. Following the Govern-
in
It is felt that the subject of local
ment of India Act 1919, village panchayats
government including panchayats did not
were established in a number of provinces.
receive adequate importance in the
This trend continued after the Government of
India Act of 1935.
The independence of India should mean
the independence of the whole of India…
p.
Constitution. A few reasons can be advanced
here. Firstly, the turmoil due to the Partition
resulted in a strong unitary inclination in the
re
Constitution. Nehru himself looked upon
Independence must begin at the bottom. Thus
extreme localism as a threat to unity and
every village will be a republic… It follows
integration of the nation. Secondly, there was
therefore that every village has to be self-
a powerful voice in the Constituent Assembly
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LOCAL GOVERNMENTS 51
in
by the Parliament. The 73rd amendment is
necessary to establish elected local bodies. In about rural local governments (which are also
many instances, local bodies were dissolved known as Panchayati Raj Institutions or PRIs)
and the local government was handed over
to government officers. Many States had
indirect elections to most local bodies. In many
States, elections to the local bodies were
p.
and the 74th amendment made the provisions
relating to urban local government
(Nagarpalikas). The 73rd and 74th Amend-
ments came into force in 1993. We have notice
re
postponed from time to time. earlier that local govern-ment is a ‘State sub-
The Constitution of Brazil has created ject’. States are free to make their own laws on
States, Federal Districts and Municipal Coun- this subject. But once the Constitution was
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cils. Each of these is assigned independent amended, the States had to change their laws
powers and jurisdiction. Just as the Republic about local bodies in order to bring these in
cannot interfere in the affairs of the States conformity with the amended Constitution.
ar
(except on grounds provided by the constitu- They were given one year’s time for making
tion), states are prohibited from interfering in necessary changes in their respective State
the affairs of the municipal councils. This laws in the light of these amendments.
Sm
body need not be constituted in smaller States. Scheduled Tribes and backward castes. This
At the apex is the Zilla Panchayat covering the means that a seat may be reserved
entire rural area of the District. simultaneously for a women candidate and
The amendment also made a provision one belonging to the Scheduled Castes or
for the mandatory creation of the Gram Sabha. Scheduled Tribes. Thus, a Sarpanch would
The Gram Sabha would comprise of all the have to be a Dalit woman or an Adivasi
adult members registred as voters in the woman.
Panchayat area. Its role and functions are Subjects listed in the eleventh schedule
decided by State registration.
1. Agriculture, …
Elections
3. Minor irrigation, water management
All the three levels of Panchayat Raj and watershed development.
institutions are elected directly by the people. ….
The term of each Panchayat body is live years.
in
8. Small scale industries, including food
If the State government dissolves the processing industries.
Panchayat before the end of its five year term,
….
fresh elections must be held within six months
of such dissolution. This is an important
provision that ensures the existence of elected
local bodies. Before the 73rd amendment, in
p.
10.
11.
11.
Rural housing.
Rural housing.
Drinking water.
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many States, there used to be indirect elections ….
to the district bodies and there was no 13. Roads, culverts,…
provision for immediate elections after
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One third of the position in all panchayat 17. Education, including primary and
institutions are reserved for women. secondary schools.
Reservations for Scheduled Castes and 18. Technical training and vocational
Sm
LOCAL GOVERNMENTS 53
27. Welfare of the weaker sections, and would be responsible for conducting elections
in particular, of the Scheduled Castes to the Panchayati Raj institutions. Earlier, this
and the Scheduled Tribes. task was performed by the State
28. Public distribution system. administration which was under the control
of the State government. Now, the office of the
Transfer of Subjects State Election Commissioner is autonomous
Twenty-nine subjects, which were earlier like the Election Commissioner of India.
in the State list of subjects, are identified and However, the State Election Commissioner is
listed in the Eleventh Scheduled of the an independent officer and is not linked to nor
Constitution. These subjects are to be is this officer under the control of the Election
transferred to the Panchayat Raj institutions. Commissioner of India.
These subjects were mostly linked to State Finance Commission
development and welfare functions at the local
level. The actual transfer of these functions The State government is also required to
in
depends upon the State legislation. Each State appoint a State Finance Commission once in
decides how many of these twenty-nine five years. This Commission would examine
subjects would be transferred to the local the financial position of the local government
bodies.
The provisions of the 73rd amendment
p.
in the State. It would also review the
distribution of revenues between the State and
local governments on the one hand and
were not made applicable to the areas
re
inhabited by the Adivasi populations in many between rural and urban local governments
states of India. In 1996 a separate act was on the other. This innovation ensures that
passed extending the provisions of the allocation of funds to the rural local
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Panchayat system to these areas. Many governments will not be a political matter.
Adivasi communities have their traditional 74th Amendment
customs of managing common resources such
ar
as forests and small water reservoirs, etc. 74th amendment dealt with urban local
Therefore, the new act protects the rights of bodies or Nagarpalikas.
these communities to marriage their resources What is an urban area? It is very easy to
Sm
in ways acceptable to them. For the purpose, identify a big city like Mumbai or Kolkata, but
more powers are given to the Gram Sabhas of it is not so easy to say this about some very
these areas and elected village panchayats small urban areas that are somewhere between
have to get the consent of the Gram Sabha in a village and a town. The Census of India
many respects. The idea behind act is that local defines an urban area as having: (i) a minimum
traditions of self government should be population of 5000; (ii) at least 75 per cent of
protected while introducing modern elected male working population engaged in non-
bodies. This is only consistent with the spirit agricultural occupations and (iii) a density of
of diversity and decentralization. population of at least 400 persons per sq. km.
As per the 2001 census, nearly 28% of India’s
State Election Commissioners
population lives in urban areas.
The State government is required to In many ways the 74th amendment is a
appoint a State Election Commissioner who repetition of the 73rd amendment, except that
§§§
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it applies to urban areas. All the provisions of Panchayati Raj and Nagarpalika institutions
the 73rd amendment relating to direct across the country. The presence of these local
elections, reservations, transfer of subjects, institutions is by itself a significant
State Election Commission and State Finance achievement and would create an atmosphere
Commission are incorporated in the 74th and platform for people’s participation in
amendment also and thus apply to government.
Nagarpalikas. The Constitution also Local bodies have very little funds of
mandated the transfer of a list of functions their own. The dependence of local bodies on
from the State Government to the urban local the State and central governments for financial
bodies. These functions have been listed in the support has greatly eroded their capacity to
Eleventh Schedule of the Constitution. operate effectively. While rural-local bodies
IMPLEMENTATION OF 73RD raise 0.24% of the total revenues collected, they
AND 74TH AMENDMENTS account for 4% of the total expenditure made
in
by the government. So they earn much less
All States have now passed a legislation than they spend. That makes them dependent
to implement the provisions of the 73rd and on those who give them grants.
74th amendments. During the ten years since
these amendments came into force (1994-2004)
most States have had at least two rounds of
elections to the local bodies. States like
p.
Conclusion
This experience suggests that local
governments continue to be agencies imple-
re
Madhya Pradesh, Rajasthan and a few others menting the welfare and development
have in fact held three elections so far. schemes of the central and State government.
Today there are nearly 500 Zilla Giving more power to local government
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Panchayats, about 6,000 block or intermediary means-that we should be prepared for real
Panchayats, and 2,50,000 Gram Panchayats in decentra-lization of power. Ultimately,
rural India and over 100 city Corporations, democracy means that power should be
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1400 town Municipalities and over 2000 Nagar shared by the people; people in the villages
Panchayats in urban India. More than 32 lakh and urban localities must have the power to
members are elected to these bodies every five decide what policies and programmes they
Sm
years. Of these, at least 10 lakhs are women. want to adopt. Democracy means
In the State Assemblies and Parliament put decentralization of power and giving more
together we have less than 5000 elected and more power to the people. The laws about
representatives. With local bodes, the number local governments are an important step in the
of elected representatives has increased direction of democratization. But the true of
significantly. democracy is not merely in the legal
The 73rd and 74th amendments have provisions but n the practice of those
created uniformity in the structures of provisions.
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8
Elections and Democracy
Contents of The Chapter
§ RESERVATION OF CONSTITUENCIES ................................................................................ 58
§ FREE AND FAIR ELECTIONS ............................................................................................... 59
§ ELECTORAL REFORMS ........................................................................................................ 62
in
All citizens cannot take direct part in country. The method followed to choose these
making every decision. Therefore, represen- representatives is referred to as an election.
tatives are elected by the people. This is how
elections become important. Whenever we
think of India as a democracy, our mind
p.
Thus, the citizens have a limited role in taking
major decisions and in running the
administration. They are not very actively
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invariably turns to the last elections. Elections involved in making of the policies. Citizens
have today become the most visible symbol are involved only indirectly, through their
of the democratic process. We often elected representatives. In this arrangement,
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distinguish between direct and indirect where all major decisions are taken by elected
democracy. representatives, the method by which people
A direct democracy is one where the elect their representatives becomes very
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were considered examples of direct In the Lok Sabha elections of 1984, the
democracy. Congress party came to power winning 415
Many would consider local of the 543 Lok Sabha seats — more than 80%
governments, especially gram sabhas, to be of the seats. Such a victory was never achieved
closest examples of direct democracy. But this by any party in the Lok Sabha. What did this
kind of direct democracy cannot be practiced election show?
when a decision has to be taken by lakhs and The Congress party won four-fifths of the
crores or people. That is why rule by the seats. Does it mean that four out of five Indian
people usually means rule by people's voters voted for the Congress party? Actually
representatives. not. Take a look at the enclosed table. The
In such an arrangement citizens choose Congress party got 48% of the votes. This
their representatives who, in turn, are actively means that only 48% of those who voted,
involved in governing and administering the voted in favour of the candidates put up by
§§§
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the Congress party, but the party still managed the Constitution.
to win more than 80% of the seats in the Lok Example: The Congress party won
Sabha. Lqok at the performance of other greater share of seats than its share of votes
parties. The BJP got 7.4 per ç.ent votes but less because in many of the constituencies in which
than one per cent seats. How did that happen? its candidates won, they secured less than 50%
This happened because in our country we of the votes. If there are several candidates,
follow a special method of elections. Under the winning candidate often gets much less
this system: than 50% of the votes. The votes that go to all
• The entire country is divided into 543 the losing candidates go ‘waste’, for those
constituencies; candidates or parties get no seat from those
• Each constituency elects one votes. Suppose a party gets only 25 per cent
of the votes in every constituency, but
representative; and
everyone else gets even less votes. In that case,
Votes and seats won by some major parties the party could win all the seats with only 25
in
in Lok Sabha Election of 1984 per cent votes or even less.
Party Votes (%) Seats Proportional Representation
Congress
BJP
Janata
48.0
7.4
6.7
415
2
10
p. In Israel once the votes are counted, each
party is allotted the share of seats in the
parliament in proportion to its share of votes.
re
Lok Dal 5.7 3 Each party fills its quota of seats by picking
those many of its nominees from a preference
CPI (M) 5.7 22
list that has been declared before the elections.
Telugu Desam 4.1 30
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different parties. In India, we have adopted Why did India adopt the First system?
PR system on a limited scale for indirect
The answer is not very difficult to guess.
elections. The Constitution prescribes a third
If you have carefully read the box explaining
and complex variation of the PR system for
the Rajya Sabha elections, you would have
the election of President, Vice President, and
for the election to the Rajya Sabha and Vidhan noticed that it is a complicated system which
Parishads. may work in a small country, but would be
difficult to work in a sub-continental country
How does like India. The reason for the popularity and
PR work in Rajya Sabha elections success of the FPTP system is its simplicity.
A third variant of PR, the Single The entire election system is extremely simple
Transferable Vote System (STV) is followed for to understand even for common voters who
Rajya Sabha elections. Every State has a may have no specialized knowledge about
specific quota of seats in the Rajya Sabha. The politics and elections. There is also a clear
in
members are elected by the respective State choice presented to the voters at the time of
legislative assemblies. The voters are the elections.
MLAs in that State. Every voter is red to rank Voters have to simply endorse a
candidates according to her or his preference.
To be declared the winner, a candidate must
secure a minimum quota of votes, which is
p.
candidate or a party while voting. Depending
on the nature of actual politics, voters may
either give greater importance to the party or
re
determined by a formula: to the candidate or balance the two. The FPTP
system offers voters a choice not simply
Total Votes polled
between parties but specific candidates. In
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For example if 4 Rajya Sabha members party lists, As a result, there is no one
have to be elected by the 200 MLAs in representative who represents and is
Rajasthan, the winner would require (200/ responsible for one locality. In constituency
Sm
4+1=40+1) 41 votes. When the votes are based system like the FPTP, the voters know
counted it is done on the basis of first who their own representative is and can hold
preference votes secured by each candidate, him or her countable.
of which the candidate has secured the first More importantly, the makers of our
preference votes. If after the counting of all Constitution also felt that PR based election
first preference votes, required number of may not be suitable for giving a stable
candidates fail to fulfil the quota, the candidate government in a parliamentary system. This
who secured the lowest votes of first system requires that the executive has majority
preference is eliminated and his / her votes in the legislature. You will notice that the PR
are transferred to those who are mentioned as system may not produce a clear majority
second preference on those ballot papers. This because seats in the legislature would be
process continues till the required number of divided on the basis of share of votes. The
candidates are declared elected. FPTP system generally gives the largest party
§§§
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in
The experience of the working of the makers were aware of this difficulty and the
Constitution has confirmed the expectation of need to provide a way to ensure fair and just
the constitution makers. The FPTP system has representation to the oppressed social groups.
proved to be simple and familiar to ordinary
voters. It has helped larger parties to win clear
majorities at the centre and the State level. The
p. This issue was debated even before
independence and the British government had
introduced ‘separate electorates’. This system
system has also discouraged political parties
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meant that for electing a representative from
that get all their votes only from one caste or a particular community, only those voters
community. Normally, the working of the would be eligible who belong to that
FPTP system results in a two-party system.
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Scheduled Tribes. This provision was made Of late there has been a strong demand seeking
initially for a period of 10 years and as a result reservation of seats in the Lok Sabha and State
of successive constitutional amendments, has Assemblies for women. Given the fact that
been extended up to 2010. The Parliament can very few women are elected to representative
take a decision to further extend it, when the bodies, the demand for reserving one-third
period of reservation expires. The number of seats for women is increasingly being
seats reserved for both of these groups is in articulated. Reservation of seats for women
proportion to their share in the population of has been provided for in rural and urban local
India. Today, of the 543 elected seats in the Lok bodies. A similar provision for Lok Sabha and
Sabha, 79 are reserved for Scheduled Castes Vidhan Sabhas would require an amendment
and 41 are reserved for Scheduled Tribes. to the Constitution. Such an amendment has
Who decides which constituency is to be been proposed several times in the Parliament
reserved? On what basis is this decision taken? but has not yet been passed.
in
This decision is taken by an independent body FREE AND FAIR ELECTIONS
called the Delimitation Commission. The
Delimitation Commission is appointed by the The true test of any election system is its
President of India and works in collaboration ability to ensure a free and fair electoral
with the Election Commission of India. It is
appointed for the purpose of drawing up the
p.
process. If we want democracy to be translated
into reality on the ground, it is important that
the election system is impartial and
boundaries of constituencies all over the
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country. A quota of constituencies to be transparent. The system of election must also
reserved in each State is fixed depending on allow the aspirations of the voter to find
the proportion of SC or ST in that State. After legitimate expression through the electoral
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constituencies that have the highest Apart from laying down a method of
proportion of Scheduled Tribe population are elections, the Constitution answers two basic
reserved for ST. In the case of Scheduled questions about elections: Who are the voters?
Sm
Castes, the Delimitation Commission looks at Who can contest elections? In both these
two things. It picks constituencies that have respects our Constitution follows the well
higher proportion of Scheduled Caste established democratic practices.
population. But it also spreads these You already know that democratic
constituencies in different regions of the State. elections require that all adult citizens of the
This is done because the Scheduled Caste country must be eligible to vote in the
population is generally spread evenly elections. This is known as universal adult
throughout the country. These reserved franchise. In many countries, citizens had to
constituencies can be rotated each time the fight long battles with the rulers to get this
Delimitation exercise is undertaken. right. In many countries, women could get this
The Constitution does not make similar right very late and only after struggle. One of
reservation for other disadvantaged groups. the important decisions of the framers of the
§§§
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in
ability and worth of all adult citizens as equals India. These words in the Constitution are very
in the matter of deciding what is good for the important, for they give the Election
society, the country and for their own Commission a decisive role in virtually
constituencies. What is true of the right to vote
is also true of right to contest election. All
citizens have the right to stand for election and
p.
everything to do with elections. The Supreme
Court has agreed with this interpretation of
the Constitution. To assist the Election
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become the representative of the people. Commission of India there is a Chief Electoral
However, there are different minimum age Officer in every state. The Election
requirements for contesting elections. For Commission is not responsible for the conduct
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example, in order to stand for Lok Sabha or of local body elections. The State Election
Assembly election, a candidate must be at least Commissioners work independently of the
25 years old. There are some other restrictions Election Commission of India and each has its
ar
also. For instance, there is a legal provision that own sphere of operation.
a person who has undergone imprisonment The Election Commission of India can
for two or more years for some offence is either be a single member or a multi-member
disqualified from contesting elections. But
Sm
Commissioner and the other Commissioners to-date voters’ list. It makes every
about who had how much power. The matter effort to ensure that the voters’ list is
had to be settled by the Supreme Court. Now free of errors like nonexistence of
there is a general consensus that a multi- names of registered voters or
member Election Commission is more existence of names of those non-
appropriate as power is shared and there is eligible or non-existent.
greater accountability. • It also determines the timing of
The Chief Election Commissioner (CEC) elections and prepares the election
presides over the Election Commission, but schedule. The election schedule
does not have more powers than the other includes the notification of elections,
Election Commissioners. The CEC and the two date from which nominations can be
Election Commissioners have equal powers to filed, last date for filing nominations,
take all decisions relating to elections as a last date of scrutiny, last date of
withdrawal, date of polling and date
in
collective body. They are appointed by the
President of India on the advice of the Council of counting and declaration of results.
of Ministers. It is therefore possible for a ruling • During this entire process, the
party to appoint a partisan person to the
Commission who might favour them in the
elections. This fear has led many to suggest
p. Election Commission has the power
to take decisions to ensure a free and
fair poll. It can postpone or cancel the
that this procedure should be changed. Many election in the entire country or a
re
persons have suggested that a different specific State or constituency on the
method should be followed that makes grounds that the atmosphere is
consultation with the leader of opposition and vitiated and therefore, a free and fair
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the Chief Justice of India necessary for the election may not be possible. The
appointment of CEC and Election Commission also implements a
Commissioners. model. code of conduct for parties
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The Constitution ensures the security of and candidates, It can order a re-poll
the tenure of the CEC and Election in a specific constituency. It can also
Commissioners. They are appointed for a six order a recount of votes when it feels
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year term or continue till the age of 65, that the counting process has not
whichever is earlier. The CEC can be removed been fully fair and just.
before the expiry of the term, by the President • The Election Commission accords
if both Houses of Parliament make such a recognition to political parties and
recommendation with a special majority. This allots symbols to each of them.
is done to ensure that a ruling party cannot
Special Majority
remove a CEC who refuses to favour it in
elections. The Election Commissioners can be Special majority means:
removed by the President of India. The • Two-thirds majority of those present
Election Commission of India has a wide and voting, and
range of functions. • Simple majority of the total
• It supervises the preparation of up- membership of the House.
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The Election Commission has very having to postpone the election process mid-
limited staff of its own. It conducts the way in 1991 when the ex-Prime Minister Rajiv
elections with the help of the administrative Gandhi was assassinated during
machinery. However, once the election process campaigning. In 2002, the Election
has begun, the commission has control over Commission faced another critical situation
the administration as far as election related when the Gujarat Assembly was dissolved and
work is concerned. During the election elections had to be conducted. But the Election
process, the administrative officers of the State Commission found that unprecedented
and central governments are assigned election violence in that State had made it impossible
related duty and in this respect, the Election to hold free and fair elections immediately.
Commission has full control over them. The
ELECTORAL REFORMS
EC can transfer the officers, or stop their
transfers; it can take action against them for No system of election can ever be perfect.
failing to act in a non-partisan manner. And in actual election process, there are bound
in
Over the years, the Election Commission to be many flaws and limitations. Any
of India has emerged as an independent democratic society has to keep searching for
authority which has asserted its powers to mechanisms to make elections free and fair to
ensure fairness in the election process. It has
acted in an impartial and unbiased manner in
p.
the maximum. With the acceptance of adult
suffrage, freedom to contest elections, and the
establishment of an independent Election
order to protect the sanctity of the electoral
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process. Commission, India has tried to make its
The record of Election Commission also election process free and fair. However, the
shows that every improvement in the experience of the last fifty five years has given
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functioning of institutions does not require rise to many suggestions for reforming our
legal or constitutional change. It is widely election system. The Election Commission,
agreed that the Election Commission is more political parties, various independent groups,
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independent and assertive now than it was till and many scholars have come up with
twenty years ago. This is not because the proposals for electoral reform. Some of these
powers and constitutional protection of the suggestions are about changing the
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• There should be stricter provisions to consensus, there are limits to what the
control the role of money in electoral laws and formal provisions can do.
politics. The elections expenses Free and fair elections can be held
should be paid by the government only if the candidates, the parties and
out of a special fund. those involved in the election process
• Candidates with any criminal case agree to abide by the spirit of
should be barred from contesting democratic competition.
elections, even if their appeal is Apart from legal reforms, there are two
pending before a court. other ways of ensuring that elections reflect
• There should be complete ban on the the expectations and democratic aspirations
use of caste and religious appeals in of the people. One is, of course, that people
the campaign. themselves have to be more vigilant, more
• There should be a law to regulate the actively involved in political activities.
in
functioning of political parties and to But there are limits to the extent to which
ensure that they function in a ordinary people can engage in politics on a
transparent and democratic manner. regular basis. Therefore, it is necessary that
• These are but a few suggestions.
There is no consensus about these
suggestions. Even if there was a
p.
various political institutions and voluntary
organisations are developed and are active in
functioning as watchdog for ensuring free and
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fair elections.
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9
Center State Relation
Contents of The Chapter
§ LEGISLATIVE RELATIONS ................................................................................................... 64
§ ADMINISTRATIVE RELATIONS ........................................................................................... 66
§ FINANCIAL RELATIONS ...................................................................................................... 69
§ CENTRE - STATE RELATIONS: CONFLICT ZONE .............................................................. 70
in
§ PUNCHHI COMMISSION ON CENTRE - STATE RELATIONS ............................................ 77
§ FINANCE COMMISSION VS PLANNING COMMISSION .................................................... 79
Union Government, they draw their authority make law for the whole or any part of
directly from the Constitution and are free to the territory of India with regard to
operate in the field allocated to them by the subjects mentioned in the Union List.
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Constitution. At the outset, it may be noted This list contains 97 subjects like
that the Constitution of India has made most
defence, foreign affairs, currency,
elaborate provisions regarding relationship
union duties, communication, etc.
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in
States. one year by means of a subsequent
• If the law of the Union Government resolution. It may be observed that
and the State Government come into this provision has been used only in
clash with each other the former
prevails. However, a State law on the
Concurrent List shall prevail over the
p. very few cases and has not added to
the powers of the Parliament.
b. The Parliament can legislate on the
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Central law if the same had been subjects mentioned in the State List
reserved for the consideration of the when the Proclamation of Emergency
President and his consent had been has been made by the President on
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in
states by Parliament by law and if Union and the State Governments
resolutions to that effect are passed by extends to the subjects in the union list
and state list respectively, which
legislatures of those states. Thereafter,
any act passed by the Parliament shall
apply to such states and to any other
state by which it is adopted
p. clearly establishes the superiority of
the Union Government in the
administrative sphere as well. In
addition, the Constitution contains a
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afterwards by resolution passed in number of provisions which accord a
that behalf by the house, or, where position of superiority to the Union
there are two houses, by each house Government.
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of the legislature of that state. The • Article 256 lays down that the
Parliament also reserves the right to executive power of every state shall
amend or repeal any such act. be so exercised as to ensure
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e. The Parliament can make law for the compliance with the laws made by
Parliament and any existing laws
whole or any part of the territory of
which apply in that State, and the
India for implementing any treaty,
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It can also ask the state Governments Services etc. further accords a
to construct and maintain means of predominant position to the Union
communication as part of its functions Government. The members of these
services are recruited and
with respect to naval, military and air
force works.
• It can also issue them necessary
p. appointment held by the Union Public
Service Commission.
• The members of these services are
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directions regarding the measures to
posted on key posts in the states, but
be taken for the protection of the
remain loyal to the Union
railways within the jurisdiction of the
Government. The right to create new
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disputes from the jurisdiction of the Government of the state and all
Supreme Court or other Courts. powers of the State other than those
exercised by the legislature and High
Responsibility of the Union
Court of the State.
• Under the Constitution, it is the • The President can also declare that the
responsibility of the Union powers of the state legislature shall be
Government to protect the states from exercised under the authority of the
external aggression and internal Parliament and make such incidental
disturbances. This leaves much scope and consequential provisions as
for Centre’s interference in the spheres appear to him to be necessary or
of the state. desirable for giving effect to the
• The President can declare national objects of the Proclamation.
emergency in case of war or possible
in
Role of Governors
threat of war as well as armed
rebellion. During this emergency the • The Central Government exercises
Centre can give directions to the states effective administrative control over
as to the manner in which their
executive power is to be exercised.
v The President can authorise the
p. states through the Governors of State
who are appointed by the President
and hold office during his pleasure.
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Parliament to make laws with respect The Governors can reserve certain
to any matter including power to bills passed by the State legislatures
make laws conferring powers and for the consideration of the President.
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imposing duties or authorising the • President can also issue directions and
conferring of power and the orders to the Governor which are
imposition of duties upon the Union binding on him. Thus, the Centre can
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officers and authorities of the Union exercise effective control over the
as respects that matter unmindful of States through the Government to
the fact, that the matter does not topple State Governments which are
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in
judges also rests with the Parliament superintendence and control of the
which can pass necessary resolution state government concerned, unless
for their impeachment and specifically directed by the Central
recommend to the President to take
necessary action. The States are in no
way connected with the appointment
p. Government. This change naturally
greatly restricted the autonomy of the
states and was resented by the states.
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or removal of the judges of the Ultimately this provision was
Supreme Court or High Court. nullified by the 44th Amendment.
• It is thus, evident that in the
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Government for subsidies and contributions. are levied by the Union Government
The distribution of financial resources in India but the actual revenue from them is
has broadly been made as follows. collected and appropriated by the
1. Taxes exclusively assigned to the States; (i) stamp duties on bills of
Union: Income from certain subjects exchange, cheques, promissory notes,
like customs and export duties, bills of landing, letters of credit,
income tax, excise duty on tobacco, policies of insurance, transfer of
jute, cotton etc., corporation tax, taxes shares etc.; (ii) Excise duties on
on capital value of assets of medicinal toilet preparation
individuals and companies; estate containing alcohol or opium or Indian
duty and succession duty in respect hemp or other narcotic drugs.
of property and other than 4. Taxes levied and collected by the
agricultural land; and income from Union but assigned to states: The
the earning departments like the taxes in this category are levied and
in
railways and postal departments have collected by the Union Government
been exclusively assigned to the although they are subsequently
Union Government by the handed over to the states where from
Constitution.
2. Taxes exclusively assigned to States:
Income from land revenue, stamp
p. they have been collected. Such taxes
included duties in respect of
succession to property other than
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duty except on documents included agricultural land; state duty in respect
in the Union List; succession duty and of property other than agricultural
estate duty in respect of agricultural land terminal taxes on goods or
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but shared with the states on an definite code for the exercise of
equitable basis. The basis of discretionary powers. Governors role
distribution is determined by the in the government of particular state
Parliament through a law. often based on ruling party of the
CENTRE - STATE RELATIONS: centre , This is the reason the ruling
CONFLICT ZONE party reshuffle the post whenever it
forms new government .
Arising out of the nature of Centre - State
relations as well as difference in political Misuse of Article 356
ideology of the ruling parties at the Centre and
• The provision for imposition of
States, following major areas of tensions have
emerged in Indian federalism. President’s rule in States under Article
356 was made to deal with serious
• Role of Governor as a representative
situations as a life saving device to be
of the central Government with
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used as a measure of last resort.
regard to appointing and dismissing
However, in practice this article has
State ministers and dissolution of the
been so frequently used for purely
State Assemblies.
• Misuse of powers of imposition of
President’s Rule under Article 356.
p. partisan interests that it has become
almost poisonous for Indian political
system.
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• Reservation of Bills for the • The use of Article 356 rests on the
consideration of the President under subjective satisfaction of the
Article 201. President. President’s rule can be
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in
direction of the Central Government. permanent feature of income tax
The main purpose of this provision is structure. Another loophole in
that the Centre wants to keep a watch taxation system, on account of which
Revenue
on the activities of the States.
p. states suffers, is the cooperate tax,
which keeps on expanding and is in
the exclusive purview of the Centre.
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• One of the most controversial areas
The states therefore have to be
between the Centre and the State in a
dependent on Central assistance.
federal system is that of financial
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fiscal autonomy has now become one entirely to the State, Articles 280 and
of the most debated issues of the 281. provide for the appointment of
Indian federation. The tension an independent Finance Commission
Sm
between Centre and States with every fifth year or earlier as the
regard to fiscal relations arises President of India desires.
because of:
• The provision of Finance Commission
o Comparative powers of taxation,
was to regulate, co-ordinate and
o Statutory versus discretionary
integrate the finances of the
grants, and
Government of India and the State
o Economic planning.
Government. Originally, the Finance
Fiscal Matters Commission was intended to cover all
• Sources of revenue to the Centre are the financial transfers from the Centre
relatively elastic and expansive as to States.
against those of the states. The Centre • However, slowly Planning
§§§
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Commission has also been brought in questioned the need for the Centre to
for the purpose and now it plays a wield heavy financial clout in the
rather important part in devolution of shape of discretionary grants. There
resources from the Centre to the are about the inherent danger of their
States. Since the Planning being used as a political weapon
Commission is a completely Central against a State that happens to be out
institution and the politically of favour with the Centre.
influenced States have a sense of
Economic Planning
discrimination in location of grants.
• States are sore not only because of the • It is generally agreed that the process
fact that the Planning Commission’s of planning in India has tended to
authority to determine the scope and push the political system to greater
pattern of a major portion of Central centralisation due to both the central
in
assistance to States has relegated the control over resources for
role of Finance Commission to a development and the preponderance
subsidiary one but also because the of the centralised planning machinery.
Centre does not seem to be much
serious even about the reduced role
of the Finance Commission. In
p.
• The gravest and most harmful
consequence of the atrophy of the
state’s domain in the economic field
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addition, provision for grants-in-aid is in regard to industries and
by the Centre is purely a political and economic planning.
arbitrary means of devolution and • Similarly it is alleged that in the name
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centre has been making use of this of national planning, the centre for
more and more and that too in a political considerations has been
controversial manner. inordinately delaying viable and
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§§§
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Government, the trend towards between the Union and the States in
centralization has not been weakend. regard to powers, functions and
• In this context the demand for a responsibilities in all spheres and
greater and more meaningful recommend appropriate charges and
devolution of power has been measures.
assertively and more stridently • The Commission came to be known
articulated over the years. The as the Sarkaria Commission on
Administrative Reforms Commission Centre-State Relations after the name
(appointed in 1967) recommended of its Chairman R.S. Sarkaria. The
that powers should be delegated to
Commission was asked to keep in
the maximum extent to the States.
view the social and economic
• It also expressed the opinion that developments that have taken place
centralized planning had tended over the years as also the scheme and
in
towards excessive interference in the the framework of the Constitution
freedom of States to work out their
and the need for preserving the unity
policies and programmes.
and integrity of the country.
• The Commission made some
recommen-dations with regard to the
office of Governor and also suggested
p.
• The Sarkaria Commission in
submitted its report on October 27,
1987. The Commission favoured a
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the need to establish an Inter-State
Council under Article 263 of the strong Centre as the only safe-guard
Constitution. The recommendations to national integrity which was being
threatened severely in the light of
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in
Parliament to legislate on the State concerned.
List, by the concurrence of the Rajya • Whenever the Union proposes to
Sabha on a matter deemed by it to be undertake legislation with respect to
of national interest. This short circuit a matter in the Concurrent List, there
the amending process laid down in
Article 368, and unilaterally transfers
a subject from the State List to the
p. should be prior consultation not only
with the State government,
individually, but also collectively.
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Concurrent List. A better and more There should be regular consultations
equitable alternative is any how on the management of All India
available in Article 252 (1) even if it Services between the Union and the
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for the transfer of seventy five per cent be reformed assuring at the same time
of the total revenue raised by the of full and effective consultation with
Centre from all sources, to the States. the States at all stages of the planning
process so that they feel that their role
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§§§
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in
duties under Article 269 and the award of the tribunal the same
complementary measures, the State sanction and force as that of a decree
governments would be required to of a Supreme Court.
(Taxes levied under this article are
collected by the Union Government and
assigned to the States).
p.
• On top of this elaborate scheme of
establishing cooperative Union State
relations, was the recommendation
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• In order to ensure effective relating to the setting up of a
consultation with the State Chief
permanent Inter State Council under
Minister, in the selection of a person
to be appointed as Governor, the Article 263 of the Constitution to
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§§§
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in
arrangements between the Union and
Council of Ministers to be nominated
States as per the Constitution of India,
by the Prime Ministers or Ministers of
the healthy precedents being
State having independent charge in the
Union Government when any item
under their charge comes up for
discussion. The Prime Minister is the
p. followed, various pronouncements of
the Courts in regard to powers,
functions and responsibilities in all
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spheres including legislative relations,
Chairman of the Council.
administrative relations, role of
PUNCHHI COMMISSION ON governors, emergency provisions,
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keeping in view the sea changes that have been including inter-state river water and
taken place in the polity and economy of India recommend such changes or other
since the Sarkaria Commission had last looked measures as may be appropriate
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at the issue of Centre-State relations over two keeping in view the practical
decades ago. difficulties.
Composition of Committee (ii) In examining and reviewing the
working of the existing arrangements
Chairman: Shri Justice Madan Mohan between the Union and States and
Punchhi (Retd.) Former Chief Justice of India making recommendations as to the
Members changes and measures needed, the
Commission will keep in view the
• Shri Dhirendra Singh, Former social and economic developments
Secretary to the Government of India that have taken place over the years
• Shri Vinod Kumar Duggal Former particularly over the last two decades
Secretary to the Government of India and have due regard to the scheme
§§§
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• The impact of the recommendations
Commission shall have particular made by the 8th to 12th Finance
regard, but not limit its mandate to the Commissions on the fiscal relations
following:
• The role, responsibility and
jurisdiction of the Centre vis-a-vis
States during major and prolonged
p. between the Centre and the States,
especially the greater dependence
of the States on devolution of funds
from the Centre.
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outbreaks of communal violence, • The need and relevance of separate
caste violence or any other social taxes on the production and on the
conflict leading to prolonged and sales of goods and services
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rivers, that would normally take 15- of State Governments to adopt the
20 years for completion and hinge relevant Sarkaria Commission’s
vitally on the support of the States. recommendation in chapter XVIII of
• The role, responsibility and its report.
jurisdiction of the Centre vis-a-vis • The need for setting up a Central
States in promoting effective Law Enforcement Agency
devolution of powers and empowered to take up suo moto
autonomy to Panchayati Raj investigation of crimes having inter-
Institutions and Local Bodies State and/or international
including the Autonomous Bodies ramifications with serious
under the 6th Schedule of the implications on national security.
Constitution within a specified • The feasibility of a supporting
period of time. legislation under Article 355 for the
• The role, responsibility and purpose of suo moto deployment of
§§§
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in
Sarkaria Commission had last
looked into these issues. by the President.
• The Commission was to examine 2. Parliament may by law determine the
and review, among other things, the
working of the existing
arrangements between the Centre
p. qualifications which shall be requisite
for appointment as members of the
Commission and the manner in which
and the States as per the
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they shall be selected.
Constitution, the healthy
3. It shall be the duty of the Commission
precedents being followed, various
to make recommendations to the
pronouncements of the courts with
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to allocate every possible source of revenue the States of the respective shares of
either to the Union or the states. For the such proceeds;
purpose of allocation of certain sources of The principles which should govern
revenue, between the Union and the state the grants-in-aid of the revenues of
Governments, the Constitution provides for the States out of the Consolidated
the establishment of a Finance Commission. Fund of India;
On the other hand, the Planning Commission • The measures needed to augment
is neither a constitutional body nor even the Consolidated Fund of a State to
statutory. Moreover, Planning Commission supplement the resources of the
does not have representation of States. Mutual Panchayats in the State on the basis
overlapping of these two bodies is often a of the recommendations made by
source of tensions in Centre - State relations. the Finance Commission of the
State;
§§§
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in
money should be allotted to the
them.
various states for expenditure on
• Ever since the inauguration of the
various items.
Constitution, Finance Commissions
have been appointed at regular
intervals regarding sharing of
revenues between the Centre and
p.
• As the Planning Commission is
headed by the Prime Minister (who
acts as its chairman) and some of the
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the States. So far, thirteen (13) such important ministers of the Union
Commissions have been set up. Cabinet are also associated with it, has
• One notable feature of the Finance virtually become a handmade of the
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Commission.
• Even issues like debt burden of the adjunct to the Planning Commission,
state, financing of relief expenditure to review the plans also works more
and returns of public sector or less as an agency of the Centre, even
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undertakings have been placed though the Chief Ministers of the State
under the purview of Finance are also its members. It has been alleged
Commissions. Further, the Union that the Planning Commission plays
Government has mostly accepted more important role in the allocation of
the recommendations of the Finance funds and grants to the state than the
Commissions. Finance Commission.
• Despite this liberal attitude of the
Union Government in financial Controversy
matters, certain states have • It has been alleged by critics that the
disapproved of the existing role assigned to the Finance
arrangement for distribution of Commission has been greatly
resources and emphasizes that the undermined to the creation of the
§§§
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in
Commission. Similarly the a growing demand for allocation of
discretionary grants are also regulated more financial resources to the states
by the Finance Ministry and the so that they may be able to enjoy
Planning Commission and the greater autonomy.
p.
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10
Emergency Provisions
Contents of The Chapter
§ NATIONAL EMERGENCY (ART. 352) ................................................................................... 82
§ PROCLAMATION OF PRESIDENT’S RULE (ART. 356) ....................................................... 83
§ FINANCIAL EMERGENCY (ART. 360) ................................................................................. 84
in
The term ‘Emergency’ may be defined as external aggression or armed rebellion, he may
“a difficult situation arising suddenly and issue a Proclamation of Emergency for the
demanding immediate action by public
authorities under powers specially granted to
them by the Constitution or otherwise to meet
p.
whole of India or part thereof. Every
Proclamation of Emergency is required to be
laid before each House of Parliament, and is
such exigencies”. to cease to operate at the expiration of one
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month from the date of its issue by the
Types of Emergency
President unless it has in the meantime been
Broadly, the Emergency provisions of the approved by resolutions of both the House.
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EMERGENCY PROVISIONS 83
Article 353, read with article 365 provides It is the constitutional duty of the Union
that once Emergency is proclaimed, the to protect its States against external aggression
executive power of the union extend to giving and internal disturbance and to ensure that
of directions to any State in regard to the the Government of every State is carried on
exercise of the executive power of the State and in accordance with the Constitution (Article
failure to comply with the directions would 355). If on receipt of a Report from the
constitute enough justification for imposition Governor or otherwise, the President is
of President’s rule under Article 356. During satisfied that the Government of the State
the operation of Emergency, the legislative cannot be carried on in accordance with the
power of Parliament also extends to conferring Constitution or that the constitution taking
powers and imposing duties by law on Union over any of the functions and powers of the
in
authorities in matters not otherwise included State Government including those of the
in the Union List. Under article 354, the Governor and other State authorities. The
application of provisions relating to satisfaction of the President, of course, means
distribution of revenues articles (268 to 279)
may be suitably modified during the period
of the operation of Emergency. Article 358,
p.
the satisfaction of the Union Government and
President’s rule is actually rule by the Union
Government. If any State fails to comply with
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provides for the suspension of the provisions directions issued by the Union under article
of ‘article 19 during emergencies while article 256, 257 or 353, the President may hold that
359 authorises the, President to suspend by there has been a failure of constitutional
machinery in that State and may take over the
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in respect of conviction for offences and must cease to operate at the expiry of two
protection of life and liberty in articles 20 and months unless approved by resolutions of the
21. two Houses of the Parliament. After
Parliament’s approval also, a Proclamation
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in
of India or of any part of its territory is passed by State legislatures. The President
threatened. Such a Proclamation may be may also direct reduction in salaries and
revoked or varied by a subsequent allowances of all those serving in connection
Proclamation. It has to be laid before both
Houses of Parliament and ceases to operate at
the expiration of two months unless
p.
with the affairs of the Union including judges
of the Supreme Court and the High Courts.
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meanwhile approved by resolutions of the two
House.
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EMERGENCY PROVISIONS 85
11
Amendment of Constitution
Contents of The Chapter
§ AMENDMENT PROCEDURE ................................................................................................ 85
§ AMENDMENTS IN BRIEF ..................................................................................................... 85
Part XX of the Constitution of India deals the total number of members present
in
with the Amendment of the Constitution. The and voting, which should not be less
Article 368 specifies the power of Parliament than half of the total membership of
to amend the constitution and the procedure the house.
of it. It is also mentioned in the Article that
there will be no limitation on the constituent
power of the Parliament for amending it by
p.• By special majority of the Parliament
and ratification by at least half of the
state legislatures by special majority.
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adding, removing or improving the provisions
made in it. The method of an amendment to After this, it is sent to the President
the Constitution is considered to be a highly for his assent.
complicated procedure. Amendment can be
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AMENDMENTS IN BRIEF
made by various methods, which have been
modeled based on the South African • 1st Amendment Act, 1951: Amended
Constitution. Since the enactment of the Articles - 15, 19, 85, 87, 174, 176, 341,
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Constitution of India on 26 November 1949, 342, 376. Inserted Articles - 31A, 31B.
there have been 94 amendments made to it till Added Schedule - IXth
2006. Number of Bills are introduced before • 2nd Amendment Act, 1952: Amended
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• 9th Amendment Act, 1960: Act
Schedule.
further amend the Constitution of
India to give effect to the transfer of • 17th Amendment Act, 1964:
certain territories to Pakistan in
pursuance of the agreements entered
into between the Governments of
p.Amended Art. 31A, Entries 21-64
added to the IXth Schedule.
• 18th Amendment Act, 1966: Added
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India and Pakistan in year 1958, 1959 explanation to Art. 3, to clarify that the
and 1960. Parliament has the power to create a
• 10th Amendment Act, 1961: Article new state or Union Territory.
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240 and First Schedule amended to Provision was made for formation of
incorporate Dadra and Nagar Havelli two states Punjab and Haryana.
as a Union Territory. • 19th Amendment Act, 1966:
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AMENDMENT OF CONSTITUTION 87
• 24th Amendment Act, 1971: Inserting amendment of 1st and 4th Schedule.
cl. (4) in Art. 13; amending Art. 368. Inserted a new Article 371F.
The object of the amendment was to • 37th Amendment Act, 1975:
clarify that the Parliament has the Amended Articles 239A and 240.
power to amend every’ part of the
• 38th Amendment Act, 1975:
Constitution.
Amended Articles 123, 213, 239B, 352,
• 25th Amendment Act, 1971: 356, 359 and 360.
Amended Article 31 and inserted new
• 39th Amendment Act, 1975:
Art. 31C.
Amended Article 329 and 9th
• 26th Amendment Act, 1971: Schedule. Substituted a new Article
Amended Article 366. Omitted for Art. 71 and inserted a new Article
Articles 291 and 362 and inserted a 329A.
new Article 363A.
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• 40th Amendment Act, 1976:
• 27th Amendment Act, 1971: Substituting Art. 297; adding entries
Amended Articles 239A and 240. 125 to 188 to Schedule IX.
Inserted new Articles 239B and 371C.
• 28th Amendment Act: Inserted new
Article 312A and omitted article 314.
p.
• 41st Amendment Act, 1976: Amended
Article 316.
• 42nd Amendment Act, 1976: Known
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• 29th Amendment Act, 1972: as a “mini Constitution” in itself.
Amended Ninth Schedule. Amended the Preamble and Articles
• 30th Amendment Act, 1972: 31C, 39, 55, 74, 77, 81, 82, 83, 100, 102,
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Amended Article 133. 105, 118, 145, 166, 170, 172, 189, 191,
• 31st Amendment Act, 1973: Amended 194, 208, 217, 225, 227, 228, 311, 312,
330, 352, 353, 356, 357, 358, 359, 366,
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fundamental right and made legal • 56th Amendment Act, 1987: Inserted
right. Amended Art. 352, 132, 134 and Art. 371-I. Goa was made a state and
a new Article 134A inserted. Art. 21 provision for a state assembly was
and 22 further strengthened. inserted, and Daman and Diu as a
Union Territory.
• 45th Amendment Act, 1980: Extended
• 57th Amendment Act, 1987: As the
reservation under Art. 334 from 30 to
51st Amendment Act could not be
40 years. fully implemented, the 57th
• 46th Amendment Act, 1982: Amendment Act was carried out.
Amending Arts. 269, 286, 366. List I, • 58th Amendment Act, 1987:
relating to Sales Tax.
Amended the heading of Part XXII
• 47th Amendment Act, 1984: Added and inserted anew Article 394A.
entries 189-202, to the Ninth Schedule.
• 59th Amendment Act, 1988:
• 48th Amendment Act, 1984: Inserted
in
Amended Article 356 and insertion a
provision to cl. (5) of Art. 256 to extend
President’s Rule in Punjab. new Article 359A.
• 49th Amendment Act, 1984: • 60th Amendment Act, 1988:
Amended Art. 244. Fifth & Sixth
Schedules. Sixth Schedule was made
applicable to Tripura.
p.Amended Article 276.
• 61st Amendment Act, 1988: Amended
Article 326.
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• 50th Amendment Act, 1984: • 62nd Amendment Act, 1989:
Substituted Art. 33. Its scope was
Amended Art. 334, to increase the
enlarged and many other forces were
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It was declared that a member who brought after 59th Amendment Act,
defects from his party would become 1988 were no longer required.
subject to disqualification. • 64th Amendment Act, 1990:
• 53rd Amendment Act, 1986: Added Amended Art. 356 to facilitate the
Art. 377G. Mizoram was made a state. extension of the proclamation issued
• 54th Amendment Act, 1986: under cl. (1) of Art. 356 on 11 May 1987
Amended Articles 125, 221 and 2nd upto a total period of three years and
Schedule. six months in relation to Punjab.
• 55th Amendment Act, 1986: Inserted
• 65th Amendment Act, 1990:
a new Article 371H with special
Amended Art. 338 to provide for a
provisions for the State of Arunachal
Pradesh. National Commission for Scheduled
Castes and Scheduled Tribes. Wide
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AMENDMENT OF CONSTITUTION 89
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• 69th Amendment Act, 1991: Inserted Amended Article 243M.
new Articles 239AA and 239AB. • 84th Amendment Act, 2001:
• 70th Amendment Act, 1992: Amended provisions to Art. 82 and
Amended Art. 54 and 368 to include
Members of Legislative Assemblies of
Union Territories of Delhi and
p.
•
170(3) of the Constitution.
85th Amendment Act, 2001:
Amended Article 16.
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Pondicherry in the Electoral College. • 86th Amendment Act, 2002: Inserted
• 72nd Amendment Act, 1992: Inserted new Art. 21A after Art. 21 to make
cl. (3B) in Art. 332. education a fundamental right for
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243A to 2430. Made Panchayati Raj figures “2001” in cl. (3), in the
Institutions constitutional. provision in cl. (ii) of Art. 81, in 3rd
• 74th Amendment Act, 1992: Added provision in cl. (ii) of Art. 82, in cl. (2),
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43 B.i.e. Promotion of Co-operative
membership of Council of Ministers societies and added part-IX B i.e., the
in the state to fifteen per cent of the Co-operative, Societies.
total numbers of the Legislative
Assembly of that state.
• 92nd Amendment Act, 2003:
p.
Amendments which were Later Repealed
Some of the amendments introduced
earlier have been repealed through subsequent
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Addition of languages, “Bodo”,
“Dogri”, “Maithili” and “Santhali” in amendments. This process started with the
the Eighth Schedule of the 43rd Amendment Act of 1977, which removed
the restrictions imposed on the Supreme Court
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Constitution.
and the High Court jurisdiction with regard
• 93rd Amendment Act, 2005: to the constitutional validity of laws and
Amended Article 15 to enable the deleted the provisions regarding anti-national
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AMENDMENT OF CONSTITUTION 91
12
Seventh Schedule (Article 246)
Contents of The Chapter
§ LIST I—UNION LIST ............................................................................................................. 91
§ LIST II-STATE LIST ............................................................................................................... 95
§ LIST III—CONCURRENT LIST ............................................................................................. 98
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LIST I—UNION LIST 5. Arms, firearms, ammunition and
explosives.
1. Defence of India and every part
thereof including preparation for
defence and all such acts as may be
conducive in times of war to its
p.6. Atomic energy and mineral resources
necessary for its production.
7. Industries declared by Parliament by
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prosecution and after its termination law to be necessary for the purpose
to effective demobilisation. of defence or for the prosecution of
2. Naval, military and air forces; any war.
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privileges and liabilities of the 10. Foreign affairs; all matters which
members of such forces while on such bring the Union into relation with any
deployment. foreign country.
3. Delimitation of cantonment areas, 11. Diplomatic, consular and trade
local self-government in such areas, representation
the constitution and powers within
12. United Nations Organisation.
such areas of cantonment authorities
and the regulation of house 13. Participation in international
accommodation (including the conferences, associations and other
control of rents) in such areas. bodies and implementing of decisions
made thereat.
4. Naval, military and air force works.
14. Entering into treaties and agreements
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21. Piracies and crimes committed on the and regulation of such education and
high seas or in the air; offences against training provided by States and other
the law of nations committed on land agencies.
or the high seas or in the air.
22. Railways.
p.
30. Carriage of passengers and goods by
railway, sea or air, or by national
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23. Highways declared by or under law waterways in mechanically propelled
made by Parliament to be national vessels.
highways. 31. Posts and telegraphs; telephones,
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24. Shipping and navigation on inland wireless, broadcasting and other like
waterways, declared by Parliament by forms of communication.
law to be national waterways, as 32. Property of the Union and the revenue
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financial corporations, but not
mines and oilfields.
including co-operative societies.
56. Regulation and development of inter-
44. Incorporation, regulation and
winding up of corporations, whether
trading or not, with objects not
confined to one State, but not
p. State rivers and river valleys to the
extent to which such regulation and
development under the control of the
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Union is declared by Parliament by
including universities.
law to be expedient in the public
45. Banking. interest.
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46. Bills of exchange, cheques, promissory 57. Fishing and fisheries beyond
notes and other like instruments. territorial waters.
47. Insurance. 58. Manufacture, supply and distribution
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48. Stock exchanges and futures markets. of salt by Union agencies; regulation
49. Patents, inventions and designs; and control of manufacture, supply
copyright; trademarks and and distribution of salt by other
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the Victoria Memorial and the Indian 68. The Survey of India, the Geological,
War Memorial, and any other like Botanical, Zoological and
institution financed by the Anthropological Surveys of India;
Government of India wholly or in part Meteorological organisations.
and declared by Parliament by law to 69. Census.
be an institution of national
70. Union Public Service; All-India
importance.
Services; Union Public Service
63. The institutions known at the Commission.
commencement of this Constitution as
71. Union pensions, that is to say,
the Benares Hindu University, the
pensions payable by the Government
Aligarh Muslim University and the
of India or out of the Consolidated
[Delhi University; the University
Fund of India.
established in pursuance of article
in
371E;] any other institution declared 72. Elections to Parliament, to the
by Parliament by law to be an Legislatures of States and to the offices
institution of national importance. of President and Vice-President; the
police officers; or
(b) the promotion of special studies or House; enforcement of attendance of
research; or persons for giving evidence or
(c) scientific or technical assistance in producing documents before
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Courts. individuals and companies; taxes on
the capital of companies.
79. Extension of the jurisdiction of a High
87. Estate duty in respect of property
Court to, and exclusion of the
jurisdiction of a High Court from, any
Union territory.
p. other than agricultural land.
88. Duties in respect of succession to
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80. Extension of the powers and property other than agricultural land.
jurisdiction of members of a police 89. Terminal taxes on goods or
force belonging to any State to any passengers, carried by railway, sea or
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area outside that State, but not so as air; taxes on railway fares and freights.
to enable the police of one State to 90. Taxes other than stamp duties on
exercise powers and jurisdiction in transactions in stock exchanges and
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except the Supreme Court, with
respect to any of the matters in this 8. Intoxicating liquors, that is to say, the
List; admiralty jurisdiction. production, manufacture, possession,
transport, purchase and sale of
96. Fees in respect of any of the matters
in this List, but not including fees
taken in any court.
p.
9.
intoxicating liquors.
Relief of the disabled and
unemployable.
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97. Any other matter not enumerated in 10. Burials and burial grounds;
List II or List III including any tax not cremations and cremation grounds.
mentioned in either of those Lists. 11. Omitted by 42"d Amendment Act,
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of any naval, military or air force or the State; ancient and historical
any other armed force of the Union monuments and records other than
or of any other force subject to the those declared by or under law made
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33. Theatres and dramatic performances;
land, land tenures including the cinemas subject to the provisions of
relation of landlord and tenant, and entry 60 of List I; sports,
the collection of rents; transfer and entertainments and amusements.
alienation of agricultural land; land
improvement and agricultural loans;
colonization.
p.
34. Betting and gambling.
35. Works, lands and buildings vested in
or in the possession of the State.
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19. Omitted by 42"d Amendment Act, 36. Omitted by 7th Amendment Act, 1956
1976
37. Elections to the Legislature of the State
20. Omitted by 42"d Amendment Act,
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40. Salaries and allowances of Ministers 52. Taxes on the entry of goods into a local
for the State. area for consumption, use or sale
41. State public services; State Public therein.
Service Commission. 53. Taxes on the consumption or sale of
42. State pensions, that is to say, pensions electricity.
payable by the State or out of the 54. Taxes on the sale or purchase of goods
Consolidated Fund of the State. other than newspapers, subject to the
43. Public debt of the State. provisions of entry 92A of List I.
44. Treasure trove. 55. Taxes on advertisements other than
advertisements published in the
45. Land revenue, including the
newspapers [and advertisements
assessment and collection of revenue,
broadcast by radio or television].
the maintenance of land records,
in
survey for revenue purposes and 56. Taxes on goods and passengers
records of rights, and alienation of carried by road or on inland
revenues. waterways.
46. Taxes on agricultural income.
47. Duties in respect of succession to
p.
57. Taxes on vehicles, whether
mechanically propelled or not,
suitable for use on roads, including
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agricultural land.
tramcars subject to the provisions of
48. Estate duty in respect of agricultural entry 35 of List III.
land.
58. Taxes on animals and boats.
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and employments.
law relating to mineral development.
61. Capitation taxes.
51. Duties of excise on the following
62. Taxes on luxuries, including taxes on
goods manufactured or produced in
Sm
in
of the Union in aid of the civil power. Courts.
2. Criminal procedure, including all 12. Evidence and oaths; recognition of
matters included in the Code of laws, public acts and records, and
Criminal Procedure at the
commencement of this Constitution.
3. Preventive detention for reasons
p. judicial proceedings.
13. Civil procedure, including all matters
included in the Code of Civil
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connected with the security of a State, Procedure at the commencement of
this Constitution, limitation and
the maintenance of public order, or the
arbitration.
maintenance of supplies and services
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essential to the community; persons 14. Contempt of court, but not including
contempt of the Supreme Court.
subjected to such detention.
15. Vagrancy; nomadic and migratory
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25. Education, including technical law to be expedient in the public
education, medical education and interest, and imported goods of the
universities, subject to the provisions same kind as such products;
of entries 63, 64, 65 and 66 of List I;
vocational and technical training of
labour.
p.(b) foodstuffs, including edible oilseeds
and oils;
(c) cattle fodder, including oilcakes and
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26. Legal, medical and other professions. other concentrates;
(d) raw cotton, whether ginned or
27. Relief and rehabilitation of persons
unginned, and cotton seed; and
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Pakistan.
34. Price control.
28. Charities and charitable institutions,
charitable and religious endowments 35. Mechanically propelled vehicles
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p.
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13
Political System
Contents of The Chapter
§ POLITICAL SYSTEM IN INDIA .......................................................................................... 102
§ COALITION POLITICS ........................................................................................................ 104
in
POLITICAL SYSTEM IN INDIA Ministers. According to the Article
India with a population of around a 74(1) of the constitution, the Council
billion and an electorate of over 700 million - of Ministers under the leadership of
is the world’s largest democracy and, for all
its faults and flaws, this democratic system
stands in marked contrast to the democratic
p. the Prime Minister is responsible to
aid and assist the President in
exercising the Presidents function.
re
failures of Pakistan and Bangladesh which The Council of ministers is
were part of India until 1947. Unlike the responsible to the Lok Sabha, the
American political system and the British House of People.
political system which essentially have existed
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in their current form for centuries, the Indian • In states the Governor is the
political system is a much more recent representative of the President,
construct dating from India’s independence though the real executive power is
ar
from Britain in 1947. India’s lower house, the with the Chief Minister along with his
Lok Sabha, is modelled on the British House Council of Ministers. For a given state
of Commons, but its federal system of the Council of Ministers is collectively
Sm
government borrows from the experience of responsible for the elected legislative
the United States, Canada and Australia. assembly of the state. The
• The Constitution was framed keeping Constitution administrates the
in mind the socioeconomic progress sharing of legislative power between
of the country. India follows a Parliament and the State Legislatures.
parliamentary form of democracy and The Parliament has the power to
the government is federal in structure. amend the Constitution.
In Indian political system, the • Politics of India take place in a
President is the constitutional head of framework of a federal parliamentary
the executive of the Union of India. multi-party representative democratic
• The real executive power is with the republic modeled after the British
Prime Minister and the Council of Westminster System. The Prime
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in
the legislature. tendency, and allows multiple major
parties to arise.
Multi-party System
• This difference is not without
• A multi-party system is a system in
which three or more political parties
have the capacity to gain control of
p. implications. A two-party, system
requires voters to align themselves in
large blocs, sometimes so large that
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government separately or in coalition. they cannot agree on any overarching
Unlike a single party system (or a non- principles. Along this line of thought,
partisan democracy), it encouraged some theories argue that this allows
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in
years old. For most of these 60 yrs. • Communist Party of India (CPI, led
India have had Congress ruling at the by Party General Secretary AB
centre. Later in the mid 70’s we saw
the launch of the Janata Party.
• Today India have several regional
p. Bardhan)
• Jagdeep Coalition (JDC, led by Party
President Kirik Vedprakash)
parties, each pandering to their own
re
regional constituencies. This has Regional Parties
completely changed the face of • All India Anna Dravida Munnetra
electoral politics in India.
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in
• Jharkhand Mukti Morcha (JMM) (Maharashtra)
(“Jharkhand Liberation Front”)
• Sikkim Democratic Front (Sikkim)
(Jharkhand, Orissa)
• Kerala Congress (Mani) (Kerala)
• Kerala Congress (Kerala)
p.
• Telangana Rashtra Samithi
(“Telengana National Association”)
(Andhra Pradesh)
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• Lok Jan Shakti Party (Bihar) • Telugu Desam Party (“Telugu Nation
• Lok Satta Party (Andhra pradesh) Party”) (Andhra Pradesh)
• Maharashtrawadi Gomantak Party • Trinamool Congress (“TMC”) (West
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(Goa) Bengal)
• Manipur People’s Party (Manipur) • United Democratic Party (Meghalaya)
ar
no majority party. In such cases, the the best opportunity to promote real
only way policy gets approved is by issues and solve everyday problems.
making concessions, hence the This is because the coalition
forming of a coalition. government is seen by some as the
• A coalition government, also known most accurate representation of the
as a coalition cabinet, can be one of people’s will. Also, proponents
the most entertaining, and volatile, believe a coalition government can
forms of government. Often, it may be actually lead to greater unity because
hard to know how an issue is going members of varying backgrounds and
to turn out, unlike countries where ideologies must come together and
there are only two major political agree to create policy in the best
parties. In these cases, it is rare that a interest of all.
majority party does not have its way. • In addition to the regular, long-
in
• Well-known countries run by coalition standing coalitions, a coalition
governments include Germany, Italy, government can also be created at
India, Ireland, and Israel, among times of national transition or crisis.
others. Once a parliament is seated in
these countries, the difficult work of
p.In Iraq, for example, a coalition
government was created in 2004 in an
effort to bring the country together
bridging gaps begins. In some cases,
re
these gaps are bridged easier than after the fall of Saddam Hussein s
others, as multiple parties may be in government. In this example, various
agreement on some issues. In other leaders from different religious sects
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cases, where there is little agreement, and regions of the country were
building such a coalition government brought together in an attempt to
form policy that would be regarded
ar
takes time.
as a benefit to the Iraqi people as a
• Some time a coalition government is
whole, not just one particular group.
a very inefficient way to govern. Also,
Sm
it may, in some cases, increase the risk • In India one party rule came to an end
of underhanded deals and increase after 1967. Even in states also their
corruption, as more politicians are was a change in political scenario. The
willing to make deals in order to get dominance of congress came to an
things accomplished. A coalition end. For the first time Janata Party
government can also have members came to power during the same
that are very argumentative, even period. The 1980’s is a time where one
more so than other forms of can see the history of coalition politics.
government, simply because so much Coalition politics came to seen
is at stake. because of growth of many small
regional parties. Slowly these regional
• However, despite the concerns, some
parties started playing influential role
feel that a coalition government has
in the national politics.
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in
that no party on its own can achieve a people in the national politics.
majority in the parliament. However, National policies will be influenced by
a coalition government may also be regional ideas. Not only in the centre
created in a time of national difficulty
or crisis. If a coalition collapses, a
confidence vote is held or a motion of
p.but also in states there is no stability
of the government.
• With the replacement of the Dominant
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no confidence is taken. Party System of India, minority and/
• Since India is a diverse country with or coalition governments in union
different ethnic, linguistic and level, have become the order of the
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religious communities, it also has day. Except for the Congress Minority
diverse ideologies. Due to this, the Government of P.V. Narsimha Rao
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in
governments of three major muted at the Centre as well as in individual
hues: (a) middle-of-the-road Centrist states since the last two decades. Since
Congress Minority Government of India is a diverse country with
P.V. Narsimha Rao, going against its
Left Centre of reputation, initiated
neo-liberal economic reforms in 1991;
p.different ethnic, linguistic and
religious communities, it also has
diverse ideologies. Due to this, the
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(b) three Left-of-centre governments benefit that a coalition has is that it
formed by the Janata-Dal-led leads to more consensus based politics
National/United Front; and (c) two and reflects the popular opinion of the
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policy. Different parties have different • That the total number of valid votes
interests and beliefs and it is difficult polled by all the contesting candidates
to sustain a consensus on issues when set up by such party at the last general
disagreements arise. They often fail to election in the State to the House of
see eye to eye with the government the People, or as the case may be, to
on many public policies. However, the Legislative Assembly of the State,
this is not to say that we have never is not less than six per cent of the total
had successful coalitions. number of valid votes polled by all the
Governments in Kerela and West contesting candidates at such general
Bengal and NDA at the Centre have election in the State.
been sucessful coalitions. • If a political party is treated as a
Criteria for Recognition of a Party recognised political party in four or
more States, it shall be known as a
in
A political party shall be treated as a
‘National Party’ throughout the whole
recognised political party in a State, if and only
of India, but only so long as that
if either the conditions specified in Clause (A)
political party continues to fulfill
are, or the condition specified in Clause (B) is,
fulfilled by that party and not otherwise, that
is to say:
p.thereafter the conditions for
recognition in four or more States on
the results of any subsequent general
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• has been engaged in political activity
election either to the House of the
for a continuous period of five years;
People or to the Legislative Assembly
and
of any State.
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14
Administrative Tribunals
Contents of The Chapter
§ ADMINISTRATIVE REFORMS IN INDIA ........................................................................... 111
§ IMPORTANT COMMITTEES ............................................................................................... 114
§ MEMBERS OF SECOND ARC ............................................................................................. 115
§ ADMINISTRATIVE REFORMS COMMITTEES .................................................................. 115
in
§ POLICE REFORMS .............................................................................................................. 118
§ PRESIDENTIAL VS PARLIAMENTARY ............................................................................. 121
Central Administrative Tribunal (CAT) with also exempted from the purview of
branches in specified cities. Several cities also the Administrative Tribunals.
have the State Administrative Tribunals.
• According to the 42nd Amendment
Sm
The Chairman and Vice-Chairman of the Act, only the Supreme Court can
tribunal has the same status as that of the High entertain cases relating to service
Court Judges. The Chairman and Vice-
matters.
Chairman’s retirement age is 65 years. The
other members’ retirement age is 62 years. The • The Chairman and other members of
service matters related to employees of the the CAT and SAT are appointed by the
Public Sector Undertaking (PSU)s are brought President of India after consulting the
under the Central Administrative Tribunal or Chief Justice of India. The Chairman
State Administrative Tribunals by a must be a Judge of the High Court or
notification. one who served for atleast two years
• There are certain categories of as the High Court Judge or the Vice-
employees who are not included in Chairman of Tribunal.
the purview of the Adminis trative • The Tribunals are set up to relieve the
§§§
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have the State Administrative Tribunals. process of justice both in the Central
• The Chairman and Vice-Chairman of and in the State level.
the tribunal has the same status as that
of the High Court Judges. The
Chairman and Vice-Chairman’s
retirement age is 65 years. The other
p.
ADMINISTRATIVE REFORMS IN INDIA
Administrative reform is a continuing
necessity in a society, more so when the society
re
members’ retirement age is 62 years. confronts a quantum jump in its basic
• The service matters related to framework of governance including, of course,
employees of the Public Sector its goals. Thus viewed India started its career
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set out to acquire new skills. Servants’. The British government set
Meanwhile, another development up the Indian civil service, primarily
brought a new alliance into existence. with the objective of strengthening the
One of the earliest decisions of
Independent India was in regard to
socioeconomic planning as the mode
p. British administration in the UK. In
this period the role of the civil services
was to further the British interest, and
re
the role was totally regulatory. Later
of the country’s development. on they assumed development roles
• India adopted command type also.
planning based as it was on an
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bureaucrat did not find himself out of Existing Administrative System in India
place in the new regime. During the
colonial period he was on top of the • The civil service system in post-
independent India was reorganised.
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in
rights.
and Public Grievances is the nodal agency of
• State formerly interventionist, the Government for Administrative Reforms
producer, regulator and seller now as well as redressal of public grievances
called upon to be a facilitator,
promoter, and partner.
• Emergence of powerful technological
p.
relating to the States in general and grievances
pertaining to Central Government agencies in
particular.
re
solutions-computers and IT. The Department disseminates
• Increasing expectations from the information on important activities of the
Governments to ‘perform’. Government relating to administrative
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have gone into the subject, and suggested undertakes activities in the field of
various measures. Major reforms have been international exchange and cooperation to
brought about based on the recommendations promote public service reforms.
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• The various Ministries/Departments measures to achieve a proactive,
have decided to retain 822 Acts (which responsive, accountable, sustainable
include 700 Appropriation Acts and and efficient administration for the
27 Reorganisation Acts). The
remaining Acts are at various stages
p. country at all levels of the government
has finished its term on April 30, 2009.
• Governance is the exercise of
of processing.
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economic, political and
IMPORTANT COMMITTEES administrative authority to manage a
country’s affairs at all levels. It
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First Administrative
consists of the mechanisms, processes
Reforms Commission
and institutions through which
The First Administrative Reforms citizens and groups articulate their
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Commission set up in January, 1966 was asked, interests, exercise their legal rights,
in particular, to consider all aspects relating meet their obligations and mediate
to the following subjects: their differences.
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in
service reforms, transparency, Hope (31.10.2006)
rationalization of government
• Ethics in Governance (12.02.2007)
schemes and mode of financial
assistance to states, improved access
to formal justice system to enforce
rights, reforms and strengthening of
p.• Public Order-Justice for each peace for
all. (25.06.2007)
• Local Governance (27.11.2007)
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land administration and harnessing • Capacity Building for Conflict
the power of technology for Resolution - Friction to Fusion
governance have been identified as (17.3.2008)
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(8.10.2008)
• Shri Veerappa Moily - Chairperson
• Refurbishing of Personnel
• Shri V. Ramachandran - Member
Administration - Scaling New Heights
Sm
1. The Fifth Report from the Select Committee of the House of Commons on the
Affairs of the East India Company 1812
2. The Public Service Commission 1886-87
3. The Royal Commission upon Decentralization 1907-09
4. The Govt. of India Clerks’ Salaries Committee 1908
5. The Royal Commission on the Public Service in India 1914-17
6. The Report on Indian Constitutional Reforms 1918-19
7. Report of the Government of India Secretariat Procedure Committee 1919
8. The Indian Retrenchment Committee 1922-23
9. The Royal Commission on The Superior Civil Service in India 1924
in
10. The Reforms Enquiry Committee 1924
11. The Committee Appointed by the All-Parties Conference to Determine the
Principles of The Constitution for India 1928
12. The Indian Central Committee
13. The Indian Statutory Commission
p. 1929
7930
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14. The Sub-Committee on Services (Indian Round Table Con ference) 1932
15. The Government of India Secretariat Committee 1937
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in
38. Report of The Study Team on Relations Between The Press and Administration1966
39. Administrative Reforms Commission report on Public Sector Undertakings 1967
48. Administrative Reforms Commission Report on Finance Account & Audit 1968
49. Administrative Reforms Commission Report on Economic 1968
50. Administrative Reforms Commission Report on Machinery for Planning 1968
51. Administrative Reforms Commission Report on State Administration 1969
52. Administrative Reforms Commission Report on Reserve Bank of India 1969
53. Administrative Reforms Commission Report on Centre- State Relationship 1969
54. Administrative Reforms Commission Report on
Delegation of Financial and Administrative Powers 1969
55. Administrative Reforms Commission Report on
Central Direct Taxes Administration 1969
56. Administrative Reforms Commission Report on Small Scale Sector 1969
§§§
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in
67. The National Development Council of Austerity 1992
68. The Fifth Central Pay Commission 1997
69. Expenditure Reforms Commission 2000
70.
71.
p.
Report of the Civil Service Examination Review Committee
Report of the Committee to Review in—Service Training of the IAS Officers
2001
2003
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72. Surendra Nath’s Committee Report 2003
73. Committee on Civil Service Reforms 2004
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• These include fixing a two-year tenure officers of the rank of DSP and below.
for director generals of police, creating • It will be headed by a retired District
separate wings of law and order and Judge. The head and other members
investigation and better working and of these authorities would he
living conditions for cops. appointed by the state government in
• The report significantly outlines the consultation with the Chief Justice of
ways in which police can deal with the the high court and members would be
contemporary challenges like drawn from a panel prepared by the
terrorism and insurgency. Stale Human Rights Commission,
Lokavukra and the State Public
National Security Commission
Service Commission.
• There is a proposal to set up lie Reforms in Criminal Justice System
national security commission - for the
selection and placement of chiefs of Madhava Menon Panel Report
in
Central police organizations — to • A committee appointed by the Union
ensure that the DGPs of paramilitary Home Ministry on reforming the
forces like the BSF, CRPF, ITBP, SSB criminal justice system has suggested
and CISF tire selected in a fair manner
and have a fixed tenure of at least two
years.
p. major changes. including multiple
criminal codes based on the gravity
of offence and setting up a separate
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national authority to deal with crimes
• The national security commission impacting the county’s security.
could he headed by the Union Home • The committee headed by Madhava
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imprisonment of more than three • There should be a code of ethics for
years and up to death. lawyers.
• These cases require quick processing, • Concept of legal aid should he
ensuring the protection of human
rights and greater accountability from
law enforcement agencies. Finally, an
p. enlarged to provide for psychiatric
and rehabilitative services the victim
besides incorporating a system of
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economic offences code (EOC) should compensation.
deal with crimes threatening the
economic health and security of the • There should be two separate laws for
country. child in conflict with law and two
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including the trial judge for crimes • Government of India set up the
punishable with death or life Expenditure Reforms Commission,
imprisonment. under the chairmanship of K.P.
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p.
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15
Political Debate
Contents of The Chapter
§ PRESIDENTIAL VS PARLIAMENTARY .............................................................................. 122
§ SEPARATION OF POWER ................................................................................................... 125
§ JUDICIARY VS LEGISLATURE ........................................................................................... 126
§ LEGISLATIVE COUNCILS .................................................................................................. 127
in
§ JUDICIAL ACTIVISM .......................................................................................................... 130
§ JUDICIAL REVIEW .............................................................................................................. 133
§ IMPACT OF THE 42ND AMENDMENT ............................................................................... 134
p.
§ JUDICIAL REFORM IN INDIA ............................................................................................ 135
§ NAXALISM - PERCEPTION AND REALITY ...................................................................... 138
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PRESIDENTIAL VS PARLIAMENTARY 1. No distinction between the Notional
Generally democracies are either and the Real Executive. The executive
Presidential or Parliamentary in form. In the powers of the Government are not
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former the Chief executive is directly elected only vested in the President, they are
by the people and is not responsible to exercised by him in actual practice
legislatures. Removal of a President is also. The President is, thus, both the
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normally through an impeachment procedure. head of the State and the head of the
The advisers to the President are chosen at Government.
random by the President and they are not 2. President is elected by the people for
Sm
members of legislature. On the other hand, in’ a fixed term. The President is elected,
a parliamentary democracy the Chief not by the Legislature, but directly by
executive and advisers known as Council of the entire electorate. Thus, both in
Ministers are all chosen from legislature. Both regard to his election and tenure the
individually and collectively they are President is not dependent on the
accountable to legislature. The members of the
Legislature.
Prime Minister’s team are trained and tested
in parliamentary system of governance and 3. The President is the sole Executive.
all of them go out if legislature chooses to cut All executive powers of the
their tenure. Government are vested in the
Main features of a Presidential form of President and are exercised by him.
Government are: His Cabinet has merely the status of
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power to terminate the tenure of the as Ministers not because of
President before its full constitutional administrative acumen, but simply
course, other than by impeachment. because of their political affiliation.
Similarly, the President has no power
to dissolve the Legislature before the
expiry of its term. Thus, the President
p.
4. Less dominated by the Party Spirit:
Once election to the office of the
President is over, the whole nation
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and the Legislature are elected for accepts the new President as the
fixed terms. leader of the nation. Political rivalries
of the election days are forgotten. Both
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amass wealth, and to finish off
committees have not only seized the
political opponents.
power of law-making, they have also
2. Presidential Election is an Union made fixing of responsibility in this
Affair: The President in this system is
elected directly. The election to this
office generates great heat and
p. regard very difficult.
In Favour of Presidential form
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tension. The whole national life gets The presidential form of government has
disturbed. In countries where some theoretical advantages:
constitutional traditions are not as • Cabinet of is based on competence
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populist measures;
3. Friction and Discord between the • No time is wasted in politicking;
President and the Legislature: The
• No incentive for desertions and
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Council of Ministers from various separation of government powers, namely, the
regions and cultures. If at all there is legislative, the executive, and the judicial
any lack of expertise on the part of the powers. Any two of these powers should not
Council of Ministers it is compensated fall in the same hands. They should not
by the permanent executive and
various advisory bodies, committees
and commissions
p.
assume or combine functions essentially
belonging toe each other. This is necessary to
ward off any kind of tyrannical government.
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Thus, doctrine of separation of powers stated
• Moreover, Indians have considerable in its rigid form means that each of the
experience in the parliamentary form branches of. government, namely, executive
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• All judicial power shall be vested in consequently it can very well be said
one Supreme Court, and in such that our Constitution does not
inferior courts as Congress may from contemplate assumption by one organ
time to time ordain and establish. or part of the State, of functions, that
essentially belong to another.
Separation Power Used in India
• The executive indeed can exercise the
• Under the Indian constitution only powers of departmental or
executive power is ‘vested’ in the subordinate legislation when such
President while provisions are simply powers are delegated to it by the
made for a Parliament and judiciary legislature. It can also, when so
without expressly vesting the empowered, exercise judicial
legislative and judicial powers in any functions in a limited way.
person or body.
in
JUDICIARY VS LEGISLATURE
• Moreover, India has the same system
of parliamentary executive as in Conflict between legislature and the
England and the Council of Ministers judiciary has often given rise to anxiety and
consisting as it does of the members
of legislature is, like the British
Cabinet. Even, though the
p.
grave concern to the governments at the
Centre and the States. The executive heaves a
sigh of relief when the conflict gets resolved
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Constitution of India does not accept or the matter is put in the cold storage after
strict separation of powers it provides initial heat over the powers each of these
for an independent judiciary with wings of the States enjoy under the
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Indian Scene
importance of the doctrine of
separation of powers lies not in any • In India, under the written
rigid separation of functions, but in a Constitution, the three organs of the
working synthesis with the guarantee Government, viz. the Legislature,
of judicial independence. judiciary and the executive, have to
function within their respective
• Accordingly, the Indian Constitution powers and none of them can exceed
has not recognised the doctrine of its powers. Whether, any one of these
separation of powers in its absolute organs has exceeded its powers or not,
form but the functions of the different is a matter of judicial interpretation.
parts or branches of government have • In several decisions of the Supreme
been sufficiently differentiated and Court, it has been held that the
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• Even the powers granted by the Officers of Legislatures under the
Constitution to the Members of Anti-defection law; and
Parliament and the Assembly are • Decision given by the Presiding
subject to other provisions of the
Constitution. They cannot act
p. Officers of Legislatures in
administration of their Secretariats.
arbitrarily; nor can they deprive the
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Powers, Privileges and Immunities of
citizens of their fundamental rights
Members of Legislatures
arbitrarily.
The relevant provision of the
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and of its members and committees impulses. In case any half cooked
immediately before the coming into measure comes up then at least Upper
force of section 26 of the Constitution House points that out to the duly
(Forty-fourth Amendment) act, 1978.
LEGISLATIVE COUNCILS
p.elected representatives of the people,
leaving to them to accept the
suggestion or not. In other words, it
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Arguments in Favour of Legislative points out gravity of problems and
Council suggests solution but does not very
much care whether suggestions have
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Upper House and in this way pressure Arguments Against Legislative Council
of work in the Lower House is
• In view of inherent weaknesses of
considerably reduced. This is always
Vidhan Parishads (Legislative
a welcome relief for the Lower House.
Councils), some critics are of the view
• It is accepted that law making process that these should be abolished.
has become time consuming and According to them, in case Parishad
sufficient time is taken by each House agrees with what is passed by the
before a bill becomes an Act. It is also Assembly then it is simply a
accepted that during this time, the superfluous House. In case, it does not
people get an opportunity to express then it will be characterized as a
their view point. mischievous. House and will be
• But when the bill goes to the Upper charged as citadel of reaction standing
House, the people are bit more clear on the way of policies and programme
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as to what is going to be passed. of duly elected House.
Moreover, this time interval is always • Another criticism levied against this
a welcome because during this period
the people can express them selves
and if need be changes can even now
p. House is that it is no check on the
Assembly. A money bill can be
delayed only for a period of 14 days,
be introduced.
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which is very insufficient period for
• It is also argued that Upper House the members to express their view
does not stand in any way on the point. Even in the case of non-money
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in case all political parties return there much fear from it because a vote of
men of eminence who have long and no confidence does not have any effect
varied experience of life and maintain for the Ministry.
a good position in society.
• It is also argued that the Parishads are
• If they are the people with the strength usually not even progressive. These
of character and also capacity to have no directly elected elements.
render service to the society, they can Some of the members are nominated
do a lot of good to the society. Only ones. Their composition is such that
those should be nominated who enjoy these are not supposed to know public
high reputation for their qualities of sentiments. Thus, the House is
head and heart and a spotless life characterised as reactionary and
career. conservative.
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in
party basis and these chambers are 1/6th. It should have been kept much
only for increasing party interests and higher.
influences.
• It is presumed that in this House there
• A usual argument is that since these
chambers do not serve much useful
purpose, therefore, their maintenance
p.will be calm and serene atmosphere,
where every problem will be
discussed in a passionless atmosphere
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is not worth the cost which the nation because the elders have held out no
is required to pay for its upkeep and promises to the people at the time of
by way of salaries, allowances and their election.
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judicial activism in India. In the infamous
platform. On this ground also, the decision in ADM Jabalpur v. Shukla (1976) the
Upper Houses have no utility. Supreme Court permitted civil liberties to be
To conclude, the Upper Houses of State suspended during the Emergency. The very
Legislatures are likely to remain under
criticisms, in case these are used for providing
berth to defeated politicians so that they can
p.
Constitution of India permitted the suspension
of civil liberties in Part III, such as the right to
personal liberty.
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become Chief Ministers or Ministers by
• The Constitution was also amended
becoming a member of either House of
extensively to permit the excesses of
legislature. Politicians must take the
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enforceable, the Emergency had of government, in the consequent
taught Indian judges that express endeavor towards transparency in
constitutional provisions may not public administration, and in their
necessarily translate into social
legitimacy.
p.giving a voice to the Indian citizen,
albeit only the citizen who has the
• Activist judges in India have time and the resources to petition the
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consequently fashioned innovative courts.
remedies to enforce socio- economic • Attempts to petition the Supreme
rights. The traditional rule that courts
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Bharati case (the fundamental rights • The courts on several occasions have
case) court held that a Constitutional issued directions in public interest
Amendment duly passed by the litigation (PIL) covering a wide
legislature was invalid if it damages
or destroying its basic structure. This
was a gigantic innovative judicial leap
p.spectrum such as road safety,
pollution, illegal structures in VIP
zones, monkey menace, dog menace,
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unknown to any legal system. The unpaid dues by former and serving
masterstroke was that the judgment legislators, nursery admissions, and
could not be annulled by any admissions in institutions of higher
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§§§
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India and will prosper as long as the conflict with it in all or some of its
judiciary is respected and is not provisions then the provisions of
undermined by negative perceptions, constitution will prevail and the
which has overtaken upon the provisions of that pre-constitutional.
executive and the legislature.
IMPACT OF THE 42ND AMENDMENT
• There is concern among the public
The 42nd Amendment enacted during
about lack of transparency in judicial
the Emergency made far-reaching changes to
appointments and a sense of
curtail the powers of the courts and to make
increasing unease because of a lack of
the Parliament sovereign. Firstly, the 42nd
a credible mechanism to deal with
Amendment stated that no amendment to the
serious complaints against the higher
Constitution could be questioned in a Court
judiciary. of Law. And “for the removal of the doubts, it
is hereby declared that there shall be no
in
JUDICIAL REVIEW
limitation what ever on the constituent power
• Law will not be in force until an of Parliament to amend by way of addition,
amendment of the constitution variation or repeal the provisions of this
relating to the same matter.
• In such situation the provision of that
law will again come into force, if it is
p.
constitution.” In this manner, through this
Amendment the Supreme Court’s power to
judicial review of constitutional amendments
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compatible with the constitution as was taken away to establish the complete and
amended. This is called the Theory of total sovereignty of Parliament. The
Eclipse. Amendment stated that:
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Parliament to amend the Constitution • In such type of situations Supreme
without altering the basic structure. Court or High Court interprets the
• In such situations, the Supreme Court law as if they are in conformity with
or High Court interprets the laws as
if they are in conformity with the
p.constitution or not. If find it not in
conformity, they declare it either
constitution. If such an interpretation whole & if possible to separate, then
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is not possible because of only that much of provision to be void
inconsistency, and where a separation which are inconsistent with that of the
is possible, the provision that is Constitution.
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article 13, articles 32, 124, 131, 219, 226 legislative action, judicial review of
and 246 provide a constitutional bases judicial decisions and judicial review
to the Judicial review in India. of administrative action. The judges
Sm
• The Indian Constitution has not of the superior courts have beefy
recognized the doctrine of separation entrusted with the task of upholding
of powers in its absolute form but the the Constitution and to this end, have
functions of the different organs have been conferred the power to interpret
been clearly differentiated and it.
consequently it can very well be said • It is they who have to ensure that, the
that our Constitution does not balance of power envisaged by the
contemplate assumption, by one Constitution is maintained and that
organ of the functions that essentially the legislature and the executive do
belongs to another. not, in the discharge of functions,
• Though the Constitution has adopted transgress constitutional limitations.
the parliamentary form of Thus, judicial review is a highly
§§§
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in
which could be expended on building, NGOs have identified problems in the
hospitals, roads and the like, or judicial system and called for
overseas aid, or compensating victims addressing them speedily.
of crime.
JUDICIAL REFORM IN INDIA
p.
• Yet, the effective implementation of
many such recommendations is still
pending. According to one of the
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• The institution of judiciary and the Parliamentary Standing Committee
rule of law is the essence of modern on Home Affairs (2001) almost 50% of
civilization and democratic the reports of the Law Commissions
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justice denied’ in P. Ramachandra Rao population by 2007 in a phased
v. State of Karnataka (2002), a manner, which has not been fulfilled
Constitution Bench of the Supreme so far. Even for filling up of vacancies
Court reiterated from Hussainara
Khatoon case that “It is the
p.of approved strength of judges much
needs to be done.
constitutional obligation of the State • It is observed that 25 percent of the
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to dispense speedy justice, more so in judge positions remain vacant due to
the field of criminal law, and paucity procedural delays. The sanctioned
of funds or resources is no defence to strength of judges of the High Courts
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denial of right to justice emanating was 886 and working strength was 608
from Articles 21,19 and 14 and the as on 6th January 2009 leaving 278
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courts are functioning with suffers from grossly inadequate
appreciable results. number of trained mediators and
• Fast Track Courts (FTC) conciliators. Both judicial officers and
recommended by 11th Finance
Commission have also proved
p.lawyers need to be trained with a view
to grow alternate system into the
mainstream of justice.
effective in addressing pendency.
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Keeping this in mind the government • The government will have to take an
has already extended the term of 1,562 overall view of procedural laws that
FT courts operating at sessions’ level allow endless interlocutory appeals
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union Law Ministry, these courts have Despite the Criminal Procedure Code
out of 28.49 lakh transferred cases to (Amendment Act) 2002, bringing
them disposed off 21.83 lakh cases. change in the procedure in suits and
Sm
delivery system, its present pitfalls August 27) 1405 incidents of Naxal
and fault lines will have to be violence resulting in the death of 580
considered to ensure transparency persons. Casualties among security
and accountability of the judicial forces personnel have been quite high.
system. Altogether, 231 security forces
personnel lost their lives in Naxal
NAXALISM - PERCEPTION AND REALITY
violence in 2008, while 270 (Oct 15)
• Addressing the senior police officers personnel have already lost their lives
of the country on September 15, Prime this year so far.
Minister Manmohan Singh reiterated • The Ninth Congress of the People’s
that left-wing extremism is perhaps War Group held in 2007 “reaffirmed
“the gravest internal security threat the general line of New Democratic
our country faces”, and deplored that Revolution with agrarian revolution
in
“we have not achieved as much as its axis and protracted people’s war
success as we would have liked in as the path of the Indian revolution”,
containing this menace”. and resolved to “advance the people’s
• The Naxal influence has indeed
spread over a huge geographical area.
According to the Home Minister’s
p.war throughout the country, further
strengthen the people’s army, deepen
the mass base of the party and wage a
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own statement, various Naxal group broad-based militant mass movement
have pockets of influence in 20 states against the neo-liberal policies of
across the country, and over 2000 globalization, liberalization,
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intensify the war in their respective targets which gave employment to thousands
states while in areas of intense enemy of people including the tribals in different
repression there is need to expand the states, particularly those falling in the so called
area of struggle by proper planning Red Corridor. Home Ministry statistics show
by the concerned committees; tactical the following numbers of attacks on economic
counter-offensives should be stepped targets during the last few years:
up and also taken up in new areas so 2006 71
as to divert a section of the enemy 2007 80
forces from attacking our guerrilla 2008 109
bases and organs of political power.” 2009 56 (till June)
• While it is true that the Naxal The following establishments were
movement is on a high trajectory and particularly targeted:
that its arc of violence is expanding, Railways 122
in
it is also true that there has been
Telecom 83
considerable dilution in its ideology.
Mines, Steel Plants 59
The present generation of Naxal
leaders are obsessed with the idea of
capturing power with the barrel of the
gun, and the success of Maoists in
p. Transmission lines 42
• In a document Tasks Ahead, the party
says that “the people should be
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Nepal seems to have turned their educated as to how the entire region
head. is being handed over to the
comprador big business houses like
• They do not realise that the accretion
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how the development process could revenue for the Naxals. They extort
be accelerated without acquiring land money from industrialists,
somewhere. There could be difference businessmen, contractors,
of opinion about the selection of site,
but places for setting up big plants
p. government officers and any other
function-aries operating in the areas
where they operate.
will have to be earmarked.
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• A major steel company is reported to
Nexus with Insurgents
have been making regular payments
• The Naxals’ nexus with the insurgent to the Naxals, though recently the
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handling of weapons and IEDs from confessional statement, the Naxals are
some ex-LTTE cadres. extorting Rs. 2 crore from the NMDC
every year.
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in
people having their fingers chopped police operations against them.
off for having exercised their Unfortunately, certain sections, in
franchise. their keenness to sensationalise the
• Polling parties are attacked and
occasionally the ballot boxes are
looted. It is another matter that people
p. developments, are painting the
government response in gory colours.
The proposed action is being
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still vote; Gadchiroli recorded over described as “war” on the Naxals
70% turnout in the recent Assembly while some say that it is the beginning
elections despite the Maoists’ threats. of a “civil war” in the country.
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claim to be champions of the poor and
planning process that, as admitted by yet have no compunctions in
the Planning Commission in the annihilating people from that section
Eleventh Five Year Plan document,
“sixty years after independence, over
a quarter of our population still
p.of society. They claim to be
protagonists of the tribals and yet they
antagonised the tribals of Bastar by
interfering with their social customs
remains poor”. It is distressing that the
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progress on land reforms has been and cultural practices.
“dismal”. It is also a matter of shame • They shed tears for the poorest of the
that, as observed by an Expert Group, poor and yet sabotage the schemes to
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the tribals of the country are feeling alleviate their poverty. They want to
“totally exhausted, impoverished, bring about a democratic revolution
in the country and yet try to disrupt
ar
and traumatised”.
every election. They claim to be
Conclusion patriots and yet have a nexus with the
• Poor governance, it must be
anti-national forces. The intellectuals’
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16
Multiple Choice Question
1. Match the following features of the (a) Sovereignty lies with the executive
Indian Constitution and their sources. of the country
I II (b) Sovereignty lies with the President
(A) Bill of Rights and (c) Sovereignty lies with the people of
Judicial Review 1. England India
(d) Sovereignty lies with the elected
in
(B) Parliamentary system
of democracy 2. Ireland represent-atives of the people of
(C) Directive Principles 3. U.S.A. India
(D) Residuary powers 4. The Preamble to the Constitution of
with Centre
Codes:
(a) A-4, B-1, C-2, D-3
4. Canada
p. India reads:
(a) We, the people of India .... in our
Constitution Assembly,... enact and
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(b) A-1, B-2, C-3, D-4 give to ourselves this Constitution
(c) A-3, B-4, C-2, D-1 (b) We, the people of India ….in this
(d) A-3, B-1, C-2, D-4 Constituent Assembly... decide to
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2. In what way is the Indian Constitution enact and give to India this
Constitution.
rigid?
(c) We, the people of India ….through
(a) The provisions of the Constitution the representatives of this
ar
citizenship are contained in the (a) can never be taken away in any
Citizenship Act which was passed by: condition
(a) the Indian Parliament in 1955 (b) can be taken away only according to
(b) the Indian Parliament in 1950 procedure established by law
(c) the British Parliament in August (c) can be taken away during the
1948 Emergency through Presidential
(d) the Constituent Assembly in 1949 order
7. How can the Fundamental Rights be (d) none of the above
protected by a citizen? 12. The phrase ‘procedure established by
(a) By approaching the Supreme Court law’
which will issue appropriate writs (a) gives immense powers in the hands
against the authority of the courts regarding judicial
(b) Parliament will take note of such review
violations and tell the courts (b) gives the authority to the courts to
(c) The Executive will inform the Courts go into the question as to whether a
in
(d) It is automatically protected law is ‘due’ i.e. just or not
(c) limits the authority of the Indian
8. Which Fundamental Right cannot be
Courts in judicial review and the
suspended even during an emergency
tinder Article 352 of the Constitution?
(a) Right to equality
(b) Right to freedom of speech and
p. courts cannot go into the question as
to whether a law is just or not
(d) None of the above is correct
13. What was the main decision of the
re
expression
Supreme Court in the Golak Nath case
(c) Right of life
(d) Right to constitutional remedies regarding the amendment of the
Fundamental Rights by the
9. Which one of the following has been
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Parliament?
wrongly listed as a freedom provided
to the Indian citizens under Article 19? (a) The Parliament had the right to
amend the Fundamental Rights
(a) Freedom of speech and expression
ar
10. Cultural and Educational rights (c) The Parliament had the right even
include. to repeal the Fundamental Rights
(a) Right of minorities to establish and (d) None of the above
administer their educational 14. What was the main judgement of the
institutions Supreme Court regarding
(b) Right of minorities to promote their
Parliament’s right to amend the
language
Fundamental Rights in the
(c) Right against discrimination for
admission to educational Kesavananda Bharati case?
institutions on the grounds of (a) The Supreme Court took away the
religion, race or caste right of Parliament to amend the
(d) All of these Fundamental Rights
11. The Indian Constitution declares that (b) The Supreme Court declared that
protection of life and liberty Parliament had no right to amend
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in an inferior court for review (a) The State shall endeavour to secure
(c) an order from the superior court to a uniform civil code throughout the
an official to show his right to the territory of India
16.
office
(d) an order from a higher court to stop
proceedings in a certain case
The writ of prohibition issued by the
p. (b) The State shall protect every
monument or place or object of
artistic or historic interest
(c) The State shall endeavour to secure
re
Supreme Court or a High Court is to all workers a living wage and
issued against: conditions of work ensuring a decent
standard of life
(a) judicial or quasi judicial authorities
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(b) no money bill or demand for grant (c) Order reduction of salaries and
can be introduced or moved in the allowances of all civil servants
Parliament unless it has been (d) Order the reduction of the salaries
recommended by the President of the Supreme Court and High
(c) The may direct the Chief Justice of Court judges
the Supreme Court to take over a 25. Which of the following is/are correct?
particular case for disposal I. No formal impeachment is required
(d) he calls upon the party enjoying for the removal of the Vice-President
majority in the Lok Sabha to choose II. No functions are attached to the
its leader who is then appointed as office of the Vice-President as such
the Prime Minister III. Dispute regarding election of Vice-
22. The Law Officers who hold office at President is referred to the Election
the pleasure of the President are Commission
IV. If the election of a President or the
(a) The Chief Justice of the Supreme
Vice-President is declared void acts
in
Court and the Attorney General
done by him prior to the date of such
(b) The Attorney General and the
decision shall be invalidated
Solicitor General
(a) I, II, III
(c) The Attorney General and the Law
Minister
(d) The Law Minister and any judge of
the Supreme Court or of a High
p. (b) I, III, and IV
(c) I and II (d) All four
26. What do you understand from the
phrase ‘Collective responsibility of the
re
Court
23. A Member of Parliament or a State Cabinet’ to the Lok Sabha?
Legislature can be elected as (a) The Cabinet is ultimately
President, but answerable for all the acts of the
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28. The legislative functions of the not exceeded or used for other
Council of Ministers include the right purpose
to: II. He submits reports of the President
and the Governor
(a) summon and prorogue the two
III. He should keep a vigilant eye on the
Houses of Parliament
finances of the Union as well as the
(b) nominate two Anglo-Indian
States
members of Lok Sabha
(a) I and II (b) II
(c) nominate some members to Rajya
(c) II, III (d) All of them
Sabha
(d) Introduce important bills and 32. Which of the following ensure the
resolutions in the Parliament independence of the Comptroller and
29. The Council of Ministers is to aid and Auditor-General of India?
advise the President in the exercise of I. Only the President can remove him
his functions: on the grounds of proved
in
misbehaviour
(a) but the President is not bound to
II. His salary and conditions of service
accept its advice
shall be statutory, i.e. laid down by
(b) but the President may use his parliament by law and shall not be
discretion in certain matters
(c) but the President may avoid seeking
its advice or over rule the Council
p. liable to variation during his term of
office
III. The salaries of the Auditor-General
re
of Ministers and his staff and administrative
(d) and the President is bound to act on expenses of his office shall be
the advice of the Council of charged upon the revenue of India
Ministers
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House cannot speak or take part in (b) equal contributions from the Centre
proceedings of the other House. and States are made and out of
III. A Minister who is a Member of one which money can be taken as loan
House has no right to vote in the to meet unforeseen contingencies
House of which he is not a member. (c) all money received by or on behalf
(a) II and III (b) I and II of the Government of India in the
(c) I and III (d) II shape of revenues, fresh loans and
31. The office and functions of the money received in repayment of
Comptroller and Auditor-General of loans etc. are deposited
(d) States, Union Territories and Central
India include which of the following?
Government contribute ten per cent
I. He ensures that the moneys voted of their revenues
by the legislature are spent under
34. Vote on account is made by the Lok
appropriate heads and that they are
Sabha
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(a) to meet the additional expenditure 38. The Lok Sabha and the Rajya Sabha
incurred by the government on any sit jointly when
approved item of expenditure (a) they feel it necessary
during the supplementary budget (b) there is a disagreement between the
(b) to meet expenditure on secret service two Houses
(c) meet expenditure for a period before (c) the President summons both the
the passing of the annual budget Houses
(d) to meet expenditure on unexpected (d) two years have lapsed after the last
demand meeting
35. One of the following is not a method 39. The members nominated by the
by which the Parliament expresses President to the Rajya Sabha are from
lack of confidence in the Council of amongst persons:
Ministers: (a) who are members of Lok Sabha
I. Rejecting a bill introduced by a (b) who suffered imprisonment during
Minister freedom movement
in
II. Declaring that the taxes proposed (c) who are seasoned politicians
have to be reduced (d) none of the above
III. Passing a bill introduced by a private 40. Which one of the following statements
(a) I
member to which the Council of
Ministers is opposed
(c) II
(b) I and III
(d) III
p. is correct?
(a) one-third of the members of Rajya
Sabha retire every year
re
(b) two-thirds of its members retire
36. The Constitution provides that a every two years
House of Parliament may declare a (c) one-third of its members retire every
seat vacant: two years
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I. in the case of a member who is guilty (d) all the members retire every two
of breach of privilege of the House years
II. in the case of a member who has 41. The functions of the Estimates
ar
in
prudent commercial practice convinced it has lost majority
43. Under which of the following support in the Assembly
circumstances can President’s rule be (d) All the above cases are valid
imposed in a State?
(a) If no stable government can be
formed
p.
47. Executive powers of the State Council
of Ministers include:
I. formulating the policy of the
re
(b) If the Cabinet has lost majority and government
no ce II. responsibility for the smooth
(c) If the State Government does not administration of the State
obey the directives given by the III. assisting the Governor in making all
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49. Which one of the following is not III. It considers the report of the State
legislative power of the State Council Public Service Commission
of Ministers? (a) I (b) II
I. Summoning and proroguing the (c) I and II
session of either or both the Houses (d) None is incorrect
of the State Legislature 53. The special status of the State of
II. Determining the business and Jammu and Kashmir
timetable of the State Legislature (a) does not prevent the Union
III. Introducing the important Bills in Government from making changes
the State Legislature in the name and boundaries of the
(a) I (b) III State
(c) II (d) I and II
(b) does not prevent the President from
50. Which one of the following is not a exercising his right to suspend the
financial power of State Council of constitutional machinery of the State
Ministers?
in
on the ground that the State
I. Formulating the budget proposals Government has failed to carry out
and presenting the same to the State directions of the Union Government
Legislature for approval (c) does not prevent the Union
II. All proposals for taxation emanate
from the Council of Ministers
III. Regulating the Contingency Fund of
p. Government from making any
international agreement affecting the
State without taking the consent of
re
the State and advancing money out the State Legislature
of it to meet the unforeseen (d) prevents the Union Government
contingencies from making any alteration in the
(a) I (b) II name and boundaries of the state
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settling of disputes
I. The Governor is the ex-officio
Chairman of the Legislative Council. (a) between the Government of India
II. The Speaker of Legislative Assembly and any State of the Union
(b) between two or more States
Sm
even if it is within the limits of the expenditure in the Union and State
Constitution budgets
(c) judges in India can declare a law (b) recommendation of the distribution
invalid simply because in their between the Union and the States of
opinion the law is not due or is the net proceeds of taxes
unjust (c) recommendation of the allocation to
(d) None of the above the States of the respective shares of
56. The High Court enjoys the power such tax proceeds
I. To issue writs for the enforcement of (d) recommendation of the principles
rights conferred on the citizens of which govern the Grants-in-Aid of
India the revenue of the States out of the
II. To exercise superintendence over the Consolidated Fund of India.
working of Courts and Tribunals 60. What can the President do if the States
under its jurisdiction fail to comply with the Directives of
III. To make general rules and prescribe
in
the Central Government?
forms regulating the practices and
proceedings of Courts under its (a) The President can send reserve
jurisdiction police to the State to secure
compliance
57.
(a) I
(c) II and III
(b) I and Ill
(d) All of them
The ordinary Judges of the State High
p. (b) The President can declare the
breakdown of Constitutional
machinery in the State and assume
Court are appointed by the President
re
on consultation with responsibility for the governance of
the State
I. The Chief Justice of the High Court
II. The Chief Justice of India (c) The President can dissolve the State
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III. The Governor of the State Legislature and order fresh election
(a) I (b) I and II (d) The President cannot do any of the
(c) II and III things mentioned in (a), (b) and (c)
ar
in
character because most of the
national parties are not spread over A B C D
the entire country. (a) 2 1 3 4
2. On account of multi-party system in (b) 1 2 3 4
India we find a close resemblance in
the policies and programmes of
various Political Parties.
p. (c)
(d)
3
1
2
2
4
4
1
3
65. The primary aim of the Panchayati Raj
re
3. Of late the regional Political Parties administration is:
are planning more important role in (a) to work for rural development
the India polity than the national
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development programmes
development of nationalists sprit. (d) to increase agricultural production
Code : through the involvement of the
(a) 1, 2, and 3 are correct people in extension programmes
Sm
(b) 2, 3 and 4 are correct 66. Pick out the statement which is not
(c) 1, 2 and 4 are correct correct
(d) 1, 3 and 4 are correct (a) The Gram Panchayat is headed by
64. Match the following: the Sarpanch
List-I List-II (b) The Panchayat Samiti is headed by
Articles Provisions for the Chairman
Minorities (c) The Zilla Parishad is headed by the
A. Article 26 1. Provides for freedom Chairman
to manage religions (d) The Sarpanch and the Chairman are
affairs to all majority as elected directly by the people
well as monitory
67. Balwant Rai G. Mehta team was set
communities
up in 1956 by the National
B. Article 29 2. Protects the interests
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(a) Santhanam Committee : for smaller Urban area.
(a) 1, 2, and 4
Panchayati-Raj Finances
(b) 2 and 3
(b) Balwant Rai Metha: Panchayati-Raj
(c) 3 and 4
Institutions Committee
(c) G.V.K. Rao Committee : Planning at
the block level
p.
72.
(d) 1 and 2
The 42nd Constitution Amendment
Act added a Chapter on
re
(d) Dantwala Committee :
existing admin-istration (a) the Preamble of the Constitution
arrangement for rural development (b) the Fundamental Rights
programmes. (c) the Fundamental Duties
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69. Which of the following statements are (d) all of the above
true about the Chief Secretary? 73. Match the following columns:
1. he acts as the Chief Public relations I II
ar
in
appointment on the
with reference to India and pick the ground of race,
right one religion, or caste.
(a) The Chief Election Commissioner (C) Art. 30 (i) 3. All minorities
and other election commissioner
enjoy equal powers but receive
unequal salaries.
p. whether based on
religion or language
shall have the
re
(b) The Chief Election Commissioner is Fundamental Rights
entitled to the same salary as to establish and
provided to a judge of the S.C. a d m i n i s t e r
(c) The chief E.C shall not be removed e d u c a t i o n a l
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(a) nominated by the British Parliament (1) Art. 32 (2) Art. 226
(b) nominated by the Governor General. (3) Art. 227 (4) Art. 245
(c) elected by the Legislative (a) 1, 2, 3 (b) 1, 3, 4
Assemblies of various provinces. (c) 1, 2, 4 (d) 1, 2, 3 & 4.
82. List I List II
(d) Elected by the Indian National
Congress & Muslim League (Schedule of (Subject
constitution) matter)
80. Match List-I with List-II and select the
A. 4 I. Land reform
correct answer using the codes given
B. 6 2. Language
below C. 8 3. Council of State
List I List I D. 9 4. Tribal areas
(Article of (Provision)
Codes
constitution)
A. Art 101 (4) 1. The speaker of the A B C D
(a) 1 2 3 4
in
Lok Sabha shall
preside over a joint (b) 2 3 4 1
sitting of the two houses (c) 3 4 2 1
of parliament (d) 4 2 1 3
B. Art 110(4) 2. The house may
declare a seat vacant if
the member in
p.
83. Match the List.
List I List II
re
question absents (Acts of Colonial
himself from all the Govt. of India)
meetings of the house (A) Charter Act. 1813 (1) Set up a board
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East India
transferred from the Company’s
lower to upper house, affairs in
the speaker shall India.
Sm
(D) Pitt’s India Act (4) The (3) A National level political party is one
company’s which is recognized in 4 or more
directors were states.
asked to (4) During 1999 general elections, there
present to the were six national and 48 state level
British govt. parties recognized by Election
all Commission.
correspondence Which one is correct statement ?
and (a) 1, 2, & 4 (b) 1, 2, 3
documents (c) 2, & 4 (d) l, 2, 3 & 4
pertaining to
the ad- 86. Match the list
ministration of (Art. of the (Content)
the company. constitution)
(A) Art. 54 1. Election of President
Codes :
in
Council of Ministers
A B C D (B) Art. 75 2. Appointment of P.M.
(a) 2 4 3 1 & Council of Ministers
(b) 1 3 4 2 (C) Art. 155 3. Appointment of
(c)
(d)
2
I
3
4
4
3
1
2
84. With reference to colonial period of
p.
(D) Art. 164
Governor of State
4. Appointment of C.M.
& Council of Ministers
re
Indian history, match List I (person) of State.
with List II (events) 5. Composition of
(Person) (Events) Legislative Assembly
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(c) 5 1 3 4
89. Match the list I with list II
(d) 1 5 4 2
List I List II
(Amendments of the 90. Match the Following
Constitution)
(Contents)
(b) 1 2 4 3
Scheduled Caste (c) 3 2 1 4
in Amendment) (d) 2 1 3 4
Panchayats in 91. Match the following.
Sm
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(c) Panchayati Raj system (a) Comptroller and Auditor General of
(d) Integrated development Programme India
93. Consider the following statements (b) Finance Minister of India
about the Attorney General of India :
(1) He is appointed by the President.
(2) He must have the same qualification
p. (c) Authorized ministers
(d) None of the above.
97. In the new Panchayati Raj Bill enacted
re
as required for Judges of Supreme in 1993, there are several fresh
Court provisions deviating from the past,
(3) He must be member of either house
which one of the following is not one
of Parliament.
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in
irrigation
correct ? (d) For human resource development
(a) 2 & 3 such as full literacy, employment,
(b) l, 2 & 4 population control, housing &
(c) 1, 2, 3 (d) 1, 2, 3 & 4
99. The employment assurance scheme
envisages financial assistance to rural
p. drinking water
Directions : The following questions consist of two
statements, are labelled as ‘Assertion A’ and other
re
areas for guaranteeing employment to labelled as ‘Reason R’. You are to examine the two
at least : statements carefully and decide of the ‘Assertion
(a) 50% of the man and woman seeking A’ and the ‘Reason R’ individually true and if so,
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(c) one man and one woman in a rural (a) Both ‘A’ and ‘R’ are true and ‘R’ is
family living below the poverty line. the correct explanation of A’.
(d) one person in a rural landless (b) Both ‘A’ and ‘R’ are true, but ‘R’ is
Sm
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in the chapter on Fundamental Rights structure and wields more authority
in the Constitution of India. than anybody else in the state.
(R): “Preventive Detention” is a
113. (A): In February 2004, Government-
107.
fundamental Rights of the state
against individuals.
(A): Local politics in India is run on a
p. of India constituted a National
commission on farmers.
re
non-partisan basis. (R): The commission examines
(R): At the local level, some people various issues that Indian farmers are
who would not he chosen if party confronting and suggests appropriate
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(R): Constitutions are not written they affairs which in turn leads to political
grow. empowerment.
109. (A): The president has the right to seek (R): The concept of democracy has
taken deeper roots in the current age
advisory opinion of the Supreme
of globalization.
Court on any question of law or fact.
115. (A): Dual citizenship was announced
(R): The constitution makes it by Prime Minister at the 3rd Pravasi
obligatory for the President to 5 accept Bhartiva Divas in Jan. 2005.
the advice rendered by Supreme (R): Dual citizenship for all overseas
Court. Indians who migrated after January
110. (A): In a federal set-up sovereignty is 26, 1950. subject to the laws prevailing
divided between the central and the in their home country.
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ANSWERS
1. (d) 2. (c) 3. (c) 4. (a) 5. (c) 6. (a) 7. (a) 8. (c) 9. (d) 10. (d)
11. (b) 12. (c) 13. (b) 14. (c) 15. (a) 16. (a) 17. (d) 18. (a) 19. (a) 20. (c)
21. (c) 22. (b) 23. (b) 24. (b) 25. (c) 26. (b) 27. (d) 28. (d) 29. (d) 30. (d)
31. (d) 32. (c) 33. (c) 34. (d) 35. (c) 36. (b) 37. (c) 38. (b) 39. (d) 40. (c)
41. (a) 42. (b) 43. (d) 44. (d) 45. (d) 46. (d) 47. (d) 48. (d) 49. (a) 50. (c)
51. (c) 52. (d) 53. (d) 54. (d) 55. (a) 56. (d) 57. (d) 58. (d) 59. (a) 60. (b)
61. (c) 62. (c) 63. (d) 64. (b) 65. (c) 66. (d) 67. (d) 68. (a) 69. (c) 70. (c)
71. (d) 72. (c) 73. (a) 74. (c) 75. (a) 76. (d) 77. (c) 78. (a) 79. (c) 80. (c)
81. (a) 82. (c) 83. (a) 84. (c) 85. (d) 86. (a) 87. (d) 88. (a) 89. (a) 90. (a)
91. (a) 92. (b) 93. (a) 94. (c) 95. (a) 96. (d) 97. (c) 98. (b) 99. (c) 100. (d)
101. (a) 102. (a) 103. (a) 104. (c) 105. (a) 106. (c) 107. (c) 108. (b) 109. (c) 110.(d)
111. (b) 112. (a) 113. (b) 114. (a) 115. (b)
in
p.
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