POLITY

For Mains 2022

INDIAN CONSTITUTION—HISTORICAL UNDERPINNINGS, EVOLUTION, FEATURES, AMENDMENTS, SIGNIFICANT
PROVISIONS & BASIC STRUCTURE .................................................................................................................................................... 1
1. BASIC PRINCIPLES OF CONSTITUTIONAL LAW ................................................................................................................... 6
A. RULE OF LAW ..................................................................................................................................................................... 6
B. Doctrines Under the Indian Constitution ........................................................................................................................... 8
2. CHANGING THE CONSTITUTION: AMENDMENTS ............................................................................................................................ 10
3 ARTICLE 19: FREEDOMS ....................................................................................................................................................... 16
A. HATE SPEECH ......................................................................................................................................................................... 19
B. PEGASUS, TWITTER ROW AND SECTION 69A OF IT ACT, 2000: SURVELLIANCE IN INDIA ..................................................... 20
C. PRESS RIGHTS ....................................................................................................................................................................... 22
D. NEW IT RULES, 2021: .............................................................................................................................................................. 23
E. Misuse of Social Media...........................................................................................................................................................24
F. RIGHT TO INTERNET ............................................................................................................................................................... 25
4. ARTICLE 21 ........................................................................................................................................................................... 26
A. RIGHT TO PRIVACY ................................................................................................................................................................26
B. DEATH PENALTY .................................................................................................................................................................... 32
C. Euthanasia ............................................................................................................................................................................ 34
D. Sedition ................................................................................................................................................................................ 36
4. FUNDAMENTAL DUTIES – PART IV A .......................................................................................................................................... 37

PARLIAMENT AND STATE LEGISLATURES—STRUCTURE, FUNCTIONING, CONDUCT OF BUSINESS, POWERS & PRIVILEGES
AND ISSUES ARISING OUT OF THESE ............................................................................................................................................. 40
1. ANTI-DEFECTION LAW ........................................................................................................................................................ 43
2. PRIVATE MEMBER BILLS .................................................................................................................................................... 47
3. PARLIAMENTARY COMMITTEES ........................................................................................................................................ 48
A. PUBLIC ACCOUNTS COMMITTEE ........................................................................................................................................... 50
.................................................................................................................................................................................................. 50
B. ESTIMATES COMMITTEE ........................................................................................................................................................ 51
4. RAJYA SABHA ......................................................................................................................................................................52
5. SUSPENSION OF MPS/MLAS ............................................................................................................................................... 57
6. LEADER OF OPPOSITION .................................................................................................................................................... 58
7. MPLAD SCHEME .................................................................................................................................................................. 60

STRUCTURE, ORGANIZATION AND FUNCTIONING OF THE EXECUTIVE AND THE JUDICIARY—MINISTRIES AND
DEPARTMENTS OF THE GOVERNMENT ......................................................................................................................................... 62
1. PRESIDENTIAL ELECTIONS ......................................................................................................................................................... 63
2. VICE-PRESIDENT.................................................................................................................................................................. 63
3. GOVERNOR ......................................................................................................................................................................... 65
4. JUDICIAL ACCOUNTABILITY ............................................................................................................................................... 70
5. JUDICIAL TECHNOLOGY: ONLINE DISPUTE RESOLUTION (ODR)..................................................................................... 70
6. CONSTITUTIONAL BENCH ...................................................................................................................................................72
7. ARTICLE 142 ......................................................................................................................................................................... 73
8. PUBLIC INTEREST LITIGATION ........................................................................................................................................... 74
9. SC & SUO-MOTO ................................................................................................................................................................. 75
10. CONTEMPT OF COURT ........................................................................................................................................................ 75
11. PENDENCY........................................................................................................................................................................... 76
12. ALL INDIA JUDICIAL SERVICES ........................................................................................................................................... 78

COMPARISON OF THE INDIAN CONSTITUTIONAL SCHEME WITH THAT OF OTHER COUNTRIES ............................................. 80
1. INDIA VS USA ....................................................................................................................................................................... 81
2. PRESIDENTIAL FORM OF GOVERNMENT ........................................................................................................................... 82
3. CABINET .............................................................................................................................................................................. 83

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SEPARATION OF POWERS BETWEEN VARIOUS ORGANS DISPUTE REDRESSAL MECHANISMS AND INSTITUTIONS
(JUDICIARY) ..................................................................................................................................................................................... 84
1. SEPARATION OF POWERS .................................................................................................................................................. 86
2. ORDINANCE ........................................................................................................................................................................ 89

FUNCTIONS AND RESPONSIBILITIES OF THE UNION AND THE STATES, ISSUES AND CHALLENGES PERTAINING TO THE
FEDERAL STRUCTURE, DEVOLUTION OF POWERS AND FINANCES UP TO LOCAL LEVELS AND CHALLENGES THEREIN ........ 92
1. FEDERALISM ....................................................................................................................................................................... 98
2. INTER-STATE WATER DISPUTES ........................................................................................................................................104
3. INTER-STATE COUNCIL ...................................................................................................................................................... 105

APPOINTMENT TO VARIOUS CONSTITUTIONAL POSTS, POWERS, FUNCTIONS AND RESPONSIBILITIES OF VARIOUS

CONSTITUTIONAL BODIES ............................................................................................................................................................. 107
1. ELECTION COMISSION .......................................................................................................................................................109
2. COMPTROLLER AND AUDITOR GENERAL OF INDIA ........................................................................................................ 110

STATUTORY, REGULATORY AND VARIOUS QUASI-JUDICIAL BODIES ......................................................................................... 113

1. TRIBUNALS ........................................................................................................................................................................ 116
................................................................................................................................................................................................. 120
A. NATIONAL GREEN TRIBUNAL .......................................................................................................................................... 120

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INDIAN CONSTITUTION—HISTORICAL UNDERPINNINGS, EVOLUTION, FEATURES,

AMENDMENTS, SIGNIFICANT PROVISIONS & BASIC STRUCTURE

Syllabus Sub- 2013 2014 2015 2016 2017 201 2019 202 2021 Insights Developmen Predictio
division 8 0 ts ns

Indian Historical Did the

Constitution- Underpinnin Government
gs & of India
Historical Evolution Act,1935 lay
Underpinnin down a
gs, federal
Evolution, constitution?
Discuss.
Features, (12.5)
Amendment (Correlative
s, Significant to
Provisions & Federalism)
Basic
Structure
Features ‘Constitutio Due process - Important
nal Morality’ procedural doctrines of
is rooted in justice (nov) /= the
the Negative Liberty constitution
Constitution concept - basic , important
itself and is juris features -
founded on rigid &
its essential flixible,
facets. constitution
Explain the al
doctrine of supremacy.
‘Constitutio
nal Morality’
with the
help of
relevant
judicial
decisions.

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(10/150)
(Theory &
Overall CA)

Amendment The Has not Was in news

s Supreme been regarding
Court of repeated in various historic
India a very long amendments
keeps a time. Can be like 19(1) by
check on asked this Nehru and
arbitrary year. OTHERS
power of
the
Parliament
in
amending
the
Constitutio
n. Discuss
critically.
Boundary + The Assam-
Citizenship Meghalaya
boundary
dispute
resolution +
Towards a
resolution
of the
Arunachal-
Assam
border
dispute
Significant Discuss What do Discuss Discuss each Examine What can Analyze the Extremely Doctrine of Preamble -
Provisions Section understan the adjective the scope France distinguishi high Essentiality: Significance
66A of IT d by the possible attached to of learn from ng features recurrence Freedom or and features
Act, with concept factors the word Fundament the Indian of the of topics, religion and etc,
reference “freedom that inhibit ‘Republic’ in al Rights in Constitutio notion of usually in attire-hijab Fundament
to its of speech India from the the light of n’s Equality in contempor controversy- al Duties -
alleged and enacting ‘Preamble’. the latest approach to the ary context. Article 25+ importance,
violation expression for its Are they judgement secularism? Constitution Needed to freedom of reforms; 32
of Article ”? citizen a defendable of the (10/150) s of the be mapped press was in v 226; Digital
19 of the Does it uniform in the Supreme (Amendme USA and with current news Privacy +

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Constitutio cover hate civil code present Court on nt to French India affairs • The Body
n. (10/150) speech as circumstanc Right to law banning (15/250) thoroughly! Government Privacy;
(SC also? Why provided es? Privacy. external (Theory) has set up a Death
Judgemen do the for in the (12.5/200) (15/250) religious (Black Lives committee Penalty +
t pending - films in Directive (Theory) (Puttuswa symbols Matter) to develop Euthanasia;
Issue in India stand Principles my wearing at (Correlative comprehens Sedition +
news) on a of State Judgment) school to ive Hate
slightly Policy. trips) Comparativ framework Speech; sec
different (12.5/200) (Correlative e on the Right 69 A,
plane from (Theory - to Constitution to Repair Pegasus,
other 30 Years of Comparativ al Law) • The Social
forms of Shah e Department Media, OTT
expression Bano) Constitutio of (digital
? Discuss. nal Law) Empowerm rights)
(12.5/200) ent of
(Election Persons
Year, with
Censor Disabilities
Board - has released
Appts & the draft of
Film the National
Issues) Policy for
(repeated Persons
in with
judiciary) Disabilities
Does the Topics like The need to find 1. LGBTQIA+
right to reservation a balance can be
clean and religion between the asked after
environme are asked in fundamental the Trans bill
nt entail the least rights and duties has been
legal controversi for the country’s passed.
regulation al context progress + free 2. Non-caste
on burning (women's speech scope reservations
crackers rights and limitations + such as
during issues) IB Ministry's state
Diwali? Power to domicile
Discus in Regulate TV (A.15), EWS
the light of Content + (constitutio
Article 21 Central Media nal
of Indian Accredation morality).
Constituti Guidelines
on
and
judgement
s of the
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 4

apex in
this
regard.
(12.5/200)
(SC
Judgemen
t in 2015)
SC sought Fundament
response from al Duties
Centre and most
states on a probable!
petition seeking
enforcement of
FD + Delhi HC
civil rights vs.
anti-terror laws
(AFSPA) +
Criminal
Procedure
Identification
Bill, 2022
Basic The Starting What was Parliament’ Has not Haryana job Significance
Structure Supreme from held in the s Power to been reservation and of Minerva
Court of inventing Coelho case? amend the repeated in and HC stay, Mills -
India the ‘basic In this Constitutio a very long Article on who Relationship
keeps a structure’ context, can n is a limited time. Can be judges the between FR
check on doctrine, you say that power and asked this judiciary,striking & DPSPs,
arbitrary the judicial it cannot be year. down parts of
power of judiciary review is of enlarged Cooperative
the has played key into law, Places of
Parliament a highly importance absolute worship act was
in proactive amongst the power. In in news
amending role in basic light of this
the ensuring features of statement
Constitutio that India the explain
n. Discuss develops Constitution whether
critically. into a ? (12.5/200) Parliament
(10/150) thriving (Theory) under
(Theory - democracy Article 368
Checks & . In light of of the
Balances - the Constitutio
Origin) statement, n can
evaluate destroy the
the role Basic
played by Structure of

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judicial the
activism in Constitutio
achieving n by
the ideals expanding
of it’s
democracy amending
. power.
(15/250)
Though
the federal
principle is
dominant
in our
Constitutio
n and that
principle is
one of its
basic
features,
but it is
equally
true that
federalism
under the
Indian
Constitutio
n leans in
favour of a
strong
Centre, a
feature
that
militates
against the
concept of
strong
federalism
. Discuss.

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1. BASIC PRINCIPLES OF CONSTITUTIONAL LAW

A. RULE OF LAW

Introduction:
1. The term ‘Rule of Law’ is derived from the French phrase ‘la principe de legalite’ (the principle of
legality), which refers to a government based on principles of law and not of men.
2. In India, the concept can be traced to the Upanishads, which provide that “Law is the King of Kings.
3. Professor A.V. Dicey developed this concept in the course of time and expounded the concept of Rule
of Law in his treatise, Law of the Constitution.
4. India was ranked 79th out of 139 countries and jurisdictions in the World Justice Project (WJP) Rule of
Law Index 2021

Absence of arbitrary power:

1. No person could be punished or made to suffer in body or property except for breach of law.
2. The State cannot punish any person except for violation of law.
3. Any wide discretionary power or arbitrary power vested in the State violates Rule of Law.
4. In the most fundamental sense, this principle attempts to protect the citizens from arbitrary and
abusive use of government’s power.
5. The authorities who are empowered to act must do so in accordance with the law.
6. Right to Equality under Article 14 of the Indian Constitution includes right against arbitrary use of
power by the government.
7. Right to life and personal liberty under Article 21 requires the government to act justly, fairly and
reasonably in matters of life and liberty.
8. Article 245 read with Seventh Schedule of the Indian Constitution deals with distribution of legislative
power between Centre and State
9. Supreme Court in E.P. Royappa v State of Tamil Nadu (1974) and Maneka Gandhi v Union of India
(1978) held that Article 14 embodies a guarantee against arbitrariness.
10. In Keshavananda Bharti case, the supreme court stated that our constitution postulates Rule of Law
in sense of supremacy of constitution and laws as opposed to arbitrariness.
11. In Raman Dayaram Shetty v. International Airport Authority of India (1979) , the Supreme Court held
that the great purpose of rule of law is the protection of individual against arbitrary exercise of power.

Equality before Law:

1. All are equal before the law.
2. Every person is liable for breach of law, irrespective of his/her status.
3. No special treatment or privileges for government officials.
4. Government officials are liable for breach of law, just like any ordinary citizen.

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5. No separate courts to deal with disputes between government and citizens.

6. All disputes are subjected to the jurisdiction of the same courts.
7. Courts must be independent of the Executive.
8. The Preamble of the Constitution of India intended to secure equality of status and opportunity.
9. Articles 14 to 18 in Part III of the Indian Constitution guarantee the fundamental right of equality.

Supremacy of law:
1. Mere enumeration of rights is not sufficient.
2. Recognised rights should have proper remedies for violation.
3. Rights should be enforceable in Court.
4. Courts should have the power of judicial review.
5. Courts need to be empowered to protect the rights of the citizens
6. Article 13 expressly provides for judicial review over the legislations passed by the legislature. Under
this Article, no law, made before or after the enactment of our Constitution, should violate Part III of
the Constitution. Any such law would be void. This protection was extended even to the rules,
regulation, executive orders and customs having force of law.
7. Article 32 confers writ jurisdiction on the Supreme Court under which the court has power to issue
any order or grant any relief for violation of Fundamental Rights. This jurisdiction of the Supreme Court
cannot be restricted, except according to the provisions of the Constitution.
8. Article 226 confers similar jurisdiction on High Courts. High Courts can exercise writ jurisdiction.
9. Art 142 and Sec 482 of the Code of Criminal Procedure, under which supreme court and high courts
respectively has inherent power to do justice

Rule of law challenges in India:

1. Poverty: Offering special treatment by way of reservations may per se appear to be a violation of Rule
of Law. However, several decades of exploitation and uneven distribution of wealth in India has
resulted in rendering certain sections of the people backward.
2. Fundamentalism and Communalism: Religious intolerance, particularly against minorities would
seriously undermine the role of rule of law. Further, this situation becomes even more complex due to
special protection conferred on minorities by the constitution.
3. Regionalism: Raise of regionalism endangers the unity of the nation. Demand for special treatment on
the basis of demographical area severely weakens the rule of law.
4. Terrorism: Terrorism and terrorist attacks on the public life demands stringent laws. Laws enacted to
counter terrorism, particularly preventive detention laws, would confer a lot of discretion on law-
enforcement agencies. This discretionary power might result in arbitrariness, and hence violates Rule
of Law.
5. State violence: Violation of law by law-enforcing agencies like the police and armed forces, particularly
in cases of arrest and detention, would have a severe impact on Rule of Law. This is more so as the
government may not be interested in punishing these agencies as they form part of government
machinery and to uphold the law and order.

Modern Rule of Law (conclusion):

The modern concept of Rule of Law was developed by the International Commission of Jurists (ICJ).
1. The individual is possessed of certain rights and freedoms and that she/ he is entitled to protection of
these rights and freedoms by the State.
2. There is an absolute need for an independent judiciary for ensuring effective machinery for the
protection of fundamental rights and freedoms.

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3. Equal access to justice: The primary obligation of the legal profession is to use its best efforts to ensure
that adequate legal advice and representation are provided. This would include extending free legal
aid to the poor.
4. The establishment of social, economic and cultural conditions would permit all individuals to live in
dignity and to fulfil their legitimate aspirations. This would include recognition of civil and political
rights as well as the establishment of the social, economic, educational and cultural conditions, which
are essential for the full development of the individual’s personality.

B. Doctrines Under the Indian Constitution

I. Doctrine of Pith and Substance:

1. It arises when there is a conflict between two or different subject matters of different lists.
2. There can be circumstances in which subject matter of list 1 clashes with the subject matter of list 2.
This doctrine is applied in such a situation.
o Reason- powers of the legislature would be severely limited if every law were to be declared
invalid on the ground that it infringes power.
3. According to this doctrine, it is examined to check its “true nature and character” in order to ascertain
in what list it falls.
4. It provides a degree of flexibility. It is widely used in determining whether the state is within its power
to make a statute which involves a subject mentioned in the union list of the constitution.

II. Doctrine of colourable legislation:

1. It is based on the maxim that “what cannot be done directly, cannot also be done indirectly”.
2. This doctrine is applied when a Legislature does not have the right to make law upon a particular
subject but indirectly makes one.
3. The Court has laid down certain tests for discovering whether any particular Act constitutes colourable
legislation.
o The court must not look into its form or the label but the substance of the law which the
legislature has given it.
o The court must look at the object as well as the effect of the law.
o If the legislature proceeds under a legislative plan the court must read all the statutes
constituting that plan and determine the combined effect.
4. K C Gajapati Narayan Deo vs. the State of Orissa : If the Constitution of a State distributes the
legislative powers amongst different bodies, which have to act within their respective spheres marked
out by specific legislative entries, or if there are limitations on the legislative authority in the shape of
fundamental rights, questions do arise as to whether the legislature in a particular case has or has not,
in respect to the subject-matter of the statute or in the method of enacting it, transgressed the limits
of its constitutional powers”.

III. Doctrine of Harmonious Construction:

1. It states that a provision of the statute should not be interpreted or construed in isolation but as a
whole, so as to remove any inconsistency or repugnancy.
2. It brings harmony between the various lists referred to in the Indian Constitution Schedule 7. In CIT v.
Hindustan Bulk Carriers, the SC stated five important principles:
o The courts must avoid a clash on contradicting provisions and they must construe the
opposing provisions so as to harmonize them.
o The provision of two sections respectively cannot defeat each other unless the court, despite
all its effort, is unable to find a way to reconcile their differences.

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o When it is difficult to totally reconcile the distinctions in the conflicting provision, the courts
must decipher them in such a way so that effect is given to both the provisions as much as
possible.
o The courts must also keep in mind, the interpretation that makes the provision ambiguous or
useless is not harmonious construction.
o To harmonize is not to destroy any statutory provision or to make it pointless.

IV. Doctrine of Eclipse:

1. It is dealt under Article 13(1) of the Indian Constitution.
2. It states that any rule which interferes with the fundamental rights is invalid.
3. The doctrine of eclipse means that an existing law that is inconsistent with a fundamental right,
although it becomes inoperative from the date of the constitution’s beginning, is not entirely dead.
4. By amending the constitution’s relevant fundamental rights, the conflict can be eliminated so that the
eclipse vanishes and the entire law becomes valid. The first case in which this doctrine was applied was
Bhikaji vs. State of MP.

V. Doctrine of Severability:
1. According to the doctrine of severability, if there is any offending part in the statute then the only
offending part is declared void and not the entire statute. The rest remains operative. Under Article
13, it is given that only the offending part in a statute is void and not the whole statute.
2. In RMDC vs. UoI, the SC states that the doctrine of severability is a matter of substance and not of
form.

VI. Doctrine of Territorial Nexus:

1. Article 245(1) states that laws that are made by a particular State Legislature are only applicable in that
particular State and not outside the territorial boundary of that State, except in scenarios where there
is a sufficient nexus between that State and the object.
2. No law made by Parliament shall be deemed to be invalid on the ground that it would have an extra-
territorial operation.
3. In the case of Tata Iron Steel vs. the State of Bihar, the SC applied this doctrine.

VII. Doctrine of Laches:

1. It is based on the maxim that “equity aids the vigilant and not those who slumber on their rights.” It
means that a legal right or claim will not be upheld or permitted if a long delay in asserting the right or
claim has prejudiced the adverse party. Anybody who wants remedy must come within a reasonable
time before the court.
2. In Ravindra Jain vs UOI, the SC stated that on grounds of unreasonable delay, the remedy under Article
32 can be denied.

VIII. Doctrine of Waiver:

I. In this, a person intentionally gives up his right or privilege or chooses not to exercise his right or
privilege which are conferred on him by the state.
II. In Basheshar Nath v. Commissioner of Income Tax,[12] the Supreme Court held that fundamental rights
of a person cannot be waived.

IX. Doctrine of Proportionality:

I. FRs of any individual can be restricted only if it passes each of the three tests otherwise it can be struck
down by the court of law under the Judicial Review.

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o First, such state action must have a legislative mandate;

o Second, it must be pursuing a legitimate state purpose; and
o Third, it must be proportionate i.e., such state action — both in its nature and
extent, must be necessary in a democratic society and the action ought to be the least intrusive
of the available alternatives to accomplish the ends.
II. The Court in K.S. Puttaswamy held that five sub-components of proportionality must satisfied: (a)
legitimate goal (b) the existence of a rational connection (c) necessary to achieve the object and
must not infringe rights to an extent greater than is necessary to fulfil the aim (d) necessary to
protect them (e) provide sufficient safeguards relating to the storing and protection of centrally
stored data.

X. Doctrine of Essentiality:
1. The doctrine of “essentiality” was invented by a seven-judge Bench of the Supreme Court in the
‘Shirur Mutt’ case in 1954. The court held that the term “religion” will cover all rituals and practices
“integral” to a religion, and took upon itself the responsibility of determining the essential and non-
essential practices of a religion.
2. Reason- to protect practices that are essential and integral to the religion.

3. Issues over the doctrine:

o Judicial overreach is argued
o The idea of providing constitutional protection only to those elements of religion which the
court considers “essential” is problematic as it assumes that one element or practice of
religion is independent of other elements or practices.
o So, while the essentiality test privileges certain practices over others, it is, in fact, all practices
taken together that constitute a religion.
4. How does essentiality square up against religious freedom?
o Freedom of religion was meant to guarantee freedom to practice one’s beliefs based on the
concept of “inward association” of man with God.
o The apex court in ‘Ratilal Panachand Gandhi vs The State of Bombay and Ors’ (March 18, 1954)
acknowledged that “every person has a fundamental right to entertain such religious beliefs
as may be approved by his judgment or conscience”.
o The framers of the Constitution wanted to give this autonomy to each individual. Scholars have
argued that the essentiality test impinges on this autonomy.

The apex court has itself emphasised autonomy and choice in its Privacy (2017), 377 (2018), and
Adultery (2018) judgments.

2. CHANGING THE CONSTITUTION: AMENDMENTS

Introduction:
• Confers power to the Parliament under Art 368.
• Both houses of the Parliament have equal powers.
• The President is constitutionally obligated to only give assent to a constitutional amendment bill as
otherwise would undermine parliamentary powers.
• Allows provisions for state ratification under some conditions as mentioned under Art 368 which
impact federal interests despite a second house RS representing the will of states.

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RIGIDITY VS. FLEXIBILITY:

• The Indian Constitution is a fine mix of rigidity and flexibility as it provides for several methods for its
own amendment. Depending on the nature of the consequences of the amendment, the
ease/difficulty of the amendment procedure keeps changing.

Following is the sequence of the types of amendment procedures in increasing order of rigidity.
Types of majorities required to amend the Constitution: (MOST FLEXIBLE TO MOST RIGID)
1. SIMPLE MAJORITY-
1. Requires not less than 50% present and voting.
2. Uses:
• Passage of ordinary bill and financial bill,
• passage of adjournment,
• election of speaker and deputy speaker,
• approval for president rule and financial rule,
• censure motions,
• resolutions passed by House of Parliament for discontinuation of a national emergency,
• ratification of constitution by state legislature.

2. EFFECTIVE MAJORITY-
1. Means not less than 50% of (total strength of the house - vacancies i.e., excluding vacancies)
2. Uses:
• Removal of speaker, deputy speaker and vice-chairman etc.

3. ABSOLUTE MAJORITY-
1. Means not less than 50% of total strength of the house (without subtracting vacancies).
2. Not used alone, it is used with other majority.

4. SPECIAL MAJORITY-
i. Means not less than 2/3 members present and voting (no minimum requirement).

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• Article 249: Rajya Sabha can pass a resolution authorising the parliament to legislate on a state
subject for more than one year.
• Article 312: Rajya Sabha can pass a resolution authorising the parliament to create a new All India
Service.

ii. Not less than 2/3rd members present and voting with absolute majority. (Article 368)
• Removal of a judge of Supreme Court/High Court/CAG/CEC, approval for continuing national
emergency (in both houses), Article 169: in state assembly seeking to create slash abolish Vidhan
Parishad.

iii. Not less than 2/3rd members present and voting with absolute majority. (Article 368) + consent of 50%
of states needed:
• On a matter of distribution of executive or legislative powers between centre and states.
• On a matter involving Supreme Court and High Court.
• On a matter involving any list in the 7th schedule.
• Representation of states in the parliament.
• On amendment in procedure of election of President.
• Article 368 itself.

iv. 2/3 of total strength of the house.

• Impeachment of President.

Impact:
Key Features:
1. It is limited by Article 13(2) which invalidates any ‘law’ that seeks to violate Part III (FRs).
2. However, judicial decisions such as Kesavananda Bharti v. State of Kerala (1973) have excluded
constitutional amendments to be included under the purview of ‘law’ as per Art 13(2).
3. Therefore, gently balancing the rigidity as well as the flexibility of the Constitution. (105 amendments
in 75 years, and 1st amendment within the first year itself)

Was the epicentre of:

1. Changes to FRs due to land reforms enacted which impact the erstwhile fundamental right to property
2. Conflict between FRs and DPSPs due to land reforms as well as nationalisation policies
3. Restrictions on judicial review of laws placed under the IXth Schedule and Art 13(2)

Ultimately, led to the creation of doctrine of basic structure, which further strengthened judicial review and
arguably, paved the way for judicial activism.

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Kesavananda Bharti v. State of Kerala (1973) (13 Judge Bench) (7:6):

1. Recently, a Canadian Supreme Court judgment held that it should not be possible for courts to use
unwritten principles to strike down legislation as it would negate the legislative power available to the
Parliament. The minority view referred to India’s Kesavananda Bharti judgement as well.
2. Kesavananda Bharti v. State of Kerala (1973) (13 Judge Bench) (7:6) :
• Kesavananda Bharti is unique in the history of international constitutional law:
➢ Anxious Political Circumstances
➢ Shift in the balance of democratic power it caused
➢ Unprecedented number of separate opinions delivered by the court
➢ Sheer length of the judgement itself (800 pages, 420,000 words long) - 11 separate
opinions were issued, thereby no actual clear indication, first time in history, judges gave
a summary of their decision (4 judges refused to sign that summary)
➢ The Basic Structure Doctrine is the pinnacle of Judicial Creativity
• The government passed a series of constitutional amendments (24, 25, and 29th) trying to
reverse Golak Nath’s judgement.
• The largest ever bench of the SC in India history delivered a balancing act judgment by
➢ 24 CA 1971: Nullified Golak Nath: CA not Law under Art.13: Upheld as valid
➢ 25 CA 1971: 39(b) (c) > 14, 19, 31: Upheld as valid
➢ 29 CA 1971: Added two land reforms statutes to the 9th Schedule: Upheld as valid

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• Overruled Golak Nath which said that FR could not be nullified or taken away by the
Parliament.
• There was no implied limitation on Parliament’s Power to amend Art. 368, however
➢ Declaring that the Parliament can amend anything in the Constitution as long as it does
not violate the Doctrine of Basic Structure (Teleological Approach).
➢ Doctrine of Basic Structure (Originally, a German Idea) would be a series of principles
that would be identified by the SC from time to time.
➢ Additions made to the IXth schedule, and all CAs passed in the future, post the
judgment would also be subject to judicial review.
3. This doctrine would apply not only to constitutional amendments but also ordinary legislations as well.
{Madras Bar Association v. Union of India (2015)}
4. One of its first applications were to invalidate the provisions of 39 CA, 1975 granting immunity from
judicial scrutiny of Pres, VP, PM elections (Indira Gandhi Case)

Does Basic Structure apply to ordinary legislation?

1. In Indira Nehru Gandhi vs. Raj Narayan (1975), the constitutional validity of the Constitution (Thirty
Ninth Amendment) Act of 1975, the Representation of People (Amendment) Act, 1974 and the
Election Laws (Amendment) Act, 1975 were under challenge before the Supreme Court. Relying on
Kesavananda Bharati, it was contended that like constitutional amendments, ordinary legislative
measures were subject to the restrictions of not damaging or destroying the basic structure or basic
features of the Constitution.
2. This contention was rejected by the apex court, which observed that the majority view in Kesavananda
Bharati did not support such an interpretation. It was held that although an amendment to the
Constitution under Article 368 could be challenged on the ground of violation of the basic structure of
the Constitution, an ordinary legislation could not be so challenged.
3. Subsequently, constitution benches of the Supreme Court in Kuldip Nayar vs. Union of India (2006)
and Ashoka Kumar Thakur vs. Union of India (2008) affirmed the view taken in Indira Nehru Gandhi.
4. Interestingly, in Madras Bar Association vs. Union of India (2014), a constitution bench of five judges
of the Supreme Court took a contrary view after referring to Indira Nehru Gandhi.
5. This view was reaffirmed by another constitution bench of the Supreme Court in Supreme Court
Advocates-on-Record vs. Union of India (2015).
6. In India, the issue as to whether a legislation can be struck down by the Court for violating the “basic
structure” or “unwritten constitution principles” is still not settled.
7. The union government recently defended the Tribunal Reforms Act before the Supreme Court,
contending that a legislation could not be invalidated on the ground that it violated the basic structure
doctrine. However, in the backdrop of the apparent conflict of opinions on this issue, it is high time
that a larger bench is constituted to settle these troubled waters.

CRITICAL VIEW- BASIC STRUCTURE

Positive Impacts:

1. SC was the unmatched authority when it came to Constitutional Matters

2. Firmly, established Judicial Review
3. Judges wanted a win-win for Parliament and the SC

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4. Protected the Indian State as well as our South Asian Counterparts from totalitarian, military, or other
extra constitutional interventions.

Points of debate:
1. No mention in the Constitution
2. Lengthy
3. Lack of consensus

Analysis and future of basic structure doctrine:

1. If one had to choose between the Legislature and the Judiciary, as the custodian of the Constitution,
it would most likely be the latter.
2. Does violate traditional notions of Judicial Review.
3. Was a rescue operation by the Judiciary of the Indian Democracy.
4. Minimum 13 judges would be required to reconsider Kesavananda Bharti case.
5. By its very nature, Basic Structure Doctrine cannot be overruled by a legitimate exercise of power, the
only other means would be through extra constitutional methods, both of which are very unlikely.

Is the evolution of art 368 justified? (Conclusion):

1. The foundation of Constitutionalism is the creation of State limited by the Constitution.

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

Conflict between FR & DPSP (Minerva Mills case):

1. The conflict gave rise to the doctrine of harmonious construction which would eventually also apply
to federal turbulences arising out the constitutional framework in India
2. Reason behind the conflict between Supreme court and state are property and reservation.

Fundamental Duties DPSP

• Limited scope • Scope is limitless

• Protect rights of individual and work at micro • Protects rights of citizens and works at
levels macro level
• If anybody feels that his rights are being • Not enforceable by law
violated can approach the court of law.

3. Textile Mill in Bangalore, which was nationalized in 1970s, and the same was challenged by the owners
in 1977.

o 42 CA, 1976 challenged:

▪ Added FD: Upheld

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▪ Made DPSPs superior to any other part of the Constitution: Only if JR is allowed
(Article. 31C)
▪ Added Secular, Socialist to the Preamble: Upheld
▪ Amended Art 368 by nullifying Kesavananda Bharti: Overruled
▪ No amendment, regardless of when it is enacted, would be question by a court
▪ No limitation on the powers of the Parliament to amend the Constitution
Conclusion:

• Minerva is the last case in which the government made a concerted effort to establish parliamentary
supremacy over the Constitution
o Marks the beginning of judicial supremacy of sorts, with SC entrenched as the final arbitrator
of constitutional interpretation in India
o Arguably, as significant as Kesavananda Bharti Case

3 ARTICLE 19: FREEDOMS

Introduction-> Significance-> Judgements-> Reasonable Restrictions on freedom of speech & expression (in
light of current affairs)

Introduction
1. “Democracy is based essentially on free debate and open discussion, for that is the only corrective of
government action in a democratic set up. If democracy means government of the people by the people,
it is obvious that every citizen must be entitled to participate in the democratic process and in order to
enable him to intelligently exercise his rights of making a choice, free & general discussion of public
matters is absolutely essential.” – Justice Bhagwati in Maneka Gandhi v. Union of India, 1978
2. Under Article 19 of the Indian Constitution, all citizens shall have the Fundamental Right:
a. to freedom of speech and expression
b. to assemble peaceably and without arms
c. to form associations or unions
d. to move freely throughout the territory of India
e. to reside and settle in any part of the territory of India
f. to practice any profession, or to carry on any occupation, trade or business
3. This was expanded to include the right to receive and disseminate information.
4. International conventions including the Universal Declaration of Human Rights, European convention
on Human Rights and fundamental freedoms, and International Covenant on Civil and Political Rights
also guarantee freedom of speech and expression and its protection.

Restrictions on freedom- reasonable or unreasonable:

1. Sovereignty and integrity of the country.
2. Friendly relations with foreign countries.
3. Public order.
4. Security of the State.
5. Decency or morality.
6. Defamation.
7. Contempt of court.
8. Incitement to an Offence

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Significance of freedom of speech and expression:

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

Facets of free speech:

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

Important judgements: landmark:

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

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Important judgements: contemporary:

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

CONTEMPORARY ISSUES:

MOST ISSUES ARE A CUMMULATIVE VIOLATION OF ARTICLE 19 & ARTICLE 21: (PRIVACY)

A. HATE SPEECH

Context: Panel formed to define Hate speech

1. In May 2021, a panel was constituted by the Union Home Ministry to suggest reforms to the (IPC) is
likely to propose a separate Section on “offences relating to speech and expression.”
2. As there is no clear definition of what constitutes a “hate speech” in the IPC, the Committee for
Reforms in Criminal Laws is attempting for the first time to define such speech. In 2019, the Ministry
decided to overhaul the IPC, framed in 1860 and the Code of Criminal Procedure (CrPC)

Need for a clear definition of “hate speech”:

1. Responsible speech is the essence of the liberty granted under Article 19(a) of the Constitution. One
of the greatest challenges before the principle of autonomy and free speech principle is to ensure that
this liberty is not exercised to the detriment of any individual or the disadvantaged section of the
society.
2. The constitution provides for reasonable restrictions through Article 19(2) on Freedom of expression
and speech.
3. Critics argued that undefined ’hate speech’ gives authorities wide power and is often used to silence
political dissents.
4. In a country like India, with diverse castes, creeds, religions and languages, hate speech poses a
greater challenge.

Legislations around hate speech:

Hate speech has not been defined in any law in India. However, legal provisions in certain legislations prohibit
select forms of speech as an exception to freedom of speech.
1. The Indian Penal Code, 1860 (hereinafter IPC):
• Section 124A, Section 153A, Section 153B, Section 295A, Section 298, Section 505(1) and (2)
2. The Representation of The People Act, 1951

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• Section 8 disqualifies a person from contesting election if he is convicted for indulging in acts
amounting to the illegitimate use of freedom of speech and expression.
• Section 123(3A) and section 125 prohibits the promotion of enmity on grounds of religion, race,
caste, community or language in connection with election as a corrupt electoral practice and
prohibits it.

Recommendations for changes in IPC:

1. The Viswanathan committee proposed inserting Sections in the IPC for incitement to commit an
offence on grounds of religion, race, caste or community, sex, gender identity, etc.
2. The Bezbaruah Committee constituted by the Centre in February 2014, in a report, proposed penal
amendments to Section 153C of IPC, and Section 509A IPC.

Way forward:
1. Democracy thrives on disagreements provided they do not cross the boundaries of civil discourse.
Critical and dissenting voices are important for a vibrant society. However, care must be taken to
prevent public discourse from becoming a tool to promote speech inimical to public order.
2. A clear definition of “hate speech” will distinguish between permissible speech and hate speech.

B. PEGASUS, TWITTER ROW AND SECTION 69A OF IT ACT, 2000: SURVELLIANCE IN INDIA

Context:
1. As Twitter initiated legal action against some of the government ordering it to take down certain
content posted on the microblogging site, the focus is back on Section 69A of IT Act, 2000.
o Alleging disproportionate use of power by officials, the social media company moved the
Karnataka High Court against the Ministry of Electronics & Information Technology’s order
content-blocking orders issued under Section 69 (A) of the Information Technology Act, 2000.
2. Recently in the Pegasus Snooping row, the Supreme Court has said that its technical committee had
so far received and tested 29 mobile devices suspected to be infected by Pegasus malware.
o Pegasus is at the centre of a global collaborative investigative project that has found that the
spyware was used to target, among others, hundreds of mobile phones in India.

About Pegasus:
1. Spyware is a malicious software designed to enter a host computer device, gather data about it, and
forward it to a third-party without host’s consent. Spyware can also refer to legitimate software that
monitors a host’s data for commercial purposes like advertising.
2. Pegasus aka Q Suite, marketed by the NSO Group as “a world-leading cyber intelligence solution that
enables law enforcement and intelligence agencies to remotely and covertly extract” data “from
virtually any mobile devices”, was developed by veterans of Israeli intelligence agencies.

Legality of surveillance in India:

1. Provisions in the Indian Telegraph Act, 1885 and the Information Technology (Amendment) Act, 2000
authorise the Union and the state governments to intercept all types of electronic communication,
including phone calls, e-mails, WhatsApp messages etc.
2. Under Section 5(2) of the Indian Telegraph Act, agencies at the Centre and states can intercept
electronic communication “on the occurrence of any public emergency, or in the interest of the public
safety”.

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3. Empowers designated officials to put a device under surveillance on being satisfied that “it is
necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security
of the State, friendly relations with foreign states or public order or for preventing incitement to the
commission of an offence”. Reasons for ordering interception has to be recorded in writing by the
officials concerned.
4. Section 69 of the Information Technology Act 2000, together with the Information Technology
(Procedure for Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009
authorises the agencies to issue directions for interception or monitoring or decryption of information
through any computer resource, including mobile phones.
5. Blocking order can be issued only for:
o Interest of sovereignty and integrity of India
o defence of India
o security of the state
o friendly relations with foreign states
o public order
o For preventing incitement to the commission of any cognisable offence relating to the above
Process: Any request made by the government is sent to a review committee, which then issues these
directions. Blocking orders issued under Section 69 (A) of the IT Act are typically confidential in nature.
ISSUE (COMMON TO ALL A.19): Reasonable restrictions for various freedoms mention: Law & Order, Public
Order and Security of State as valid reasons. It has been commonly seen that the state authorities impinge on
citizens rights without reasonable apprehensions of threat to the above. There is no categorical explanation
to what is the scope of these terms and they are often interpreted interchangeably. Eg: Right to Protest under
Article 19(1)(b) is often violated stating “public order” as a reason, whereas the disruptions caused or
apprehended to be caused were merely routine “Law & Order” issues, which do not qualify as reasonable
restrictions. SCOPE and GRAVITY: Law & Order < Public Order < Security of State.
SOLUTION: The Courts should clearly interpret the distinctions between these terms and lay down a set of
mandatory qualification for each, to prevent such misuse by statutory misinterpretation.

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C. PRESS RIGHTS

In news:
1. The Editors Guild of India recently expressed its anguish at the closure of the Kashmir Press Club. It
held that the Club's shutting down sets a dangerous precedent for media freedom.
2. The Editors Guild was established in 1978 with the twin objectives of protecting the freedom of the
press and raising the editorial leadership standards of newspapers and magazines.

What is freedom of press?

1. Freedom of press or media refers to the rights given by the Constitution of India under the freedom
and expression of speech in Article 19(1)(a). It encourages independent journalism and promotes
democracy by letting the people voice their opinions for or against the government’s actions.
2. Although widely recognised, it does have reasonable restrictions under Article 19(2) to protect the
safety of the people of the nation.
3. SC ruling- In Romesh Thappar v. the State of Madras, the apex Court stated that the freedom of the
press is at the foundation of all democratic organizations.

Significance:

1. A free exchange of information and knowledge, free exchange of ideas, debating, and expression of
the different points of view are all necessary for democracy to function properly.
2. It encourages open discussions of ideas, allowing individuals to fully participate in political life.
3. Allows to openly question the government, thereby making it more accountable
4. Due to the above reasons, it is also considered to be the fourth pillar of democracy

Threats & current status in India:

1. India is slipping two

points on the World
Press Freedom Index
ranking and India’s
ranking reflects growing
bitterness towards
journalists.
2. Section 124a of IPC
under which sedition is
punishable by life
imprisonment also
endanger freedom of
journalists.
3. Hate speech targeting
journalists shared and
amplified on social
networks are targeted against journalists using social media.
4. The problem of Fake News and the influence of social media pose a dangerous threat to the
occupation.
5. Paid News is a major threat to free and unbiased media

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6. Crimes against Journalists: Hate speech directed at journalists is shared and amplified on social media
networks.
o Reports such as 'Freedom in the World 2021 (Freedom House, US),' '2020 Human Rights
Report (US State Department),' and 'AutocratisationGoes Viral (V-Dem Institute, Sweden)'
have all highlighted journalist intimidation in India.
7. The overwhelming and overarching powers vested in the corporates and political spheres have
created a whole new parallel stream of biased media.

Way forward:

1. Strengthening the Institutional Framework:

o The Press Council of India, a regulatory body, has the authority to warn and regulate the media.
o The News Broadcasters Association (NBA), which represents private television news and
current affairs broadcasters, should be granted statutory status.
2. Combating Fake News- via the possible routes of public education, strengthening of the regulations,
and efforts by tech companies to develop a suitable algorithm for news curation.
3. Media Ethics such as truth and accuracy, independence, transparency, fairness and impartiality,
responsibility, and fair play; should be adhered to.

D. NEW IT RULES, 2021:

1. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
2. Designed to further empower the state and allow the executive considerable powers to shape public
discourses.
3. The state now demands access to all information about the content and origins of every digital
communication, a measure that will weaken the right to privacy
4. On the other hand, digital content is now subject to both self-regulation as well as extensive
surveillance and regulation designed to allow substantial control by the executive over content
5. Debates around the IT Act:
o How, for instance, should we negotiate the desire to curb hate speech and to simultaneously
ensure freedom of expression?
o How can we build governance systems which are just, equitable, transparent, and do not leave
ordinary citizens at the mercy of both technology as well as the formidable powers of the
state?
o How do we protect the ordinary citizen from surveillance, even as we recognise that our lives
in the contemporary world are increasingly lived in the digital domain where we are constantly
generating and leaving data footprints in nebulous spaces?
o Does the only solution to curbing the immense power of multinational tech companies lie in
strengthening the powers of the state?
6. These questions, legitimate as they are, have animated debates and discussions not just in India but
all over the world. The Information Technology (Intermediary Guidelines and Digital Media Ethics
Code) Rules, 2021 announced recently have yet again opened up some of these debates.
7. Companies like Google, Facebook, WhatsApp, Telegram, Koo, Sharechat, and LinkedIn have shared
details with MeitY as per the requirement of the new norms. Twitter sought an extension of the
compliance window and called for a constructive dialogue and a collaborative approach from the
government to safeguard freedom of expression of the public.
8. WhatsApp also filed a case in the Delhi High Court against the government on grounds that the new
rules violated customer privacy.

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9. The new Intermediary Guidelines and Digital Media Ethics Code have also been challenged by entities
like The Wire, LiveLaw and The Quint.

Features of these rules:

1. The IT Rules 2021 aim to empower ordinary users of social media platforms and OTT platforms with a
mechanism for redressal and timely resolution of their grievance with the help of a Grievance
Redressal Officer (GRO) who should be a resident in India. Special emphasis has been given on the
protection of women and children from sexual offences, fake news and other misuse of the social
media
2. Identification of the “first originator of the information” would be required in case of an offence
related to sovereignty and integrity of India. A Chief Compliance Officer, a resident of India, also
needs to be appointed and that person shall be responsible for ensuring compliance with the Act and
Rules. A monthly compliance report mentioning the details of complaints received and action taken
on the complaints would be necessary.
3. The OTT platforms, online news and digital media entities, on the other hand, would need to follow a
Code of Ethics. OTT platforms would be called as ‘publishers of online curated content’ under the new
rules. They would have to self-classify the content into five categories based on age and use parental
locks for age above 13 or higher. They also need to include age verification mechanisms for content
classified as ‘Adult’.
4. Three-level grievance redressal mechanism has been mandated. This includes the appointment of a
GRO, self-regulatory bodies registered with the Ministry of Information & Broadcasting (MIB) to look
after the Code of Ethics and a Charter for the self-regulating bodies formulated by MIB.

E. Misuse of Social Media

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

Technological hurdles with respect to traceability:

1. Social media companies like WhatsApp have expressed apprehensions about the provisions in the new
rules which require them to identify traceability when required to do so by authorities. They contend
that this could possibly lead to the breaking the of end-to-end encryption, which in turn can
compromise users’ privacy

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2. The government, on the other hand, has stated that traceability would only be required in case of
“very serious offences” that threaten the sovereignty and integrity of India. Further, it could also be
implemented without breaking the end-to-end encryption. The onus, however, will lie on the
companies to find a technological solution for the same.
3. Supplying metadata like phone number of the sender, the time of sending a message, the device it
was sent from and its location, could also trace the origin of a message. Interestingly, WhatsApp’s new
privacy policy itself has a provision of sharing metadata of its users with its parent company, Facebook,
for personalised ads
4. As per latest reports, the Union government has sent a notice to WhatsApp for withdrawal of its new
privacy policy which has caused a lot of controversy since its inception.

Arguments put forward by the Centre:

1. Right to Privacy is not an absolute Right and reasonable restrictions on it can be imposed.
2. Double standard of Social Media Companies: Government argues that WhatsApp’s new
privacy update will share the user generated data with Facebook and other third-party
Apps, violating fundamental right to privacy of the citizens in its commercial interest.
3. By cracking down on the fake news and messages, the Government aims to promote free
flow of authentic and correct information and cracking down on disinformation.

The free speech debate:

• The social media giant, Twitter, has raised concerns regarding free speech over the new IT guidelines.
It stated that it would strive to comply with the law but if guided by principles of transparency and
freedom of expression under the rule of law.
• Failure to comply with the rules could lead to the removal of ‘intermediary’ status (a safe harbour to
avoid liability for the content that their users publish) of the companies and could possibly invite
sanction or even punishment under the law.

F. RIGHT TO INTERNET

1. The right to internet access & the right to speak and express oneself over the internet, which are the
positive negative and forms respectively
2. Anuradha Bhasin v. Union of India: a negative right to the internet subject to restrictions under
Articles 19(2) and 19(6) has been recognized.
3. K.S Puttaswamy v. Union of India: Any restriction to the right to freedom of speech and expression
and the right to practise any profession, or to carry on any occupation, trade or business over the
medium of internet, if imposed by the state, under Article 19 have to pass muster of the
proportionality test which as enumerated.
o A law interfering with fundamental rights must be in pursuance of a legitimate State aim;
o The justification for rights infringing measures that interfere with or limit the exercise of
fundamental rights and liberties must be based on the existence of a rational connection
between those measures, the situation in fact and the object sought to be achieved;
o The measures must be necessary to achieve the object and must not infringe rights to an
extent greater than is necessary to fulfil the aim;
o Restrictions must not only serve legitimate purposes; they must also be necessary to protect
them; and

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o The State must provide sufficient procedural safeguards.

Right to Internet under A.21:

1. In its recent judgment in Faheema Shirin v. State of Kerala (2019), the High court has recognized that
mobile phones and internet access through it are part and parcel of the day-to-day life.
2. Resolutions adopted by the United Nations Human Rights Council and the General Assembly which
unequivocally point to the fact that how internet access plays a key role in accessing information and
its close link to education and knowledge.
3. Technology, is an enabler of rights and not a right in and of itself.
o The meaningful exercise of the right to freedom of speech and expression over the medium
of internet is dependent, invariably and inextricably, upon the access to the available
infrastructure.
o Infrastructure in turn depends upon social and economic factors such as the distribution of
resources; the policies of the State and its intervention in the nature of regulation of
resources.

Way forward:

1. Freedom of speech and expression is the basic tenet of any democracy. However, no freedom is
absolute or completely unrestricted.
2. The imperative of striking the right balance between fundamental rights and ascertaining the
reasonableness of a restriction has been a constant effort since the adoption of the Constitution. The
debate has now reached the digital world. The on-going tussle between private, tech giants who own
a substantial amount of Big Data, governments desirous of imposing reasonable restrictions and users
worried about issues relating to data privacy and constraints on freedom of speech and expression, is
likely to get more complicated before optimum solutions can be arrived at.
3. The IT Rules 2021 seek to address concerns of the citizens without infringing on their privacy and
personal liberties, while maintaining digital sovereignty at the same time.

4. ARTICLE 21
Significance-> Recent developments that have thrown light on Article 21.

Introduction:

1. Article 21 reads as: “No person shall be deprived of his life and personal liberty except according to
a procedure established by law.”
2. The right has been held to be the heart of the Constitution, the most organize & progressive provision
of our constitution, the foundation of our laws.

A. RIGHT TO PRIVACY

Introduction:

1. While there is no universally accepted and legal definition of privacy, it broadly relates to the diverse
modes by which people, personal information, certain personal property, and personal decision-
making can be made less accessible to others.
2. It is a Human and Natural Right enjoyed by every human being by virtue of their existence.

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3. It is a Fundamental Right emerging from guarantee of life and personal liberty under Article 21 of the
Constitution.
4. The Right to Privacy is determined on a case-to-case basis due to the dynamic meaning of privacy.

Types of Privacy:

International legal framework on privacy:

1. Around 80 countries in the world have enacted laws regarding privacy including Australia, Canada,
UK, and South Africa. While there is no separate law and the term privacy is not mentioned in the
United States constitution, right to privacy is seen as a part of Fourth Amendment rights.
2. The General Data Protection Regulation (GDPR): It is a regulation in EU law on data protection and
privacy in the European Union (EU).
• The regulation applies if the data controller (an organisation that collects data from EU
residents), or processor (an organisation that processes data on behalf of a data controller
like cloud service providers), or the data subject (person) is based in the EU.
• Under certain circumstances, the regulation also applies to organisations based outside the
EU if they collect or process personal data of individuals located inside the EU.
• The regulation does not apply to the processing of data by a person for a "purely personal or
household activity and thus with no connection to a professional or commercial activity."
• Personal data may not be processed unless there is at least one legal basis to do so. Article
6 states the lawful purposes are:
• If the data subject gives consent to the processing of his or her personal data;
• To fulfill contractual obligations with a data subject, or for tasks at the request of a
data subject who is in the process of entering into a contract;
• To comply with a data controller's legal obligations;
• To protect the vital interests of a data subject or another individual;

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• To perform a task in the public interest or in official authority;

• For the legitimate interests of a data controller or a third party, unless these interests
are overridden by interests of the data subject or her or his rights according to
the Charter of Fundamental Rights (especially in the case of children)

Privacy in India:
Evolution of privacy as a fundamental right:
1. In Kharak Singh v. State of Uttar Pradesh, 1962 while the SC invalidated a Police Regulation for nightly
domiciliary visits on the grounds that it constituted “unauthorised intrusion into a person’s home and
a violation of ordered liberty”, it held that the right to privacy was not guaranteed under Article 21.
2. Supreme court judgments in 1975 (Gobind v. State of M.P) and 1978 (Smt. Maneka Gandhi v. Union of
India) held that right to privacy should be denied only on account of superior reasons which allow for
infringement of such a right, and that the law and procedure authorising interference with right of
privacy must also be right and just and fair and not arbitrary, fanciful or oppressive respectively.
3. The Right to Privacy Bill, 2011.
4. Justice AP Shah Committee on Privacy – 2012
5. In the landmark judgment in case of Justice K.S. Puttaswamy v. Union of India, 2017 the SC declared
Right to Privacy as a fundamental right under Article 21. The court held that privacy is the constitutional
core of human dignity.

Meaning of the Right to Privacy:

1. The Right to Privacy is a part of the Right to Life and Personal Liberty under Article 21 of the
Constitution.
2. It is also recognized under various other laws viz. Law of torts, Criminal Laws etc.
3. It includes preservation of personal intimacies, family life, marriage, procreation, home and sexual
orientation.
4. Privacy is not surrendered when a person is in public place.
5. It is justiciable, but not absolute.

Government efforts to strengthen privacy:

1. Information Technology Act, 2000:

• The IT Act provides for safeguard against certain breaches in relation to data from computer
systems.
• The Act provides for payment of compensation (in civil cases) and punishment (criminal cases)
in case of wrongful disclosure and misuse of personal data and violation of contractual terms
in respect of personal data.
2. Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data
or Information) Rules, 2011:
• The Rules deal with protection of "Sensitive personal data or information of a person",
including information relating to: passwords; financial information; physical, physiological and

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mental health condition; sexual orientation; medical records and history; and biometric
information.
• It provides for rules and guidelines to be followed by corporate bodies while dealing with
personal sensitive data or information of people, disclosure of which is punishable under S.
72A of the IT Act.
3. Justice B N Srikrishna Committee Report, 2018:
• The report on A Free and Fair Digital Economy highlighted that the relationship between
service provider and the individual must be viewed as a fiduciary relationship, which implies
obligation on part of service provider to deal fairly with personal data and use it only for
authorised purposed.
• Its recommendations: creation of Data Protection Authority; restrictions on processing and
collection of data; right to be forgotten; data localization, explicit consent requirements for
sensitive personal data.
• The committee recommended amendment of related laws including Information Technology
Act, 2000, the Census Act, 1948, and the Aadhaar Act, 2016 to bolster their data protection
framework.
4. The Personal Data Protection Bill, 2019:
• After deliberations, the Personal Data Protection Bill, 2018 was approved by the Cabinet in
December 2019, and tabled as The Personal Data Protection Bill, 2019 in Lok Sabha. It was
referred to the Standing Committee, and has now been withdrawn by the government.
• Right to be Forgotten: It allows a person to seek deletion of private information from the
Internet. The Right to be Forgotten falls under the purview of an individual’s right to privacy,
which is governed by the Personal Data Protection Bill that was recently withdrawn by
Parliament.
• K.S. Puttaswamy v. Union of India : Identified the right to be forgotten as an inherent aspect
of privacy, stating removing unnecessary, irrelevant or incorrect information from the internet
if there is 'no legitimate interest' in such data:
• The right encompasses certain rights of correction and erasure namely the right to
• correct inaccurate or misleading personal data,
• to complete any incomplete personal data,
• update personal data that is out-of-date, and
• erase personal data which is no longer necessary for the purpose for which it was
processed.
5. The government is working on a new Data Protection Bill, which it is likely to
introduce in 2023.
• In recent times, the government and social media giants have been at loggerheads
regarding taking down of content. To strengthen this loophole, the government is
looking at making stringent laws which will make it mandatory for platforms to take
action on government requests.
• Citizens too will be given power to ask companies to take down/block
content swiftly.
• The new law should make it easier for government to stop misinformation from
spreading.

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• Giving a boost to the Indian start-up system- The new rule will give a level playing
field to small Indian start-ups and content creators vis-a-vis the giants who are
dominating the space at the moment.
• It should be a privacy plus media regulation plus non-personal data act covering all
technologies.
• It should ensure ethical storage and usage of data. Best international practices-
regulations like Europe’s GDPR and Singapore’s PDPA.

Violation of privacy guidelines by the Govt.: Case studies

S.No. LAW/POLICY ISSUE CRITICISM

1. Aadhaar (Targeted The scheme issued a 12-digit Although the Act specifically provides
Delivery of Financial identity number to every what information can be collected, there is
and Other Subsidies, citizen of India based on no limit to what other information can be
Benefits and his/her biometric information collected.
Services) Act, 2016: and demographic data on a
voluntary basis. Aadhar Judgment: 2018
The government then made The SC upheld the overall validity of the
Aadhaar card mandatory for Aadhaar Card.
every person in India and However, it disallowed the use of
planned linking it to various individual Aadhaar numbers by any private
government benefit schemes. entities for any purpose pursuant to a
contract, on the basis that it was contrary
to the fundamental right to privacy.
2. DNA Technology The Bill allows for creation of Issues of consent have been only partially
(Use and indices on crime scenes, addressed – the final decision in case of
Application) suspects, undertrials, refusal lies with the Magistrate.
Regulation Bill, 2019: offenders, missing persons There is no provision for removing DNA
and unidentified deceased profiles collected for medical or civil cases.
persons. The bill makes provisions for removal of
data from the database, but has not made
It provides for national as well rules for removing profiles from the
as regional DNA database collection centres, which makes DNA data
banks. The DNA collection vulnerable to misuse.
centres have to hand over all
data to the national and
regional databases.

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3. Automated Facial- The NCRB has proposed the No consent: the process amounts to
Recognition System use of an artificial intelligence surveillance.
technology called neural There is a constant danger of misuse of
networks—which establishes data for surveillance and targeting of
patterns and matches—to individuals other than criminals. Since free
identify missing and dead speech is bolstered by privacy, this
persons, and criminals. technology will have implications for
expression without fear of persecution.

4. Draft India Data The policy proposes to Lack of transparency in the consultation
Accessibility & Use improve data availability, and drafting process may cause Harmful
Policy, 2022 quality and use in line with the effects on informational privacy of
decade’s current and citizens.
emerging technology Perverse revenue objective- The policy
demands. bypasses parliament as it contemplates
large scale data sharing and enrichment
All data and information that will be borne from public funds.
generated, created, collected, Lack of clear & concise definitions for key
or stored by the central concepts and Incorrect and harmful
government and authorised understanding of the concept of data
agencies shall be covered by anonymization.
the policy. Risks to group privacy: With respect to
government-to-government data sharing
Applicability: All government for citizen-centric service delivery, the
data will be open and Draft Policy highlights that approved data
shareable unless it falls under inventories will be federated into a
a negative list of data sets, government-wide, searchable database.
categorised under the The lack of a data trusteeship framework
negative list of datasets that gives government agencies unilateral
won’t be shared; and privileges to determine the terms of data
restricted access and shared licensing
only with trusted users, as
defined by the respective
ministry or department, under
the controlled environment.

Condition for law/state to encroach upon privacy:

1. According to SC, a law which encroaches upon privacy will have to withstand the touchstone of
permissible restrictions on fundamental rights.
2. In the context of Article 21, an invasion of privacy must be justified on the basis of a law which
stipulates a procedure which is fair, just and reasonable.
3. The law must also be valid with reference to the encroachment on life and personal liberty under
Article 21.

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4. An invasion of life or personal liberty must meet the three-fold requirement of (i) legality, which
postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; should not suffer
from arbitrariness and (iii) proportionality which ensures a rational nexus between the objects and the
means adopted to achieve them.
5. According to the judgement, the legitimate aims of the state should be “protecting national security,
preventing and investigating crime, encouraging innovation and the spread of knowledge, and
preventing the dissipation of social welfare benefits.”

Recommendations:

1. A rights-oriented data protection legislation which includes comprehensive surveillance reform

prohibiting mass surveillance and institution of a judicial oversight mechanism for targeted
surveillance should be implemented. The legislation should also recognize the principle that the state
ought to be a model data controller as it deals with its citizens’ personal information.
2. We need a constitutional definition and guarantee of the right to individuality, personal autonomy
and privacy in digital age.
3. Companies must not be able to punish consumers for exercising their privacy rights. New legislation
should include non-discrimination rules, which forbid companies from denying goods, charging
different prices, or providing a different level of quality to users who choose more private options.
4. Users should have an affirmative “right to know” what personal data companies have gathered about
them, where they got it, and with whom these companies have shared it (including the government).
5. Issues over internet privacy should be addressed at by international organizations keeping in mind the
interests of various stakeholders including states, individuals, and private entities.
6. States should review their own national laws, policies and practices to ensure full conformity with
international human rights law

B. DEATH PENALTY

Introduction: Definition- Capital punishment, also known as dealth penalty, is the State practice of putting
someone to death through execution, as punishment for a specific crime after a proper legal trial. Capital
punishment in India is mostly carried out through hanging in accordance with the Criminal Procedure Code
(CrPC). The Army Act, 1950 however also includes shooting as an official method of execution.

Capital punishment: assessment:

Arguments in support:
1. Retribution: all guilty people deserve to be punished in proportion to the severity of their crime.
2. The idea that death penalty as a practice works to deterrent prospective crimes and criminals.
3. To ensure prevention of re-offending, and closure and vindication for the victims’ families.

Arguments against:
1. The logic of retribution is laced with moral objections along with varied understanding of capital
punishment more as vengeance than retribution.
2. Similarly, the logic of deterrence does not always work, especially in cases where punishment is
delayed and long drawn, which causes anticipatory suffering.

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3. Loss of human life, violations of the right to live, the irreversible nature of the punishment. Judges are
also prey to human misjudgment and there have been many instances where convicts have been
executed and were later found innocent.
4. Life imprisonment without possibility of parole causes much more suffering to the offender than a
painless death after a short period of imprisonment.
5. Harrowing mental torture that a death row prisoner goes through due to uncertainty of his life, is in
itself a very grave punishment.

The international scenario:

1. As of December 2017, 142 countries in the world had abolished capital punishment.

India: Data:

2. The latest instance of capital punishment in India - hanging of the four Nirbhaya case convicts.
3. As on 31st December 2021, there were 488 prisoners on death row across India

Sc’s rulings on death penalty:

1. In the 1973 judgment of Jagmohan Singh v. the State of UP, the SC ruled that deprivation of life is
constitutionally permissible if done in accordance with the law.
2. In the 1980 case of Bachan Singh v. the State of Punjab, the Supreme Court issued the dicta of the
'rarest of rare cases,' according to which the death penalty should not be granted except in the 'rarest
of rare cases,' where the other option is unquestionably foreclosed.
3. The rarest of rare cases can be described as follows:
• When a murder is committed in such a brutal, ridiculous, diabolical, revolting, or reprehensible
manner that it awakens the community's intense and extreme indignation.
• When a murder is driven by utter depravity and cruelty.
4. In the 1983 decision of Machhi Singh v. the State of Punjab, the Supreme Court established certain
considerations for determining whether a case falls into the category of the rarest of rare cases or not.

Current status of death penalty in Indian context:

1. Prior to the Criminal Procedure (Amendment) Act (CrPC) of 1955, the death sentence was the norm
in India, with life imprisonment serving as an exception.
2. Following the 1955 amendment, courts were free to grant either death or life imprisonment.
• Section 354 (3) of the Criminal Procedure Code of 1973 requires courts to provide reasons for
awarding the maximum penalty.
• Despite the United Nations' global moratorium on the death penalty, India retains it.
3. In accordance with this, the Law Commission rejected a proposal to scrap the death penalty in its 35th
report in 1967.

National (domestic) Institutional recommendations on capital punishment:

1. In 2013, the Justice Verma Committee was against the death penalty even in the rarest of the rare rape
cases.
2. In its 262nd report in August 2015, the Law Commission recommended abolition of death penalty,
except in terror cases.
3. In 2016, in response to a Private Member’s Resolution in the Rajya Sabha, the government stated that
while capital punishment is used only as an ‘unavoidable alternative’, prevailing situations in the
country do not allow for its abolition.

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Way Forward for India: Procedural safeguards based on recommendations of the Law Commission should
also be put in place. An appeal to the SC in case death penalty is awarded (including by Military court) should
be compulsory. Cases of death penalty should be heard by a Constitutional Bench of five judges and the
judgment should be based on unanimous decision.

C. Euthanasia

Introduction: Euthanasia refers to the

practice of intentionally ending a life in order
to relieve pain and suffering. It is associated
with people with terminal illness or who
have suffered irreversible incapacitation and
are undergoing incurable pain.

Euthanasia: An Assessment

Arguments in favour of euthanasia include:

1. Based on empathy and morality – it

is a good human deed to relieve
someone of their pain where there is
no scope for improvement.
2. Right to die peacefully is part of
Fundamental Right to Life guaranteed under Article 21
3. Self-determination – the right to be able to decide when and how they die.
4. Euthanasia enables a person to die with dignity and in control of their situation.
5. Death is a private matter and should not involve intervention by the State - Right to Bodily Privacy.

Arguments against euthanasia include:

1. Distinction between active and passive

euthanasia is morally significant.
2. Another moral dimension includes the weakening
of society’s respect for value of human life.
3. Negates the recovery aspect of human life.
4. It may discourage research for new cures of
various terminal illnesses
5. Room for misuse, and no room for change of
heart once the decision has been made
International position on euthanasia
Euthanasia in India:

1. SC, in the Common Cause v. Union of India, 2018 case legalised passive euthanasia and held it was not
an offence under IPC as it neither at par with murder, nor with attempt to suicide.
2. The SC used religious texts and scriptures and references from schools of jurisprudence to indicate the
moral sanction for ending the life of the terminally ill.
3. It held that 'Right to Die' is a part of Article 21 of the Constitution, and a person has a right to live with
dignity until his death.

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4. The judgment permitted the execution of a Living Will or advanced medical directives by declaring
that a Living Will is a part of the right to live with dignity. The Apex Court also introduced guidelines
for the same.
• A Living Will is a document contains a person’s wishes in case s/he becomes incapacitated and
it must be executed by a patient who is of sound mind and is capable of understanding its
consequences.

Evolution of laws on passive euthanasia:

1. Maruti Shripati Dubal v. State of Maharashtra case, 1986- Bombay HC declared that the rights have
both negative and positive aspects. The right to life under Article 21 could therefore also be interpreted
as the right not to live a forced life.
2. P Rathinam v Union of India, 1994- SC held that criminal penalties for suicide violate Art. 21, while
rendering Section 309 of the IPC unconstitutional.
3. The above judgment was overturned by the Supreme Court in 1996 in Gian Kaur v. the State of Punjab,
which pronounced that the right to life did not include the right to die.
4. The landmark judgment in 2011 in the Aruna Shanbaug v. Union of India- SC held that passive
euthanasia is legally valid in the country under exceptional circumstances, which allowed withdrawal
of life support to patients in a persistent vegetative state (PVS).

Institutional recommendations:

1. The 196th Report of the Law Commission of India (2006) defined & clarified the meaning of the terms
related to euthanasia. The report recommended that
• There must be a law made to protect terminally ill patients who refuse medical treatment from
Section 309 of the Indian Penal Code.
• Laws should also be made to protect doctors who make such decisions.
• The law be called The Medical Treatment of Terminally Ill Patients (Protection of Patients,
Medical Practitioners) Act.
2. The Law Commission re-examined passive euthanasia in 2012 and presented its recommendations in
its 241st Report.
• Palliative care may be given in any case to terminally ill patients and the government should
devise schemes for the same.
• Medical Council of India should provide guidelines in the matter of withholding or withdrawing
of medical treatment to competent or incompetent patients suffering from terminal illness.
3. M R Rajagopal Committee presented its report to the government in July 2018 listing the parameters
and the threshold values at which ‘passive euthanasia’ and ‘living will’ can be implemented in the state.

Way Forward:

1. The scope of transformation of mercy killing into murder for selfish gains must be reduced by
introducing better regulations and laws. Since the issue deals with dignified life and death, utmost care
must be taken to ensure informed decisions on part of the patients.
2. The Parliament should frame legislation to replace the court’s guidelines that govern passive
euthanasia.

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D. Sedition

Context: The Supreme Court has recently underscored the need to review Section 124A (sedition) in the Indian
Penal Code (IPC).

About Section 124A (sedition) in the Indian Penal Code (IPC):

1. Definition- an offence committed when "any person by words, either spoken or written, or by signs,
or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or
excites or attempts to excite disaffection towards the government established by law in India".
2. Disaffection includes disloyalty and all feelings of enmity. However, comments without exciting or
attempting to excite hatred, contempt or disaffection, will not constitute an offence under this
section.
3. According to the data from the National Crime Records Bureau (NCRB), cases of sedition and under
the stringent Unlawful Activities (Prevention) Act showed a rise in 2019, but only 3% of the sedition
cases resulted in convictions.

Arguments in support of Section 124A:

1. Utility in combating anti-national, secessionist and terrorist elements.

2. Protects the elected government from attempts to overthrow the government with violence and
illegal means.
3. If contempt of court invites penal action, contempt of government should also attract punishment
4. Many districts in different states face a Maoist insurgency and rebel groups virtually run a parallel
administration. Against this backdrop, the abolition of Section 124A would be ill-advised merely
because it has been wrongly invoked in some highly publicized cases.

Arguments against the Section

124A:

1. Against democratic values:

In a healthy democracy,
dissent and criticism of the
government are necessary
ingredients for lively public
discourse.
2. Abuse of Sec 124: to
crackdown on political
dissent
3. Ambiguous definition: can
be interpreted differently
4. Repealed in modern
democracy of the world:
The British, who first used
sedition to control Indians,
have now repealed the
same in their own country. Not only Britain, South Korea, Scotland, Indonesia and the US (struck down
major parts) have also done away with this law.

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5. The International Covenant on Civil and Political Rights (ICCPR), which establishes internationally
accepted norms for the protection of freedom of expression, was ratified by India, and the misuse of
section 124A goes against this.
6. The IPC and Unlawful Activities (Prevention) Act 2019 have provisions that penalise “disrupting the
public order” or “overthrowing the government with violence and illegal means”. These are sufficient
for protecting national integrity.

Important SC judgements:

1. Kedar Nath Vs State of Bihar (1962):. A Constitution bench upheld the validity of the sedition law under
IPC, holding that it maintained the stability of the State
2. Maneka Gandhi case, 1978: The SC stated that criticizing and drawing general opinion against the Govt.
policies and decisions within a reasonable limit that does not incite people to rebel is consistent with
the freedom of speech.
3. The Law Commission of India, in its consultation paper on sedition, published in August 2018, also
observed that while retaining the offence of sedition was essential to protect national integrity, it
should not be used as a tool to curb free speech.

Conclusion:

1. Harmonizing freedom of expression with collective national interest is one of the key constituents
of this law. However, dissent and criticism of the government are essential ingredients of healthy
public debate in a vibrant democracy, and they should not be construed as sedition.

4. FUNDAMENTAL DUTIES – PART IV A

Introduction:

1. Inspired by Constitution of erstwhile USSR, incorporated in Part IV-A of the Indian Constitution by the
42nd Amendment
2. Recommendations of Swaran Singh Committee and the eleventh duty was added to the
ten fundamental duties by the 86th Amendment.
3. The true source of right is duty. If we all discharge our duties, rights will not be far to seek. If leaving duties
unperformed we run after rights, they will escape us like will-o’-the-wisp, the more we pursue them, the
farther they fly.” – Gandhi

Historical background:

1. Duties are an ancient concept encompassed in the eastern jurisprudence as an aspect of human
behaviour known as “Dharma”
2. Whilst considering, the nature in which the fundamental duties were incorporated in the Indian
Constitution during the period of Emergency with the 42nd Amendment coming into force and the
majority of which was struck down by 44th Amendment leaving fundamental duties untouched,
thereby, indicating even then how essential fundamental duties were.
3. The 42nd Amendment was a controversial amendment which tried to circumvent and supersede the
landmark judgment of Kesavananda Bharati, and reaffirmed by Supreme Court in Minerva Mills Ltd. v.
Union of India.

Further developments:

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1. JUSTICE VERMA COMMITTEE REPORT OF 1999: recommended that “duty to vote at elections, actively
participate in the democratic governance and to pay taxes should be included in Article 51-A
2. NATIONAL COMMISSION TO REVIEW THE WORKING OF CONSTITUTION: sensitise the people and
create a general awareness of the provisions of fundamental duties amongst the citizens on the lines
recommended by Justice Verma Committee.
3. 86TH AMENDMENT: Article 51-A(k) – the duty of every parent or guardian to provide opportunities for
education to his child between the age of 6 and 14 years which corresponds to right to free and
compulsory education in Article 21-A of the Constitution.

Fundamental Duties & SC judgements:

1. Javed v. State of Haryana (2003): the Supreme Court held that fundamental rights have to be read
with fundamental duties and the Directive Principles of State Policy and they cannot be read in
isolation.
2. Minerva Mills Ltd. v. Union of India (1980): merely because a rule is not backed by sanctions for
disobedience, does not mean it has no importance. It is still regarded a rule of law that is expected to
be followed
3. Vellore Citizens’ Welfare Forum v. Union of India & Bandkhal and Surajkund Lakes: Supreme Court
recognised ‘the Precautionary Principle’, ‘the Polluter Pays’ principle as essential features of
‘sustainable development’ and part of environment law of the country in view of Articles 21 and 51-
A(g).
4. M.C. Mehta v. Union of India: the Supreme Court made it compulsory for all educational institutes to
organise a one-hour lecture on protecting and preserving the natural environment and made the
Central Government duty-bound to make this a rule in all such institutes and make it a part of their
curriculum and issued certain directions in general to the Central Government and citizens on
maintaining a healthy ecology and preserving the natural environment.

Recent use of Fundamentals Duties:

1. Bombay HC during second wave of COVID-19: ‘Officers have started to shirk their responsibilities in
providing relief to the COVID-19 patients, they are also on the path to violate their Fundamental
Duties.’
2. M.C. Mehta vs UoI: ‘SC introduced compulsory learning of lessons on protection of environment in all
educational institutions as part of Article 51-A (g).’

Implementation of FDs:

1. Although not enforceable, Fundamental Duties gain some ground through other legislation
2. Prevention of Insults to National Honour Act, 1971,
3. The Protection of Civil Rights Act, 1955,
4. The Unlawful Activities (Prevention) Act, 1967,
5. The Representation of the People Act, 1951,
6. The Environment (Protection) Act, 1986,
7. The Forest (Conservation) Act, 1980

Possible Additions:

1. Duty to vote
2. Duty to pay taxes (Vodafone case)
3. Duty to help accident victims (Good Samaritan Law)

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4. Duty to keep premises clean (SBM)

5. Duty to raise voice against injustice (POSCO)
6. Duty to support bona fide civil society movements

Criticism:
1. Key duties such as duty to vote in elections, missing.
2. Vague moral principles with no way to instrumentalize.
3. Non-enforceable and thus, possess little value.
4. Socio-economic challenges like poverty, corruption, etc. pose a serious problem.

Conclusion:

1. Since rights and duties go hand-in-hand, there is a need of a few new Fundamental duties to balance
rights.
2. Moreover, with the advent of technology and the evolution of societal norms, new obligations on the
part of citizens have arisen.
3. For example,
• Countries like Tunisia, China have provisions of Duty to pay taxes.
• India can also look at U.S.A’s “Constitution Week”, using the time to reflect on citizens rights
and responsibilities.
• Like Singapore, emphasizing on the relentless pursuit of duties of citizens can transform India
into a highly developed nation.

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 40

PARLIAMENT AND STATE LEGISLATURES—STRUCTURE, FUNCTIONING, CONDUCT OF

BUSINESS, POWERS & PRIVILEGES AND ISSUES ARISING OUT OF THESE
Syllabus Sub- 2013 2014 201 201 2017 2018 2019 2020 2021 Insight Developmen Predictio
division 5 6 s ts ns
s

Parliament Structure Why do you Individual ‘Once a To what Role of VP in

and State & think the Parliamentaria Speaker, extent, the ensuring
Legislatures Functionin committees n’s role as the Always a Parliament is Parliamentary
—Structure, g are national Speaker’! Do able to democracy was
Functioning, considered lawmaker is on you think this ensure in news,
Conduct of to be useful a decline, which practice accountabili Guidelines
Business, for in turn, has should be ty of the Unparliamentar
Powers & parliamenta adversely adopted to executive in y language,
Privileges ry work? impacted the impart India? Suspension of
and Issues Discuss, in quality of objectivity to MPs, news
Arising out this debates and the office of regarding
of these. context, the their outcome. the Speaker scrutiny of bills
role or the Discuss. of Lok by committess
Estimates Sabha? What + MPLAD
Committee. could be its scheme
implications relevance,
for the constitutionalit
robust y (nov)
functioning
of
parliamentar
y business in
India?

‘Simultaneo Rajya Sabha Explain the VP + ADL +

us election has been Constitution ● relevance of LoP + P.
to the Lok transformed al provisions Rajya Sabha in Comm +
Sabha and from a under which recent times Suspension
the State ‘useless the and rebalancing + MPLAD
Assemblies stepney tyre’ Legislative both the Analysis
will limit the to the most Councils are houses of
amount of useful established. Parliament +
time and supporting Review the Contingency

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 41

money organ in past working and Fund

spent in few decades. current expenditure
electioneeri Highlight the status of procedure.
ng but it will factors as Legislative + Suspension of
reduce the well as the Councils MLAs - Judicial
government areas in with suitable Review? + Need
’s which this illustrations. of Indian
accountabili transformati Legislative
ty to the on could be Services
people’ visible.
Discuss.

Conduct The Indian Do ● Centennial

of Constitution department celebrations of
Business has al Public Accounts
provisions parliamenta Committee
for holding ry standing (PAC) were
joint session committees held recently.
of the two keep the ● Delhi HC
houses of administrati sought Lok
the on on its Sabha
Parliament. toes and Secretariat
Enumerate inspire reply to a
the reverence petition on the
occasions for vacant post of
when this parliamentar deputy speaker
would y control? for over 2 years.
normally Evaluate the ● National
happen and working of Mobile
also the such Monitoring
occasions committees Software
when it with (NMMS) App-
cannot, with examples. Transparency
reasons (250/15):
thereof.

Powers & The role of The The Calcutta

Priveleges individual ‘Powers, High Court has
MPs Privileges given West
(Members and Bengal
of Immunities Assembly
Parliament of Speaker a
) has Parliament deadline to
diminished and its pass an order in

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 42

over the Members’ as the defection

years and envisaged in case- Office of
as a result Article 105 of Speaker+ Anti
healthy the Defection.
constructi Constitution
ve debates leave room
on policy for a large
issues are number of
not usually un-codified
witnessed. and un-
How far enumerated
can this be privileges to
attributed continue.
to the anti- Assess the
defection reasons for
law, which the absence
was of legal
legislated codification
but with a of the
different ‘parliamenta
intention? ry
privileges’.
How can this
problem be
addressed?

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1. ANTI-DEFECTION LAW

Introduction: The anti-defection law was passed in 1985 through the 52nd Amendment to the Constitution. The
Amendment added the Tenth Schedule to the Indian Constitution, with an intent to curb “the evil of political
defections”. Under the anti-defection law, legislators may be disqualified from their membership to the House if
they resign from their party after being elected, or defy the direction issued by the party leadership during a vote
on any issue.

ADL: Context:

1. Maharashtra political crisis: 2019: Winning pre-poll coalition of BJP + Shiv Sena was broken and a new
post-poll coalition between INC + NCP + Shiv Sena formed the government. In 2022, rebel MLAs of the
Shiv Sena (2/3rd) went ahead and fomed a coalition with BJP to topple the existing government. This
musical chair of political parties leads to a mockery of the larger public democratic mandate and anti-
defection law is severely ineffective in curbing this menace.
2. In 2020, the Supreme Court (Keisham Meghachandra Singh v. Manipur Legislative Assembly) dismissed a
minister in Manipur when the Speaker did not decide the defection petition against him even after three
years. The court held that ideally, Speakers should take a decision on a defection petition within three
months.
3. A private member bill has been introduced by KTS Tulsi in the 2021 winter session in the RS to amend the
law by imposing a 3 months deadline to decide Anti Defection Cases. It is still pending.

Evolution of the law:

1. 1967-1972: 2000 cases of defection and counter-defections amongst 4000 MPs and MLAs
2. 1967: 116/210 defected legislators became Ministers
3. 50% legislators changed parties minimum once
4. Constitutional Amendment Bills were floated in 1973 but failed to pass
5. Finally, the 52nd CA marked the beginning of the Anti-Defection law

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WHAT DOES THE ANTI – DEFECTION LAW SAY?

Purpose: why was the anti – defection law enacted?

Two key arguments have been used to justify an anti-defection law:

1. Firstly, it intends to combat political defections fueled by political corruption and bribery.
2. Secondly, defections flout the voters’ mandate. This argument is based on a recognition of the role of
political parties in the parliamentary system.

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 45

Effect of anti – defection law on the role of a legislator:

1. The members are compelled to obey the party whip, in order to avoid losing their seat in the House. The
law raises questions on the role of a legislator.
• In a parliamentary system, legislators are expected to exercise their independent judgement while
determining their position on an issue.
• This fundamental freedom of choice could be undermined if the member is mandated to vote
along the party line on every Bill or motion.
2. It restrains legislators from expressing their conscience in the House.
3. It breaks the link of accountability between the voter and the elected representative.
4. It disturbs the balance of power between the executive and the legislature, by constraining the ability of
a member to hold the government accountable.
5. It leads to major decisions in the House being taken by a few party leaders and empowers party leaders to
compel legislators to vote as per their instructions.

How has the anti – defection law affected a legislator’s ability to hold the government accountable?

One of the key features of a parliamentary democracy is that the government is accountable for its decisions to
Parliament. This accountability is tested through questions posed to Ministers, discussions on various government
policies, and by debating national issues.

I. The anti-defection law deters a legislator from his duty to hold the government accountable, by requiring
him to follow the instruction of the party whip. He might be compelled to vote as per the instruction of
the party whip. This may raise a question on the redundancy of debate on issues in the House.
II. By prohibiting dissent, the anti-defection undermines the system of executive accountability to the
legislature and gives the executive control over Parliament on all votes. As a result, the legislator is no
longer empowered to act as an effective check on the government of the day.

How has the anti – defection law affected a citizen’s ability to hold his elected representative accountable?

I. The anti-defection law breaks the chain of accountability between elected representatives and the voter.
In India, citizens choose their member for a period of five years. During this term, they can judge the
performance of the member based on his parliamentary record.
II. However, under the anti-defection law this accountability mechanism breaks down. Every member is
required to vote as per the direction issued by their party. He can easily absolve himself of this
representational responsibility to his voters using this law.

How has the anti – defection law impacted decision-making in the house?

I. The anti-defection law leads to major decisions in the legislature being taken by a few party leaders. This
implies that anyone who controls the party leadership can issue directions to all legislators. Thus, voting in
the House will be as per the wishes of a few party leaders rather than the beliefs of all legislators.
II. This reduces Parliament from a deliberative body to one where party leaders are able to unilaterally decide
the vote on an issue, without consulting with members of their political party.

How do other democracies deal with the question of political defections?

1. Mature democracies, such as the US, UK, and Canada, do not have an anti- defection law. Parties may issue
directions or exert pressure if a member goes against the party line. However, legislators are not
disqualified for defying the directives of their party.
2. Currently, among the 40 countries that have an anti-defection law, only six countries have a law that
mandates legislators to vote according to party diktat.
3. The remaining countries only disqualify legislators if they are found to resign from their party or be
expelled from it.
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 46

4. Only 6 countries disqualify legislators who defy party whip - India, Pakistan, Bangladesh, Guyana, Sierra
Leone and Zimbabwe

Has the law ensured impartial decisions on defections?

1. There have been several instances where the anti-defection law has failed at achieving these objectives.
As the law does not fix a time frame within which presiding officers are required to decide
disqualification petitions, in several cases, the Speaker has rendered decisions after a long period of time.
In some cases, the delay in rendering decisions has resulted in defecting members continuing to be
members of the House for a significant term of the assembly and even becoming Ministers while still
retaining membership of their original political party.
2. Telangana: 26 MLAs defected from opposition parties to Telangana Rashtriya Samiti from 2014-18. No
action was taken by the speaker against these defectors. Out of these defectors, 12 were made Ministers.
3. Rajya Sabha Chairman has recommended that all disqualification petitions should be decided by the
presiding officer within three months
4. The Law Commission (2015) noted that the Speaker is elected by a majority vote of the House and is usually
the nominee of the ruling party or coalition.

Conclusion: The evil of political defections has been a matter of national concern. If it is not combated, it is likely
to undermine the very foundation of our democracy and the principles which sustain it.

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2. PRIVATE MEMBER BILLS

Private Member Bills:

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

Parliamentary Privilege:

1. Parliamentary privilege refers to rights and immunities enjoyed by Parliament as an institution and MPs in
their individual capacity, without which they cannot discharge their functions as entrusted upon them by
the Constitution.
2. According to the Constitution, the powers, privileges and immunities of Parliament and MPs are to be
defined by Parliament
3. No law has so far been enacted in this respect. In the absence of any such law, it continues to be
governed by British Parliamentary conventions.
4. A breach of privilege is a violation of any of the privileges of MPs/Parliament. Among other things, any
action 'casting reflections' on MPs, parliament or its committees; could be considered breach of
privilege. This may include publishing of news items, editorials or statements made in
newspaper/magazine/TV interviews or in public speeches.

What are the privileges and immunities enjoyed by the MLA or MP?

1. The privileges and immunities enjoyed by the MPs and MLAs include:
• Freedom of speech in the house which means they cannot be prosecuted for saying or doing
anything in the house.
• They have the freedom from arrest 40 days prior or after a session of legislature or during the
session or from the premises of the legislature without the permission of the house.
2. The legislature has the power to regulate its internal affairs — that covers the behaviour including
disruptions, vandalism and violence — of the house. Police or courts cannot interfere.
3. However, the members can be punished for the breach of privileges by the house itself. Punishment
includes imprisonment, fine or suspension.

Constitutionality of Privileges & Immunities:

1. The powers, privileges and immunities of Parliament and its members and committees are laid down in
Article 105 of the Constitution. Article 194 deals with the same in the case of state legislatures, their
members and committees.
2. The elected representatives can claim these privileges only during the period for which the person is a
member of the house.

2021 SC Judgment:

1. It does not directly deal with Parliament but with state legislatures
2. The Supreme Court ruled that elected representatives could no longer go scot-free for acts of vandalism
and violence committed inside a house claiming immunity provided under the Constitution.
3. The Supreme Court judgment takes away the protection of privileges and immunities making elected
representatives liable for prosecution for their acts.

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The Supreme Court observed that “destruction of property in the assembly cannot be equated to
4.
freedom of speech in the house”.
5. “Privileges and immunity are not a gateway to claim exemptions from criminal law and that would be a
betrayal to the citizens.”
Solutions:

1. ‘Parliament Disruption Index’- The idea had emerged at the conference of presiding offices of legislative
bodies in Dehradun on November 2019 in the backdrop of increasing disruptions in Parliament.
2. Automatic suspension of members who cause disruption.

3. PARLIAMENTARY COMMITTEES

What are the parliamentary committees?

1. Parliament scrutinies legislative proposals (Bills) in two ways:

• By discussing it on the floor of the two Houses. All bills have to be taken up for debate on
the floor of the House, as a legislative requirement;
• By referring a bill to a Parliamentary Committee.
2. A Parliamentary Committee is a committee that:
• Is appointed or elected by the House or nominated by the Speaker/Chairman;
• Works under the direction of the Speaker/Chairman;
• Presents its report to the House or to the Speaker/Chairman; and
• Has a secretariat provided by the Lok Sabha/Rajya Sabha.

Constitutional provisions:
1. In independent India, the first Public Accounts Committee was constituted in April 1950.
2. Parliamentary committees draw their authority from: Articles 105 & 118.

Purpose of parliamentary committees:

1. A Parliamentary committee focuses on remedying the legislative infirmity of debate on the floor of the
House.

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2. A Parliamentary committee discharges the important function of making the administration accountable
to the Parliament.
3. Parliamentary Committees offer:
• Efficiency and transparency
• Expert knowledge in law making
• Inclusive participation of members from opposition
• Unbiased and objective discussion above party lines
4. A Committee’s report is recommendatory nature and is not binding on the Government. The Committee
can also suggest its own version of the Bill.

Data: In the last 10 years, Parliament met for 67 days per year, on average. This is a short of amount of time for
MPs to be able to get into the depth of matters being discussed in the House. This in itself highlights the need of
having Parliamentary Committees.

Issues involved:

1. Fewer Bills referred: The ratio of bills referred to committees to bills passed is very low.
2. Longer tenure: The committee system allows smaller group of legislators develop technical expertise and
ensure better deliberation. However, in the current system, the tenure is only one year and for any
expertise to develop, a longer tenure is required.
3. Lack of research support: Examining bills referred to a committee requires the members of the
committee to have technical expertise.
4. Lack of research support prevents the committees from being able to provide quality and nuanced
recommendations.
5. Discussion of committee reports: discussions not taken up seriously as committee recommendations are
not binding on financial matters such as budgets etc.
6. Low Attendance
7. Too many ministries under a committee
8. Norms not followed by most political parties while nominating MPs to committees

Suggestions:

1. Strengthening committees and scrutinizing reports in a timely manner.

2. The discussion of committee reports in the Parliament must be encouraged.
3. A constitution committee can be set up to examine constitutional amendments instead of them being
presented in the House as an ordinary bill.
4. Legislative committee of parliament to oversee and coordinate legislative planning and improving
information supply.
5. Oversight committee to oversee effective and proper functioning of other committees
6. Encouraging greater public participation via various online mediums.
7. Formulating a defined procedure and consequences for not referring certain types of bills to
parliamentary committees.
8. The committee system in India can be evaluated both qualitatively and quantitatively. A quantitative
study would include comparison of the number of reports submitted by each committee, number of
meetings held, and the attendance of MPs for each meeting.
9. A qualitative study would have a higher level of subjectivity and would include studying the quality of the
recommendations, level of knowledge of MPs, quality of discussions in the Committees etc.

NCRWC – 2002:

1. DRSCs should be periodically reviewed. All Bills should be referred to DRSCs. They can elicit public views
and call specialist advisors. The DRSCs may finalize the second reading stage in the Committee.
2. Three new committees should be set up:
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 50

• Standing Committee on National Economy to provide analysis of the national economy with
resources for advisory expertise, data gathering and research facilities;
• Standing Constitution Committee to scrutinize Constitutional Amendment Bills before they are
introduced in Parliament; and
• Committee on Legislations to oversee and coordinate legislative planning. Existing Committees
on Estimates, Public Undertakings and Subordinate Legislation may not be needed. The Petitions
Committee can be a supplement to the proposed office of the Lok Pal.
3. Major reports of all Committees should be discussed in Parliament especially in cases where there is
disagreement between a Committee and the government. The recommendations of the PACs should be
accorded greater weight and they should be treated as the “conscience keepers of the nation in
financial matters”.

A. PUBLIC ACCOUNTS COMMITTEE

1. The Committee on Public Accounts is the oldest Parliamentary Committee and was first constituted in
1921.
2. The Committee consists of 22 Members, 15 Members are elected by Lok Sabha and 7 Members of the
Rajya Sabha are associated with it.
3. The Speaker is empowered to appoint the Chairman of the Committee from amongst its members.
4. Functions: The Committee on Public Accounts is constituted by Parliament each year for examination of
accounts showing the appropriation of sums granted by Parliament for the expenditure of Government
of India, the annual Finance Accounts of Government of India, and such other accounts laid before
Parliament as the Committee may deem fit.

Brief history of the PAC:

1. The PAC was formed when the Montagu-Chelmsford Reforms were implemented in 1921.
2. The panel used to have only 15 members, all from the Lower House.
3. Later, seven members from the Upper House were included.
4. The body got more teeth post-Independence, especially after 1967 when it was decided that a Lok Sabha
MP from the opposition benches will head it.

Importance of Parliamentary committees:

1. Parliamentary Committees are smaller units of MPs from both Houses, across political parties and they
function throughout the year.

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2. These smaller groups of MPs study and deliberate on a range of subject matters, Bills, and budgets of all
the ministries.
3. Since Committees meet throughout the year, they help make up for this lack of time available on the
floor of the House.

Conclusion- Possible reforms:

1. It should directly interact with people and take inputs from them.
2. Since PAC has to examine the effectiveness of resource use in terms of socio-economic outcomes, it may
be in order for the committee to examine the issue of balancing these two objectives for wider
consideration.
3. There should be a Committee of Chairpersons of PACs, which could have a comprehensive discussion on
the working of the PACs.
4. There should be one common platform for PACs of Parliament and state legislatures, for improved
transparency, accountability & efficiency.

B. ESTIMATES COMMITTEE

1. The origin of this committee can be traced to the standing financial committee set up in 1921. The first
Estimates Committee in the post-independence era was constituted in 1950 on the recommendation of
John Mathai, the then finance minister.
2. Originally, it had 25 members but in 1956 its membership was raised to 30. All the thirty members are
from Lok Sabha only.
3. The Rajya Sabha has no representation in this committee.
4. These members are elected by the Lok Sabha every year from amongst its own members, according to
the principles of proportional representation by means of a single transferable vote. Thus, all parties get
due representation in it.
5. The term of office is one year.
6. A minister cannot be elected as a member of the committee.
7. The chairman of the committee is appointed by the Speaker from amongst its members and he is
invariably from the ruling party.
8. The function of the committee is to examine the estimates included in the budget and suggest
‘economies’ in public expenditure. Hence, it has been described as a ‘continuous economy committee’.

The functions of the committee are:

1. To report what economies, improvements in organisation, efficiency and administrative reform

consistent with the policy underlying the estimates, can be affected.
2. To suggest alternative policies in order to bring about efficiency and economy in administration.
3. To examine whether the money is well laid out within the limits of the policy implied in the estimates
4. To suggest the form in which the estimates are to be presented to Parliament
5. The Committee shall not exercise its functions in relation to such public undertakings as are allotted to
the Committee on Public Undertakings.
6. It shall not be incumbent on the Committee to examine the entire estimates of any one year.
7. The demands for grants may be finally voted despite the fact that the Committee has made no report.

However, the effectiveness of the role of the committee is limited by the following:
1. It examines the budget estimates only after they have been voted by the Parliament, and not before
that.
2. It cannot question the policy laid down by the Parliament.
3. Its recommendations are advisory and not binding on the ministries.

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4. It examines every year only certain selected ministries and departments. Thus, by rotation, it would cover
all of them over a number of years.
5. It lacks the expert assistance of the CAG which is available to the Public Accounts Committee.
6. Its work is in the nature of a postmortem.

4. RAJYA SABHA
Introduction:

1. Rajya Sabha as the second chamber of the parliament intended to play certain roles as a permanent house
(it never dissolves like Lok Sabha and one-third of its members retire every two years), revisionary house
(reconsidering bills passed by the Lok Sabha) and offers a degree of continuity in the underlying policies
of laws passed by parliament.
2. Along with this, Rajya Sabha also acts as a means to institutionalize the federal principle of power-sharing
between the Centre and states.

Basics:

1. The Rajya Sabha or Council of States is the upper house of the bicameral Parliament.
2. It currently has a maximum membership of 245, of which 233 are elected by the legislatures of the state
and union territories using single transferable votes through open ballot.
3. The President can appoint 12 members for their contribution to art, literature, science, and social services.
4. Members sit for terms lasting six years, with elections every year but almost a third of the 233 designates
up for election every two years, specifically in even numbered years.

Context: for essay only:

1. Historical background
a. The Rajya Sabha came into being on April 3, 1952 and held its first session on May 13 the same year.
b. The Constituent Assembly, which was formed in 1947, after the adoption of the Constitution
became the Provisional Parliament and made laws till 1952.
2. Before its existence
a. The central legislature that came into being under the Government of India Act, 1919 was
bicameral.
b. Under 1919 Act, Council of States had 60 members and Legislative Assembly had 145 members.
c. The membership and voting norms for the Council of States were restrictive. These restrictions
meant only wealthy landowners, merchants and those with legislative experience could enter it.
d. Women could neither vote nor seek membership.
e. The Government of India Act, 1935 proposed an elaborate and improved version of the second
chamber, but this never materialized.

Constituent assembly debates regarding Rajya Sabha:

In favor of Rajya Sabha : Proponents of the Rajya Sabha held that an upper chamber would lend a voice to the
states in the legislative scheme of things and check the legislation passed in haste.

Against the Rajya Sabha : The section in the constituent assembly who was opposed to the idea of Rajya Sabha
held that an Upper House was not essential and opinionated that such a chamber can prove to be a “clog in the
wheel of progress” of the nation, by delaying the legislative process.

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Elections to the Rajya Sabha:

1. Qualifications: Article 84 of the Constitution lays down the qualifications for membership of Parliament.
A member of the Rajya Sabha must:
a. Be a citizen of India; Be at least 30 years old.(Article 84 constitution of India)
b. Be elected by the Legislative Assembly of States and UTs by means of the single transferable vote
through proportional representation.
2. Not be:
a. A proclaimed criminal,
b. A subject of an insolvent,
c. Of unsound mind.
d. Not hold any other office of profit under the Government of India.
e. Possess such other qualifications as may be prescribed in that behalf by or under any law made by
Parliament.
3. In addition, twelve members are nominated by the President of India having special knowledge in various
areas like arts and science. However, they are not entitled to vote in Presidential elections as per Article 55
of the Constitution.

Election procedure:

1. Candidates fielded by political parties have to be proposed by at least 10 members of the Assembly or 10%
of the party’s strength in the House, whichever is less.
2. For independents, there should be 10 proposers, all of whom should be members of the Assembly.
3. Voting procedure- by single transferable vote, as the election is held on the principle of proportional
representation.
Note:

1. The Rajya Sabha polls have a system of the open ballot, but it is a limited form of openness. There is a
system of each party MLA showing his or her marked ballots to the party’s authorized agent (called
Whip), before they are put into the ballot box.
2. The NOTA option has been struck down by the Supreme Court in RS elections.

The power equation: Lok Sabha v/s Rajya Sabha:

1. The Indian Constitution provides for parity of powers between the Lok Sabha and the Rajya Sabha in law,
making an exception in some cases.
2. The Money Bill or Finance Bills can be introduced only in the Lok Sabha which only can approve the
Demands for Grants.

Money bills:

1. A money bill can be introduced only in the Lok Sabha by a minister and only on recommendation of
President of India.
a. When the Lok Sabha passes a money bill then the Lok Sabha sends money bill to the Rajya Sabha
for 14 days during which it can make recommendations.
b. Even if Rajya Sabha fails to return the money bill in 14 days to the Lok Sabha, that bill is deemed
to have passed by both the Houses.
c. Also, if the Lok Sabha rejects any (or all) of the amendments proposed by the Rajya Sabha, the
bill is deemed to have been passed. Hence, Rajya Sabha can only give recommendations for a
money bill but Rajya Sabha cannot amend a money bill.
d. There is no joint sitting of both the houses with respect to money bills, because all final decisions
are taken by the Lok Sabha.

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2. No confidence motion: The Union Council of Ministers is collectively responsible before the Lok Sabha
and not the Rajya Sabha. Lok Sabha alone can cause the fall of the Council of Ministers by passing a vote
of no-confidence
3. On the other hand, the Rajya Sabha has some special powers as requiring adopting a resolution allowing
Parliament to legislate on subjects in the State List and creating All India Services, besides approving
proclamations of Emergency and President’s Rule when the Lok Sabha is dissolved.
4. Renowned British philosopher and political economist John Stuart Mill as early as in 1861 said in his great
treatise Considerations on Representative Government that management of free institutions requires
conciliation; a readiness to compromise; a willingness to concede something to opponents and mutual
give and take. Truly, Rajya Sabha plays this role in Indian legislature.

In detail: powers and functions of the Rajya Sabha:

1. Legislative Powers:

• In the sphere of ordinary law-making, the Rajya Sabha enjoys equal powers with the Lok Sabha.
An ordinary bill can be introduced in the Rajya Sabha and it cannot become a law unless passed
by it.
• In case of a deadlock between the two Houses of Parliament over an ordinary bill and if it remains
unresolved for six months, the President can convene a joint sitting of the two Houses for
resolving the deadlock.
• This joint sitting is presided over by the Speaker of the Lok Sabha. But if the deadlock is not
resolved, the bill is deemed to have been killed.

2. Financial Powers:

• In the financial sphere, the Rajya Sabha is a weak house.

• A money bill cannot be introduced in the Rajya Sabha. It can be initiated only in the Lok Sabha.
• A money bill passed by the Lok Sabha comes before the Rajya Sabha for its consideration.

3. Executive Powers:

• Members of the Rajya Sabha can exercise some control over the ministers by criticizing their
policies, by asking questions and moving motions, etc.
• Some of the ministers are also taken from the Rajya Sabha. The PM can also be from Rajya Sabha if
the majority party in the Lok Sabha may elect/adopt him as its leader.

4. Electoral Powers:

• The Rajya Sabha has some electoral powers also. The elected members of the Rajya Sabha along
with the elected members of the Lok Sabha and all the State Legislative Assemblies together elect
the President of India.
• The members of the Rajya Sabha Lok Sabha together elect the Vice- President of India.
• Members of the Rajya Sabha also elect a Deputy Chairman from amongst themselves.

5. Judicial Powers:

• The RS acting along with the Lok Sabha can impeach the President on changes of violation of the
constitution.
• The RS can also pass a special address for causing the removal of a judge of the Supreme court or
of any High court.
• The charges against the Vice-President can be levelled only in the RS.
• The RS can pass a resolution for the removal of some high officers like the Attorney General of
India, CAG, and Chief Election Commissioner.
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6. Exclusive Powers:

• The Rajya Sabha enjoys two exclusive powers:

o The Power to declare a subject of State List as a subject of National Importance:
o The Rajya Sabha can pass a resolution by 2/3rd majority of its members for declaring a State List
subject as a subject of national importance.
o Such a resolution empowers the Union Parliament to legislate on such a state subject for a period
of one year. Such resolutions can be repeatedly passed by the Rajya Sabha.
• Power in respect of Creation or Abolition of an All-India Service:
o The Rajya Sabha has the power to create one or more new All India Services. It can do so by
passing a resolution supported by 2/3rd majority on the plea of national interest.
o In a similar way, the Rajya Sabha can disband an existing All India Service.

7. Miscellaneous Powers: The RS and LS jointly perform the following functions:

• Approval of the ordinances issued by the President.

• Ratification of an emergency proclamation
• Making any change in the jurisdiction of the Supreme Court and the High Courts
• Making any change in the qualification for the membership of the LS and the RS.

Role of Rajya Sabha:

1. Safety Valve of India’s Federal Polity: Bicameralism is necessary for a federal constitution to give
representation to the units of the federation.
2. While checks and balances usually operate between the executive, legislature and judiciary, the Council
of States acts as a safety valve within the legislature itself, easing federal tensions.
3. Rajya Sabha thus represents a crucial component of the constitutional checks and balances scheme, in
addition to the commonly identified examples of responsible government and judicial review.
4. Review and Revaluation Role: Indian constitution framers wanted to create a house that would act as a
revisionary house to keep a check on the hasty legislation that could be passed by the lower house under
populist pressures.
5. Also, when the ruling dispensation has a brute majority in the Lok Sabha, Rajya Sabha can prevent the
government of the day exercising authoritarianism.
6. A Deliberative Body: Parliament is not only a legislative body but also a deliberative one which enables
the members ty debate major issues of public importance. Thus, the role of the Upper House is to be a
deliberative body besides balancing the “fickleness and passion” of the Lok Sabha.
7. Representing the Vulnerable Sections:
• Women, religious, ethnic and linguistic minority groups are not adequately represented in the Lok
Sabha (due to first past the post-election system).
• An indirect form of election (through propositional representation) to the Rajya Sabha, therefore,
would give them a chance to get involved in the nation’s law-making process.
• Thus, Rajya Sabha can make a place for people who may not be able to win a popular mandate.

Special powers of Rajya Sabha:

The Upper House also has some special powers, such as:

1. Power to transfer a subject from the State List to Union List for a specified period (Article 249).
2. To create additional All-India Services (Article 312).
3. To endorse Emergency under Article 352 for a limited period when the Lok Sabha remains dissolved.

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Significance of having an upper house:

1. According to President Radha Krishnan, there are functions, which a revising chamber like Rajya Sabha
can fulfil fruit fully. Parliament is not only a legislative but a deliberative body. So far as its deliberative
functions are concerned, Rajya Sabha has made very valuable contributions time and again. Thus, it acts
as a revising house.
2. Retaining of talent is essential for any democratic system. Rajya Sabha gives entry to other experts like
scientist, artist, sportsmen etc that can rarely face the electoral politics. Men and women of prodigious
talent and caliber have adorned the benches of the upper house and have contributed significantly
towards realizing the vision of the founding fathers of the Constitution.
3. A permanent Upper House is also a check against any abrupt changes in the composition of the Lower
House. Rajya Sabha has continuity and is a permanent house. Unlike Lok Sabha, it cannot be dissolved by
anyone. Thus, it has, time and often, carried out some administrative functions even when the lower
house is dissolved.

Issues related to Rajya Sabha:

1. No equal Representation of states:

• Federal countries like US, Australia, institutionalize the principle of federalism more strongly than
India, by providing equal representation to all states in their upper houses.
• This is in contrast with the Rajya Sabha, where states are represented proportionally to their
relative populations.
• For example, the number of seats allocated in Rajya Sabha to Uttar Pradesh alone is significantly
higher than that of combined north-eastern states.

2. Bypassing the Rajya Sabha:

• In some cases, ordinary bills are being passed in the form of a Money Bill, circumventing the Rajya
Sabha and giving rise to the question about the very efficacy of the upper house of Parliament.
This can be seen recently in the controversy related to Aadhar Act.

3. Undermining of Federal character of Rajya Sabha:

• By way of the Representation of People (Amendment) Act, 2003, parliament has removed the
word ‘domicile’ from Section 3 of Representation of People Act, 1951.
• This essentially means that a person who does not belong to a state can contest the Rajya Sabha
elections from that state of which they are neither a resident nor a domicile.
• After the amendment, the seats in the Rajya Sabha have been used by the ruling party to get
their defeated candidate in Lok Sabha, elected in Rajya Sabha.

4. Low Participation of Nominated Members:

• More recently, the sincerity of nominated members has been questioned in multiple instances.
• Nominations are made by the government to satisfy the sentiments of the followers of certain
personalities.
• Once nominated, they rarely participate in the working of the house. Sachin Tendulkar was
appointed in 2012 and the House has met 374 days since then, but the attendance of Sachin
Tendulkar is a meagre 24 days.

Steps to be taken:

1. To preserve the federal character of Rajya Sabha, one step would be to have members of the Rajya
Sabha be directly elected by the citizens of a state.
• This will reduce cronyism and patronage appointments.

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2. Also, a federal arrangement can be devised to enable equal representation for each state, so that large
states do not dominate the proceedings in the House.
3. There is a need for a better procedure of nomination to improve the quality of discussion in the House.
• A cue in this regard can be taken from the UK.
• The House of Lords Act, 1999 has led to the introduction of the Appointments Commission in
2000 with the primary function of making recommendations for the appointment of non-party-
political members to the House of Lords.
• This commission can recommend nomination to Rajya Sabha from groups under-represented

Conclusion: Even though the ups and downs of Indian politics, the Rajya Sabha has remained a vanguard for
political and social values, a melting pot of cultural diversity. Also, along with Lok Sabha, it is a flag-bearer of the
sovereign, socialist, secular, democratic republic called India.

5. SUSPENSION OF MPS/MLAS
Facts-

1. November (2021): 12 opposition

members were suspended in Rajya
Sabha on the very first day of the
Winter Session for “their
unprecedented acts of misconduct,
contemptuous, unruly and violent
behaviour and intentional attacks on
security personnel”.
2. September (2020): Eight Rajya Sabha
MPs had been suspended on
September 2020 for unruly behaviour
in the House the previous day.

Quotation: P.D.T. Achary, former Secretary

General of the Lok Sabha, said, “Of late, cases
of MPs getting suspended have more than
doubled. It indicates that there is great
hostility between the treasury and opposition
benches, where both treat each other as
enemy instead of political adversary.” Not only
does this impede the smooth functioning of
Parliament, where bills are being passed
without any discussion, the growing animosity
also does not augur well for a parliamentary
democracy.

Power of the Presiding officer: In order to

ensure the proceedings of the house are
conducted in a proper manner the speaker of
the Rajya Sabha chairman has the power to
force a member to withdraw from the house.

Process: Lok Sabha Conduct Rules:

I. Rule Number 373 of the Rules of Procedure and Conduct of Business provides for the suspension of MPs
by the Speaker of the House.
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II. To deal with more recalcitrant Members, the Speaker make take recourse to Rules 374 and 374A.
III. Rule 374 says: The Speaker may, if deems it necessary, name a Member who disregards the authority of
the Chair or abuses the rules of the House by persistently and wilfully obstructing the business thereof.
IV. Rule 374A was incorporated in the Rule Book on December 5, 2001. The intention was to skirt around the
necessity of moving and adopting a motion for suspension.

For Rajya Sabha, it is the same process, with one important difference- Unlike the speaker of Lok Sabha the
Rajya Sabha chairman does not have the power to suspend a member.

1. The Chairman, however, may “name a Member who disregards the authority of the Chair or abuses the
rules of the Council by persistently and wilfully obstructing” business.
2. In such a situation, the House may adopt a motion suspending the Member from the service of the
House for a period not exceeding the remainder of the session.
3. The House may, however, by another motion, terminate the suspension.

Rules of parliamentary etiquette:

1. MPs are required to adhere to certain rules of parliamentary etiquette.

• For example, the Lok Sabha rulebook specifies that MPs are not to interrupt the speech of
others, maintain silence and not obstruct proceedings by hissing or making running
commentaries during debates.
2. Newer forms of protest led to these rules being updated in 1989.
• Now, members should not shout slogans, display placards, tear up documents in protest, and
play a cassette or a tape recorder in the House.

Terms of suspension:

1. The maximum period of suspension is for the remainder of the session.

2. Suspended members cannot enter the chamber or attend the meetings of the committees.
3. He will not be eligible to give notice for discussion or submission.
4. He loses the right to get a reply to his questions.

Conclusion: Every instance of suspension of an MP triggers strong statements on both sides. It is generally
agreed that a balance has to be struck and that the solution to unruly behaviour has to be long-term and
consistent with democratic values.

6. LEADER OF OPPOSITION
The LOP is leader of the largest opposition party in the parliament.

Legal provisions:

• Mavalankar’s rule: G.V. Mavalankar was the first Speaker of Lok Sabha. Under the rules formulated by
him, the single largest opposition party must have a strength of at least 10% of the total strength of the
house in order to designate its leader as the LOP.

In practice:

• The Leaders and Chief Whips of Recognised Parties and Groups in Parliament (Facilities) Act, 1998:
• Recognised party in the Lok Sabha as a party that has not less than 55 members.
• Party having less than 55 seats in Lok Sabha is called group.
• Though 10% rule does not have any statutory backing, but it is followed as a parliamentary convention in
India.

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Significance of the LOP:

1. Shadow PM: LOP is referred to as the ‘shadow Prime Minister’ or ‘alternative Prime Minister’.
2. Provide alternative government: She/he is expected to be ready to take over if the government falls.
3. Provide criticism of the policy: the LOP also plays an important role in bringing cohesiveness and
effectiveness to the oppositions functioning in policy and legislative work.
4. Provide contrary view: Helps to represent a view contrary from that of government.
5. Transparency: LOP plays a crucial role in bringing bipartisanship and neutrality to the appointments in
institutions of accountability and transparency- CVC, CBI, CIC, Lokpal etc.
6. Provide safeguard: LOP among other things, watches for encroachments on the rights of minorities,
demands debates when the government is trying to slide away without parliamentary criticism.

Current controversy:

1. Fall short: Congress being the second largest party got 44 seats in 16th Lok Sabha and 52 in 17th LS. It
falls short of the 10% norm.
2. Speakers’ rejection: Congress has been demanding the post of LOP but the Speaker rejected their
proposal citing conventions and norms. However, her decision was criticised as there is no law that
mandates the 10% eligibility.
3. Petition in SC: Was filed in the Supreme Court to scrap the Mavalankar’s rule since it was non statutory.
• SC rejected the appeal stating though non-statutory, but Speaker’s statement or procedure
involved to run the house was outside the purview of judicial review.

Comparison with other countries:

1. Britain:
• The opposition is formally designated Her Majesty's Loyal Opposition.
• They also form the shadow cabinet to balance the ruling cabinet and prepare its members for
future ministerial officers.

2. United States:
• The President is held accountable by minority parties in Congress.
• A flourishing democracy should accommodate the fundamental right to dissent.
• Inclusion of LOP provides objectivity and a contrarian perspective to decisions and appointments
made by the government.
Need of LOP:

1. Checks and balance: While appointment in CVC, CBI etc. it ensures a degree of credibility and faith in
these organizations and to avoid undermining the democratic checks and balances.
• For example: Smt Sushma Swaraj in 2011, pointed discrepancies in the appointment of Mr PJ
Thomas as CVC. Her opinion was upheld by the Supreme Court which later struck down Thomas’s
appointment.
1. Provide unified front: The absence of an opposition leader will weaken parliamentary democracy as the
opposition will not be able to put up a unified front against the ruling party.
2. Accountability: Oppositions main role is to question the government of the day and hold them
accountable to the public. The LOP is equally responsible in upholding the best interest of the people of
the country.

Way forward:

1. Critical in functioning: No matter whosoever gets the majority, the LOP is critical to effective functioning
of the opposition in the parliament.
2. Enforce law: Now there is a law recognising the LOP, it can't be overlooked or undermined, no matter
what the flexibility or ambiguity that exist in the legal framework.

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3. Scrap 10% rule: There arises a problem when no party in opposition secures 55 or more seats. In such
situations, the numerically largest party in the opposition should have the right to have a leader
recognised as leader of the opposition by the speaker.

A flourishing democracy should accommodate the fundamental right of dissent. Recognition of LOP provides
objectivity and a contrarian perspective to decisions and appointments made by the government.

7. MPLAD SCHEME
Context: Recently, Finance Ministry has ordered amended guidelines at a time when MPs have been requesting
for an increase in the MP Local Area Development Scheme (MPLADS) budget.

What is MPLAD Scheme? It is a Central Sector Scheme which was announced in December 1993.

Objective: To enable MPs to recommend works of developmental nature with emphasis on the creation of
durable community assets in the areas of drinking water, primary education, public health, sanitation and roads,
etc. primarily in their Constituencies. Since June 2016, the MPLAD funds can also be used for implementation of
the schemes such as Swachh Bharat Abhiyan, Accessible India Campaign (Sugamya Bharat Abhiyan), conservation
of water through rain water harvesting and Sansad Aadarsh Gram Yojana, etc.

Implementation:

1. The process under MPLADS starts with the Members of Parliament recommending works to the Nodal
District Authority.
2. The Nodal District concerned is responsible for implementing the eligible works recommended by the
Members of Parliament and maintaining the details of individual works executed and amount spent under
the Scheme.

Functioning:
1. Each year, MPs receive Rs. 5 crore in two instalments of Rs. 2.5 crore each. Funds under MPLADS are non-
lapsable.
2. Lok Sabha MPs have to recommend the district authorities projects in their Lok Sabha constituencies, while
Rajya Sabha MPs have to spend it in the state that has elected them to the House.
3. Nominated Members of both the Rajya Sabha and Lok Sabha can recommend works anywhere in the
country.

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Procedure until now Proposed changes

According to the 2016 MPLADS guidelines, interest All interest profits from money disbursed for
on the fund was deposited to the MPLADS central sector initiatives are required to be
account and might be utilized for development remitted to the Consolidated Fund of India.
projects.
Any income earned on the $5 million annual
funds granted to each MP under MPLADS
must be returned to the government.

What are the Issues with MPLADS?

1. Implementation Lapses: The Comptroller and Auditor-General of India (CAG) has flagged instances of
financial mismanagement and artificial inflation of amounts spent.
2. No Statutory Backing: The scheme is not governed by any statutory law and is subject to the whims and
fancies of the government of the day.
3. Monitoring and Regulation: The scheme was launched for promoting participatory development but there
is no indicator available to measure level of participation.
4. Breach of Federalism: MPLADS encroaches upon the domain of local self governing institutions and
thereby violates Part IX and IX-A of the Constitution.
5. Conflict with Doctrine of Separation of Powers: MPs are getting involved in executive functions.

Controversies regarding MPLADS:

1. The scheme violates one of the cardinal principles: separation of powers. In effect, it gives an executive
function to legislators. The argument that MPs only recommend projects, but the final choice and
implementation rests with the district authorities is strange; there are hardly any authorities in the district
who have the courage or the gumption to defy the wishes of an MP.
2. CAG’s observations- Expenditure incurred by the executing agencies being less than amount booked.
Utilisation of funds between 49 to 90% of the booked amount; lack of accountability, delays in issuing work,
all indicative of the failure of internal control mechanisms in the department in terms of non-maintenance
of records.
3. A report published in IndiaSpend, noted- Though ₹1,757 crore had been released for MPLADs, only ₹281
crore had been utilised by all the 543 MPs till May 15, 2015. This means only 16% of the money had been
spent in one year by all the MPs put together.
Added to the data above is fairly widespread talk of money under MPLADS being used to appease or
oblige two sets of people: opinion-makers or opinion-influencers, and favourite contractors.

Way forward:
While the question of constitutionality of the MPLAD scheme may have been put to rest by the Supreme Court
ruling, other issues related to implementation of the scheme still remain. These can be rectified by:
1. Better transparency and monitoring of funds spent and sanctioned works.
2. The scheme can be made more inclusive by including citizens for which project to be executed from
MPLAD funds.
3. Also, lapsable funds can put pressure on MPs for optimum utilisation and prevent build-up of unutilised
funds.

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STRUCTURE, ORGANIZATION AND FUNCTIONING OF THE EXECUTIVE AND THE

JUDICIARY—MINISTRIES AND DEPARTMENTS OF THE GOVERNMENT
Syllabus Sub- 2013 2014 2015 2016 2017 2018 2019 2020 2021 Insights Developments Predictions
divisions

Structure, Judiciary: Critically examine Discuss the Talks of reform of higher

Organization Structure, the Supreme Court’s desirability of judiciary.
and Org, and judgement on greater
Functioning of Functioning ‘National Judicial representation to 2. Fresh push to the
the Executive Appointments women in higher establishment of an All-
and the Commission Act, judiciary to ensure India Judicial Service (AIJS)
Judiciary— 2014’ with reference diversity, equity for the lower judiciary
Ministries and to appointment of and inclusiveness. 3. Proposed creation of a
Departments of judges of higher National Judicial
the judiciary in India. Infrastructure Authority of
Government. India (NJIAI). + Declining
matters decided by
constitutional benches
since independence -
Appellate jurisdiction
issues - National court of
appeal + Article 142 of the
Constitution + pressing
need’ for reform in the law
related to grant of bails +
Questions on procedure of
judicial transfers. +
frivolous PIL

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1. PRESIDENTIAL ELECTIONS

• The President of India is both the head of state and the country's first citizen. Article 54 of the Indian
Constitution states that the President of India will be elected.

Provisions:

1. The President of India is elected by indirect election.

2. He is elected by an electoral college in accordance with the system of proportional representation by
means of a single transferable vote and secret ballot.
3. The elections are conducted and overseen by the ECI.

The electoral college consists of:

1. The elected member of both the Houses of Parliament.
2. The elected members of the Legislative Assemblies of the States.
3. The elected members of the Legislative assembly of Delhi and Puducherry.
4. This provision was added by the 70th Constitutional Amendment Act, 1992.
5. The nomination of a candidate for election to the office of President must be subscribed ay atleast 50
electors as proposers and 50 electors as seconders.

Who does not participate in the election of president of india?

1. The nominated member of both the Houses of Parliament.
2. The nominated members of the Legislative Assemblies of the States.
3. The nominated members of the Legislative assembly of Delhi and Puducherry.
4. All the members of state legislative councils.

Eligibility for re-election: YES

Disputes regarding election of the president: All the doubts and disputes arising out of or in connection with the
election of the President are inquired into and decided by the Supreme Court whose decision is final.

2. VICE-PRESIDENT
Intro: According to the Constitution of India, the VP is the deputy to the head of state, the President of India.
His/her office is the second-highest constitutional office after the president and ranks second in the order of
precedence and first in the line of succession to the presidency. This office is modelled on the lines of the American
vice-presidential office.
Relevant articles:
1. Article 64: the vice president shall be the ex-officio chairman of the Council of states of Rajya Sabha and
shall not hold any other office of profit.
2. Article 65: the VP to act as president or to discharge functions during casual vacancies in the office or
during the absence of the president.
Election procedure:
1. Article 66: manner of election of the vice-president. The vice president is elected indirectly by members of
an electoral college consisting of the members of both Houses of Parliament and NOT the members of
the state legislative assembly. The Electoral College will comprise 233 Rajya Sabha members, 12 nominated
Rajya Sabha members and 543 Lok Sabha members.
2. The election is held per the proportional representation system using single transferable votes.
3. The Election Commission of India conducts the voting via secret ballot.

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4. The Lok Sabha Secretary-General would be appointed the Returning Officer. Political parties CAN NOT
issue any whip to their MPs regarding voting in the Vice-Presidential election. (TMC cross-voting in VP
elections)
Removal:
1. The Constitution states that the vice president can be removed by a resolution of the Rajya Sabha passed
by an Effective majority (majority of all the then members) and agreed by the Lok Sabha with a simple
majority (Article 67(b)).
2. No such resolution may be moved unless at least 14 days’ notice in advance has been given. Notably, the
Constitution does not list grounds for removal. No Vice President has ever faced removal or the deputy
chairman in the Rajya Sabha cannot be challenged in any court of law per Article 122.

Comparison between Indian and American Vice President

Parameters Indian Vice-President American Vice-President

Function Ex-officio Chairman of the Rajya Shall be President of the Senate

Sabha

Roles Nominal Roles Statutory member of the National Scrutiny Council,

plays a significant role in national security matters

In case of vacant Hold office of President only upto He/she succeeds to the presidency when it falls
seat of President 6 months till next President is vacant and remains President for the unexpired term
elected. of his predecessor.

Title “His Superfluous Highness” “A heartbeat away from the Presidency”

Functions and role:

1. Presiding officer: As the Chairman of the Rajya Sabha.

2. Principal Spokesman of the house - RS.
3. Role in the deliberations of the house: Allowing members to speak and ask questions impartially on issues
of public importance.
4. Maintenance of order in the house: He ensures that the proceedings of the house are conducted in
accordance with the relevant constitutional provisions, rules, practices and conventions and that decorum
is maintained in the house.
5. Casting of votes: The VP is not a member of the Rajya Sabha so he/she cannot vote in the house. But, in
case of a tie, he exercises his casting vote so that the final decision can be reached.
6. Right of the Chairman to interpret the Constitution and rules: Right to interpret the Constitution and rules
relating to the house, and no one can enter into any argument or controversy with the chairman over such
interpretation.
7. Vice president to act as President: He acts as a president in time of vacant of office due to any contingency.

Power of Vice President:

1. Powers relating to bills passed in the Rajya Sabha: He correct patent errors in a bill after it has been passed
by the house, and to make such other changes in the bill consequential on the amendments accepted by
the house.

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2. Powers relating to the Rajya Sabha: The RS Secretariat functions under the control and direction of the
chairman. Admission to various galleries including press gallery, is regulated under the direction of the
Chairman.
3. Duties conferred on the Chairman: For instance, rules made under the Salary Allowances and Pension of
Members of Parliament Act, 1954, do not take effect until they are approved and confirmed by the
Chairman and the Speaker.
Limitations with post of Vice President:

1. Institutional Limitations:
1. Just a nominal head: His powers and functions do not have any concrete value.
2. No removal reason: has been mentioned in the constitution.
3. No role of member of State Legislature in election: Members of State Legislatures are not invited
in the election of VP while he represents states in the Upper House.
2. Administrative limitations:
1. Not so impartial: VP overlooking the functions of RS, can be biased.
2. No power to vote on his removal resolution: Chairman of Rajya Sabha cannot vote when the
resolution for his removal is under consideration while the speaker of Lok Sabha can vote in the
first instance.

Way Forward:

1. Nonpartisan behaviour: to act independent of all political buyers and uphold the constitution.
2. Allow dissent: The Vice President must allow the opposition parties to present their dissent.

VP is second only to the President. His neutrality and non-partisanship can go a long way informing the roots of
the system of parliamentary democracy in India. The doctrine of Neutrality should be applicable to the VP just as
it is to the Speaker of the Lok Sabha to ensure proper discharge of duties of that office.

3. GOVERNOR
Appointment of the governor:

1. Article 153 states that every state shall have a governor.

2. Article 154 states that the executive power of the state shall be vested in the Governor.
3. Article 155 it is the President of India who appoints the Governor; however, he exercises this power on the
aid and advice of PM/ CoM. A convention - the CM of the state is consulted before appointment.
4. Hence, the office of the Governor is a nominated one and not elected. Reasons for this are:
1. Nominated governor will promote all India unity and not separatist provincial tendency.
2. Since he is only a nominal head, no point of spending huge amount of money or energy for his
election.
3. An elected governor will belong to a party, hence, will not be impartial and neutral
4. Conflicts will arise between C M and Governor if both are elected by people.

Tenure/removal:

1. Article 156(1) clearly states that the governor holds the office during the pleasure of the President. Hence,
he can be removed by the Centre on any grounds which the President is not bound to disclose.
2. Subject to this overall condition, he holds the office for a term of five years [(Article 156(1)] and can resign
early by writing to the President.
3. Unlike the President, the governor is not impeached because he holds the office during the pleasure of the
President. Since he is a political appointee of whose appointment is made on political conditions, it can
also be terminated on political considerations. Therefore, no grounds have been specified for his removal.

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Judicial review of governor’s removal:

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

Position of governor in a state:

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

Constitutional position/relation with council of ministers:

1. The relation between the governor and his CoMis similar to that between President and the Union CoM,
i.e. he has to act on the aid and advice given by the CoM except in all the cases where the Constitution
authorizes the Governor to exercise powers ‘in his discretion’.
2. Article 163(1) says there will be Council of Ministers to aid and advice the Governor except in the cases he
has to act in his discretion.
3. Article 163(2) then says if any questions arises with respect to whether a matter falls under Governors’
discretionary power or not, the decision of the Governor with regards to the question shall be final and
anything done by the governor in his discretion will not be called into question.
4. Article 163(3) does not allow the courts to inquire into what advice was tendered by the CoM to the
Governor.
5. The Constitution makers conferred explicit and far wide discretionary power on the Governor because as
the representative of the Centre governor has to serve as eye and ears of the Centre and so needs
independence and discretion in certain matters and also because he is an important link between the
center and state to maintain unity and integrity of India.
• Though various articles of the Constitution expressly require Governor’s discretion but in all other
matters he has to act in harmony (on advice) with his CoM (Shamsher Singh V State of Punjab)
because constitution does not aim to provide parallel administration within the state by allowing
governor to go against the advice of CoM.

Discretionary power of the governor:

1. The Governor has to discharge certain functions in his discretion ‘by or under’ the constitution. This means
that his discretionary power need not be always express but may be implied.
2. In the following cases governor has Constitutional discretion i.e., constitution mentions governor to
exercise these functions in his discretion/opinion/ independently of the CoM.
• Reserving a bill for President’s consideration u/a 200.

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• Governor’s report recommending imposition of governor’s rule in the State u/a 356.
• While exercising his functions as the administrator of an adjoining Union Territory u/a 239(2).
• Determining the amount payable by the Government of Assam to the district councils as royalty
accruing from licenses of mineral exploration.
3. In addition to the above the Governor has certain ‘special responsibilities’ to discharge u/a 371, which
practically means his discretion and though he is, in case of special responsibility, to consult CoM but the
final decision will be his individual judgement.

Situational discretion:

Appointment of the Chief minister u/a 164(1): When no party has achieved a clearcut majority in the elections or
when the chief Minister suddenly dies and there is no obvious successor, in those situations' governor can call any
person to form the government who he thinks can command majority.

1. In Pratap Singh Raojirao vs Governor of Goa the court held that for the purpose of the appointment of
the Chief Minister, Governor acts in his sole discretion and while taking decision in his sole discretion he
enjoys immunity under Article 361 of the Constitution.
2. In Mahabir Prasad Sharma vs Prafulla Chandra Ghose, the Calcutta High Court has ruled that if the Council
of Ministers refuses to vacate the office of ministers, after the defeat of the confidence motion in the
House, then the Governor may withdraw his pleasure. The Court also held that the right of the Governor
to withdraw his pleasure during which the minister is to hold office is absolute, unrestricted and unfettered
and the exercise of discretion in withdrawing the pleasure cannot be called in question in a court of law.
3. In Jagdambika Pal vs State of U.P., the Supreme Court directed that the Governor’s discretion to dismiss
the ministry should be exercised only when the Chief Minister fails to prove the majority on the floor of
the House by any means.
Dissolution of State Legislative Assembly:

1. Various Governors have adopted different approaches in similar situations in regard to dissolution of the
Legislative Assembly.
2. The advice of a Chief Minister enjoying majority support in the Assembly to dissolve the house is normally
binding on the Governor.
3. However, where the Chief Minister had lost such support, some Governors refused to dissolve the
Legislative Assembly on his advice, while others in similar situations, accepted his advice, and dissolved the
Assembly.
Is governor an agent of centre?

1. Governor is an appointee of the President and holds office “during the pleasure of the President.”
2. President is bound to act on the aid and advice of the Council of Ministers (Article 74), in effect it is the
Central Government that appoints and removes the Governors:
• “Pleasure of the President "actually refers to will and wish of the Central Government.
3. The Constitution is strictly against compromising the relative autonomy of the States. Appointing
Governors due to:
• Common political ideologies
• or to reward past acts of the persons
4. Leads to over-centralization, hence giving rise to negative terms such as ‘agent of center', 'rubber stamp’,
etc.
5. Recent appointments of Governors do not abide by Constitutional mandate. Keeping in mind that BJP is in
power at center:
• In Congress governed Rajasthan, Kalraj Mishra (who is a politician and former cabinet minister in
the BJP led NDA government of Narendra Modi) was appointed as Governor (2019).
• Shri Bandaru Dattatreya (former Lok Sabha member for BJP) was appointed as the Governor in
Himachal Pradesh in 2019.
6. Unless the party ruling the State is a non-BJP party, there is no check over the appointed Governor.
7. Though Constitution separates Centre and State, granting the latter relative autonomy, due to this biased
nominated appointment of Governors is shrinking Governor’s roles down to clearly and distinctly become
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Agent of the Centre, implying, Governor was never meant to be Agent of the Centre, but is in danger of
getting reduced to it due to biased practices.
8. There exists urgent necessity for depoliticization of the post of Governor.

Reforms in the office of governor:

“The governor is the linchpin of the constitutional apparatus in the state” , said the Sarkaria Commission. His
role has emerged as one of the key issues in Union state relations and has been criticized for want of ‘impartiality
and sagacity’.

Commissions to Summary of Commission Recommendations for Governor’s Office

improve Centre-
State Relations
Sarkaria Submitted report in 1988. Governor should be
Commission (1983) 1. eminent in some walk of life.
Recommended changes in Centre-State 2. from outside the state.
relation, especially in areas relating to 3. detached figure without intense political links.
legislative matters, the role of 4. should not be a member of the ruling party.
Governors, and the use of Article 356. 5. appointed after effective consultations with
the State Chief Minister and Vice President
and Speaker of the Lok Sabha.
6. removed before his tenure only on the
grounds as mentioned in the constitution or if
aspersions are cast on his morality, dignity,
constitutional propriety, etc.

Administrative Considered existing constitutional Governors of State must be

Reforms provisions sufficient to regulate federal
Commission (1969) tensions. 1. non-partisan persons
2. Long experience in public life and
Gave 22 recommendations for Centre- administration.
State relations.

Punchhi Commission Relooked into issues in Centre-State 1. Incumbent should have stayed away from
(2007) relations previously Recommendations active politics even at the local level for at
for appointment/Office of Governor least two years prior.
looked into by Sarkaria Commission. 2. Committee comprising of Prime Minister,
Home
Examined the role and removal 3. Minister, Speaker of Lok Sabha, concerned
procedures of governors. state Chief Minister, and Vice President should
be entrusted with appointment.
4. Only a resolution by the state legislature
should remove the governor.
5. provision for the impeachment of the
governor by the state legislature.
6. Doctrine of Pleasure should be deleted from
the Constitution.

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Important Judicial Pronouncements: Guiding light vis-à-vis the Governor:

Bommai case (1994) Rameshwar Prasad case (2006) Nabam Rabia case (2016)

The question of state A Governor cannot shut out post- SC- Governor has no discretion in
government losing the poll alliances. matter of summoning the house if
confidence of legislative the Chief Minister enjoys majority in
assembly should be decided Unsubstantiated claims of horse- the house and, therefore, is bound
on the floor of the House. trading or corruption in efforts at to act on the advice of the cabinet.
government formation cannot be
The power under Article 356 is cited as reasons to dissolve the Also, in case the Governor has
an exceptional power and Assembly. reason to believe that the Chief
should be used exceptionally. Minister has lost his majority, a floor
test could be ordered.

Governor’s pardoning power: context:

1. Recently, the Supreme Court held that the Governor’s power to pardon overrides Section 433A of Code of
Criminal Procedure (CrPC).
2. Earlier in January 2021, in a case of mercy petition, the SC noted that the Governor cannot reject the state’s
recommendation but there is no time prescribed to take a decision.

Governor’s pardoning power:

1. SC held that the Governor of a State can pardon prisoners, even before they have served a minimum 14
years of prison sentence.
2. Section 433A cannot and does not in any way affect the constitutional power conferred on the
President/Governor to grant pardon under Articles 72 or 161 of the Constitution.
3. The court noted that the sovereign power of a Governor to pardon a prisoner under Article 161 is actually
exercised by the State government and not the Governor on his own. The advice of the appropriate
government binds the Head of the State. Pardoning power of the President
4. Under Article 72 of the Constitution, the President shall have the power to grant pardons, reprieves,
respites or remissions of punishment or to suspend, remit or commute the sentence of any person
convicted of any offence where the sentence is a sentence of death.
5. Limitation- The President cannot exercise his power of pardon independent of the government.

Difference between pardoning powers of president and governor:

The scope of the pardoning power of the President under Article 72 is wider than the pardoning power of the
Governor under Article 161 which differs in the following two ways:

1. Court Martial: The power of the President to grant pardon extends in cases where the punishment or
sentence is by a Court Martial, but Article 161 does not provide any such power to the Governor.
2. Death sentence: The President can grant pardon in all cases where the sentence given is the sentence of
death, but the pardoning power of the Governor does not extend to death sentence cases.

Terms:
1. Pardon: It removes both the sentence and the conviction
2. Commutation: It denotes the substitution of one form of punishment for a lighter form.
3. Remission: It implies reducing the period of sentence without changing its character.
4. Respite: It denotes awarding a lesser sentence in place of one originally awarded due to some special fact
5. Reprieve: It implies a stay of the execution of a sentence (especially that of death) for a temporary period

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4. JUDICIAL ACCOUNTABILITY
Introduction:

1. Definition: Judicial accountability is defined as the set of mechanisms aimed at making judges and courts
personally or institutionally responsible for behaviours and decisions contrary to constitutional or legal
standards.
2. Under Article 235, Constitution provides for ‘control’ of High Court over the subordinate judiciary clearly
indicating the provision of an effective mechanism to enforce judicial accountability.

Why do we need judicial accountability?

To ensure faith and trust of Improve efficiency and To reduce Lack of effective mechanism to
citizens in democratic transparency in delivering pendency of enforce accountability of
institutions. quality judgements cases Supreme Court

Issues/Challenges:

1. Collegium System: Is concentrated immense power in the hands of judges, which is lead to promotion of
nepotism over pure merit. (Only 200 families have sent judges to SC)
2. Opacity: In functioning of judiciary allocation of cases, judicial appointments etc. (4 SC judge press
conference against ex CJI - misuse of roster).
3. Illegal actions of judges: Rampant corruption in judiciary, favours in exchange for post-retirement jobs,
sexual harassment allegations.
4. RTI Act: Judiciary virtually out of it.
5. Pendency: Due to lack of accountability measures, pendency across courts grew 2.8% annually.
6. Judicial Overreach: violating Separation of Powers.

What has been done to increase judicial accountability?

1. In-house procedures: inquiry by CJI/CJ and some senior judges.

2. Memorandum of Procedure, 2016: In order to increase transparency in judicial appointments and set up a
permanent Secretariat in the Supreme Court of maintaining records of High Court Judges.
3. Judicial standard and accountability bill, 2020: it requires us to declare their assets and establish process
for removal of judges of the Supreme Court and High Courts.
4. LIMBS (Legal Information Management & Briefing System), a web-based application for monitoring cases
involving the central government, in a more effective and transparent manner.
5. Contempt of Courts (Amendment) Bill, 2003: The Act should be amended to remove words, ‘scandalizing
the court or lowering the authority of the court’ from the definition of criminal contempt.
6. A formal and comprehensive code on conduct of judges should be put in place which is enforceable by
law. Additionally, taking cue from Orissa High Court, A practice of publishing annual reports on
functioning and efficiency e of Judiciary should be undertaken nationwide to increase accountability.

5. JUDICIAL TECHNOLOGY: ONLINE DISPUTE RESOLUTION (ODR)

Context: Recently, the NITI Aayog Expert Committee on ODR submitted the report titled ‘Designing the Future of
Dispute Resolution the ODR policy plan for India’.

Definition: ODR in simple terms is the use of technology to resolve disputes outside of the public court system.
ODR is more than just e-Alternate Dispute Resolution for it can include the resolution of disputes through Artificial
Intelligence/Machine Learning tools and has no determined set of procedures.

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Benefits:

1. Legal Health It can promote legal health by making people aware about the law, or their rights and
Promotion: duties and the remedies available to them. this will help us move towards a more rule of
law-based society.
2. Dispute Data driven development of ODR tools can provide citizens information to make informed
Avoidance: choices based on the strengths and weaknesses of the position of law and thereby help
them to pre-emptively address any likely challenges.
3. Dispute ODR can add a digital layer to ADR processes such as mediation and arbitration and make
Containment: them more efficient.

4. Cost effective: No travel + venue cost. Reduce legal cost, by reducing time for resolution and by doing
away with the need for legal advice and select cases.
5. Customisable New hybrid variants of ADR, such as med-arb/arb-med-arb, Along with ODR integration of
processes: artificial intelligence can lead to limitless variables. ODR can allow for multi-door dispute
resolution through curated and customised processes for certain classes of cases.
6. Limits implicit with increase awareness regarding racial, caste and gender justice, ODR can help remove
biases of the conscious/unconscious biases, prejudice and stereotypes of the “Neutral” in decision-
human making processes.
judgement
Challenges in adoption of ODR:

Structural: Digital literacy: internet penetration rate: Rural: 32.24% Urban 99.12%.

Digital infrastructure: Access to computers, smart phones and medium to high bandwidth
internet connection

Divide in access to technology: As per Internet India Report 2019, women constitute only 1/3rd
of internet users in India and a mere 28% in rural areas. Only 27% of rural population has access to
the internet whereas in urban, it is 51%.

Operational: Privacy and confidentiality concerns

Difficulty in enforcing ODR outcomes: There is a legal vacuum in mediation processes that are
not initiated by courts. For ODR, settlements can only be enforced as an agreement and any
breach of such agreement will result in further judicial processes.

Archaic legal processes: State Governments still require parties to attach a copy of e- Stamp
certificate to the agreement as a proof of payment of stamp duty.

Shortage of competent Neutrals: Lack independent, qualified third-party who try to help
disputants come to a consensus on their own.
Behavioural: Aversion to novelty: Lack of awareness, lack of trust in ODR and reluctance on part of the
Government to use ODR.

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Way ahead:

1. Greater access to technology: It is both in terms of physical access to infrastructure as well as increase in
levels of digital literacy.
2. Increase the number of trained Neutrals: (paralegals- assist with ODR + officers - refer cases to ODR.)
3. Increase private sector participation: will help improve digital infrastructure.
4. Enhancing public trust in ODR: pilot intro: Consumer Redressal + IBC resolutions.
5. Pragmatic Regulation of ODR: Introduce a light-touch approach to regulation. The report recommends
three sets of principles – Design Principles for ODR Platforms (which can be hosted within businesses or
exist independently) and separate sets of Ethical Principles for ODR centres and third-party Neutrals.

6. CONSTITUTIONAL BENCH
Context: CJI J. U.U. Lalit has proposed setting up a permanent Constitutional bench at the SC.

Intro: According to Art. 145 (3): Chief Justice of India has the power to constitute a constitution bench and refer
cases to it. At least 5 judges need to hear cases that involve a substantial question of law as to the interpretation
of the constitution. Largest so far 13 judges: Keshavananda Bharati case.

Circumstances for constituting the bench:

1. Constitution benches of the Supreme Court are setup to decide any case that involves a substantial
interpretation of the constitution of India.
2. Any reference made by the President of India under Article. 143 (1).
• President has the power to consult the Supreme Court
• President can also refer a dispute to the Supreme Court for opinion.
3. The article also says that every petition calling in question the election of the President and the Vice
President shall be posted before a bench of 5 judges.
4. Other session on whether any case merits hearing by constitution bench has to be taken by the Chief
Justice of India.
5. However, there is no specific provision in the constitution that states that the CJI should compulsorily be
part of the constitution bench. The term judge refers to any judge of the Supreme Court which the CJI
desires to include in the list of judges comprising a constitution bench.
6. Sometimes multiple constitution benches are constituted to decide matters of public importance
involving constitutional questions.
Landmark Cases involving Constitution Benches: During the early decades after independence, constitution
benches were created for over 100 cases. In a decade, that number has slowed down to about 20 in each decade.

Keshwanand Bharti v. State of Kerala case: 13 judges bench

KS Puttaswamy vs Union of India: Aadhaar Verdict, 2018: 5 judge bench
Navtej Johar case: Section 377, 2018: 5 judge bench

Similarly, in matters of national importance, like euthanasia, polygamy, gender justice, gender equality, national
unity, or even civil suits (like Ram Mandir case), the CJI may refer cases to a constitution bench. Simply because,
it's not the interpretation of the constitution but because it is very important for the country.

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7. ARTICLE 142

Article 142(1):

1. Provides discretionary power to the Supreme Court as it states that the Supreme Court in the exercise of
its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any
cause or matter pending before it. It is often termed as “Judicial Activism”. Such orders will be enforceable
throughout India as prescribed by any law made by Parliament or order of the President of India.
2. According to Article 142(2), the Supreme Court has powers to make any order to secure the attendance of
any person, the production of any documents, or punishment of any contempt of itself.

Context: Exercising the powers conferred under Article 142 of the Constitution, the Supreme Court ordered to
release of A.G. Perarivalan (former PM Rajiv Gandhi assassination case convict). The convict was only 19 at the
time of assassination and hence, garnered public sympathy.

The governor was recommended for release by the state cabinet in 2018. The Governor, on the other hand,
forwarded the advice to the President.

1. Central Government: contended that under the (IPC), instances involving murder fall under the
President's exclusive jurisdiction when it comes to remission of life sentences.
2. Supreme Court: The state has jurisdiction over the remission. As a result, when acting under Article 161,
the Governor is bound by the advice of the State Cabinet. As a result, the governor's referral to the
President was "contrary to the Constitution's scheme." Governor’s delay to decide Periravalan’s pardon
compelled the apex court to intervene. SC invoked Article 142(1).

Judicial Activism Judicial Overreach

It denotes the proactive role played by the judiciary It refers to the interference of judiciary in the domain of
in the protection of the rights of citizens and in the legislation and executive.
promotion of justice in society.
The concept of judicial activism is inherent in judicial Judicial overreach is manifested often when
review, which empowers the court to uphold the the judiciary empowers itself with extra-constitutional
constitution and declare the laws and actions powers. And it is used often with the lamentation on
inconsistent with the constitution as void. poor working of other organs of government.

Judicial activism is the use of judicial power to Judicial overreach is misuse of judicial power.
articulate and enforce what is beneficial for society -
Art.142(1).
Eg: Union Carbide case, Cleansing of Taj Mahal and Eg: Ban on Deepavali firecrackers, Invalidating the NJAC
justice to many undertrials. Act, Judicial legislation in form of Vishakha Guidelines
regarding the prevention of sexual harassment of
women in the workplace.

Way Forward:

1. The Supreme Court needs to introspect on whether the use of Article 142 as an independent source of
power should be regulated by strict guidelines.
2. All cases invoking Article 142 should be referred to a Constitution Bench of at least five judges so that this
exercise of discretion may be the outcome of five independent judicial minds operating on matters having
such far-reaching impact on the lives of people.

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8. PUBLIC INTEREST LITIGATION

1. PIL is the use of the law to raise issues of broad public concern.
2. Expression ‘PIL’ has been borrowed from American jurisprudence.
3. PIL is based upon Article 39A (DPSP)- the state shall secure and provide justice, on a basis of equal
opportunity, and in particular, provide free legal aid.
4. PIL is the power given to the public by courts. The SC receives over 25,000 PILs/ Year on average.
5. It can be filed in any High Court or directly in the Supreme Court.

How can a PIL be initiated?

1. Any citizen can file a public case by filing a petition:

• Under Art. 32 of the Indian Constitution, in the Supreme Court.
• Under Art. 226 of the Indian Constitution, in the High Court
• Under S. 133 of the Criminal Procedure Code, in the Court of Magistrate.
2. The Court must be satisfied that the writ petition fulfills some basic needs for PIL.
3. Further, the Court can treat even a letter as a writ petition and take action upon it so long as:
• the letter is addressed by an aggrieved person; or
• a public spirited individual; or
• a social action group for enforcement of the constitutional or the legal rights of a person in custody
or of a class or group of persons who by reason of poverty, disability or socially or economically
disadvantaged position find it difficult to approach the court for redress.
4. A PIL can be filed against public bodies and authorities, but not against private parties.

Landmark PIL cases:

1. Hussainara Khatoon v. State of Bihar (Considered first PIL case in India - focused on the inhuman
conditions of prisons and under trial prisoners).
2. M.C. Mehta v. Union of India (Several cases for environment preservation were initiated by way of PILs).
3. Vishaka v. State of Rajasthan (The Supreme Court laid down guidelines for prevention of sexual
harassment of women at the workplace, which was followed for nearly 16 years before the enactment of
the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013).
Advantages of PIL:

1. Accessible legal redressal for all, especially poor and marginalised, balance of law and justice.
2. Allows access to justice for economically challenged sections - Democratizes justice
3. Implements judicial review
4. Ensures judicial monitoring of state institutions - Checks & Balances
5. Raises awareness on important issues.
Disadvantages of PIL/ abuse of procedure :

1. Problem of competing rights, wherein the recognition or grant of rights to one section of the society
leads to disadvantage to another section of marginalized population.
2. Frivolous cases can be filed by parties with vested interest without heavy court fees, leading to the time
and attention of the Court being diverted from genuine and crucial matters.
3. Potential for judicial overreach, which violates the doctrine of separation of powers.
4. Inordinate delays in the disposal of PIL cases.

Way forward:

1. SC has issued several directions to help courts separate genuine PILs from the frivolous ones.
2. Doctrine of Separation of Power should be adhered to, and courts should not step into the jurisdiction of
other organs.
3. Timely Disposal to further social development.
4. PILs filed on frivolous grounds should be penalized in order to address misuse.

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9. SC & SUO-MOTO
1. A ‘suo-moto’ power is granted by S. 23 of the Contempt of Courts Act, 1971 in regard to contempt of court.
Many other common law jurisdictions give Courts this power. However, the use of the procedure in writ/
judicial review jurisdiction is novel to India, where it is used to scrutinise or test executive (in)action.
2. Articles 32 and 226 confer the Supreme Court (SC) and High Courts (HC) wide constitutional and public law
powers. These powers have been interpreted to take up cases of their own volition – without any petition
being formally filed. Suo moto powers have historically developed contemporaneously with public interest
litigation, where procedural requirements were relaxed in the interest of justice.

Issue SC - Article 32 HCs - Article 226

Enforcement of Yes Yes

fundamental rights
Enforcement of legal No Yes
rights
Territorial jurisdiction Throughout India Within the jurisdiction of the particular High
Court. Exception: outside jurisdiction only if the
cause of action arises within its jurisdiction
Exercise of writ Mandatory Discretionary
power

Courts often take up matters based on media reports or act on letters written to them. For example, in Sunil
Batra v Delhi Administration (1980), the Supreme Court took up the matter based on a letter written to a judge
about the torture of prisoners and violations of prisoners’ fundamental rights. Suo moto powers have also been
widely used to tackle environmental issues, including air pollution in Delhi and the remediation of polluted rivers.

10. CONTEMPT OF COURT

What is the contempt of court?

1. Contempt of Court refers to the offence of showing disrespect to the dignity/ authority of a court.
2. Used as a legal mechanism to punish those who lower its authority, in order to safeguard the interests of
the public and public confidence in the administration of justice.
3. The SC and HCs derive their contempt powers from the Constitution (contempt of court is one of the
restrictions on freedom of speech and expression under Article 19(2))
• Article 129 of the Constitution conferred on the Supreme Court the power to punish contempt of
itself.
• Article 215 conferred a corresponding power on the High Courts.
• The Contempt of Courts Act, 1971 (“the Act”), gives statutory backing to the idea.

THE CONTEMPT OF COURTS ACT, 1971:

1. The Act specifies that the SC + HCs have the power to try and punish the offence of contempt.
2. High Courts also have the power to punish acts of contempt against courts subordinate to them.
3. The Act, outlines the procedure in relation to investigation and punishment for contempt.
4. According to the Act, contempt is divided into civil and criminal contempt.
5. The Act provides that a charge of contempt may be brought against a judge, magistrate or any other
person acting judicially, for contempt of her own court or any other court in a manner similar to any other
individual. The provisions of the Act shall be applicable in the same manner to such persons, as any other
individual

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 76

Types of Contempt:

1. Civil Contempt: Wilful disobedience of an order of Court.

2. Criminal Contempt: Any act of publication which:
• Scandalises/tends to scandalise, lower or tends to lower the Court
• Prejudice or interferes any judicial proceedings
• Interferes with the administration of justice in any other manner

What is not contempt of court?

1. Fair and accurate reporting of judicial proceedings.

2. Fair criticism on the merits of a judicial order after a case is heard and disposed of.
Is truth a defence against a contempt charge?
1. Initially Truth not a defence against a contempt charge.
2. Amendment to the Contempt of Court Act in 2006 introduced truth as a valid defence, if it was in public
interest and was invoked in a bona fide manner.
Arguments in favor:

1. Reduction in respect to the Judiciary

2. Constitutional Source of Contempt Power: Therefore, deletion of the offence from the Act will not impact
the inherent constitutional powers of the superior courts to punish anyone for its contempt.
3. Impact on Subordinate Courts: The Contempt of Court Act allows High Courts to punish for contempt of
subordinate courts. Thus, if the definition of contempt is removed, subordinate courts will suffer as there
will be no remedy to address cases of their contempt.
4. Ambiguity: Superior courts will exercise the power of contempt under the constitution and may give
multiple definitions and interpretations to what constitutes contempt.
5. Adequate Safeguards: The Law Commission of India noted that there are several safeguards built into the
Act to protect against its misuse.
Arguments against contempt of court:

1. Against Civil Liberties: Contempt law in conflict with freedom of speech and expression.
• Use of contempt law causes a chilling effect on the exercise of freedom of speech.
• Former Justice of Supreme Court, V.R. Krishna Iyer, famously termed the law of contempt as
“having a vague and wandering jurisdiction, with uncertain boundaries;
2. Wide Scope of Contempt: The definition of criminal contempt in India is extremely wide, and can be easily
invoked. Courts may also initiate proceedings suo motu.
3. Truth and Good Faith as Defences are seldom entertained.
4. International Disuse: Contempt of court has practically become obsolete in foreign democracies.

Conclusion: The Law Commission of India looked into the issue of Contempt and recommended that the provision
for contempt of courts be retained. However, it also recommended the definition of contempt in the Contempt of
Court Act should be restricted to civil contempt, i.e., wilful disobedience of judgments of the court.

11. PENDENCY
State of pendency in Indian judiciary:

1. The pendency of cases at the SC has increased in 2021 by 7.3%.

2. Approx. 88% of pending cases in lower judiciary, i.e. district and subordinate courts).
3. Number of under-trials in prison is more than double that of convicts.

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Reasons of pendency:

1. Increased awareness of rights of citizens due to socio-economic advances, has improved capacity to sue.
2. New mechanisms that have simplified the process of judicial cognizance (E.g.: Public Interest Litigation)
and new rights granted to the general public (E.g.: Right to Information), which increases awareness and
emboldens litigants.
3. Insufficient number of courts and lack of sufficient judges, especially in lower judiciary.
4. Increased litigation from the Government (e.g. tax and revenue cases).
5. Archaic/Vague Laws requiring interpretation from higher judiciary.
6. Lack of strict timelines for strict proceedings.
7. Repeated adjournments.

Consequences of pendency:
1. Denies the poor man and under-trial prisoners their due justice.
2. Economic reforms – only on paper without speedier justice system.
3. Foreign investors hesitate to invest in India due to the delayed delivery of justice, which affects the
success of programs like ‘Make in India’.
4. Judiciary becomes overburdened; loses efficacy and efficiency.
5. Erodes social infrastructure + Overcrowding of prisons.
6. Financial drain of the coffers of the State; judicial delays cost India an estimated 1.5% of its GDP annually.
7. High time, energy and money costs for litigant, resulting in loss of faith in the justice system.
Recommendations to address pendency:

1. Introduce time limits for all cases and having a definite time frame to dispose the cases by setting annual
targets, and action plans for the subordinate judiciary and the High Courts.
2. Increase in number of judges + working hours of courts.
3. Decentralize working of the Supreme Court by introducing Regional Benches – the Law Commission.
4. Increase functioning and efficiency of ADR; effective utilization of mechanisms such as Lok Adalats and
Gram Nyayalayas. Now even Online Dispute Resolution ODR tools.
5. Establishment of Tribunals, Fast Track Courts and Special Courts
6. Introduction of the All-India Judicial Services (AIJS) for appointment of members to the lower judiciary.
7. Better case and court management.
• Revamping of National Judicial Data Grid.
8. Use of Information technology (IT) solutions:
• Digitization of court registry + E-filing of suits across courts + Video conferencing hearings.
• Digitization of court database, use of ERP tools for database management.
• Real time updates of case status, cause list etc.
• Supreme Court and most High Courts as well as several tribunals and registries have effectively
engaged IT solutions for conduct of court proceedings during the pandemic related lockdown.
9. Malimath Committee Report:
• Increase in number of courts and judges.
• Reduction in period of vacations for the Courts by 21 days.
• ‘Arrears Eradication Scheme’: pending cases prioritized + settled - Lok Adalats; no adjournments.
Measures implemented to reduce pendency:

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

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12. ALL INDIA JUDICIAL SERVICES

1. AIJS first proposed by the 14th Report of the Law Commission of India in 1958.
2. The recommendation aimed at creating a centralised cadre of District Judges that would draw better
talent.
• At present, various high courts and state service commissions hold exams to recruit
judicial officers.
3. In 1992, the Supreme Court in All India Judges’ Assn. (1) v. Union of India directed the Centre to set up an
AIJS. In a 1993 review of the judgment, however, the court left the Centre at liberty to take the initiative
on the issue.
• In 2006, the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice
in its 15th Report backed the idea of a pan-Indian judicial service, and also prepared a draft Bill.
4. In 2017, the Supreme Court took Suo-motu cognizance of the issue of appointment of district judges, and
mooted a “Central Selection Mechanism”.
Why is it required?

1. Recruitment in lower judiciary happens state-wise - lower standard of district court judges.
2. Many judicial posts remain vacant despite an extraordinarily high number of pending cases.
3. To standardise process of appointments to lower judiciary.
4. To create a carder of dedicated, professional judicial officers.
Who recommended AIJS?

1. The idea of judicial service was introduced as early as in the 1950s.

2. The provision of AIJS was also included in Article 312 of the Constitution through the 42nd amendment in
1976.
• NITI Aayog, in its report, ‘Strategy for New India@75’, also mooted the creation of an All India
Judicial Service (AIJS) for making appointments to the lower judiciary.
Constitutional provisions:

1. Article 233(1)- appointment, promotion, posting of District Judges in any State shall be done by Governor,
in consultation with that State’s High Court
2. 42ndConstitutional Amendment, 1976-
• Article 312(1) was amended- it empowered the Parliament to make laws for the creation of one or
more AIS, common to both Union & States
• Article 312(3) places a restriction that such a service shall not include a post inferior to that of a
district judge
• A change in the 7th Sch - Entry 3 of List II (State list) in its entirety was placed at Entry 11A in List III
(Concurrent List- where the Union Law prevails over the State law, generally) {“Administration of
Justice; constitution and organization of all courts, except the Supreme Court and the High
Courts”}
Arguments in favor:

1. It could be an ideal solution for equal representation of marginalised and deprived sections of the society.
• Most States already have a reservation policy in place.
• TN provides a roster-based policy of 69%, of which 30% are for women.
• States like UP can immensely benefit from the AIJS - there is merely 20% reservation for women.
2. Efficiency and efficacy of judiciary would be increased.
3. Transparent and efficient method of recruitment would be followed.
4. The issue of pendency and issue of delay of cases would be solved to a great extent.
5. Corruption, nepotism etc. would be strongly dealt with.
6. Best legal talent across the country would be selected on the basis of merit.
7. Better qualified judges in the lower judiciary would ensure more experienced judges in the higher judiciary.
8. Public faith in the judiciary would be restored.

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9. Favoured by various eminent Bodies- Chief Justices’ Conference, Law Commissions

10. Supreme Court:
• Judgements in favour of AIJS- All-India Judges Case of 1992, All India Judges Association vs. UoI
of 2002.
• The Court accepted most recommendations of the Shetty Commission and directed the
government accordingly.

Arguments against:

1. Article 233 vs. 312- What was initially, essentially intended to be the prerogative of the State will now be
that of the Union. When such fundamental powers of the States get curbed, it affects the basic principle
of federalism and is against the basic structure doctrine.
2. May lead to conflict between Centre & State as the power to recruit judicial officers so far rests with the
states- it would take away the powers of the States and HCs to appoint and administer subordinate judges.
3. Issue of differences in local laws of each state.
4. Local languages and dialects would pose problems in a hyper technical field such as law.
5. Currently, the judges of subordinate courts are appointed by the governor in consultation with the High
Court which will not be so if AIJS is implemented. This may be construed as a violation of the Independence
of Judiciary as some other body will have a control in appointments.
6. There is no substantial improvement in the existing efficacy of the procedure for filling the vacancy in the
judiciary.
Conclusion:

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

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 80

COMPARISON OF THE INDIAN CONSTITUTIONAL SCHEME WITH THAT OF OTHER

COUNTRIES

Syllabus Sub- 2013 2014 2015 2016 2017 2018 2019 2020 2021 Insights Developments Predictions
divisions

Comparison of Comparison of India and USA What can The judicial Analyze the UK- Sri Lanka recently
the Indian the Indian are two large France learn systems in distinguishing Judiciary, amended its
Constitutional democracies. from the Indian India and UK features of US- constitution.
Constitutional Scheme with Examine the Constitution’s seem to be the notion of Equality,
Scheme with that of Other basic tenants approach to converging as Equality in the France-
that of Other Countries. on which the secularism? well as Constitutions Seculariism
Countries. two political (10/150) diverging in of the
systems are (Amendment recent times. USA and India
based. to French law Highlight the (15/250)
banning key points of (Theory)
external convergence (Black Lives
religious and Matter)
symbols divergence (Correlative to
wearing at between the FRs)
school trips) two nations in
(Correlative to terms of their
FRs) judicial
practices.

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 81

1. INDIA VS USA

JUDICIARY
S.No. SIMILARITIES DIFFERENCES
1.
Judicial Review: According to this power, the Supreme Judicial Tenure: While a judge in the United
Court of the USA can reject or abrogate any law which does States can hold the post for life as long as
not suit the constitution of the USA or violate the he enjoys good health, it is different in
Constitution, similar provisions exist in India. India where judges have retirement ages.

2.
Due Process of Law: Both nations hold the principle of due Supreme Court: Every state in the US has
process or “the Government cannot deprive anyone of life, its own Supreme Court as the highest
liberty or property without due process of law. In India, the court of
concept came with a wider interpretation in the Maneka appeal for most cases, and the federal
Gandhi case. supreme court is only for select federal
cases.

3.
Separation of Powers: There is a legislative, executive, and
judicial branch that each has its own different but equally
important duties.

4.
Independence of Judiciary

SUPREME COURT

SUBJECT INDIA USA

Original jurisdiction It is confined to Federal cases. It was not only Federal cases but also
cases related to naval forces, Maritime
activities, ambassadors etc.
Appellate It covers constitutional, civil and criminal It is confined to constitutional cases
jurisdiction cases. only.
Advisory It has advisory jurisdiction No advisory jurisdiction
jurisdiction
Judicial review It defends the rights of the citizen according
to the ‘procedure established by law. Thus, its It defends the rights of the citizen
scope of judicial review is limited. according to the ‘due process of law’
Thus, its scope of judicial review is wide.

Change in Its jurisdiction and powers can be enlarged by

jurisdiction the parliament. Its jurisdiction and power are limited to
that conferred by the constitution.

Control over It has the power of judicial superintendence

subordinate courts and control over state high courts due to the It has no such power due to a double (or
integrated judicial system. separated) judicial system.

Fundamental Unified judicial system

difference Segregated on Federal principles

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 82

Extraordinary Yes
power of special No
leave

2. PRESIDENTIAL FORM OF GOVERNMENT

1. Form of governance in which a head of government leads an executive branch that is

2. separate from the legislative branch.
3. The Head of State is also the designated Head of Government – and is called the President.
4. Executive is constitutionally independent of Legislature.
5. Presidentialism is the dominant form of governance in mainland Americas – 19 out of 22 sovereign states
– and is also widespread in Central Asia, Central and Southern West Africa. The only republics to follow this
system in Europe are Belarus and Cyprus.
6. The United States of America is the perfect example of Presidential governance.
7. Each of the three branches – judiciary, executive and legislative – are independent of the others, deriving
authority from the constitution.

Features of presidential form of governance:

1. Separation of Powers: Executive and Legislature are at par. Neither President nor Cabinet members are
part of/responsible to Legislature.
a. System of Checks and Balances exists in the following forms –
i. Executive in form of the President has Veto power over Legislative.
ii. Legislature is enabled with power to remove President by the process of impeachment.
iii. Judiciary – Supreme Court – has the power to declare the Legislature’s laws, and Presidents
orders as unconstitutional.
2. Single Executive: Unlike Parliamentary form, here the President is the real Head of State as well as Head
of Government. There is no concept of a titular/nominal Head.
3. Prominent Position: President occupies a pre-eminent position in the Government and has subordinate
members of Cabinet whose advice he may accept or reject.
4. Fixed Term: Removal before completion of the President’s fixed term is possible only through
impeachment on the basis of constitutional violation.

Merits and demerits of presidential form:

MERITS DEMERITS
Separation of Powers ensures each organ its Risk of being a despotic nature of governance, as
Individual liberty giving no single organ superior powers. President is not answerable to the Legislature.

Presidential system is speedy and responsive in Since Cabinet secretaries are appointed directly by the
emerging situations. President, personal loyalty and ties play an important
role.

Prompt decisions can be taken because the President is Expertise and merit might take a backseat in case of
not constrained by directions of the Cabinet or such appointments
Legislature.
Efficient administration without influence of political Conflict between Executive and Legislature in case
parties, as Presidency is not dependent on majority opposition dominates the latter. This can lead to
support from the legislature. hampering of public interest.

Impeachment is a complex and time-consuming procedure

which can be resorted to only in emergency situations.

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3. CABINET

1. By definition, a cabinet is a body of high-ranking State officials – like leaders of executive branch.
2. Functions of Cabinet may vary between decision making bodies with collective responsibility and purely
advisory bodies that are assistant to Head of State/Government.
3. The term used for Cabinet differs across countries. The Cabinet is known by names such as "Council of
Ministers", "Government Council" or "Council of State", or by lesser-known names such as "Federal
Council" etc.

Role of cabinet:

PARLIAMENTARY SYSTEM PRESIDENTIAL SYSTEM

Collectively decides the government's direction, Official role of Cabinet is that of official
usually in regard to legislations passed by the advisory council to the head of Government –
parliament. President receives advice and opinions.
Monarch/Ceremonial Head of State virtually always President can depart from Cabinet’s advice as seen
acts on advice of Cabinet. fit by him.
On ground, the Cabinet reports to real Head of Cabinet works directly under and for the President
Government – usually the Prime Minister – rather than who is both Head of Government and State.
the titular Head of State.
The Cabinet in a parliamentary system must not only Members of the Cabinet are chosen directly by
be confirmed, but enjoy the continuing confidence of President, they may or may not have to be
the Parliament. confirmed by Legislation.

Cabinet influences Legislative policy to a large Members of Cabinet focus on and have massive
extent. influence in their own Executive departments.

In conclusion, a Cabinet is found in almost all forms of Government, the two major ones – Presidential,
Parliamentary – and other hybrid versions such as semi- Presidential system etc. The members are responsible for
daily management of the Government, response to emergency situations and sudden events. They play an
important role in any form of Governance and help to keep things running smoothly.

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 84

SEPARATION OF POWERS BETWEEN VARIOUS ORGANS DISPUTE REDRESSAL

MECHANISMS AND INSTITUTIONS (JUDICIARY)

Syllabus Sub- 201 2014 2015 2016 2017 201 2019 2020 2021 Insight Developmen Prediction
divisions 3 8 s ts s
Separation Starting Resorting Khap Do you To what The imposition
Separation of Powers from to Panchayats think that extent, the of highway
between inventing ordinances have been in constitutio Parliament is liquor ban by SC
of Powers various the ‘basic has always the news for n of India able to was in
between organs structure’ raised functioning as does not ensure news+Issues of
various doctrine, concern on extra- accept accpuntabilit clearance of
organs the violation of constitutional principle of y of the foreign visits by
judiciary the spirit of authorities, strict executive in ministers
Dispute has played separation often delivering separation India?
Redressal a highly of powers pronouncemen of powers
Mechanism proactive doctrine. ts amounting to rather it is
s and role in While human rights based on
Institutions ensuring noting the violations. the
that India rationales Discuss principle of
(Judiciary) develops justifying critically the ‘checks
into a the power actions taken and
thriving to by the balance’?
democrac promulgate legislative, Explain.
y. In light ordinances, executive and
of the analyze the judiciary to
statement whether set the things
, evaluate the right in this
the role decisions of regard.
played by the
judicial Supreme
activism in Court on
achieving the issue
the ideals have
of further
democrac facilitated
y. resorting to
(Repeated this power.
here) Should the

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 85

power to
promulgate
ordinances
be
repealed?

Dispute What are What was held Critically Judicial

Redressal the major in the IR Coelho examine the Legislation
Mechanism changes case? In this Supreme is
s and brought in context, can Court’s antithetical
Institutions the you say that judgement to the
Arbitration judicial review on ‘National doctrine of
and is of key Judicial separation
Conciliation importance Appointmen of powers
Act, 1996 amongst the ts as
through the basic features Commission envisaged
recent of the Act, 2014’ in the
Ordinance Constitution? with Indian
promulgate (A/13 - FRs reference to Constitutio
d by the issue) appointment n. In this
President? of judges of context
How far will higher justify the
it improve judiciary in filing of
India’s India. large
dispute number of
resolution public
mechanism interest
? Discuss. petitions
praying for
issuing
guidelines
to
executive
authorities.

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 86

1. SEPARATION OF POWERS
Introduction:

1. The Constitution recognizes the three-fold functional division of governmental powers: The Legislature,
The Execute and the Judiciary (Montesquieu’s idea).
2. Article 50 expressly requires the State to apply the principle of separation of the judiciary from the
executive as a sound principle of Government.
For essay:

1. Montesquieu who for the first time gave it a systematic and scientific formulation in his book 'Esprit des
Lois (The Spirit of the laws) published in the year 1748.
2. The Executive should not exercise the legislative or judicial powers because this may threaten the freedom
and liberty of individuals.
3. The Legislative should never exercise the executive or judicial powers as this may lead to arbitrariness and
hence, end the liberty.
4. The Judiciary should not exercise the executive or legislative powers because then a judge would behave
like a dictator.

Objectives of SOP:

1. It aims to eliminate arbitrariness, totalitarianism and tyranny and promote an accountable and democratic
form of government.
2. It prevents the misuse of powers within the different organs of the government. The Indian Constitution
provides certain limits and boundaries for each domain of the government and they are supposed to
perform their function within such limits. In India, the Constitution is the ultimate sovereign and if anything
goes beyond the provisions of the constitution, it will automatically be considered as null, void and
unconstitutional.
3. It keeps a check on all the branches of the government by making them accountable for themselves.
4. Separation of powers maintains a balance among the three organs of government by dividing the powers
among them so that powers do not concentrate on any one branch leading to arbitrariness.
5. This principle allows all the branches to specialize themselves in their respective field with an intention to
enhance and improve the efficiency of the government.

Separation of powers- UK Constitution:

1. The United Kingdom practices the unitary parliamentary constitutional monarchy.

2. The concept of separation of powers is applied in the UK but not in its rigid sense because the UK has an
unwritten constitution.
3. The Parliament is the sovereign rule-making body in the UK.
4. The government is answerable to the Parliament. Practically, the executive is controlled by the House of
Commons.
5. The Judiciary, however, is independent of executive control. But the judges of the Supreme Court can be
removed from the address of both houses if found with any charge of corruption.

Separation of powers- US Constitution:

1. The US has a written constitution and governed by the Presidential form of government
2. This concept is well-defined and clear under the American Constitution.
3. The President and his ministers are the executive authority and they are not members of the Congress.
4. The ministers are accountable to the President only and not to Congress.
5. The tenure of the President is fixed and independent of the majority in Congress.
6. Congress is the sovereign legislative authority. It consists of two houses- the Senate and the House of
Representatives.
7. The impeachment of the President can be done by Congress.

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 87

8. The treaties entered by the President are to be approved by the Senate. The Supreme Court of the USA is
independent.
9. It may declare any action of the executive as well as the legislature as unconstitutional if found so.
10. President interferes in the functioning of Congress by exercising his veto power. He also makes the
appointment of the Judges thus, interfering in judicial powers.
11. Similarly, Congress interferes in the powers of the Courts by passing procedural laws, making special courts
and approving the judges' appointment.
12. The judiciary, by exercising the power of judicial review interferes in the powers of Congress and the
President.

Critical analysis- the Indian perspective- constitutional provisions:

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

Constitutional provisions supporting SOP:

1. Distinct institutions and core powers:

1. Under Articles 53(1) and 154 of the Constitution, the executive powers of the Union and States
have been expressly vested in the President and the Governor respectively.
2. Article 245 vests the Central and State law making authority to the Parliament and State
Legislatures respectively, empowering the Parliament to make laws for the whole country
3. Article 50 categorically prescribes the separation of the executive from the judiciary under the
Indian governmental structure. Hence, an apparent demarcation between the three branches and
their functions is found to be broadly laid out under the Constitution.
2. Autonomy and independence
1. Articles 122 and 212 of the Constitution avert the Courts from inquiring into the proceedings of the
Parliament and State legislatures respectively.
2. Articles 105 and 194 confer judicial immunity to the MPs and MLAs from anything spoken during
their sessions
3. Article 361, the President and Governor are also not accountable to the Courts for the exercise of
their powers and duties in the office
4. Articles 121 and 211: The Supreme and High Court judges are also immune from the scrutiny of their
conduct in the Parliament or State Legislature.
Provisions leaning against a pure separation of powers:

1. Overlapping personnel
1. The Indian governmental structure is such that there is a commonality of personnel between the
two organs, with the Union Council of Ministers being members of both the Parliament (Article 75)
+ the executive (Article 74).
2. Even the President is regarded as part of the Legislature along with the Houses of Parliament
(Article 79).

2. Overlapping powers (E & L):

1. There is also a commonality of powers between the two organs, with the powers of the executive
prescribed as co-extensive to that of the legislature (Article 74)

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2. The executive exercises legislative powers when it comes to the President’s authority to issue
ordinances when the Houses of the Parliament are not in session, which is considered equivalent
to a Parliamentary Act (Article 123)
3. The President’s assent is required for the passing of bills proposed by the legislature (Article 111).
The President also exercises legislative functions during the proclamation of State Emergency
(Article 356), where he has the authority to make laws for the state upon the dissolution of the
State Legislature
4. Moreover, the very concept of delegated legislation is based on the conferment of legislative
powers to the executive. This delegation is carried out in the name of administrative adjudication
of the rights of the citizens and is implicitly allowed by the Constitution (Articles 372 and 13)
5. The Council of Ministers is also collectively responsible to the Lok Sabha, indicating another overlap
between the two organs (Article 75).
6. Hence, it has been said that there is a fusion between the executive and the legislative in India, but
without any friction occurring between them.

3. Overlapping powers (E & J):

1. The President is empowered to grant pardon, reprieve, respite or remise to the sentence of any
person convicted by Supreme Court of India, representing a judicial power (Article 72).
2. The President also performs a judicial act in resolving disputes relating to the age of judges of the
courts as regards their retirement from judicial office (Articles 124(2)(a) and 217(3)).
3. On the other hand, the judiciary exercises executive functions under Article 227 of the Constitution
wherein the High Courts have been granted the power of supervision over subordinate courts.
4. Further, they carry out other administrative functions such as the transfer of cases under Article
228.

4. Overlapping powers (L & J):

1. The Parliament also performs judicial functions such as punishing its members or outsiders for
contempt or breach of parliamentary privilege.
2. The judiciary, on the other hand, performs legislative functions in laying down rules and procedures
for court proceedings and practice (Article 145).

Checks & balances:

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

Judicial approach towards SOP in India:

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

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4. Golak Nath v. State of Punjab : All the organs must function within the spheres allotted to them by the
constitution. No authority which is created by the constitution is supreme.
Criticism of SOP:

1. It is extraordinarily difficult to distinguish the powers of the legislature, executive and judiciary precisely.
A smooth and stable government can exist only if there is cooperation among the three organs. Any
attempt made to separate these organs into watertight compartments may lead to failure and inefficiency
in the government.
2. If this concept is adopted in its totality, then it will become impossible to take certain actions.
Consequently, neither the legislature can delegate the law-making power to the executive which may have
expertise in the subject matter, nor the courts can make laws related to the functioning of courts and
proceedings.
3. In the present scenario, a state works for the welfare and prosperity of the people. It has to resolve the
complex issues of society. In such circumstances, the principle of separation of power seems to be
impossible. The imposition of this doctrine in its rigid conception will not lead to the effectuation of the
objectives of the modern state. Thus, the separation of power is theoretically improbable and practically
impossible.
4. Montesquieu, by propounding this theory aimed to protect and safeguard the freedom and liberty of the
individuals which is impossible by the strict enforcement of the separation of powers.
Conclusion: The doctrine of separation of powers must be interpreted in a relative form. In the era of
liberalisation, privatisation and globalisation, separation of power must be expounded in a wider perspective. It
should not be curb to the principle of restraint or strict classification only but a group power exercised in the spirit
of cooperation, coordination and in the interest of the welfare of the state.

2. ORDINANCE
Introduction:

1. An ordinance is a law that is promulgated by the President of India (A.123), on the recommendation of the
Union Cabinet, when the Parliament is not in session.
2. Similarly, the Governor of a state can also initiate ordinances (A.213) when a Legislative Assembly is not in
session when it is a unicameral legislature and when Legislative Assembly along with Legislative Council
both are not in session when it is a bicameral legislature.
3. This technique of issuing an ordinance has been devised with a view to enabling the executive to meet any
unforeseen or urgent situation arising in the country when Parliament is not in session, and which it cannot
deal with under the ordinary law.
4. Adopted from Government of India Act, 1935 which vested parallel legislative power in the governor-
general of India.
Ordinances in the news:

1. The Delhi Special Police Establishment (Amendment) Ordinance, 2021: CBI Director Tenure for 5 Years
2. The Narcotic Drugs and Psychotropic Substances (Amendment) Ordinance, 2021 Drafting error

Ordinances related data:

Between 1952-2014, governments issued 637 ordinances; that averages out to 11 per year or almost one ordinance
a month.

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Ordinances making power of the executive:

Comparison between regular legislation and ordinance:

1. An Ordinance made by the President is a legislative act and not an executive act. Hence, it is a ‘law 'within
Article 13 of the Constitution. This power of the President is Co-extensive with the legislative power of the
Parliament itself. An Ordinance, therefore, cannot be promulgated with respect to a subject which is
beyond the legislative competence of Parliament.
2. While the initiative for both an Ordinance and regular legislation comes from the Executive, the former is
passed on a current basis and in case of the latter, the legislative sanction is post facto.
3. Unlike the passing of a regular bill, there is no scope for detailed discussion and arriving at consensus at
the time of promulgation of Ordinances.
4. Like money bills and finance bills, there can be Ordinance on fiscal matters as well.
5. An Ordinance is also subject to judicial review on grounds of unconstitutionality. Courts have held that
the motives of promulgating an Ordinance cannot be questioned in a Court of law, much like the act of the
Legislature in passing a law. A Court may only declare an Ordinance invalid in case it transgresses the
constitutional limits of the power.
SC & ordinances:

1. RC Cooper v. Union of India (1970):

• If an ordinance is passed in a circumstance that failed to pass as one requiring ‘immediate action’,
the same could be brought to the court of law to be tested for its constitutionality. 44 CA 1978:
President’s satisfaction not judicially reviewable.
2. Dr. D. C. Wadhwa v. State of Bihar (1987):
• Mechanical re-promulgation of the ordinances unconstitutional unless was urgent or due to
paucity of time.
3. Krishna Kumar Singh v State of Bihar (2017) (7 Judge Constitution Bench:)
• Requirement of placing the ordinance before the Legislature is mandatory
• It was further held that any act, right, privilege, obligation or liability to survive after an ordinance
has ceased to operate, must satisfy three tests:
(i) That the effect of the ordinance is irreversible;
(ii) That reversing the consequence of the ordinance is impractical;
(iii) That there is a compelling public interest to continue the effect of the ordinance.

Ordinances an abuse of parliamentary democracy:

1. The Ordinance making power of the President is in reality a power vested with the Union Cabinet or the
Council of Ministers. Moreover, the satisfaction of the President regarding the existence of circumstances
that render it necessary for him to take immediate action is a subjective matter which cannot be probed

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or questioned in a court of law; and the precise nature of the action that he may decide to take in such
circumstances is also left to his discretion and cannot be challenged. This is similar to the principle that the
judiciary cannot examine the reason or motivation to enact legislation by the Legislature, but merely
comment on its constitutional validity. Separation of powers.
2. The increase in the number of ordinances promulgated by the Government has sparked the debate on the
use of ordinances to undermine the democratic process of legislating.
3. The Courts have, in various decisions clarified the power of making Ordinances. In D.C. Wadhwa & others
v/s State of Bihar (1986), the Supreme Court made the following observations:
• The power to promulgate an Ordinance is an emergency power which may be used where
immediate action may be necessary at a time when the legislature is not in session, hence it must,
of necessity, be limited in point of time.
• A constitutional authority cannot do indirectly what it is not permitted to do directly - (The
doctrine of colourable legislation). If there is a constitutional provision inhibiting the authority to
do an act, avoiding that limitation by resorting to deception would be a fraud on the constitutional
provision.
• While the satisfaction of the President as to the existence of circumstances necessitating
immediate action by issuing an Ordinance cannot be examined by Court, it is competent for the
Court to inquire whether he has exceeded the limits imposed by the Constitution.
• Though, in general the motive behind issuing an Ordinance cannot be questioned, the Court cannot
allow it to be ‘perverted for political ends’.
• The Court in this case also made it abundantly clear that repeated re-promulgation of ordinances
was unconstitutional.
4. An ordinance is not permanent. It is a stop-gap measure for matters that need urgent attention when the
Legislature is not in session. However, the motivation to use the power of promulgating Ordinances vested
in the President and the Governors under Articles 123 and 213 of the Constitution is generally a result of
one of the following three reasons:
• Reluctance to face the legislature on particular issues.
• Fear of defeat in the Upper House where the government may lack the required numbers.
• The need to overcome standoff in the legislature caused by repeated and willful disruption by a
section of the Opposition.
Implications:

1. The judgement widens the scope of judicial review of ordinances.

2. The court can go into whether the President or Governor had any material to arrive at the satisfaction that
an ordinance was necessary and to examine whether there was any tilted motive.
3. Maintenance of constitutional decorum and legislative control over law-making.

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 92

FUNCTIONS AND RESPONSIBILITIES OF THE UNION AND THE STATES, ISSUES AND
CHALLENGES PERTAINING TO THE FEDERAL STRUCTURE, DEVOLUTION OF POWERS
AND FINANCES UP TO LOCAL LEVELS AND CHALLENGES THEREIN

Syllabus Sub- 2013 2014 2015 2016 2017 2018 2019 2020 2021 Insigh Developm Predicti
divisions ts ents ons
Functions Many Instances Under Powers and
Functions and State of what duties of
Responsibili Governme President’ circumstan President
and ties of the nts further s delay in ces can the was in news
Responsibili Union and bifurcate commutin Financial recently+Publ
ties of the the States geographi g death Emergenc ic Sale of
Union and cal sentences y be Assets was in
administra has come proclaime news
the States, tive areas under d by the concerning
Issues and like public President fidiuciary
Challenges Districts debate as of India? duty+ Krishna
Pertaining and denial of What water
to the Talukas for justice. consequen tribunal was
better Should ces follow in news
Federal governanc there be a when such
Structure, e. In light time limit a
Devolution of the specified declaratio
of Powers above, can for the n remains
it also be President in force?
and justified to
Finances up that more accept/rej
to Local number of ect such
Levels and smaller petitions?
Challenges States Analyse.
would
Therein. bring in
effective
governanc
e at State
level?
Discuss.

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 93

The size of
the
cabinet
should be
as big as
governme
ntal work
justifies
and as big
as the
Prime
Minister
can
manage as
a team.
How far
the
efficacy of
a
governme
nt then is
inversely
related to
the size of
the
cabinet?
Discuss.
Issues and Recent Though The To what Whether From the How far do The CBI was in
Challenges directives the concept of extent is the resolution you think jurisdiction of news with
Pertaining from federal cooperativ Article 370 Supreme of cooperatio the CBI regard to
to the Ministry of principle is e of the Court contentiou n, regarding conflict with
Federal Petroleum dominant federalism Indian Judgement s issues competitio lodging an FIR states,recent
Structure and in our has been Constitutio (July 2018) regarding n and and protest on
Natural Constituti increasingl n, bearing can settle distributio confrontati conducting proposed
Gas are on and y marginal the political n of on have probe within electricity bill,
perceived that emphasize note tussle legislative shaped the a particular GST and
by the principle is d in recent “Temporar between powers by nature of state is being related
`Nagas’ as one of its years. y provision the Lt. the courts, federation questioned by development
a threat to basic Highlight with Governor ‘Principle in India? various s,
override features, the respect to and elected of Federal Cite some states. cooperative
the but it is drawbacks the State of governmen Supremac recent However, the federalism ●
exception equally in the Jammu and t of Delhi? y’ and examples power of NITI Aayog
al status true that existing Kashmir”, Examine. ‘Harmonio to validate states to Expert
enjoyed by federalism structure temporary? us withhold Committee -
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 94

the State. under the and the Discuss the Constructi your consent to ODR policy
Discuss in Indian extent to future on’ have answer. CBI is not plan for India
light of Constituti which prospects emerged. absolute. + Inter-state
Article on leans in cooperativ of this Explain. Explain with council
371A of the favour of a e provision in special
Indian strong federalism the context refernce to
Constituti Centre, a would of Indian the federal
on. feature answer polity. character of
that the India.
militates shortcomi
against ngs.
the
concept of
strong
federalism
. Discuss.
Constituti Discuss the How have
onal essentials recommenda - Central
mechanis of the 69th tions of the Government
ms to Constitutio 14th Finance told the
resolve the nal Commission Supreme
inter-state Amendmen of India Court that
water t Act and enabled the West Bengal
disputes anomalies, states to government
have failed if any that improve their does not
to address have led to fiscal have any
and solve recent position? “absolute”
the reported power to
problems. conflicts keep the CBI
Is the between from
failure due the elected investigating
to representat crimes inside
structural ives and the the State.
or process institution - Assam and
inadequac of the Meghalaya
y or both? Lieutenant inter-state
Discuss. Governor in border
the disputes
administrati - Plea
on of Delhi. challenging
Do you the
think that constitutiona
this will give l validity of
rise to a Inner Line

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 95

new trend Permit (ILP)

in the system
functioning extension in
of the Manipur.
Indian - Special
federal Assistance
politics? Measure
(SAM) was
extended to
Andhra
Pradesh
- Petition filed
challenging
the sweeping
amendments
to the
Government
of National
Capital
Territory of
Delhi
(Amendment
)
- Union Home
Minister
urged the use
of Hindi as
the lingua
franca, rather
than English,
in inter-State
communicati
on.
- Recently,
many experts
advocated
revisiting the
seventh
schedule of
the Indian
constitution.
- Instances of
friction
between
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 96

Governor and
state
governments

Did the Indian

Governmen Constitutio
t of India n exhibits
Act, 1935 lay centralisin
down a g
federal tendencies
constitutio to maintain
n? Discuss. unity and
(also integrity of
Historical the nation.
underpinni Elucidate in
ng) the
perspectiv
e of the
Epidemic
Diseases
Act, 1897;
The
Disaster
Manageme
nt Act,
2005 and
recently
passed
Farm Acts.
Devolution In absence “The local Assess the “The The Recent news
of Powers of a well- self- importance reservatio strength about PESA
and educated governme of n of seats and Act wrt
Finances up and nt system Panchayat for women sustenance Gujarat,
to Local organized in India system in in the of local Instances of
Levels and local level has not India as a institution institutions men taking
Challenges governme proved to part of s of local in India has oath in place
Therein. nt system, be local self- shifted of women.
`Panchayat effective governmen governme from their Also, the
s’ and instrumen t. Apart nt has had formative evolution of
‘Samitis’ t of from a limited phase of PRI was in
have governan governmen impact on ‘Functions, news
remained ce”. t grants, the Functionari
mainly Critically what patriarchal es and
political examine sources the character Funds’ to

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 97

institution the Panchayats of the the

s and not statement can look Indian contempor
effective and give out for Political ary stage
instrument your financing Process.” of
s of views to developme Comment. ‘Functional
governanc improve ntal ity’.
e. Critically the projects. Highlight
discuss. situation. the critical
challenges
faced by
local
institutions
in terms of
their
functionali
ty in recent
times

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 98

1. FEDERALISM
Introduction:

It is a form of government in which the sovereign authority or political power is divided between the Centre and
the States, each of whom is independent in their own sphere.

Essential features:

1. Dual Polity / Distribution of power: Usually, matters of national importance are entrusted with the Centre,
whereas local matters remain with state.
2. Supremacy of the Constitution: Having the powers originate from the constitution ensures no authority
arbitrarily takes over the powers of the other.
3. Written Constitution: ensures there is no misunderstanding or disagreements.
4. Rigidity of the constitution: A rigid constitution makes amendments very complicated and tough, thus
ensuring that none of the governments can change it unilaterally. And any change in the constitution stems
from both the authorities.
5. Authority of the courts: Since federalism is based on division of power between co-ordinate governments,
it is essential to maintain the same and ensure none transgresses into the domain of other. This has to be
done by some independent and impartial authority i.e. The judiciary. The Judiciary has the final authority
to interpret the constitution and sit as an arbitrator of disputes between Centre and state.
Acts giving centre the power to issue directions to state governments:

1. Farm acts have been implemented under the Concurrent list. Therefore, laws will be upheld even if the
States oppose.
2. The DMA, enforced during the Covid-19 pandemic, has been enacted under the residual powers.
3. Epidemic Diseases Act: Health is a state subject, but by invoking the provisions under this Act, advisories
and directions of MoH&FW will be enforceable.
Deviations from federal characteristics/ unitary bias:

1. Article 1 mentions India i.e., Bharat as a Union of states and not a federation of states.
2. Legislative Relations:
• Article 248 confers residuary power in the Union
• U/a 249 Parliament is empowered to make law with matters enumerated in List II, if necessary, in
national interest.
• Power of Parliament to legislate with respect to any matter in the State List if a Proclamation of
Emergency is in operation u/a 249.
• Parliament can also make laws for the states if two or more states request the parliament for the
same u/a 252.
3. Similarly, for giving effect to international agreements, Parliament can make any legislation (Article 253)
4. In case of inconsistency between laws made by Parliament and the state with respect to concurrent list
matters, the laws made by parliament will prevail over law made by state to the extent of inconsistency
(Article 254) Previous sanction of President is required to introduce certain bills in state legislature u/a 304
5. Financial Relations:
• States largely depend upon the center for financial assistance through grants-in-aid. Further the
taxation power of state is comparatively restricted as compared to the Union because more
important taxes such as income tax, wealth tax, excise duty etc. are reserved for the Union.
6. Executive/ Administrative Relations:
• Article 356 authorizes the President to hold that governance of a state is not being carried ed out
in accordance with the constitution, if the state fails to comply with directions of the Union and
can impose State emergency.
• Parliament’s power to form new states and alter the boundaries of existing sates u/a 3 proves that
states do not enjoy territorial integrity and depend upon the sweet will of the Union.

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• Appointment of Governor- Governors are appointed by President and answerable to him, hence
they act in a manner suitable to the center (as they are an agent of center in the state) even at the
cost of the interest of the sates.
• Emergency Provisions: During emergency the normal distribution of power undergoes drastic
change, in favor of center. U/a 356 state legislatures can be dissolved, and President’s rule can be
imposed.
• Single and uniform citizenship for the whole of India ,unlike USA where states have separate
citizenship.
• Uniform and integrated Judicial system ▪ Hence India is considered as an “Indestructible Union of
destructible states”

Supreme Court’s views:

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

Nature of Indian constitution (essay):

1. Austin and A.H. Birch used the term “Cooperative federalism’ for Indian system i.e. Neither purely federal
nor purely unitary but combination of both. To ensure cooperation between the two, strong Centre is
there but regional governments are not weak and there is mutual dependence amongst the two.
2. Dicey feels federalism has been watered down in India in order to meet the needs of a country which has
to remain nationally integrated, politically and economically coordinated and socially uplifted. (Quoted in
State of Rajasthan Union of India)
3. Dr Ambedkar considers Indian constitution both federal and unitary depending upon situation and
circumstances.

Conclusion:

1. India adopted a federal structure as different parts of the country were at different stages of development,
but we needed a strong Centre to maintain unity and integrity especially considering the heterogeneity of
the population and experience of partition. Indian federalism is sui generis / of its own kind because of its
mode of formation i.e., from Union to states (Union divided into states) and not vice versa like in case of
USA (states came together to form union)
2. The constitution is neither purely federal nor unitary. It is a Union of composite States as neither the
parliament nor the states are sovereign because each of them are limited by the constitutional provisions
affecting the distribution of power.
3. Thus, Indian constitution is mainly federal with unique safeguards for enforcing national unity and growth

TYPES OF FEDERALISM:
ASYMENTRICAL FEDERALISM:

1. It is understood to be the unequal distribution of power amongst the constituting units of a federation in
political, administrative and fiscal spheres. In India, this asymmetry is both vertical (between centre and
states ) and also horizontal (amongst the states )
2. Like many federations, India has certain de facto asymmetrical federal features with regard to differences
of size, population, wealth, and influence between the federating units

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VERTICAL ASYMMETRY:

• It is a settled fact that India is not a true federation because the of the strong unitary tendencies. The main
provisions which point to this asymmetry are –
• In India only the union is indestructible and not the states because they have no defined territory
integrity as is clear from Article 3.
• Creation of Union Territories.
• Emergency provisions.
• States do not have equal say in case of amendments and are asked to ratify law only if their interest
is involved.
• Centre enjoys an overall legislative, administrative and fiscal precedence over the states in India.
HORIZONTAL ASYMMETRY:

1. Among States: Not all states are equal in India and there is difference in order to accommodate specific
local, historical and geographical contexts.
• Unequal representation in Rajya Sabha based on the population of the state.
• Special provisions’ applicable to some States u/a 371 by empowering the Governors to discharge
some special responsibilities, which he does in his discretion.
• The Sixth Schedule to the Constitution contains provisions for the administration of tribal areas in
Assam, Meghalaya, Tripura and Mizoram. These create autonomous districts and autonomous
regions administered by District Councils and Regional Councils. These Councils can make laws with
respect to allotment, occupation and use of land, management of forests, regulate social customs,
marriage and divorce and property issues.

2. Among Union Territories: Union territories are also not equal as –

• Puducherry and Delhi have legislatures, while the other territories under the Centre do not have
legislatures or a ministerial council to advise the administrator.
• Even between Puducherry and Delhi, there is a notable difference as Puducherry has legislative
powers on any matter mentioned in the State List or the Concurrent List, insofar as it applies to
the Union Territory but Delhi cannot make laws on matters of police, land and public order.
• However, Parliament has overriding powers over any law made by the Assembly in the Union
Territories.

IMPORTANCE OF ASYMMETRIC FEDERALISM IN INDIA:

1. Ensures unity in diversity: respects and preserve vulnerable groups through special powers.
2. Satisfy different needs of various federal units: ethnic, linguistic or cultural difference.
3. Help to protect fundamental rights and compensate for initial inequalities in the social system.
4. Allowance for separate laws to govern different religious groups, and provisions for affirmative action for
extremely disadvantaged groups help in ensuring social justice to them.
5. Gives better representation to minority areas in the democracy
COOPERATIVE AND COMPETITIVE FEDERALISM:

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

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TERM DEFINITION EXAMPLES

COOPERATION (INCLUDES Centre = States Schedule VII, NITI Aayog, Zonal councils, NDC,
COOPERATIVE Share a horizontal relationship COVID-19 Lockdown: cooperation in solving
FEDERALISM) migrant crisis and enhancement of testing
facilities
COMPETITION (INCLUDES Centre > States Post 1991 LPG reforms: attracting FDI & GDP
COMPETITIVE C and S share a vertical relationship growth rates; More recent: EoDB, Logistics
FEDERALISM) S and S share horizontal Index, Swachh Bharat Sarvekshan
relationship

CONFRONTATION Result of Central government Historically: Inter-State Water Disputes, Sharing

transgressing into the powers of of taxes, A.356, CBI jurisdiction
the State government More recent: GST Act, PM-JAY, recent farm bills

COOPERATIVE FEDERALISM:

1. It is a type of federalism wherein the interaction between the constituent authorities is based on
“cooperation” so that they can collectively use their energy and resources to promote and maximize public
welfare and national goals.
2. Governments in cooperative federalism share a horizontal relation rather than a hierarchical one and
common policies are promoted not by dictation but by discussions, agreements and compromise.
3. It is an important tool which enables greater participation of state governments in formulation and
implementation of national policies.
Indian Constitution envisages in the spirit of Cooperative federalism:

1. Schedule VII - 3lists and provides for the center-state cooperation on legislative matters.
2. U/a 263 Interstate council has been provided to resolve any kind of disputes between the centre and the
states or amongst states
3. Establishment of zonal councils under state reorganization act 1956, as instruments of intergovernmental
consultation and cooperation.
4. National Development Council (NDC) is the apex body for decision making and deliberations on
development matters has representation from both the Centre and State. Thereby making states part of
development process
5. Interstate water disputes Act and River Boards Act provide means to adjudicate disputes relating to using
and sharing of interstate rivers.
6. The 73rd and 74th constitutional amendment introduced Panchayati raj (Rural) and Municipality (Urban)
system to strengthen the roots of cooperative federalism in India.
Other measures taken in recent past:

1. Abolition of the erstwhile Planning Commission and setting up of NITI Aayog which has made states a party
to the developmental plan and policies of the government.
2. Increase in the share of divisible tax-pool from 32% to 42% for the states as per recommendation of 14th
Finance Commission.
3. The NITI Forum for North East has been constituted and tangible sectoral proposals are being
implemented by the States in partnership with the North East council.
4. Implementation of GST and establishment of GST council:
1. The Supreme Court ruled, that recommendations of the Goods and Services Tax (GST) Council
only have persuasive value, and cannot be binding on the Centre and states. It treats the Union
and the States as “equal units”.
2. It confers a simultaneous power (on Union and States) for enacting laws on GST.
3. Article 279A, in constituting the GST Council, envisions that neither the Centre nor the States are
actually dependent on the other.
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Challenges:

1. Trust deficit between Centre and States

2. Multiparty system
3. Regionalism, terrorism, naxalism etc.
4. Superior legislative power of the center due to residuary power and legislative precedence
5. Wider taxation power to the center etc.
COMPETITIVE FEDERALISM:

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

Steps taken to foster competitive federalism:

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

Challenges:

1. Despite Centre increasing the States’ share of the divisible pool, the revenue of the states have come down
because of which allocation towards social sector schemes has also reduced.
2. It is in a way increasing gap between developed and under developed states.
3. Not all states are taking equal part and only richer states like Gujrat ,Maharashtra, Tamil Nadu etc are
competing.
4. Since the socio-economic parameters and development of each State in India is different, only those states
who have made substantial progress in terms of employment, literacy and creating a conducive
environment for doing business and investments are actually competing . other states are mute
spectators.
5. The states like West Bengal, Bihar, Orissa, and Assam have protested against the uniform approach in
funding because of their special situations in which the central government has to provide special funds
to these states. Without special funding these states cannot imagine their participation in competitive
federalism.

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Are they both complementary? What should India follow?

1. Though cooperative and competitive federalism seem to be contrary, they are in fact sides of the same
coin as they have the same basic underlying principle – progress of the nation as a whole. In fact, the NITI
Aayog e-book talks of competitive federalism as a force multiplier to achieve the objective of cooperative
federalism.
2. Competitiveness is an idea that has stood the test of time and India can only achieve its ambitious growth
targets by enhancing competitiveness at all levels of government. However, improving competitiveness
requires economic and social development, which in turn requires coordination of our economic and social
policies across various levels of government.
3. A major success story is Aspirational Districts Programme (ADP) which is a programme with convergence,
collaboration and competition as the core tenets. States are the main drivers behind this programme but
are working with central government detect opportunities for immediate improvement.
4. Similarly promoting one Smart City in each state is cooperative federalism but states encouraged to come
up with their own plans for smart cities is competitive federalism.
5. The two together will also lead to good governance as there is naming the best performers and shaming
the worst. Since these rankings are in the public domain, the accountability of both elected officials and
administrators has risen, thereby leading to good governance.
6. Nudge of the competition ensures that states work hard towards reform and improve their social
parameters.

What India can do to improve?

1. Cooperative and competitive federalism are complementary ideas that will drive India’s growth story in
the coming decades. However certain reforms can be done to improve both.
2. Centre’s support would be required by some states, like Bihar, Odisha, Jharkhand, NE states etc to have a
meaningful participation in competitive federalism some states are deficit or backward, hence they should
not be treated at par with the well-off states.
3. Strong states make strong nation and to realize this vision, it requires a “Team India” approach to work
for India’s development.
4. Reconstitution of the Inter State Council recently is a step in the right direction
5. State must be given greater autonomy with regards to issues like health, education, land, labour, natural
resources etc.
6. States/UTs should be assisted through the help of expert panels to make competitive and robust policies
which are more acceptable and transparent
7. On contentious issues like land, labour and natural resources, a sound mechanism should be developed to
resolve issues and promote development
8. On issues like international treaties, WTO obligations, or the environment an institutional mechanism must
be evolved where important decisions are appropriately discussed with states.
9. Best practices amongst states should be widely publicized.
Conclusion:

India needs a mix of both competitive and cooperative federalism or as NITI Aayog calls its competitive
cooperative federalism, to move ahead. In fact, instituting a system of cooperative and competitive federalism has
been a hallmark of India’s policy-making in the past five years and has achieved considerable results. Competition
is required to fight the complacency of cooperation and cooperation helps to balance out the vigor of competition.

1. A diverse and large country like India requires a proper balance between the six pillars of federalism:
autonomy of states, national integration, centralisation, decentralisation nationalisation, and regionalisation.
2. Extreme political centralisation or chaotic political decentralisation can both lead to the weakening of
Indian federalism.
3. Controlling these extremes is a challenge, as federalism must reconcile the need for national unity on the
one hand, and on the other, regional autonomy.

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2. INTER-STATE WATER DISPUTES

Context: Andhra Pradesh has complained to the Krishna River Management Board (KRMB) about the drawing of
water from the Srisailam project by Telangana for power generation.

Salient Features of Inter-State River Water Disputes (Amendment) Bill, 2019:

1. Disputes Resolution Committee (DRC): The bill requires the central government to set up a DRC for
resolving any inter-state water dispute amicably. The DRC will get a period of one year, extendable by six
months, to submit its report to the central government.
2. Permanent Tribunal: The Bill envisages to constitute a standalone Tribunal with permanent establishment
and permanent office space and infrastructure.
3. Composition of the Tribunal: The tribunal shall consist of a Chairperson, Vice-Chairperson, and not more
than six nominated members (judges of the Supreme Court or of a High Court), nominated by the CJI.
4. Time allotted to Tribunal to take its decision: Under the Bill, the proposed tribunal has to give its decision
on a dispute within a period of two years extendable by a maximum of one year.
5. Decision of the Tribunal: The decision of the tribunal will be final and binding on the parties involved in
the dispute. This decision will have the same force as that of an order of the Supreme Court.
6. Maintenance of data bank and information: The Bill also calls for the transparent data collection system
at the national level for each river basin and a single agency to maintain data bank and information system.
7. Additional rule -making powers: The Bill gives the central government powers to make rules in which
water will be distributed during stress situations arising from shortage in the availability of water.

Significance of the Bill:

1. Reduce the delay in resolving disputes:-A permanent tribunal mechanism will reduce the delays in
resolving interstate river disputes. It will also save costs compared to long-running individual tribunals.
2. It provides an opportunity to build knowledge on new and evolving approaches for resolving interstate
river water disputes in India. It will increase the potential for transboundary river water governance in
South Asia as well.
3. The role of DRC has been elevated from a superficial techno-legal body to an agency with a proactive role.
4. The DRC aims for politically negotiated settlements for river water disputes which are deeply political at
their core and to avoid legal adjudication.

Key Issues and Analysis of the Bill:

1. Issues with DRC:

• There are concerns of it being adequately empowered.
• There is also lack of clarity whether the DRC function as part of the Permanent Tribunal or will it work
separately.
• The Cauvery Supervisory Committee (CSC) which had a similar composition as that of DRC did not
have much success.
2. Conflict with Judiciary: The Supreme Court in its various judgements had said that it has jurisdiction over
interstate river water disputes while the Bill excludes the judiciary from the same.
3. Selection of Tribunal Judges: The selection of judges can lead to states politicising not just the disputes,
but their adjudication by the tribunal. This creates a situation where the dispute could escalate to the
Supreme Court.

Way forward:

1. To set up a single, permanent tribunal to adjudicate on inter-state river water disputes is a major step
towards streamlining the dispute redressal mechanism.
2. The planning of projects and planning of water resources should be based on basin level and for that River
Basin Organizations (RBOs) are need of the hour.
3. The Jal Shakti Ministry is ready with the River Basin Management Bill. There is a proposal to replace the
River Board Act with it.
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4. The Bill envisages to bring all the party states of a basin at one table and that would be headed by the Chief
Minister of one of the states on a rotational basis.
5. The RBOs will be having a technical secretariat with all the engineering and other environment experts in
it. The central water service engineering officers will be playing an important role. This will help in avoiding
the conflicts.
6. Centre’s proposal to set up an agency alongside the tribunal, to collect and process data on river waters,
is a step which will enable fast and easy access to data.
7. To strengthen the cooperative federalism, parochial mindset making regional issues superior to national
issues should not be allowed.
8. Dialogues and talks must be the dispute resolving mechanisms and political opportunism must be avoided.
9. A robust and transparent institutional framework with cooperative approach is the need of the hour.

3. INTER-STATE COUNCIL
In news:
• The Centre has reconstituted the Inter State Council

Constitutional provisions:

1. According to Article 263 of the Indian Constitution, an Inter-State Council (ISC) may be constituted “if it
seems to the President at any time that the public interests would be served by the creation of a Council.”
2. It was set up in 1990 through a presidential ordinance for the first time as per the recommendations of the
Sarkaria Commission under the Ministry of Home affairs.
3. The interstate council is proposed to meet thrice a year. But in 26 years, it has met only 11 times. The latest
meeting was held after a gap of 10 years in Delhi in July 2016.

Composition:
1. PM as chairman
2. CM of all the states
3. CM of UTS having legislative assemblies
4. Administrators of UTs not having legislative assemblies
5. Governors of states under President’s rule
6. Six Central cabinet ministers, including the home minister, to be nominated by the PM
7. Five ministers of the cabinet rank are permanent invitees of the council

Functions:
1. Inquiring into and advising upon disputes which may arise between the states
2. Investigation and discussing subjects in which the states or the centre and the states have a common
interest
3. Making recommendation on any subject for the better co-ordination of policy and action

Reasons for non-effective functioning of Inter-State Council:

1. Underutilisation: Despite repeated assertions by different Commissions, the ISC has held only 10 meetings
in the last 22 years and has made tardy progress in addressing Inter-State disputes.
2. Advisory in nature: It is merely an advisory body with no bindings on either the centre or the state. Thus,
often its recommendations are ignored by the governments.
3. Lack of expertise: It lacks technical and management experts along with autonomy.
4. Not participatory: There is no presence/engagement of the civil society in the council which makes it less
participatory and cooperative.
5. Not permanent body: The Inter-state council is not a permanent constitutional body for coordination
between the states and the Central government. Rather, the President can establish it at any time if it
appears to him that the public interests would be served by its establishment.
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Way forward:
1. Regular meetings: The council must meet regularly and within a fixed time frame so as to effectively
address the problems/matters pertinent to the prevalent times. The Punchhi commission had
recommended that ISC must meet at least thrice a year.
2. More authority: Suitable amendments must be made to Article 263 so as to give more power and authority
to the council rather than merely being an advisory body. Make decisions binding, as most of its members
enjoy the democratic mandate of the people (elected representatives).
3. Adequate manpower: The council must be staffed by technical and management experts so as to carry
out its functions more effectively. Empower the Inter-State Council Secretariat further.
4. Civil society engagement: The council should also engage the civil society in its functioning so as to
become truly participative.
Making it permanent: ISC must be made a permanent body which was one of the important recommendations
of the Sarkaria Commission.

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APPOINTMENT TO VARIOUS CONSTITUTIONAL POSTS, POWERS, FUNCTIONS AND

RESPONSIBILITIES OF VARIOUS CONSTITUTIONAL BODIES

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 108

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1. ELECTION COMISSION

• Election Commission of India (ECI) is federal body provided for in the Indian Constitution.
3. It is responsible for monitoring and administering all electoral processes of India.
4. Ensures:
1. Free and fair elections that are devoid of bias.
2. Conduct of members pre-elections, during elections and post-elections are as per statutory
legislation.
5. Election related disputes are handled by ECI.
6. When enacted laws make insufficient provisions to deal with a certain situation during the conduct of
elections, ECI has the residuary powers under the Constitution to act in an appropriate manner.
7. Article 324 vests “in an Election Commission” the “superintendence, direction and control of elections”.
8. The Supreme Court judgement in Mohinder Singh Gill & Anr vs The Chief Election Commissioner and
Others (1977) held that Article 324 “operates in areas left unoccupied by legislation. It was noted that
Constitution left the scope of Residuary Power to Commission.

PROBLEMS/ISSUES WITH ECI + SOLUTIONS:

PROBLEMS/ISSUES SOLUTIONS

1. Structural 1. Qualification of 1. Constitutional Amendement must be

Issues: members: not mentioned brought in to explicitly mention the
in the constitution. Qualifications
2. Politicisation of the (legal/administrative/judicial/educational)
ECI: there is no of the members of the ECI.
constitutional bar on the 2. Bar on reappointment and post-
retiring election retirement jobs for members of ECI.
commissioners from any
further appointment by
the government, this leads
to UU compromisation of
integrity and
independence.
2. No legal 1. Confusion regarding 1. MCC should be given explicit statutory
backing for enforceability: since the backing within the RoPA, 1951, whereby
MCC: MCC is based on clarifying its enforceability on various
consensus among the stakeholders of the electoral p;rocess.
political parties
2. ECI’s reservation against
bringing MCC under RoPA,
1951: Despite a
parliamentary committee
recommendations for the
same the EC hasnt
implemented this
direction due to its
apprehension that will
lead to delay in elections
due to judicial actions
3. Limited powers 1. False affidavit of 1. Urgent need for enhancement of powers
of suspension of material in the hands of the ECI, so as to
disqualification: information: is not a effectively monitor corrupt election
ground for challenging the
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election of our for practices and effectively enforce ethical

rejection of nomination mandate during the election procedure.
papers under RoPA, 1951.
2. Misuse of religion: for
electoral gain is a corrupt
practice under the RoPA
but can be challenged only
through an election
petition and is not subject
of enquiry by the ECI.
3. Disqualification: No power
to disqualify candidates
prior to conviction.
4. Control over I. Ineffective control over I. ECI’s mandate should be enlarged, for it
political political parties: ECI has to have effective control over inter party
parties: no role in forcing inter democracy and party Finances.
party democracy and II. ECI should also be empowered to
regulation of party deregister any political parties found in
finances. violation of the laws.
II. Power to de-register:
ECI has power to register
political parties but cannot
de-register them.
5. Budget: ECI Faces the lack of Election Commission budget should be charged
infrastructure to monitor in on the Consolidated fund of India and does not
insurance compliances and also be liable to be voted upon by the parliament.
to bridge the gap between ECI
and voters through awareness
programs.
6. Appointments: Ideological alignment should 2nd ARC: Collegium headed by the Prime Minister
not be the basis for with the speaker of the Lok Sabha, the leader of
appointment to the the opposition in the Lok Sabha, the law minister and
election commission. this Deputy Chairman of the Rajya Sabha as member
poses a grave danger to India's should make recommendations for the
electoral democracy. consideration of the president for appointment
of the Chief Election Commissioner and Election
Commissioners.

2. COMPTROLLER AND AUDITOR GENERAL OF INDIA

1. Appointed by the President of India by a warrant under his hand and seal (Art. 148)
2. Term- 6 years, or age of 65 years, whichever is earlier
3. Resignation letter to President
4. Removal- By the President, in the same manner as that of a SC judge
5. Head of the Indian Audit and Accounts Department - created in 1753
6. Guardian of the public purse and controls the entire financial system of the country at both the levels–the
Centre and the state.

Functions & role of CAG:

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1. The CAG shall perform such duties and exercise such powers in relation to the accounts of the Union and
of the States and of any other authority or body as may be prescribed by or under any law made by
Parliament.
2. Thus, the Parliament accordingly enacted the CAG’s (Duties, Powers and Conditions of Service) Act, 1971
which specifies the CAG’s duties and powers pertaining to government accounts, audit of receipts and
expenditures of three tiers of the governments at the union, states and urban and rural local bodies.
3. As per Article 151, the reports of the CAG relating to the accounts of the Union shall be submitted to
the President, who shall cause them to be laid before each House of Parliament.
4. The reports of the CAG of India relating to the accounts of a State shall be submitted to the Governor of the
State, who shall cause them to be laid before the Legislature of the State.
5. Duties of CAG includes audit of public companies, autonomous bodies, regulatory bodies and other public
entities, where there is a specific legislative provision to make CAG audit mandatory in the acts by which
these bodies were created.
Independence:

1. Security of tenure
2. Not eligible for further office
3. Salary and service conditions decided by Parliament; cannot be altered to disadvantage after appointment
4. The above is charged from the Consolidated Fund of India.

Classification of audits done by CAG:

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

1. Britain vs. India- CAG of Britain has powers of both Comptroller as well as Auditor General, unlike India. We
only have the latter.
2. In other words, in Britain, the executive can draw money from the public exchequer only with the approval
of the CAG

PROBLEMS SOLUTIONS
Institutional:
• No statute for the • Independence of CAG- In 2015, an All-India conference of PACs
appointment of CAG discussed the need for complete independence; making it a part of
• Involvement of the PAC, like in UK and Australia.
executive for appointment
goes against SoP
• The cap of 65 years causes a
break in tenure even before
the 6-year term is over

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Administrative: • Access to records and information, which will increase

• No statutory backing even to accountability
the Indian Audit & Accounts • Vinod Rai (former CAG) suggestions-
Department o Increasing the ambit of CAG
• The CAG may not release the o CAG Act of 1971 should be amended with changing times
reports unless presented to o A collegium type mechanism to choose the CAG
the legislature within a
month of submission
• No fixed timeline
• More of an auditor than a
comptroller

Changing role of CAG:

1. Besides it’s role as the guardian of the public purse, CAG is now auditing several PPP projects
2. CAG has to change its audit mechanisms, with the changing nature of exploitation of funding and public
goods
3. Audit issues in the implementation of SDG goals and GST will be required
4. The establishment of the Centre for Data Management & Analytics (Delhi) is a welcome step in the wake
of Big Data revolution
5. CAG successfully audited the UN HQ which involved complex operations. This cites the credibility of Indian
CAG.

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STATUTORY, REGULATORY AND VARIOUS QUASI-JUDICIAL BODIES

Syllabus Sub- 2013 2014 2015 2016 2017 2018 2019 202 2021 Insight Developmen Predictio
divisions 0 s ts ns

Statutory Non- The product National For Is the The Legality ED was in news
, Constitution diversificati Human achieving National jurisdiction behind wrt power of
al Bodies on of Rights the desired Commissio of the CBI extensio arrest+ A State
Regulato financial Commission objectives, it n for regarding n of information
ry and institutions (NHRC) in is necessary Women lodging an tenures commission
various and India can be to ensure able to FIR and of CBI + was fined by SC
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companies, effective regulatory and tackle probe
judicial resulting in when its institutions the within a
Bodies. overlapping tasks are remain problems particular
of products adequately independent that state is
and services supported and women being
strengthens by other autonomous face at questioned
the case for mechanisms .” Discuss in both by various
the merger that ensure the light of public and states.
of the two the the private However,
regulatory accountabili experiences spheres? the power
agencies, ty of a in recent Give of states to
namely SEBI government past. reasons in withhold
and IRDA. . In light of support of consent to
Justify. the above your CBI is not
observation answer. absolute.
assess the Explain
role of with
NHRC as an special
effective refernce to
complemen the federal
t to the character
judiciary and of India.
other
institutions
in
promoting
and
protecting

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human
rights
standards.

The setting Though Recommendati

up of a Rail Human on of 8th pay
Tariff rights commission
Authority to commissio was in news + IB
regulate ns have Ministry's
fares will contribute Power to
subject the d Regulate TV
cash immensely Content +
strapped to the Central Media
Indian protection Accreditation
Railways to of human Guidelines
demand rights in
subsidy for India, yet
obligation they have
to operate failed to
non- assert
profitable themselves
routes and against the
services. mighty and
Taking into powerful.
account the Analysing
experience their
in the power structural
sector, and
discuss if practical
the limitations,
proposed suggest
reform is remedial
expected to measures.
benefit the
consumers,
the Indian
Railways or
the private
container
operators.

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Tribunals What is a How far do “The Central Was in news

quasi- you agree Administrati with regards to
judicial with the on Tribunal non-strict
body? view that which was appointment
Explain tribunals established procedure in
with the curtail the for redressal context of
help of jurisdiction of grievances Separation of
concrete of ordinary and Powers
example courts? In complaints
s. view of the by or against
above, central
discuss the government
constitution employees,
al validity nowadays is
and exercising its
competenc powers as an
y of the independent
tribunals in judicial
India. authority.”
Explain.

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1. TRIBUNALS
What is a Tribunal?

1. Tribunals are institutions established for discharging judicial or quasi-judicial duties. The objective may be
to reduce case load of the judiciary or to bring in subject expertise for technical matters.
2. The Supreme Court has ruled that tribunals, being quasi-judicial bodies, should have the same level of
independence from the executive as the judiciary. Key factors include the mode of selection of members,
the composition of tribunals, and the terms and tenure of service.
3. In order to ensure that tribunals are independent from the executive, the Supreme Court had
recommended that all administrative matters be managed by the law ministry rather than the ministry
associated with the subject area. Later, the Court recommended creation of an independent National
Tribunals Commission for the administration of tribunals. These recommendations have not been
implemented.
Need of tribunals:

1. To overcome the problem of pendency in Courts and reduce workload of courts.

2. To expedite decisions and to provide a forum which would be manned by lawyers and experts in the areas
falling under the jurisdiction of the tribunal.
3. To perform specialised roles in various fields such as hearing disputes related to the environment, armed
forces, tax and administrative issues.
4. Tribunals were not part of the original Constitution; they were incorporated into the Constitution by the
42nd Amendment Act, 1976.

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Constitutional provisions (42nd CA, 1976)

Article 323A Article 323B

Deals with Administrative Deals with tribunals for other matters- NGT, COMPAT, SAT
tribunals
Can be established only by Can be established by Parliament or State Legislature
the Parliament
In 2010, the Supreme Court clarified that the subject matters under Article 323B
are not exclusive, and legislatures are empowered to create tribunals on any
subject matters under their purview as specified in the Seventh Schedule of the
Constitution
Only one at Centre and one There can be hierarchy of tribunals
for each State (for two/more
States)

Advantages and disadvantages of tribunals

Advantages Disadvantages

Offers flexibility when compared to ordinary Goes against the spirit of Rule of Law
courts that have to adhere to strict procedures

Cheap and speedy justice

Procedure followed is simple and easy to Uniform code of procedure for civil and criminal cases,
understand however, administrative tribunals have no uniformity

Offer relief to ordinary courts that are already Sometimes has led by subject matter experts, who have no
overburdened experience of judicial proceedings

Primary issues with tribunals:

1. Independence of tribunals:
• Any involvement of the central government in administrative activities of tribunals (such as
sanctioning leave for members) would affect their independence
• The Standing Committee on Personnel, Public Grievances, Law and Justice (2015) recommended
the creation of an independent body called the National Tribunals Commission (NTC) for the
administration of all tribunals in India
2. Pendency of cases:
• Even some tribunals face the issue of a large backlog of cases
• The lack of human resources (such as inadequate number of judges) is observed to be one of the
key reasons for the accumulation of pending cases in courts.
• The NCLT had only 30 members against a total strength of 63, These vacancies are concerning
because as of May 31, 13,170 insolvency petitions were pending before the benches of the NCLT.
• The Standing Committee on Personnel, Public Grievances, Law and Justice (2015) noted that
several tribunals (For instance, the Central Administrative Tribunal (CAT) has 27 out of 64 posts
lying vacant) have vacancies which makes them dysfunctional.
3. There is non-uniformity across tribunals with respect to matter of qualifications, appointments, service
conditions, tenure of members, varying nodal ministries in charge of different tribunals.

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4. Breakdown of doctrine of separation of powers: appointment via committees, dependency for funds and
resources etc.

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

Outline:

1. Dissolves certain existing appellate bodies and transfers their functions to other existing judicial bodies.
(Cinematograph, Trademarks, Copyright, Customs, Patents, Airports, Plant Varieties, GI)
2. 50 years as Minimum age to become a chairperson
3. Term of Office: 4 years, Chairperson: 70 years, Other Members: 67
4. Broad Issues:
• Increases judicial burden
• Contrary to SC
• Term should be 5 years
• Minimum age of 50 years discourages young talent, advocates with 10 years of experience should
be eligible as judicial members

Key developments:

1. 2017:
• Finance Act, 2017 merged 26 tribunals into 19. It delegated powers to the central government to
make Rules
• Ministry of Finance notified Rules
2. 2019 – Rojer Mathew versus South Indian Bank Ltd & Ors

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• Supreme Court struck down the 2017 Rules the Court stated that the Rules did not meet the
requirements laid down in earlier judgements mandating judicial independence
• The Court directed the central government to reformulate the Rules. Key concerns that the Court
wanted to be addressed include
1. short tenures which prevent enhancement of adjudicatory experience, and thus impact the
efficacy of Tribunals, and
2. lack of judicial dominance in selection committees which is in direct contravention of the
doctrine of separation of powers.
3. 2020 – Madras Bar Association vs Union of India
• New Rules were notified, which were again challenged in the Supreme Court mainly over the lack
of conformity with the principles laid out earlier by the Court. For example: the 2020 Rules
specified four-year term of office against five years as specified by the Supreme Court in 2019.
• The Court suggested certain amendments to the 2020 Rules such as increasing the term of office
to five-year along with eligibility for re-appointment (subjected to upper age limits), and allowing
advocates with 10 years’ experience to be appointed as judicial members.
4. 2021 - Madras Bar Association vs Union of India
• Under the Finance Act, 2017, new Rules were notified on June 30, 2021. The Rules allow advocates
with 10 years’ relevant experience eligible for appointment as judicial members and provide
details on house rent allowance for members
• The Ordinance and the Rules were challenged in the Supreme Court. The Court struck down
provisions related to the four-year tenure and the minimum age requirement of 50 years for
members of tribunals.
Recommendations:

1. NATIONAL TRIBUNALS COMMISSION:

• first mooted in L. Chandra Kumar v. Union of India (1997)
• NTC must be established vide a constitutional amendment or be backed by a statute that
guarantees it functional, operational and financial independence.
• Need for an authority to support uniform administration across all tribunals
• The NTC could therefore pave the way for the separation of the administrative and judicial
functions carried out by various tribunals
• A ‘corporatised’ structure of NTC with a Board, a CEO and a Secretariat will allow it to scale up its
services and provide requisite administrative support to all tribunals across the country
• It could set performance standards for the efficiency of tribunals and their own administrative
processes.
• It could function as an independent recruitment body to develop and operationalise the procedure
for disciplinary proceedings and the appointment of tribunal members.
• Administrative roles of the NTC include providing support services to tribunal members, litigants,
and their lawyers. For this purpose, it would need to be able to hire and supervise administrative
staff, and consolidate, improve, and modernise tribunals’ infrastructure.
2. 272nd Report of the Law Commission of India: suggested that selection of members should be impartial
and involvement of government agencies should be minimal, since the government is typically a party in
every litigation.
3. Vacancies should be filled up as early as possible.
4. Tribunals must have benches in different parts of the country to ensure access to justice by people across
geographical areas.
5. Qualified manpower
6. A stringent redressal mechanism

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A. NATIONAL GREEN TRIBUNAL

1. Established in 2010 for effective and expeditious disposal of cases that are related to protection
and conservation of the environment, forests and other natural resources.
2. Tribunal has jurisdiction over all civil cases involving substantial question relating to
environment (including enforcement of any legal right relating to environment).
3. ‘Special’ because India is the third country following Australia and New Zealand to have such a system.
4. Principal Bench in New Delhi and regional benches in Pune (West), Bhopal (Central), Chennai (South) and
Kolkata (East).
Challenges:

1. Two important acts - Wildlife (Protection) Act, 1972 and Scheduled Tribes and Other Traditional Forest
Dwellers (Recognition of Forest Rights) Act, 2006 have been left out of NGT’s purview, which restricts the
jurisdiction of NGT and hampers functioning.
2. Lack of clarity on the position of the NGT in relation to High Courts results in NGT decisions being
challenged in various High Courts under Article 226 under the argument that High Courts are superior to
the NGT, despite the NGT Act providing for appeals directly to the Supreme Court.
3. The decisions of the NGT are not fully complied with by stakeholders or the government, under the
pretext of an unfeasible timeframe.
4. The lack of human and financial resources has led to high pendency of cases - which undermines NGT’s
very objective of disposal of appeals within 6 months.
Landmark cases:

1. Betty C. Alvares vs. The State of Goa and Ors. - Even a Foreign National Can Approach the NGT
2. Almitra H. Patel & Ors. vs. Union of India and Ors. - Complete prohibition on open burning of waste on lands
3. Manoj Misra Vs. Delhi Development Authority & Ors. – The Art of Living Foundation was penalized INR 5
Crores for damaging the Yamuna plains during its conduct of the World Culture Festival.
NGT & SUO MOTU POWERS:

1. On October 7th 2021, in Municipal Corporation of Bombay v Ankita Sinha. The Court decided that the
National Green Tribunal (NGT) has suo moto powers.
2. The NGT was Formed to Protect a Key Aspect of the Right to Life
3. Section 14 states that for the NGT to be able to hear a matter: there must be a civil case; which substantially
concerns the environment; and involves the implementation of environmental legislations. If these three
prerequisites are satisfied, the NGT may exercise jurisdiction
4. NGT’s Role Goes Beyond Dispute Resolution
5. The Court held that as long as the ‘sphere of action’ is not breached, the NGT’s powers must be read widely.
6. The NGT Should be Guided by the Principles of Environmental Justice and Equity.

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