PT 365 Handout – Polity Party 1

Faculty: Jatin Gupta

1. Reservations

Article 16(1):

Article 16(1) is a specific instance of the Right to Equality according to

which all citizens should be provided equal opportunities in matters of public
employment.

Article 16(2):

According to article 16(2), discrimination can not be made against any citizen with
respect to public employment on the grounds only of religion, race, caste, sex, place
of birth, descent and residence or any of them.

Two addition additional grounds (descent and residence) have been added to
article 16 when compared to article 15.

Article 16(3):

Article 16(3) is an exception to article 16 and allows the parliament to make

a law to impose domicile as a requirement for a category of jobs in a particular state
or a Union Territory. State legislatures have not been provided with such powers.

Article 16(4):

The state can make special provisions for reservations in posts and appointments
in favour of Backward Classes of citizens who are inadequately represented in the
services. Article 16(4) is another exception to article 16 and allows the State to
make reservations in appointments or posts in favour of backward classes of
citizens who are inadequately represented in the services of the State.

This article does not define the criteria for determining backwardness but the court
has limited the scope to social & educational backwardness.

Article 16(5):

Article 16(5) is another exception to article 16 to allow the state to make a law that
can prescribe "religion" as a ground for holding any office in connection with
the affairs of any religious institution.
EWS Reservations:

103rd Constitutional Amendment Act 2019 introduced the provisions Article 15 (6)
and 16 (6) to empower the government to make reservations for EWS in educational
institutions and government jobs. A cap of 10% has been put on
these reservations which would be in addition to the existing 50% reservations for the
SC/STs and OBCs.

Triple Test Criteria

Triple test criteria includes:
• Dedicated commission setup by the State government to gather data on
backwardness of OBCs in every local body,
• Specify proportion of reservation in each local body in light of commission’s
recommendations, and
• Ensure that such reservation does not exceed 50% of total seats reserved for
SC/ST/OBC together

2. Uniform Civil Code

Article 44: Uniform Civil code: The State shall endeavor to secure for the citizens
a uniform civil code throughout the territory of India.

UCC is a concept according to which laws governing personal matters should be

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consistent irrespective of the religion and faith of an individual.

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In India, Personal matters such as marriage, divorce, maintenance, succession,

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adoption, etc are governed by different laws according to the religious beliefs of an
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individual.
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The Idea behind UCC is to make a common set of laws applicable to all individuals.
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Significance and Importance of UCC:

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• A single set of laws would insure the effective implementation of the same
• Some of the personal laws are not gendered equal and are detrimental to
the interest of women. Having a UCC may help in addressing these issues
• The principle of equality is a part of the basic structure of the constitution
and can be ensured effectively by having the same set of laws irrespective
of one's religion.
• Secularism which is also a part of the basic structure would also get
strengthened as a result of implementing the UCC.

Challenges in Implementation of UCC:

• It is difficult to build consensus among various communities over the

content of UCC.
 • It may create apprehension and fear among minorities that their culture
may be subsumed by the majority.
• It may get into conflict with several provisions of the constitution including
the right to freedom of religion and special protections provided to some
of the groups such as the Nagas and the Mizos.
• As per some experts, it may threaten India's rich and diverse culture,
especially the unique practices and traditions of tribals.
• It may end up creating conflicts and communal tensions and further
polarize society.

3. Free Speech and related issues

Sedition

• It’s a nonbailable and non-compoundable offense.

• Maximum punishment is life imprisonment.
• 1870 sedition provision124A was added in IPC 1860.
• Objective was to curb dissent against British rule in India.
• Any person through words spoken or written attempts to bring hatred,
contempt, or disaffection against the government established by law in
India then a person would be guilty of sedition.

In Kedarnath vs State of Bihar 1963

• The court upheld the constitutional validity of sedition but narrowed down
the concepts to those incidents where an individual tries to incite violence
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or brigs the security of the state into a threat

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In Sanskar Marathe vs Stae of Maharashtra

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• Court held that mere strong criticism of govt does amount to sedition-
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Court further held that freedom of speech and expression can’t be

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encroached upon in name of sedition if there is no incitement to violence

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4. Preventive Detention

SAFEGUARDS FOR PREVENTIVE DETENTION

• A person detained under preventive detention provisions can not be held

in detention for a period of more than 3 months. Unless an advisory board
has provided approval for an extension of detention beyond 3 months.
• An Advisory board is a quasi-judicial body that consists of members who
are or have been or are qualified to be appointed as judges of the high
court. The members of the board are appointed by the executive and its
functioning is regulated as per the law made by the parliament.
 • If parliament has by law provided circumstances or class of cases in
which detention can be made beyond a period of 3 months without the
approval of the advisory board then detention would be legal
• A person cannot be detained beyond the maximum period provided by
the law of the parliament.
• Article 22 (5): Every person detained must be informed of the grounds of
his detention and should be provided an opportunity to make
representation against the order as soon as possible.
• Article 22(6): The authority may deny disclosure of facts if it is considered
against the Public interests. 22(6) is an exception to 22(5).

5.Election of President of India

Article 54 talks about the electoral college of the President of India.

The electoral college is a body responsible for electing the President. It consists of the
following:

• Elected Members of the Parliament.

• Elected Members of the Legislative Assemblies of States and UTs.

Article 55 provides for the manner of the election of the President.

However, the Constitution hasn't detailed the election of the President and the
Parliament has enacted an Act for providing details about the elections of the
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President.
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The Union and states should have equal say in the election of the President. The value
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of votes of all elected MPs and elected MLAs is the same which ensures parity
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between states and the Union in the election of the President.

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Value of Vote of 1 MP= Value of votes of all MLAs/ Total number of elected MPs
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Value of Vote of 1 MLA= Population of the State/(Total number of elected MLAs*1000)

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The Values of the 1971 census have been fixed by the 84th CAA, 2001 till the first
census after 2026 so that the states that have taken population control measures
should not be punished.

The election should be done by the method of proportional representation with a single
transferable vote system. But, there is only one seat for the President of India, and
using the term proportional representation would be incorrect. Therefore, a number of
political scientists are of the view that India's Presidential election system is a kind of
alternate voting system. The idea behind mentioning the term proportional
representation is to convey that the system is not first past the post system.The
successful candidate has to secure the Quota i.e. more than 50% of the total valid
votes polled.
The Constitution also indicates that the election should take place by a method of a
single transferable system in which the voters are supposed to rank candidates based
on their preference instead of indicating support for only one candidate. Ballots are
initially counted for each voter's top choice and if any candidate secures the desired
quota of votes, he or she is declared the winner. If not, the candidate with the fewest
votes is eliminated and the second preference indicated on those ballots would be
transferred to the vote of the eliminated candidate. The process would continue for
multiple rounds till a candidate ends up securing more than 50% of the total values of
the votes polled.

The Vice-President is elected by an electoral college consisting of all the MPs, unlike
the election of the President where only the elected MPs participate. Also, the MLAs
do not participate in this election. The method of the election is the same as the
President of India i.e. by a system of proportional representation through a single
transferrable vote.

Voting in both elections takes place through a secret ballot which means that anti-
defection law is not applied and members may cross-vote against the wishes of their
political parties.

6. Pardoning powers of the President

Clemency Powers or Mercy Powers of President and Governor

• Pardon: To completely do away with conviction as well as sentence. Only

the President can pardon a death sentence.
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• Commutation: The character of the punishment is changed to a lighter

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one. The death penalty may be commutated into life imprisonment. Or

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rigorous punishment (RI) to simple imprisonment.

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• Remission: Reduce the duration of a punishment without changing the

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character.
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• Reprive: Temporary stay on the execution of a sentence.

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• Respite: Temperotily changing the character of the punishment to a

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lighter one due to certain special circumstances, e.g. pregnancy, old age,
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etc.
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The philosophy behind pardoning powers of the President

• Since no judicial system is free from errors, it is important that the

executive should be given extraordinary powers to pardon a person who
has been convicted of a crime, where his/her guilt was not proven beyond
a reasonable doubt.
• It may also be used in those cases where the courts awarded an undue
or harsh punishment to an individual.
• The objective behind providing this power to the executive is to maintain
the trust and faith of the common man in the criminal justice system.
• In the case Maru Ram vs. Union of India, the court has held that it is not
a discretionary power of the President or the Governor, and is supposed
to be exercised with the aid and advice of the Council of Ministers.
Difference between the Pardoning powers of the President and the Governor:

• The president can use the pardoning powers in those offenses which
have been committed against the union law.
• On the other hand the Governor can exercise pardoning power in those
offenses that have been committed against the State law.
• The President alone can pardon the death sentence.
• The Governor does not have any power to pardon the death sentence,
but he may commutate or provide reprieve.
• The President alone has the power to pardon in case of punishment
provided by Court Martial, the Governor does not have any such powers.

7. Panchayati Raj Extension to Scheduled Areas, 1996

Major provisions:

• The provisions of Part IX of the Constitution were not applicable to scheduled

areas.
• They can be extended to these areas by the Parliament. The Parliament
enacted PESA to extend the same
• The laws passed by the state legislatures on Panchayats in the scheduled
areas shall be in harmony with their customary law, and
• social and religious practices.

Powers of Gram Sabha

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• The Gram Sabha shall be empowered to identify beneficiaries, etc.

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• The Gram Sabha shall certify the utilisation of funds for the plans, programs,
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and projects.
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• The Gram Sabha shall be consulted before making the acquisition of land.
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The prior recommendation of Gram Sabha or the Panchayats at the appropriate

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level shall be mandatorily for grant of concession for the exploitation of minor
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minerals or mining leases of minor minerals.

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The state legislature should ensure that the powers of Gram Sabha are not
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assumed by the Panchayats at a higher level.

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• The Act further mandates that the state legislature shall try to follow the pattern
of the 6th schedule while determining the administrative arrangements at the
district level.

8. Office of Profit

• This concept originated in the United Kingdom where the king wanted to
control the parliamentarians by offering them posts in his court so that
they would be loyal to the crown.
• The Parliament passed a law to disqualify any member except the
minister who would hold such an office by virtue of which he would be
susceptible to the influence of the executive.
 • India adopted the concept of office of profit into its constitution but has not
been defined either in the constitution or any law.
• In general terms, an OoP is interpreted to be a post that brings to the
officeholder some financial gain or advantage, or benefit. The amount of
such profit is immaterial.
• The Parliament has enacted The Parliament (Prevention of
disqualification) acts that exempt certain offices from the category of OoP:

The philosophical basis of OoP:

• To maintain the separation of powers between the organs of the state

• To prevent undue influences on the functioning of the legislature from the
executive
• To ensure effective accountability of the legislature to the executive
• SC judgment on OoP:
• The SC has laid down the following principles to decide whether
an office can be labeled as an OoP or not.

In 1964, SC laid down certain factors for determining OoP. Total Five factors:

• Whether the government is appointing authority?

• Whether the government has the power to terminate?
• Whether the government determines the remuneration?
• What is the source of the remuneration?
• What is the power that comes with that appointment?
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In Jaya Bachan's case, the court held that What matters is whether the office is
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capable of yielding any profits and not whether the person actually obtained monetary
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gains. This has been termed a potential doctrine.

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9. Inter State River Water Disputes Act, 1956

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Article 262 Inter-state river disputes (10:25 AM)

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Objective
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• The provisions for the amicable resolution of disputes related to inter-

state rivers.
• Non-judicial members with technical expertise should be able to provide input
on these matters.
• To provide cost-effective resolution to such disputes which would be less costly
for the states. Lastly, to provide speedy resolution to disputes.

Parliament by law u/a 262 may create a mechanism for resolving disputes between
the states with respect to inter-state rivers.Subsequently, the Parliament enacted
the inter state river water disputes act 1956 as per which tribunals can be created to
resolve such disputes. As a result, GOI has notified multiple
interstate river water dispute tribunals such as the Mahanadi tribunal, the Kaveri
tribunal, the Godavari tribunal etc. Despite these efforts, the tribunals have been
unsuccessful in resolving the issues amicably.

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