1 . CONSTITUTION: WHY AND HOW?

What is a constitution?

• A constitution is a body of fundamental principles according to which a state is

constituted or governed.

Why do we need a Constitution?

• We need a constitution to provide a set of basic rules that allow for minimal coordination
amongst members of a society which are legally enforceable.

Who can decide which rules are the best to suite for a society?

• The constitution specifies the basic allocation of power in a society.

• It decides who gets to decide what the laws will be.

• In the Indian Constitution, it is specified that in most instances, Parliament gets to decide
laws and policies, and that Parliament itself be organized in a particular manner.

Functions of Constitution or Need of Constitution:

• The first function of a constitution is to provide a set of basic rules that allow for minimal
coordination amongst members of a society.

• The second function of a constitution is to specify who has the power to make decisions in
a society. It decides how the government will be constituted.

• The third function of a constitution is to set some limits on what a government can
impose on its citizens. These limits are fundamental in the sense that government may
never trespass them.

Emergency!
→ These rights can be limited during times of national emergency.
→ The constitution specifies the circumstances under which these rights may be withdrawn.
• The fourth function of a constitution is to enable the government to fulfil the aspirations
of a society and create conditions for a just society.

Fundamental identity of a people:

• Constitution expresses the fundamental identity of a people.

• The people as a collective entity come into being only through the basic constitution.

• Constitutional norms are the overarching framework within which one pursues
individual aspirations, goals and freedoms.

• The constitution sets authoritative constraints upon what one may or may not do.

• It defines the fundamental values that we may not trespass. So the constitution also gives
one a moral identity.

• Many basic political and moral values are now shared across different constitutional
traditions.

What gives authority of a constitution?

→ Mode of promulgation: who made it.
→ Substansive provision: Contains laws satisfying all sections of society.
→ Balanced Institutional Design: Distribution of powers and changing nature of constitution
according to the needs of the society.

Mode of promulgation

This refers to how a constitution comes into being . –

Who crafted the constitution and how much authority did they have?

• In many countries constitutions remain defunct because they are crafted by military leaders
or leaders who are not popular and do not have the ability to carry the people with them .
• The most successful constitutions like India , South Africa and the United States , are
constitutions which were created in the aftermath of popular national movements .

→ India's Constitution was formally created by a Constituent Assembly between December

1946 and November 1949 .
→ It drew upon a long history of the nationalist movement that had a remarkable ability to take
along different sections of Indian society together.

* The Constitution drew enormous legitimacy from the fact the fact that it was drawn up by
people who enjoyed immense public credibility.
* These leaders have public credibility because:
→ They had capacity to negotiate and command the respect of a wide cross-section of society .
→ They were able to conversed that donation of their personal power was not the motive .

Why Countries like India, South Africa and the United States are the most successful
constitutions?

• Created in the aftermath of popular national movements.

Indian Constitution overview:

• Formally created by a Constituent Assembly between December 1946 and November

1949.

• Drew upon a long history of the nationalist movement that had a remarkable ability to
take along different sections of Indian society together.

• Drew enormous legitimacy from the fact that it was drawn up by people who enjoyed:
→ Immense public credibility
→ Who had the capacity to negotiate and command the respect of a wide cross-section of
society,
→ Who were able to convince the people that the constitution was not an instrument for
the aggrandizement of their personal power.

The Substantive Provision of the Constitution:

• It gives everyone in society some reason to go along with its provisions.

• Allowed permanent majorities to oppress minority groups within society.

• Systematically privileged some members at the expense of others, or that systematically

entrenched the power of small groups in society, would cease to command allegiance.
• The more a constitution preserves the freedom and equality of all its members, the more
likely it is to succeed.

Balanced Institutional Design:

• Designing of a constitution is to ensure that no single institution acquires monopoly of

power.

• For E.g. The Indian Constitution horizontally fragments power across different
institutions like the Legislature, Executive and the Judiciary and even independent
statutory bodies like the Election Commission.

• This ensures that even if one institution wants to subvert the Constitution, others can
check its transgressions.

• An intelligent system of checks and balances has facilitated the success of the Indian
Constitution.

• A constitution must strike the right balance between certain values, norms and
procedures as authoritative, and at the same time allow enough flexibility in its operations
to adapt to changing needs and circumstances.

• Too rigid a constitution is likely to break under the weight of change; a constitution that
is, on the other hand, too flexible, will give no security, predictability or identity to a people.

How was the Indian Constitution made?

• Constitution was made by the Constituent Assembly which had been elected for
undivided India.

• First sitting on 9 December 1946 and re-assembled as Constituent Assembly for divided
India on 14 August 1947.

• Members were elected by indirect election by the members of the Provisional Legislative
Assemblies that had been established in 1935.

• The Constituent Assembly was composed roughly along the lines suggested by the plan
proposed by the committee of the British cabinet, known as the Cabinet Mission.
According to Cabinet Mission Plan:

• Each Province and each Princely State or group of States were allotted seats proportional
to their respective population roughly in the ratio of 1:10,00,000.

• The seats in each Province were distributed among the three main communities, Muslims,
Sikhs and General, in proportion to their respective populations.

• Members of each community in the Provisional Legislative Assembly elected their own
representatives by the method of proportional representation with single transferable
vote.

• The method of selection in the case of representatives of Princely States was to be

determined by consultation.

Procedures

• The Constituent Assembly had eight major Committees on different subjects. Usually,
Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, Maulana Azad or Ambedkar chaired these
Committees.

• Each Committee usually drafted particular provisions of the Constitution which were then
subjected to debate by the entire Assembly. ✓ Some provisions were subject to the vote.

• An Assembly as diverse as the Constituent Assembly of India could not have functioned if
there was no background consensus on the main principles the Constitution should
enshrine.

Objective Resolutions

• It defined the aims of the Assembly.

• Moved by Nehru in 1946.

• This resolution encapsulated the aspirations and values behind the Constitution. Based on
this resolution, our Constitution gave institutional expression to these fundamental
commitments: equality, liberty, democracy, sovereignty and a cosmopolitan identity.
Main points of the Obiectives Resolution

• India is an independent, sovereign, republic.

• India shall be a Union of erstwhile British Indian territories, Indian States, and other parts
outside British India and Indian States as are willing to be a part of the Union.

• Territories forming the Union shall be autonomous units and exercise all powers and
functions of the Government and administration, except those assigned to or vested in the
Union.

• All powers and authority of sovereign and independent India and its constitution shall
flow from the people.

• All people of India shall be guaranteed and secured social, economic and political justice;
equality of status and opportunities and equality before law; and fundamental freedoms -
of speech, expression, belief, faith, worship, vocation, association and action - subject to law
and public morality.

• The minorities, backward and tribal areas, depressed and other backward classes shall be
provided adequate safeguards.

• The territorial integrity of the Republic and its sovereign rights on land, sea and air shall
be maintained according to justice and law of civilized nations.

• The land would make full and willing contribution to the promotion of world peace and
welfare of mankind.
Institutional arrangements

• The Constituent Assembly spent a lot of time on evolving the right balance among the
various institutions like the executive, the legislature and the judiciary.

• Adoption of the parliamentary form and the federal arrangement, which would distribute
governmental powers between the legislature and the executive on the one hand and
between the States and the central government on the other hand.

Borrowed Constitution
Very Short Answer Type→

Question 1.

What is society?
Answer: Society is a group of people of the same race, socio, economic background, and
cherishes common aspirations. Due to social instinct when they come together and their
relationship gets institutionalized, it constitutes a society.

Question 2.

Why certain rules are necessary for society?

Answer: Certain rules and understandings are very necessary for observance by the members of
society so that their relationship is properly maintained. These rules will help in maintaining the
discipline and realizing the objectives of the society.

Question 3.

What is Constitution?

Answer: The constitution is a body of rules and regulations, understandings, and modes of
behaviour on the basis of which the government is constituted and run. The constitution
specifies the areas of functions between the organs of the government. It also sets the mode of
relationship between citizens and the state.

Question 4.

What are the main functions of the Constitution?

Answer:The Constitution is the document whose main function is to demarcate the jurisdiction
of organs of the government. It also suggests the composition of the government. It also sets
the relationship between the state and citizens. The main function of the Constitution is to limit
the powers of the government.

Question 5.

What is Constituent Assembly?

Answer: A constituent assembly is a body of renowned persons who are engaged in discussion
debate and decision-making process and then drafting the Constitution. Most of the
constitutions of world countries are written by the Constituent Assemblies.

Question 6.
Name main countries from where institutions and features are taken for the Indian

Constitution.

Answer: It is said that the Indian Constitution is a borrowed bag because this Constitution has
many foreign sources. Britain has the maximum impact on the Indian Constitution. Besides
Britain, the USA, Canada, Ireland, Australia, and South Africa are the countries that have
influenced the Indian constitution. It is rightly said that the Indian Constitution is a borrowed
bag.

Question 7.

Which of the following is a good reason to conclude that the authority of the

constitution is higher than that of the parliament?

(а) The constitution was framed before the parliament came into being.

(b) The constitution makers were more eminent leaders than the members of the

parliament.

(c) The constitution specifies how parliament is to be formed and what are its

powers.

(d) The constitution cannot be amended by the parliament.

Answer:

(c) The constitution specifies how parliament is to be formed and what are its

powers.

Short Answer Type→

Question 8.

What do you mean by Constitution? How it performs its role for society?
Answer: A Constitution is fundamental law of the land. It can be defined as the body of
rules,regulations, and understandings on the basis of which state is’ constituted and governed.
The Constitution is also the instrument of realizing the aspirations of the people. It plays a vital
role for society as it specifies the basic allocations of power in society. The Constitution of a
country indicates the framework of the government with the respective role of each organ of
the government. The Constitution influences society and in turn is influenced by society. Indian
Constitution represents the ethos, values, and preferences of Indian people and at the same
time has successfully given the direction to Indian society to become a liberal, secular,
democratic, and modern society. The constitution plays this role in all societies. We can take
the example Of Chinese and Russian Constitutions also.

Question 9.

Discuss the importance of a written constitution.

Answer:The constitution explains the structure of government and the mode of governance.
Generally, the constitution is to be taken as a written one but it does not mean that there
cannot be an unwritten constitution. British Constitution is the example of the unwritten
constitution which is working on the basis of unwritten understandings, traditions, and
conventions. But in most of the countries of the world, there are written constitutions which
are in the form of a document written by a specially constructed Constituent Assembly. The
written constitution has its own utility and importance. The written part of the constitution is a
clear indicator of the jurisdiction or powers of a particular organ. There cannot be any
ambiguity in a written constitution if it is, it can be explained. A written constitution is generally
available in the form of a document that is prepared by continuous discussions and debate and
with due process of decision making. It may be the majority method or it can be based on
consensus. Therefore, a written constitution is more popular.

Question 10.

Write the composition of the Constituent Assembly of India.

Answer: Indian Constitution is written by a specially constituted Constituent Assembly. This

Constituted Assembly had a total strength of 389 members, whose compositionwas as follows:

1. 292 members from British ruled states

2. 93 members from Princely states

3. 4 members of minorities like Sikh and Anglo Indians

The elected members were to be indirectly elected by the state Assemblies which were
constituted by the election of 1946 to the states on the basis of the Government of India Act
1935. Therefore, this Constituent Assembly was constituted by indirect elections and
nomination. It was constituted as per recommendations of the Cabinet Mission Plan 1946
which came to India after the formation of a new government led by Mr. Atlee in Britain. The
Constituent Assembly enacted this Constitution on 26 November 1949 by taking the time of
two years, eleven months, and eighteen days. The idea of a Constituent Assembly had come to
prevail largely as an article of faith in almost all the politically minded classes in the country.

Question 11.

Write important features of the Indian Constitution.

Answer:

The main features of the Indian Constitution are as under:-

1. Written Constitution

2. Flexible and rigid Constitution

3. The preamble of the Constitution

4. Liberal Constitution.

5. Parliamentary form of government

6. Federal system of government

7. Republican system

8. Fundamental Rights

9. fundamental Duties

10. Directive Principles of State Policy

11. Secularism

12. Bicameral Legislature of centre

13. Adult Franchise

14. Multi-Party System

15. Power of Judicial Review to the Judiciary

16. Mixed economy

17. Single citizenship

18. Supremacy of Constitution

Question 12.

Give two examples each to support the following conclusions about the Indian Constitution:

(a) The Constitution was made by credible leaders who commanded people’s respect.

(b) The Constitution has distributed power in such a way as to make it difficult to subvert it.

(c) The Constitution is the locus of people’s hopes and aspirations.

Answer:

(a) The following two factors are responsible:

• The members of Constituent Assembly were elected by indirect election by the members of
Provincial Legislative Assemblies to be established in 1935. Assembly reflected each of the
communities, provinces, princely states through an appropriate formula. Even 28 members
belonged to scheduled castes.

• The members of Constituent Assembly went through long debates and discussions for 166
days spread over two years eleven months.

(b) The following two factors can be summed up for the same:

• Our Constitution has made institutional arrangements of government on the basis of check
and balance approach. If one of the institutions goes beyond its limitations, the other checks it.

• The procedure for amendments is well elaborated for different articles of the Constitution.

(c) The following factors are responsible for the same because:

• The Constitution has provided some Fundamental Rights along with protected provisions, and
the judiciary has powers to protect them.

• The Constitution of India has incorporated some ‘Directive Principles of State Policy’ which
are not justiciable but a moral duty of government. The government has also given some
effects to these in the form of fixed minimum wages, formation of Panchayati Raj Institutions,
employment guarantee scheme and mid-day meal schemes, etc. to be the hopes and
aspirations of the people.

Long Answer Type→

Question 13.

State whether the following inferences about the making of the Indian Constitution

are Correct or Incorrect. Give reasons to support your answer.

(a) The Constituent Assembly did not represent the Indian people since it was not

elected by all citizens.

(b) Constitution making did not involve any major decision since there was a general

consensus among the leaders at that time about its basic framework.

(c) There was little originality in the Constitution, for much of it was borrowed from

other countries.

Answer:

(a) It is incorrect to say that Constituent Assembly did not represent Indian people

because:

• Although the members of Constituent Assembly were not elected by Universal suffrage, but
there was a serious attempt to make the Assembly a representative body.

• The Constituent Assembly represented the members of all religions, social and economic
groups to accommodate all shades of opinion within it.

• The Assembly had 26 members even from scheduled castes.

(b) It is correct to say because:

• Objective the Resolution containing principles was moved by Nehru in 1946 brought by the
nationalist movement.
• Constituent Assembly could not have functioned without any background consensus on main
principles.

• Our constitution does not have only rules and procedures but a moral commitment also to
establish a government to fulfil the promises made to peoples.

(c) It is incorrect to say because:

• Though they borrowed a number of provisions from Constitutions of different countries, but
it was not based upon slavish imitations.

• Each provision before it was included, well considered by the members of Constituent
Assembly.

• Long debates and discussions also took place to examine the suitability to the conditions
prevailing in India along with problems and aspirations of the people.

Question 14.

Why is it necessary for a country to have a clear demarcation of powers and responsibilities in
the constitution? What would happen in the absence of such a demarcation?

Answer:

It is necessary for a country to have a clear demarcation of powers and responsibilities in the
constitution because:

• To ensure that no single institution acquires monopoly of power.

• In case of transgressions, it may be checked by one of the institutions.

• To specify who plays important role in decision-making powers.

• It shows how government would be constituted.

• It lays down some limits on the government and citizens both which are fundamental in
nature which should not be trespassed by government and citizens.

• The Constitution shows how organs of government are interrelated along with a demarcation
of powers of institutions like legislature, executive and judiciary as well as statutory bodies, etc.

• The judiciary has been given a specific place to declare any law unconstitutional if not at par
the provisions of Constitution. In the absence of such a demarcation:
• The federal set up would get strained and there would be crisis in centre as well as states.

• There would be a problem to the citizens and laws will be proved to be unjust and unfair.

Question 15.

Why is it necessary for a constitution to place limitations on the rulers? Can there be a
constitution that gives no power at all to the citizens?

Answer: It is necessary for a constitution to place limitations on the rulers:

• These units are fundamental in the sense that the rulers may not trespass them.

• Citizens have been specified certain fundamental rights in Constitution to limit powers of
rulers.

• Citizens have been granted some basic rights of liberties also, eyebright to freedom of speech
and expressions, freedom to form trade union and associations, etc. which cannot be checked
by the government.

• Only during the national emergency or in national interest, these rights may be withdrawn
during some specific periods.

• It is necessary for a constitution to place limitations on the rulers otherwise they may turn to
be a dictator and may overlook the people’s interest constitution guards and controls the
rulers. No, there can be no constitution that gives no power to its people:

• In a Constitutional monarchy, monarch decides the powers of people.

• In a dictatorship, the ruler is supposed to get the support of people to cling to the power i.e.,
Pakistan’s General Musharraf also conducted periodic referendum to hold power.

• In a democratic institutions/Constitution; the people are the real source of power where
public mandate is required to enact the policies for rulers.

• These can’t be a Constitution that gives no power at all to the citizens. It is always for the
welfare of the citizens of the country.

Question 16.

Rajat at asked his teacher this question: “The constitution is fifty years old and therefore
outdated book. No one took my consent for implementing it. It is written in such tough
language that I cannot understand it. Tell me why should I obey this document?” If you were
the teacher, how would you answer Rajat?

Answer:

Had I been the teacher I would answer Rajat:

• Indian Constitution is a blend of flexibility and rigidity. Hence, despite being fifty years old, it
is not outdated as it has been amended a number of times whenever required to be modified
from time to time.

• The Constitution was framed by the Constituent Assembly of an elected representatives from
every section of society.

• Though Constituent Assembly was dominated by Congress which occupied 82% of the seats in
Assembly, but it has representation from every class, religion and communities, regions to
accommodate all shades of opinion within it.

• Though it is not possible to consult each and every individual in framing of Constitution,
hence, the provisions were made to elect representatives from every section to reflect the
people from all these.
.
2 .RIGHTS IN THE INDIAN
CONSTITUTION

Bill of Rights

• A list of rights mentioned and protected by the constitution is called the

bill of rights.
• A democracy must ensure that individuals have certain rights, and that
the government will always recognize these rights. Prohibits government
from thus acting against the rights of the individuals and ensures a remedy
in case there is violation of these rights.

Fundamental Rights in the Indian Constitution

• The Motilal Nehru committee had demanded a bill of rights as far back as
in 1928.
• The Constitution listed the rights that would be specially protected and
called them 'fundamental rights'.
• Fundamental Rights are so important that the Constitution has separately
listed them and made special provisions for their protection.
• The Fundamental Rights are so important that the Constitution itself
ensures that they are not violated by the government.

Ordinary Rights and Fundamental Rights

• Ordinary legal rights are protected and enforced by ordinary law,

Fundamental Rights are protected and guaranteed by the constitution of
the country.
• Ordinary rights may be changed by the legislature by ordinary process of
law making, but a fundamental right may only be changed by amending the
Constitution itself.
• Judiciary has the powers and responsibility to protect the fundamental
rights from violations by actions of the government, Executive as well as
legislative actions can be declared illegal by the judiciary if these violate the
fundamental rights or restrict them in an unreasonable manner.

Fundamental Rights

Right to Equality

• Equality before law

• Equal protection of laws
• Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth Equal access to shops, hotels, wells, tanks, bathing ghats,
roads etc.
• Equality of opportunity in public employment
• Abolition of Untouchability
• Abolition of titles

Right to Freedom

• Protection of Right to:

→ freedom of speech and expression;
→ assemble peacefully;
→ form associations/unions;
→ move freely throughout the territory of India;
→ reside and settle in any part of India;
→ practice any profession, or to carry on any occupation, trade or business.
• Protection in respect of conviction for offences.
• Right to life and personal liberty.
• Right to education.
• Protection against arrest and detention in certain cases.
Right against Exploitation

• Prohibition of traffic in human beings and forced labour.

• Prohibition of employment of children in hazardous jobs.

Right to Freedom of Religion

• Freedom of conscience and free profession, practice and propagation of

religion.
• Freedom to manage religious affairs.
• Freedom to pay taxes for promotion of any particular religion.
• Freedom to attend religious instruction or worship in certain educational
institutions.

Cultural and Educational Rights

• Protection of language, culture of minorities.

• Right of minorities to establish educational institutions.
• Right to Constitutional Remedies.
• Right to move the courts to issue directions/orders/writs for
enforcement of rights

Overview of Rights

• The Constitution clarifies that the government can implement special

schemes and measures for improving the conditions of certain sections of
society: children, women, and the socially and educationally backward
classes.
• In fact Article 16(4) of the constitution explicitly clarifies that a policy like
reservation will not be seen as a violation of right to equality. If you see the
spirit of the Constitution, this is required for the fulfillment of the right to
equality of opportunity.
• Right to freedom of speech and expression is subject to restrictions such
as public order, peace and morality etc.
• Freedom to assemble too is to be exercised peacefully and without arms.
• The government may impose restrictions in certain areas declaring the
assembly of five or more persons as unlawful.

Preventive detention

• Ordinarily, a person would be arrested after he or she has reportedly

committed some offence. However there are exceptions to this.
• Sometimes a person can be arrested simply out of an apprehension that
he or she is likely to engage in unlawful activity and imprisoned for some
time. This is known as preventive detention.
• It means that if the government feels that a person can be a threat to law
and order or to the peace and security of the nation, it can detain or arrest
that person. This preventive detention can be extended only for three
months

Rights of accused

• To ensure a fair trial in courts, the Constitution has provided three rights:
→ no person would be punished for the same offence more than once
→ no law shall declare any action as illegal from a backdate, and
→ no person shall be asked to give evidence against himself or herself

Freedom of faith and worship

• Freedom of religion also includes the freedom of conscience.

• It means that a person may choose any religion or may choose not to
follow any religion.
• Freedom of religion includes the freedom to profess, follow and propagate
any religion.
Certain Limitations

• That, the government can imposes restrictions on the practice of freedom

of religion in order to protect public order, morality and health.
• It is not an unlimited right.
• The government can interfere in religious matters for rooting out certain
social evils.

• The Constitution does not allow forcible conversions.

• It only gives us the right to spread information about our religion and
thus attract others to it.

Cultural and Educational Rights

• All minorities, religious or linguistic, can set up their own educational

institutions. By doing so, they can preserve and develop their own culture.
• The government will not, while granting aid to educational institutions,
discriminate against any educational institution on the basis that it is under
the management of minority community.

Right to Constitutional Remedies

• Dr. Ambedkar considered the right to constitutional remedies as heart

and soul of the constitution' because this right gives a citizen the right to
approach a High Court or the Supreme Court to get any of the fundamental
rights restored in case of their violation.
• The Supreme Court and the High Courts can issue orders and give
directives to the government for the enforcement of rights.

Writs

The courts can issue various special orders known as writs.

• Habeas corpus: Means that the court orders that the arrested person
should be presented before it. It can also order to set free an arrested
person if the manner or grounds of arrest are not lawful or satisfactory.
• Mandamus: Issued when the court finds that a particular office holder is
not doing legal duty and thereby is infringing on the right of an individual.
• Prohibition: Issued by a higher court (High Court or Supreme Court)
when a lower court has considered a case going beyond its jurisdiction.

• Quo Warranto: If the court finds that a person is holding office but is not
entitled to hold that office, it issues the writ of quo warranto and restricts
that person from acting as an office
holder.
• Certiorari: Under this writ, the court orders a lower court or another
authority to transfer a matter pending before it to the higher authority or
court.

National Human Right Commission (NHRC)

• The Commission's functions include inquiry at its own initiative or on a

petition presented to it by a victim into complaint of violation of human
rights;
• Visit to jails to study the condition of the inmates;
• Undertaking and promoting research in the field of human rights.
• The Commission does not have the power of prosecution.
• It can merely make recommendations to the government or recommend
to the courts to initiate proceedings based on the inquiry that it conducts.

Directive Principles of State Policy

The chapter on Directive Principles lists mainly three things:

• The goals and objectives that we as a society should adopt;

• Certain rights that individuals should enjoy apart from the Fundamental
Rights; and
• Certain policies that the government should adopt.

Relation between Fundamental Rights and Directive Principles of

State Policy

• Fundamental Rights restrain the government from doing certain things

while Directive Principles exhort the government to do certain things.
• Fundamental Rights mainly protect the rights of individuals while
Directive Principles ensure the well-being of the entire society.

Right to Property

• In the Constitution, originally, there was a fundamental right to acquire,

possess and maintain property.
• But the Constitution made it clear that property could be taken away by
the government for public welfare.
• In 1973, the Supreme Court gave a decision that the right to property was
not part of the basic structure of the Constitution and therefore, parliament
had power to abridge this right by an
amendment.
• In 1978, the 44th amendment to the Constitution removed the right to
property from the list of Fundamental Rights and converted it into a simple
legal right under article 300A.
3 . ELECTION AND REPRESENTATION

Election System in India

• India is a constitutional democracy with a parliamentary system of

government, and at the heart of the system is a commitment to hold
regular, free and fair elections.

• These elections determine the composition of the government, the

membership of the two houses of parliament, the state and union territory
legislative assemblies, and the Presidency and vice-presidency.

• Elections in India are events involving political mobilization and

organizational complexity on an amazing scale.

First Past the Post

Under this system:

• The entire country is divided into 543 constituencies

• Each constituency elects one representative; and

• The candidate who secures the highest number of votes in that

constituency is declared elected.

• It is important to note that in this system whoever has more votes than all
other candidates is declared elected.

• The winning candidate need not secure a majority of the votes. This
method is called the First Past the Post (FPTP) system.
• This method is also called the Plurality System.

• This is the method of election prescribed by the Constitution.

Proportional Representation

• Each party fills its quota of seats by picking those many of its nominees
from a preference list that has been declared before the elections.

• In this system a party gets the same proportion of seats as its proportion
of votes.

• In India, we have adopted PR system on a limited scale for indirect

elections. The Constitution prescribes a third and complex variation of the
PR system for the election of President, Vice President, and for the election
to the Rajya Sabha and Vidhan Parishads.

Comparison of FPTP and PR system of election

FPTP

• Country is divided into small geographical units called constituencies or

districts.
• Every Constituency elects one representatives.
• Voter votes for a candidate.

• A party may get more seats than votes in the legislature.

• Candidate who wins the election may not get majority.

• Example-UK and India

PR

• Large geographical areas are demarcated as constituencies.

• The entire country may be a single constituency.

• More than one representative may be elected from one constituency.

• Voter votes for the party.

• Every party gets seats in the legislature in proportion to the percentage of

votes that it gets.

• Candidate who wins the elections gets majority of votes.

• Examples: Israel and Netherlands.

Why did India adopt the FPTP system?

• The reason for the popularity and success of the FPTP system is its
simplicity.

• The entire election system is extremely simple to understand even for

common voters who may have no specialized knowledge about politics and
elections.

• A clear choice presented to the voters at the time of elections.

• Voters have to simply endorse a candidate or a party while voting.

• Depending on the nature of actual politics, voters may either give greater
importance to the party or to the candidate or balance the two.
• The FPTP system offers voters a choice not simply between parties but
specific candidates.

• In constituency based system like the FPTP, the voters know who their
own representative is and can hold him or her accountable.

Why not PR System?

• PR based election may not be suitable for giving a stable government in a

parliamentary system.

• This system requires that the executive has majority in the legislature.

• The PR system may not produce a clear majority because seats in the
legislature would be divided on the basis of share of votes.

• In a diverse country like India, a PR system would encourage each

community to form its own nation-wide party.

Why FPTP System?

• Generally FPTP gives the largest party or coalition some extra bonus
seats, more than their share of votes would allow.

• This system makes it possible for parliamentary government to function

smoothly and effectively by facilitating the formation of a stable
government.

• The FTPT system encourages voters from different social groups to come
together to win an election in a locality.

• The FPTP system has proved to be simple and familiar to ordinary voters.
• It has helped larger parties to win clear majorities at the centre and the
State level.

• The system has also discouraged political parties that get all their votes
only from one caste or community.

Reservation of Constituencies

• In this system, all voters in a constituency are eligible to vote but the
candidates must belong to only a particular community or social section for
which the seat is reserved.

• The Constitution provides for reservation of seats in the Lok Sabha and
State Legislative Assemblies for the Scheduled Castes and Scheduled Tribes.

• This provision was made initially for a period of 10 years and as a result
of successive constitutional amendments, has been extended up to 2020.

• The Parliament can take a decision to further extend it, when the period
of reservation expires.

Who decides which constituency is to be reserved? On what basis is

this decision taken?

• Taken by an independent body called the Delimitation Commission.

• The Delimitation Commission is appointed by the President of India and

works in collaboration with the Election Commission of India.

• Appointed for the purpose of drawing up the boundaries of constituencies

all over the country.
• A quota of constituencies to be reserved in each State is fixed depending
on the proportion of SC or ST in that State.
• After drawing the boundaries, the Delimitation Commission looks at the
composition of population in each constituency.

• Those constituencies that have the highest proportion of Scheduled Tribe

population are reserved for ST.

• In the case of Scheduled Castes, the Delimitation Commission looks at two

things. It picks constituencies that have higher proportion of Scheduled
Caste population. But it also spreads these constituencies in different
regions of the State. This is done because the Scheduled Caste population is
generally spread evenly throughout the country.

Universal franchise and right to contest

Who are the voters? Who can contest elections?

• In both these respects our Constitution follows the well-established

democratic practices.

• You already know that democratic elections require that all adult citizens
of the country must be eligible to vote in the elections This is known as
universal adult franchise.

• Till 1989, an adult Indian meant an Indian citizen above the age of 21.

• An amendment to the Constitution in 1989, reduced the eligibility age to

18.

• Adult franchise ensures that all citizens are able to participate in the
process of selecting their representative.
• This is consistent with the principle of equality and non discrimination.

Right to Contest Election

• All citizens have the right to stand for election and become the
representative of the people.

• There are different minimum age requirements for contesting elections.

For example, in order to stand for Lok Sabha or Assembly election, a
candidate must be at least 25 years old.

• There is a legal provision that a person who has undergone imprisonment

for two or more years for some offence is disqualified from contesting
elections.
• There are no restrictions of income, education or class or gender on the
right to contest elections.

Independent Election Commission: Article 324: (1)

The superintendence, direction and control of the preparation of the

electoral rolls for, and the conduct of, all elections to Parliament and to the
Legislature of every State and of elections to the offices of President and
Vice-President held under this Constitution shall be vested in a Commission
(referred to in this constitution as the Election Commission).

• To assist the Election Commission of India there is a Chief Electoral

Officer in every state.

• The Election Commission is not responsible for the conduct of local body
elections. The Election Commission of India can either be a single member
or a multi- member body.

• Till 1989, the Election Commission was single member.

• Just before the 1989 general elections, two Election Commissioners were
appointed, making the body multi-member.

• In 1993, two Election Commissioners were once again appointed and the
Commission became multi-member and has remained multimember since
then.

• A multi-member Election Commission is more appropriate as power is

shared and there is greater accountability.

• The Chief Election Commissioner (CEC) presides over the Election

Commission, but does not have more powers than the other Election
Commissioners.

• The CEC and the two Election Commissioners have equal powers to take
all decisions relating to elections as a collective body.

• They are appointed by the President of India on the advice of the Council
of Ministers.

• The Constitution ensures the security of the tenure of the CEC and
Election Commissioners.

•They are appointed for a six year term or continue till the age of 65,
whichever is earlier.

• The CEC can be removed before the expiry of the term, by the President if
both Houses of Parliament make such a recommendation with a special
majority.

• This is done to ensure that a ruling party cannot remove a CECwho

refuses to favour it in elections.
Functions of Election Commission

• Supervises the preparation of up-to-date voters' list.

• Makes every effort to ensure that the voters' list is free of errors like non-
existence of names of registered voters or existence of names of those non-
eligible or non-existent.

• Determines the timing of elections and prepares the election schedule.

• The election schedule includes the notification of elections, date from

which nominations can be filed, last date for filing nominations, last date of
scrutiny, last date of withdrawal, date of polling and date of counting and
declaration of results.

• During this entire process, the Election Commission has the power to take
decisions to ensure a free and fair poll.

• Can postpone or cancel the election in the entire country or a specific

State or constituency on the grounds that the atmosphere is vitiated and
therefore, a free and fair election may not be possible.

• The Commission also implements a model code of conduct for parties and
candidates.

• It can order a re-poll in a specific constituency. It can also order a recount

of votes when it feels that the counting process has not been fully fair and
just.
• The Election Commission accords recognition to political parties and
allots symbols to each of them.

Special Majority
Special majority means:

• Two-thirds majority of those present and voting, and

• Simple majority of the total membership of the House.

Suggestions for Electoral Reforms

• Our system of elections should be changed from the FPTP to some variant
of the PR system. This would ensure that parties get seats, as far as
possible, in proportion to the votes they get.

• There should be a special provision to ensure that at least one third

women are elected to the parliament and assemblies.

• There should be stricter provisions to control the role of money in

electoral politics. The elections expenses should be paid by the government
out of a special fund. Candidates with any criminal case should be barred
from contesting elections, even if their appeal is pending before a court.

• There should be complete ban on the use of caste and religious appeals in
the campaign.

• There should be a law to regulate the functioning of political parties and

to ensure that they function in a transparent and democratic manner.
4 . EXECUTIVE

What is an Executive?

• The organ of government that primarily looks after the function of

implementation and administrations called the executive.

Principal functions of the Executive

• Executive is the branch of government responsible for the

implementation of laws and policies adopted by the legislature.

• The executive is often involved in framing of policy.

• Some countries have presidents, while others have chancellors.

• The executive branch is not just about presidents, prime ministers and
ministers.

• It also extends to the administrative machinery (civil servants).

• While the heads of government and their ministers, saddled with the
overall responsibility of government policy, are together known as the
political executive, those responsible for day to day administration are
called the permanent executive.
What are the Different Types of Executive?

Presidential system

• The president is the Head of state as well as head of government.

• In this system the office of president is very powerful, both in theory and
practice.

• Countries with such a system include the United States, Brazil and most
nations in Latin America.

Semi-Presidential Executive

• Under the system of Executive Presidency, people directly elect the

President.

• It may happen that both the President and the Prime Minister belong to
the same political party or to different political parties.

• Countries with such a system include the France, Russia, Sri Lanka.

Parliamentary System

• The prime minister is the head of government.

• Most parliamentary systems have a president or a monarch who is the

nominal Head of state.

• In such a system, the role of president or monarch is primarily ceremonial

and prime minister along with the cabinet wields effective power.
• Countries with such system include Germany, Italy, Japan, United
Kingdom as well as Portugal.

Parliamentary Executive In India

• India already had some experience of running the parliamentary system

under the Acts of 1919 and 1935. This experience had shown that in the
parliamentary system, the executive can be effectively controlled by the
representatives of the people.

Why Parliamentary Form

• Indian Constitution wanted to ensure that the government would be

sensitive to public expectations and would be responsible and accountable.

• The presidential executive puts much emphasis on the president as the

chief executive and as source of all executive power.

• There is always the danger of personality cult in presidential executive.

• Executive will be answerable to and controlled by the legislature or

people's representatives.

What is Parliamentary Form of System?

• President who is the formal Head of the state of India and the Prime
Minister and the Council of Ministers, which run the government at the
national level.

• At the State level, the executive comprises the Governor and the Chief
Minister and Council of Ministers.
Power and position of President

• Article 74 (1): There shall be a Council of Ministers with the Prime

Minister at the head to aid and advise the President who shall in the
exercise of his functions, act in accordance with such advice.

• Provided that the President may require the Council of Ministers to

reconsider such advice and the President shall act in accordance with the
advice tendered after such reconsideration.

Discretionary Powers of the President

• Constitutionally, the President has a right to be informed of all important

matters and deliberations of the Council of Ministers.

• The Prime Minister is obliged to furnish all the information that the
President may call for.

• The President often writes to the Prime Minister and expresses his views
on matters confronting the country.

Three Situations where the President can exercise the power using his or
her own discretion:

• Can send back the advice given by the Council of Ministers and ask the
Council to reconsider the decision. In doing this, the President acts on his
(or her) own discretion.

• Has veto power by which he can withhold or refuse to give assent to Bills
(other than Money Bill) passed by the Parliament. Every bill passed by the
Parliament goes to the President for his assent before it becomes a law. The
President can send the bill back to the Parliament asking it to reconsider
the bill. This veto' power is limited because, if the Parliament passes the
same bill again and sends it back to the President, then, the President has to
give assent to that bill. However, there is no mention in the Constitution
about the time limit within which the President must send the bill back for
reconsideration. This means that the President can just keep the bill
pending with him without any time limit. This gives the President an
informal power to use the veto in a very effective manner. This is
sometimes referred to as pocket veto'.

• When after an election, no leader has a clear majority in the Lok Sabha,
the President has to decide whom to appoint as the Prime Minister. In such
a situation, the President has to use his own discretion in judging who
really may have the support of the majority or who can actually form and
run the government.

The Vice President of India

• Elected for five years.

• Election method is similar to that of the President; the only difference is

that members of State legislatures are not part of the Electoral College.

• May be removed from his office by a resolution of the Rajya Sabha passed
by a majority and agreed to by the Lok Sabha.
• Acts as the ex-officio Chairman of the Rajya Sabha and takes over the
office of the President when there is a vacancy by reasons of death,
resignation, removal by impeachment or otherwise.

• Acts as the President only until a new President is elected.

Prime Minister and Council of Ministers

• The Prime Minister becomes the most important functionary of the

government in our country.
• Head of the Council of Ministers.

• The President exercises his powers only on the advice of the Council of
Ministers.

• In the parliamentary form of executive, it is essential that the Prime

Minister has the support of the majority in the Lok Sabha. This support by
the majority also makes the Prime Minister very powerful.

• Decides who will be the ministers in the Council of Ministers.

• Allocates ranks and portfolios to the ministers.

• Depending upon the seniority and political importance, the ministers are
given the ranks of cabinet minister, minister of State or deputy minister.

• In the same manner, Chief Ministers of the States choose ministers from
their own party or coalition.

• The Prime Minister and all the ministers have to be members of the
Parliament.

• If someone becomes a minister or Prime Minister without being an MP,

such a person has to get elected to the Parliament within six months.

Size of the Council of Ministers

• An amendment was made that the Council of Ministers shall not exceed
15 percent of total number of members of the House of People (or
Assembly, in the case of the States).
• Collectively responsible to the Lok Sabha. This provision means that a
Ministry which loses confidence of the Lok Sabha is obliged to resign.

• The principle indicates that the ministry is an executive committee of the

Parliament and it collectively governs on behalf of the Parliament.

Collective responsibility

• Based on the principle of the solidarity of the cabinet.

• Implies that a vote of no confidence even against a single minister leads to

the resignation of the entire Council of Ministers.

• Also indicates that if a minister does not agree with a policy or decision of
the cabinet, he or she must either accept the decision or resign.

• It is binding on all ministers to pursue or agree to a policy for which there

is collective responsibility.

• The death or resignation of the Prime Minister automatically brings about

the dissolution of the Council of Ministers but the demise, dismissal or
resignation of a minister only creates a ministerial vacancy.

• The Prime Minister acts as a link between the Council of Ministers on the
one hand and the President as well as the Parliament on the other.

• The Prime Minister is involved in all crucial decisions of the government

and decides on the policies of the government.

• Thus, the power wielded by the Prime Minister flows from various
sources: control over the Council of Ministers, leadership of the Lok Sabha,
command over the bureaucratic machine, access to media, projection of
personalities during elections, projection as national leader during
international summitry as well as foreign visits.

At the State level

• Similar parliamentary executive exists, though with some variations.

• The most important variation is that there is a Governor of the State

appointed by the President on the advice of the central government).

• Though the Chief Minister, like the Prime Minister is the leader of the
majority party in the Assembly, the Governor has more discretionary
powers.

• However, the main principles of parliamentary system operate at the

State level too.

Permanent Executive: Bureaucracy

• The Executive organ of the government includes the Prime Minister, the
ministers and a large organization called the bureaucracy or the
administrative machinery.

In a democracy

• The elected representatives and the ministers are in charge of

government and the administration is under their control and supervision.

• The legislature also exercises control overthe administration.

• The administrative officers cannot act in violation of the policies adopted

by the legislature.
• It is the responsibility of the ministers to retain political control over the
administration.

• India has established professional administrative machinery.

The Indian bureaucracy

• It consists of the All-India services, State services, employees of the local

governments, and technical and managerial staff running public sector
undertakings.

• The Union Public Service Commission has been entrusted with the task of
conducting the process of recruitment of the civil servants for the
government of India.

• Similar public service commissions are provided for the States also.

• Members of the Public Service Commissions are appointed for a fixed

term.

• Their removal or suspension is subject to a thorough enquiry made by a

judge of the Supreme Court.

• The bureaucracy is an instrument through which welfare policies of the

government must reach the people.

• Bureaucracy is insensitive to the demands and expectations of the

ordinary citizen.

How Expectations of the ordinary citizens can be sensitized?

• Only if the democratically elected government controls the bureaucracy,

some of these problems can be effectively handled.
• On the other hand, too much political interference turns the bureaucracy
into an instrument in the hands of the politician.

• Though the Constitution has created independent machinery for

recruitment, many people think that there is no provision for protecting the
civil servants from political interference in the performance of their duties.

• It is also felt that enough provisions are not there to ensure the
accountability of the bureaucracy to the citizen.

• There is an expectation that measures like the Right to Information may

make the bureaucracy a little more responsive and accountable.
 5. LEGISLATURE

Why do we need a Parliament?

• Legislature is not merely a law making body.

• Lawmaking is but one of the functions of the legislature.

• It is the centre of all democratic political process.

• It is packed with action; walkouts, protests, demonstration, unanimity,

concern and co-operation.

• Indeed, a genuine democracy is inconceivable without a representative,

efficient and effective legislature.

• The legislature also helps people in holding the representatives

accountable. This is indeed, the very basis of representative democracy.

Why do we need two Houses of Parliament?

• The term Parliament ‘refers to the national legislature.

• The legislature of the States is described as State legislature.

• The Parliament in India has two houses.

• When there are two houses of the legislature, it is called a bicameral

legislature. The two Houses of the Indian Parliament are the Council of
States or the Rajya Sabha and the House of the People or the Lok Sabha.
• The Constitution has given the States the option of establishing either a
unicameral or bi camera legislature.

• At present (2015) only Seven States have a bicameral legislature.

States having a bicameral legislature

• Andhra Pradesh
• Telegana
• Bihar
• Jammu and Kashmir
• Karnataka
• Maharashtra
• Uttar Pradesh

Advantages of Bicameral Legislature

• Countries with large size and much diversity usually prefer to have two
houses of the national legislature to give representation to all sections in
the society and to give representation to all geographical regions or parts of
the country.

• A bicameral legislature makes it possible to have every decision

reconsidered. Every decision taken by one house goes to the other house
for its decision. This means that every bill and policy would be discussed
twice. This ensures a double check on every matter. Even if one house takes
a decision in haste, that decision will come for discussion in the other house
and reconsideration will be possible.

Rajya Sabha

• Represents the States of India.

• An indirectly elected body.

• Residents of the State elect members to State Legislative Assembly.

• The elected members of State Legislative Assembly in turn elect the

members of Rajya Sabha.

Principles of representation

• Equal representation to all the parts of the country irrespective of their

size or population called as symmetrical representation.

• Parts of the country may be given representation according to their

population means that regions or parts having larger population would
have more representatives in the second chamber than regions having less
population.

• States with larger population get more representatives than States with
smaller population get.

• Members are elected for a term of six years.

• Can get re-elected.

• All members of the Rajya Sabha do not complete their terms at the same
time.

• Every two years, one third members of the Rajya Sabha complete their
term and elections are held for those one third seats only.

• The Rajya Sabha is never fully dissolved.

• It is called the permanent House of the Parliament.

• Rajya Sabha also has twelve nominated members. The President

nominates these members.

Lok Sabha

• The Lok Sabha and the State Legislative Assemblies are directly elected by
the people.

• For the purpose of election, the entire country (State, in case of State
Legislative Assembly) is divided into territorial constituencies of roughly
equal population.

• One representative is elected from each constituency through universal

adult suffrage where the value of vote of every individual would be equal to
another.

• At present there are 543 constituencies.

Functions of the Parliament

Legislative Function

• Enacts legislations for the country.

• The Parliament often merely approves legislations.

• The actual task of drafting the bill is performed by the bureaucracy under
the supervision of the minister concerned.

• The substance and even the timing of the bill are decided by the Cabinet.
No major bill is introduced in the Parliament without the approval of the
Cabinet.

• Members other than ministers can also introduce bills but these have no
chance of being passed without the support of the government.

Control of Executive and ensuring its accountability

• To ensure that the executive does not overstep its authority and remains
responsible to the people who have elected them.

Financial Function

• In a democracy, legislature controls taxation and the way in which money

is used by the government.

• If the Government of India proposes to introduce any new tax, it has to get
the approval of the Lok Sabha.

• The financial powers of the Parliament involve grant of resources to the

government to implement its programmes.

• The government has to give an account to the legislature about the money
it has spent and resources that it wishes to raise.

• The legislature also ensures that the government does not misspend or
overspend. This is done through the budget and annual financial
statements.

Representation

• Parliament represents the divergent views of members from different

regional, social, economic, religious groups of different parts of the country.
Debating Function

• The Parliament is the highest forum of debate in the country.

• There is no limitation on its power of discussion.

• Members are free to speak on any matter without fear. This makes it
possible for the Parliament to analyze any or every issue that faces the
nation.

• These discussions constitute the heart of democratic decision.

Constituent Function

• The Parliament has the power of discussing and enacting changes to the
Constitution.

• The constituent powers of both the houses are similar.

• All constitutional amendments have to be approved by a special majority

of both Houses.

Electoral functions

• The Parliament also performs some electoral functions.

• It elects the President and Vice President of India.

Judicial functions

• The judicial functions of the Parliament include considering the proposals

for removal of President, Vice-President and Judges of High Courts and
Supreme Court.
Powers of the Lok Sabha

• Makes Laws on matters included in Union List and Concurrent List.

• Can introduce and enact money and non-money bills.

• Approves proposals for taxation, budgets and annual financial statements.

• Controls the executive by asking questions, supplementary questions,

resolutions and motions and through no confidence motion.

• Amends the Constitution.

• Approves the Proclamation of emergency.

• Elects the President and Vice President and removes Judges of Supreme
Court and High Court.

• Establishes committees and commissions and considers their reports.

Powers of the Raiva Sabha

• Considers and approves non money bills and suggests amendments to

money bills.

• Approves constitutional amendments.

• Exercises control over executive by asking questions, introducing motions

and resolutions.

• Participates in the election and removal of the President, Vice President,

Judges of Supreme Court and High Court.
• It can alone initiate the procedure for removal of Vice President. Can give
the Union parliament power to make laws on matters included in the State
list.

Special Powers of Raiva Sabha

• The Rajya Sabha is an institutional mechanism to provide representation

to the States.

• Its purpose is to protect the powers of the States. Therefore, any matter
that affects the States must be referred to it for its consent and approval.
• Thus, if the Union Parliament wishes to remove a matter from the State
list (over which only the State Legislature can make law) to either the
Union List or Concurrent List in the interest of the nation, the approval of
the Rajya Sabha is necessary. This provision adds to the strength of the
Rajya Sabha.

• However, experience shows that the members of the Rajya Sabha

represent their parties more than they represent their States.

How does the Parliament Make Laws?

• A bill is a draft of the proposed law. There can be different types of bills.

• When a non-minister proposes a bill, it is called private member's Bill.

• A bill proposed by a minister is described as Government Bill.

When a bill is passed by both Houses, it is sent to the President for his
assent. The assent of the President results in the enactment of a bill into a
law.

Types of Bills

1. Government Bill
2. Private Bill
3. Non-Money Bill
(a) Ordinary Bill
(b) Constitution Amendment Bill
4. Money Bill

How Does the Parliament control the Executive?

The legislature in parliamentary system ensures executive accountability at

various stages: policy making, implementation of law or policy and during
and post-implementation stage. The legislature does this through the use of
a variety of devices:
• Deliberation and discussion
• Approval or Refusal of laws
• Financial control
• No confidence motion

Deliberation and discussion

• During the law making process, members of the legislature get an

opportunity to deliberate on the policy direction of the executive and the
ways in which policies are implemented.

• Apart from deliberating on bills, control may also be exercised during the
general discussions in the House. The Question Hour, which is held every
day during the sessions of Parliament, where Ministers have to respond to
searching questions raised by the members; Zero Hour where members are
free to raise any matter that they think is important (though the ministers
are not bound to reply). half-anhour discussion on matters of public
importance, adjournment motion etc. are some instruments of exercising
control.

• Perhaps the question hour is the most effective method of keeping vigil on
the executive and the administrative agencies of the government.

• Members of Parliament have shown great interest in question hour and

maximum attendance is recorded during this time.

• Most of the questions aim at eliciting information from the government on

issues of public interest such as, price rise, availability of food grains,
atrocities on weaker sections of the society, riots, black-marketing etc. This
gives the members an opportunity to criticise the government, and
represent the problems of their constituencies.

• The discussions during the question hour are so heated that it is not
uncommon to see members raise their voice, walk to the well of the house
or walk out in protest to make their point. This results in considerable loss
of legislative time.

• At the same time, we must remember that many of these actions are
political techniques to gain concessions from government and in the
process force executive accountability.

Approval and ratification of laws

• Parliamentary control is also exercised through its power of ratification. A

bill can become a law only with the approval of the Parliament.
• A government that has the support of a disciplined majority may not find
it difficult to get the approval of the Legislature.

• Such approvals however, cannot be taken for granted.

• They are the products of intense bargaining and negotiations amongst the
members of ruling party or coalition of parties and even government and
opposition. If the government has majority in Lok Sabha but not in the
Rajya Sabha, as has happened during the Janata Party rule in 1977 and
N.D.Arule in 2000, the government will be forced to make substantial
concessions to gain the approval of both the Houses. Many bills, such as the
Lok Pal Bill have failed enactment, Prevention of Terrorism bill (2002) was
rejected by the Rajya Sabha.

Financial control

• As mentioned earlier, financial resources to implement the programmes

of the government are granted through the budget.

• Preparation and presentation of budget for the approval of the legislature

is constitutional obligation of the government. This obligation allows the
legislature to exercise control over the purse strings of the government.

• The legislature may refuse to grant resources to the government. This

seldom happens because the government ordinarily enjoys support of the
majority in the parliamentary system.

• Nevertheless, before granting money the Lok Sabha can discuss the
reasons for which the government requires money. It can enquire into
cases of misuse of funds on the basis of the report of the Comptroller and
Auditor General and Public Accounts committees. But the legislative control
is not only aimed at financial propriety.
• The legislature is concerned about the policies of the government that are
reflected in the budget. Through financial control, the legislature controls
the policy of the government.

No Confidence Motion

• The most powerful weapon that enables the Parliament to ensure

executive accountability is the no-confidence motion.

• As long as the government has the support of its party or coalition of

parties that have a majority in the Lok Sabha, the power of the House to
dismiss the government is fictional rather than real.

• However, after 1989, several governments have been forced to resign due
to lack of confidence of the house. Each of these governments lost the
confidence of the Lok Sabha because they failed to retain the support of
their coalition partners.

• Thus, the Parliament can effectively control the executive and ensure a
more responsive government.

• It is however important for this purpose, that there is adequate time at

the disposal of the House, the members are interested in discussion and
participate effectively and there is willingness to compromise amongst the
government and the opposition.

• In the last two decades, there has been a gradual decline in sessions of the
Lok Sabha and State Legislative Assemblies and time spent on debates.

• Moreover, the Houses of the Parliament have been plagued by absence of

quorum, boycott of sessions by members of opposition which deprive the
house the power to control the executive through discussion.
How does the Parliament Regulate Itself?

• It is through debates that the parliament performs all its vital functions.

• Such discussions must be meaningful and orderly so that the functions of

the Parliament are carried out smoothly and its dignity is intact.

• The presiding officer of the legislature is the final authority in matters of

regulating the business of the legislature.

• Speaker in case of Lok Sabha and Chairman i.e. Vice-President in case of

Rajya Sabha.

Anti-Defection law

• Most of the members of the legislatures are elected on the ticket of some
political party. What would happen if they decide to leave the party after
getting elected?

• For many years after independence, this issue was unresolved.

• Finally there was an agreement among the parties that a legislator who is
elected on one party's ticket must be restricted from defecting' to another
party.

• An amendment to the Constitution was made (52nd amendment act) in

1985. This is known asanti-defection amendment.

• It has also been subsequently modified by the 91st amendment.

• The presiding officer of the House is the authority who takes final
decisions on all such cases.

What is defection?

• If a member remains absent in the House when asked by the party

leadership to remain present or votes against the instructions of the party
or voluntarily leaves the membership of the party, it is deemed as
defection.
6. JUDICIARY

Why do we Need an Independent Judiciary?

• The principal role of the judiciary is to protect rule of law and ensure
supremacy of law.

• It safeguards rights of the individual, settles disputes in accordance with

the law and ensures that democracy does not give way to individual or
group dictatorship.

• In order to be able to do all this, it is necessary that the judiciary is

independent of any political pressures.

Independence of Judiciary

• The other organs of the government like the executive and legislature
must not restrain the functioning of the judiciary in such a way that it is
unable to do justice.

• The other organs of the government should not interfere with the
decision of the judiciary, Judges must be able to perform their functions
without fear or favour.

• Judiciary is a part of the democratic political structure of the country.

• It is therefore accountable to the Constitution, to the democratic

traditions and to the people of the country.
Appointment of Judges

• The appointment of judges has never been free from political controversy.

• Council of Ministers, Governors and Chief Ministers and Chief Justice of

India, all influence the process of judicial appointment.

• Over the years, a convention had developed whereby the senior-most

judge of the Supreme
Court was appointed as the Chief Justice of India.

• This convention was however broken twice.

→ In 1973 A. N. Ray was appointed as CJI superseding three senior Judges.
→ Justice M.H. Beg was appointed superseding Justice H.R. Khanna (1975).

• The other Judges of the Supreme Court and the High Court are appointed
by the President after ‘consulting’ the CJI.

• The final decisions in matters of appointment rested with the Council of

Ministers.

• This matter came up before the Supreme Court again and again between
1982 and 1998.

• Finally, the Supreme Court has suggested that the Chief Justice should
recommend names of persons to be appointed in consultation with four
senior-most judges of the Court.
→ Thus, the Supreme Court has established the principle of collegiality in
making recommendations for appointments.
Removal of Judges

• The removal of judges of the Supreme Court and the High Courts is also
extremely difficult.

• A judge of the Supreme Court or High Court can be removed only on the
ground of proven misbehaviour or incapacity.
→ A motion containing the charges against the judge must be approved by
special majority in both Houses of the Parliament.

• While in making appointments, the executive plays a crucial role; the

legislature has the powers of removal. This has ensured both balance of
power and independence of the judiciary. So far, only one case of removal
of a judge of the Supreme Court came up for consideration before
Parliament.

• So far, only one case of removal of a judge of the Supreme Court came up
for consideration before Parliament.

Structure of Judiciary

Supreme Court of India

• Its decisions are binding on all courts.

• Can transfer Judges of High Courts.

• Can move cases from any court to itself.

• Can transfer cases from one High Court to another.

High Court
• Can hear appeals from lower courts.

• Can issue writs for restoring Fundamental Rights.

• Can deal with cases within the jurisdiction of the State.

• Exercises superintendence and control over courts below it.

District Court

• Deals with cases arising in the District.

• Considers appeals on decisions given by lower courts.

• Decides cases involving serious criminal offences.

Subordinate Courts

• Consider cases of civil and criminal nature

Jurisdiction of Supreme Court

• Original: Setties disputes between Union and States and amongst States.
• Appellate: Tries appeals from lower courts in Civil, Criminal and
Constitutional cases
• Advisory: Advises the President on matters of public importance and law
• Writ: Can issue writs of Habeas Corpus, Mandamus, Prohibition,
Certiorari and Quo warranto to protect the Fundamental Rights of the
individual.
• Special Powers: Can grant special leave to an appeal from any judgment
or matter passed by any court in the territory of India.
In Detail

Original Jurisdiction

• Original jurisdiction means cases that can be directly considered by the

Supreme Court without going to the lower courts before that.

• Cases involving federal relations go directly to the Supreme Court.

• The Original Jurisdiction of the Supreme Court establishes it as an umpire

in all disputes regarding federal matters.

• In any federal country, legal disputes are bound to arise between the
Union and the States; and among the States themselves.

• The power to resolve such cases is entrusted to the Supreme Court of

India.

• It is called original jurisdiction because the Supreme Court alone has the
power to deal with such cases.

• Neither the High Courts nor the lower courts can deal with such cases.

• In this capacity, the Supreme Court not just settles disputes but also
interprets the powers of Union and State government as laid down in the
Constitution.

Writ Jurisdiction

• Any individual, whose fundamental right has been violated, can directly
move the Supreme Court for remedy.
• The Supreme Court can give special orders in the form of writs.
• The High Courts can also issue writs, but the persons whose rights are
violated have the choice of either approaching the High Court or
approaching the Supreme Court directly.

• Through such writs, the Court can give orders to the executive to act or
not to act in a particular way.

Appellate Jurisdiction

• The Supreme Court is the highest court of appeal.

• A person can appeal to the Supreme Court against the decisions of the
High Court.

• However, High Court must certify that the case is fit for appeal, that is to
say that it involves a serious matter of interpretation of law or Constitution.
In addition, in criminal cases, if the lower court has sentenced a person to
death then an appeal can be made to the High Court or Supreme Court. Of
course, the Supreme Court holds the powers to decide whether to admit
appeals even when appeal is not allowed by the High Court. Appellate
jurisdiction means that the Supreme Court will
reconsider the case and the legal issues involved in it.

• If the Court thinks that the law or the Constitution has a different meaning
from what the lower courts understood, then the Supreme Court will
change the ruling and along with that also give new interpretation of the
provision involved.

• The High Courts too, have appellate jurisdiction over the decisions given
by courts below them.
Advisory Jurisdiction

• In addition to original and appellate jurisdiction, the Supreme Court of

India possesses advisory jurisdiction also.

• This means that the President of India can refer any matter that is of
public importance which involves interpretation of Constitution to
Supreme Court for advice.

• However, the Supreme Court is not bound to give advice on such matters
and the President is not bound to accept such an advice.

Article 137
........ the Supreme Court shall have power to review any judgment
pronounced or order made by it.

Article 144
... All authorities, civil and judicial, in the territory of India shall act in aid of
the Supreme Court.

Public Interest Litigation (PIL) or Social Action Litigation (SAL)

• The chief instrument through which judicial activism has flourished in

India is Public Interest Litigation (PIL) or Social Action Litigation (SAL).

• In normal course of law, an individual can approach the courts only if

he/she has been personally aggrieved.

• That is to say, a person whose rights have been violated, or who is

involved in a dispute, could move the court of law. This concept underwent
a change around 1979.

• In 1979, the Court set the trend when it decided to hear a case where the
case was filed not by the aggrieved persons but by others on their behalf.

• As this case involved a consideration of an issue of public interest, it and

such other cases came to be known as public interest litigations.

• Around the same time, the Supreme Court also took up the case about
rights of prisoners. This opened the gates for large number of cases where
public spirited citizens and voluntary organisations sought judicial
intervention for protection of existing rights, betterment of life conditions
of the poor, protection of the environment, and many other issues in the
interest of the public.

• PIL has become the most important vehicle of judicial activism.

• Through the PIL, the court has expanded the idea of rights.

• Clean air, unpolluted water, decent living etc. are rights for the entire
society.

• Therefore, it was felt by the courts that individuals as parts of the society
must have the right to seek justice wherever such rights were violated.

• Secondly, through PIL and judicial activism of the post-1980 period, the
judiciary has also shown readiness to take into consideration rights of
those sections who cannot easily approach the courts.

• For this purpose, the judiciary allowed public spirited citizens, social
organisations and lawyers to file petitions on behalf of the needy and the
deprived.

Negative side of PIL

• In the first place it has overburdened the courts.

• Secondly, judicial activism has blurred the line of distinction between the
executive and legislature on the one hand and the judiciary on the other.

• The court has been involved in resolving questions which belong to the
executive.

Judiciary and Rights

• The Constitution provides two ways in which the Supreme Court can
remedy the violation of rights.

• First it can restore fundamental rights by issuing writs of Habeas Corpus;

mandamus etc. (article 32).

• The High Court's also have the power to issue such writs (article 226).
Secondly, the Supreme Court can declare the concerned law as
unconstitutional and therefore non-operational (article 13).

Judicial Review by Supreme Court

• Perhaps the most important power of the Supreme Court is the power of
judicial review.

• Judicial Review means the power of the Supreme Court (or High Courts)
to examine the constitutionality of any law if the Court arrives at the
conclusion that the law is inconsistent with the provisions of the
Constitution, such a law is declared as unconstitutional and inapplicable.

• The term judicial review is nowhere mentioned in the Constitution.

• However, the fact that India has a written constitution and the Supreme
Court can strike down a law that goes against fundamental rights, implicitly
gives the Supreme Court the power of judicial review.

• Together, the writ powers and the review power of the Court make
judiciary very powerful. In particular, the review power means that the
judiciary can interpret the Constitution and the laws passed by the
legislature.

• The practice of entertaining PILs has further added to the powers of the
judiciary in protecting rights of citizens.

Judiciary and Parliament

• The following issues were at the centre of the controversy between the
Parliament and the judiciary.
→ What is the scope of right to private property?
→ What is the scope of the Parliament's power to curtail, abridge or
abrogate fundamental rights?
→ What is the scope of the Parliament's power to amend the constitution?
→ Can the Parliament make laws that abridge fundamental rights while
enforcing directive principles?
7. FEDERALISM

What is Federalism?

Federalism as a principle of government has evolved differently in different

situations.

• Essentially, federalism is an institutional mechanism to accomm sets of

polities-one at the regional level and the other at the national level. Each
government is autonomous in its own sphere. In some federal countries,
there is even a system of dual citizenship. India has only a single
citizenship.

• The people likewise, have two sets of identities and loyalties--they belong
to the region as well as the nation, for example we are Gujarat is or
Jharkhand is as well as Indians. Each level of the polity has distinct powers
and responsibilities and has a separate system of government.

• The details of this dual system of government are generally spelt out in a
written constitution, which is considered to be supreme and which is also
the source of the power of both sets of government. Certain subjects, which
concern the nation as a whole, for example, defence or currency, are the
responsibility of the union or central government. Regional or local matters
are the responsibility of the regional or State government.

• To prevent conflicts between the centre and the State, there is an

independent judiciary to settle disputes. The judiciary has the powers to
resolve disputes between the central government and the States on legal
matters about the division of power.
Federalism in the Indian Constitution

That the Constitution of India does not even mention the word federation

Article 1

• India, that is Bharat, shall be a Union of States.

• The States and the territories thereof shall be as specified in the First
Schedule.

Division of Powers

• There are two sets of government created by the Indian Constitution:

→ One for the entire nation called the union government (central
government)
→ One for each unit or State called the State government.

• Both of these have a constitutional status and clearly identified area of

activity.

• If there is any dispute about which powers come under the control of the
union and which under the States, this can be resolved by the Judiciary on
the basis of the constitutional provisions.

• The Constitution clearly demarcates subjects, which are under the

exclusive domain of the Union and those under the States.

• One of the important aspects of this division of powers is that economic

and financial powers are centralised in the hands of the central government
by the Constitution.
• The States have immense responsibilities but very meager revenue
sources.

The Union List

• Consists of 100 subjects (originally 97), the State List 61 subjects

(originally 66) and the Concurrent List 52 subjects (originally 47).

• Both the Centre and the states can make laws on the subjects of the
concurrent list, but in case
of a conflict, the Central law prevails. The residuary subjects (ie, which are
not mentioned in any of the three lists) are given to the Centre.

Federalism with a Strong Central Government

• It is generally accepted that the Indian Constitution has created a strong

central government.

• India is a country of continental dimensions with immense diversities and

social problems.

• The framers of the Constitution believed that we required a federal

constitution that would accommodate diversities.

• Besides the concern for unity, the makers of the Constitution also believed
that the socio-economic problems of the country needed to be handled by a
strong central government in cooperation with the States.

• Poverty, illiteracy and inequalities of wealth were some of the problems

that required planning and coordination.
• Thus, the concerns for unity and development prompted the makers of
the Constitution to create a strong central government.

The important provisions that create a strong central government:

• The very existence of a State including its territorial integrity is in the

hands of Parliament. The parliament is empowered to 'form a near State by
separation of territory from any State or by uniting two or more States....' It
can also alter the boundary of any State or even its name.

• The Constitution provides for some safeguards by way of securing the

view of the concerned State legislature. The Constitution has certain very
powerful emergency provisions, which can turn our federal polity into a
highly centralised system once emergency is declared. During an
emergency, power becomes lawfully centralised. Parliament assumes the
power to make laws on subjects within the jurisdiction of the States.

• Even during normal circumstances, the central government has very

effective financial powers and responsibilities. In the first place, items
generating revenue are under the control of the central government. Thus,
the central government has many revenue sources and the States are
mostly dependent on the grants and financial assistance from the centre.
Secondly, India adopted planning as the instrument of rapid economic
progress and development after independence. Planning led to
considerable centralisation of economic decision making. Planning
commission appointed by the union government is the coordinating
machinery that controls and supervises the resources management of the
States. Besides, the Union government uses its discretion to give grants and
loans to States. This distribution of economic resources is considered
lopsided and has led to charges of discrimination against States ruled by an
opposition party.
• The Governor has certain powers to recommend dismissal of the State
government and the dissolution of the Assembly. Besides, even in normal
circumstances, the Governor has the power to reserve a bill passed by the
State legislature, for the assent of the President. This gives the central
government an opportunity to delay the State legislation and also to
examine such bills and veto them completely.

• There may be occasions when the situation may demand that the central
government needs to legislate on matters from the State list. This is
possible if the move is ratified by the Rajya Sabha. The Constitution clearly
states that executive powers of the centre are superior to the executive
powers of the States.
→ Furthermore, the central government may choose to give instructions to
the State government.

• Articles 33 and 34 authorise the Parliament to protect persons in the

service of the union or a state in respect of any action taken by them during
martial law to maintain or restore order. This provisions further
strengthens the powers of the union government. The Armed Forces
Special Powers Act has been made on the basis of these provisions. This Act
has created tensions between the people and the armed forces on some
occasions.

Centre State Relations

• In the 1950s and early 1960s the foundation of our federalism was laid
under Jawaharlal Nehru.

• It was also a period of Congress dominance over the centre as well as the
States.
• Except on the issue of formation of new States, the relations between the
centre and the States remained quite normal during this period.
• In the middle of the 1960s Congress dominance declined somewhat and
in a large number of States
opposition parties came to power.

• It resulted in demands for greater powers and greater autonomy to the

States. In fact, these demands were a direct fallout of the fact that different
parties were ruling at the centre and in many States. So, the State
governments were protesting against what they saw as unnecessary
interference in their governments by the Congress government at the
centre.

Demands for Autonomy

• Sometimes, these demands expect that the division of powers should be

changed in favour of the States and more powers and important powers be
assigned to the States.

• Another demand is that States should have independent sources of

revenue and greater control over the resources. This is also known as
financial autonomy.

• The third aspect of the autonomy demands relates to administrative

powers of the States. States resent the control of the centre over the
administrative machinery.

• Fourthly, autonomy demands may also be related to cultural and

linguistic issues. The opposition to the domination of Hindi (in Tamil Nadu)
or demand for advancing the Punjabi language and culture are instances of
this. Some States also feel that there is a domination of the Hindispeaking
areas over the others. In fact, during the decade of 1960s, there were
agitations in some States against the imposition of the Hindi language.
Role of Governors and President's Rule

• The role of Governors has always been a controversial issue between the
States and the central government.

• The Governor is not an elected office-holder.

• Many Governors have been retired military officers or civil servants or

politicians. Besides, the Governor is appointed by the central government
and therefore, actions of the Governor are often viewed as interference by
the Central government in the functioning of the State government.

• When two different parties are in power at the centre and the State, the
role of the Governor becomes even more controversial.

• The Sarkaria Commission that was appointed by the central government

(1983; it submitted its report in 1988) to examine the issues relating to
centre-State relations, recommended that appointments of Governors
should be strictly non-partisan.

• Powers and role of the Governor become controversial for one more
reason. One of the most controversial articles in the Constitution is Article
356, which provides for President's rule in any State.

• This provision is to be applied, when a situation has arisen in which the

Government of the State cannot be carried on in accordance with the
provisions of this Constitution.'

• It results in the takeover of the State government by the Union

government. The President's proclamation has to be ratified by Parliament.
President's rule can be extended till three years.

• The Governor has the power to recommend the dismissal of the State
government and suspension or dissolution of State assembly. This has led
to many conflicts.

• In some cases, State governments were dismissed even when they had a
majority in the legislature, as had happened in Kerala in 1959 or without
testing their majority, as happened in several other States after 1967.

• Some cases went to the Supreme Court and the Court has ruled that
constitutional validity of the decision to impose President's rule can be
examined by the judiciary.

Interstate Conflicts

• While the States keep fighting with the centre over autonomy and other
issues like the share in revenue resources, there have been many instances
of disputes between two States or among more than two States.

• It is true that the judiciary acts as the arbitration mechanism on disputes

of a legal nature but these disputes are in reality not just legal.

• They have political implications and therefore they can best be resolved
only through negotiations and mutual understanding.

Broadly, two types of disputes keep recurring.

• One is the border dispute: States have certain claims over territories
belonging to neighboring One of the long-standing border disputes is the
dispute between Maharashtra and Karnataka over the city of Belgaum.
Manipur and Nagaland too, have a long-standing border dispute. The
carving out of Haryana from the erstwhile State of Punjab has led to dispute
between the two States not only over border areas, but over the capital city
of Chandigarh. This city today houses the capital of both these States. In
1985, the then Prime Minister Rajiv Gandhi reached an understanding with
the leadership of Punjab. According to this understanding. Chandigarh was
to be handed over to Punjab. But this has not happened yet.

• While border disputes are more about sentiment, the disputes over the
sharing of river waters are even more serious, because they are related to
problems of drinking water and agriculture in the concerned States. You
might have heard about the Cauvery water dispute. This is a major issue
between Tamil Nadu and Karnataka. Farmers in both the States are
dependent on Cauvery waters. Though there is a river water tribunal to
settle water disputes, this dispute has reached the Supreme Court. In
another similar dispute Gujarat, Madhya Pradesh and Maharashtra are
battling over sharing the waters of Narmada River. Rivers are a major
resource and therefore, disputes over river waters test the patience and
cooperative spirit of the States.

Special Provisions

• The Constitution has some special provisions for some States given their
peculiar social and historical circumstances. Most of the special provisions
pertain to the north eastern States (Assam, Nagaland, Arunachal Pradesh,
Mizoram, etc.) largely due to their sizeable indigenous tribal population
with a distinct history and culture.

• Special provisions also exist for hilly States like Himachal Pradesh and
some other States like Andhra Pradesh, Goa, Gujarat, Maharashtra Sikkim
and Telangana.

Jammu and Kashmir

• The other State which has a special status is Jammu and Kashmir (J&K)
(Art. 370).
• Jammu and Kashmir was one of the large princely states, which had the
option of joining India or Pakistan at the time of independence.

• Immediately after Independence Pakistan and India fought a war over

Kashmir. Under such circumstances the Maharaja of Kashmir acceded to
the Indian union.

• In practice, however the autonomy of Jammu and Kashmir is much less

than what the language of article 370 may suggest.

• There is a constitutional provision that allows the President, with the

concurrence of the State government, to specify which parts of the Union
List shall apply to the State.

• The President has issued two Constitutional orders in concurrence with

the Government of J&K making large parts of the Constitution applicable to
the State.

• As a result, though J&K has a separate constitution and a flag, the

Parliament's power to make laws on subjects in the Union List now is fully
accepted.

• The remaining differences between the other States and the State of J&K
are that no emergency due to internal disturbances can be declared in J&K
without the concurrence of the State.

• The union government cannot impose a financial emergency in the State

and the Directive Principles do not apply in J&K.

• Finally, amendments to the Indian Constitution (under Art. 368) can only
apply in concurrence with the government of J&
8. LOCAL GOVERNMENTS
What is local Government?

• Government at the village and district level,

• Closest to the common people

• Involves the day-to-day life and problems of ordinary citizens.

• Believes that local knowledge and local interest are essential ingredients
for democratic decision making Also necessary for efficient and people-
friendly administration.

Advantage of Local Government

• It is so near the people.

• Convenient for the people to approach the local government for solving
their problems both quickly and with minimum cost can be very effective in
protecting the local interests of the people.

• It is at the level of local government that common citizens can be involved

in decision making concerning their lives, their needs and above all their
development.

Growth of Local Government in India

• Self-governing village communities existed in India from the earliest

times in the form of Sabah's.

• In the course of time, these village bodies took the shape of Panchayats
(an assembly of five persons) and these Panchayats resolved issues at the
village level.

• In modern times, elected local government bodies were created after

1882. Lord Rippon, who was the Viceroy of India at that time, took the
initiative in creating these bodies. They were called the local boards.

• Government of India Act 1919, village Panchayats were established in a

number of provinces. This trend continued after the Government of India
Act of 1935.

• Panchayats were looked upon as instruments of decentralization and

participatory democracy.

• When the Constitution was prepared, the subject of local government was
assigned to the States. It was also mentioned in the Directive Principles as
one of the policy directives to all governments in the country.

• Being a part of the Directive Principles of State Policy, this provision of

the Constitution was non-justifiable and primarily advisory in its nature.

The subject of local government including panchayats did not receive

adequate importance in the Constitution. Why?

• Firstly, the turmoil due to the Partition resulted in a strong unitary

inclination in the Constitution. Nehru himself looked upon extreme
localism as a threat to unity and integration of the nation.

• Secondly, there was a powerful voice in the Constituent Assembly led by

Dr. B.R. Ambedkar which felt that the faction and caste-ridden nature of
rural society would defeat the noble purpose of local government at the
rural level.
Local Governments in Independent India

• Local governments got a fillip after the 73rd and 74th Constitution
Amendment Acts.

• First in the line was the Community Development Programme in 1952,

which sought to promote people's participation in local development in a
range of activities.

• In this background, a three-tier Panchayati Raj system of local

government was recommended for the rural areas. Some States (like
Gujarat, Maharashtra) adopted the system of elected local bodies around
1960.

Why only few states adopted and others failed to adopt?

• Because local bodies did not have enough powers and functions to look
after the local development.

• They were very much dependent on the State and central governments
for financial assistance.

• Many States did not think it necessary to establish elected local bodies.

• Local bodies were dissolved and the local government was handed over to
government officers.

• Many States had indirect elections to most local bodies.

• In many States, elections to the local bodies were postponed from time to
time.
New Initiative (Reform)

• In 1989 the P.K.Thungon Committee recommended constitutional

recognition for the local government bodies.

• A constitutional amendment to provide for periodic elections to local

government institutions, and enlistment of appropriate functions to them,
along with funds, was recommended.

73rd and 74th Amendments

• In 1989, the central government introduced two constitutional

amendments.

Why these Amendments?

• These amendments aimed at strengthening local governments and

ensuring an element of uniformity in their structure and functioning across
the country.

• In 1992, the 73rd and 74th constitutional amendments were passed by

the Parliament.

• The 73rd Amendment is about rural local governments (which are also
known as Panchayati Raj Institutions or PRIs) and the 74th amendment
made the provisions relating tourban local government (Nagarpalikas).

• The 73rd and 74th Amendments came into force in 1993.

• Local Govt. is a state subject means state is free to make their own laws on
this subject.

Will State government alter their laws relating to local govt?

• Yes once the Constitution was amended, the States had to change their
laws about local bodies in order to bring these in conformity with the
amended Constitution.

Three Tier Structure

• Base level - Gram Panchayat (Covers a village or group of villages)

• Intermediary - Mandal (Block or Taluka) (Need not be constituted in

smaller States)
• Apex - Zilla Panchayat (Covering the entire rural area of the District)

• Provision of Mandatory Creation of Gram Sabha - comprise of all the adult

members registered as voters in the Panchayat area and its role and
functions are decided by State legislation

Elections

• All three levels are directly elected by the people.

• Term-5 Years

• Dissolution: If state dissolves the panchayat before the end of its five year
term fresh elections must be held within six months of such dissolution.

Reservations

• 1/3 are reserved for women in all panchayat institutions for all categories
(Gen/SC/ST/OBC).

• Reservation for SC & ST in proportion to their population.

• If the States find it necessary, they can also provide for reservations for
the backward castes (OBCs).

• Reservations are also applicable to the chairpersons at all three levels.

Transfer of Subjects

• Twenty-nine subjects, which were earlier in the State list of subjects, are
identified and listed in the Eleventh Schedule of the Constitution.

• These subjects are to be transferred to the Panchayati Raj institutions.

• Subjects were mostly linked to development and welfare functions at the

local level.

• Actual Transfer depends on State legislation only. Article 243 G deals with
the power, authority and responsibility of panchayats.

• Some subjects listed in the 11" Schedule: Agriculture, Minor irrigation,

water management and watershed development, Small scale industries,
including food processing industries, Rural housing, Drinking water, Roads,
culverts, Rural electrification, Poverty alleviation programme, Education,
including primary and secondary schools, Technical training and vocational
education, Adult and non-formal education, Libraries, Cultural activities.
Markets and fairs, Health and sanitation, including hospitals, primary
health centres and dispensaries, Family welfare, Women and child
development. Social welfare, Welfare of the weaker sections, and in
particular, of the Scheduled Castes and the Scheduled Tribes. Public
distribution system.

Will 73" Amendment Act is applicable to whole of the state?

• No the provisions of the 73" amendment were not made applicable to the
areas inhabited by
the Adivasi populations in many States of India.

• In 1996 a separate act was passed extending the provisions of the

Panchayat system to these areas.

Why Separation of Act was Passed?

• Because in India Many Adivasi communities have their traditional
customs of managing common
resources such as forests and small water reservoirs, etc.

• The new act protects the rights of these communities to manage their
resources in ways acceptable to them.

• More powers are given to the Gram Sabhas of these areas and elected
village panchayats have to get the consent of the Gram Sabha in many
respects.

• The idea behind this act is that local traditions of self-government should
be protected while introducing modern elected bodies. This is only
consistent with the spirit of diversity and decentralization.

State Election Commissioners

• Appointed by the State Govt.

• Responsible for conducting elections to the Panchayati Raj institutions.

• The office of the State Election Commissioner is autonomous like the

Election Commissioner of India.

• The State Election Commissioner is an independent officer and is not

linked to nor is this officer under the control of the Election Commission of
India.

State Finance Commission

• Appointed by the State Govt. once in five years.

• Examine the financial position of the local governments in the State.

• Also review the distribution of revenues between the State and local
governments on the one hand and between rural and urban local
governments on the other.

74th Amendment

• Dealt with urban local bodies or Nagarpalikas.

• In many ways the 74th amendment is a repetition of the 73rd

amendment, except that it applies to urban areas.

• All the provisions of the 73rd amendment relating to direct elections,

reservations, transfer of subjects, State Election Commission and State
Finance Commission are incorporated in the
74th amendment also and thus apply to Nagarpalikas.

• The Constitution also mandated the transfer of a list of functions from the
State government to
the urban local bodies. These functions have been listed in the Eleventh
Schedule of the Constitution.
Inside View

• The 73rd and 74th amendments have created uniformity in the structures
of Panchayati Raj and Nagarpalika institutions across the country. The
presence of these local institutions is by itself a significant achievement and
would create an atmosphere and platform for people's participation in
government.

• The provision for reservation for women at the Panchayats and

Nagarpalikas has ensured the presence of a significant number of women in
local bodies.

• Women have gained more power and confidence by asserting control

over resources.

• Their presence in these institutions has given many women a greater

understanding of the working of politics.

• In many cases, they have brought a new perspective and a greater

sensitivity to discussions at local bodies.

• In many cases, women were unable to assert their presence or were mere
proxies for the male members of their family who sponsored their election.
9. CONSTITUTION AS A LIVING
DOCUMENT

Are Constitutions Static?

• The Soviet Union had four constitutions in its life of 74 years In 1991, the
rule of the Communist
Party of Soviet Union came to an end and soon the Soviet federation
disintegrated. After this political upheaval, the newly formed Russian
federation adopted a new constitution in 1993.

• The Constitution of India was adopted on 26 November 1949. Its

implementation formally started from 26 January 1950. More than fifty-five
years after that, the same constitution continues to function as the
framework within which the government of our country operates.

• Lot of questions will came in our mind that is it that our Constitution is so
good that it needs no change? Was it that our Constitution makers were so
farsighted and wise that they had foreseen all the changes that would take
place in the future?

• The answer to the above questions is yes we have inherited a very robust
Constitution.

• The basic framework of the Constitution is very much suited to our

country.

• The Constitution makers were very farsighted and provided for many
solutions for future
Situations Yes our constitution provides the solution for many problems
but can it provide for all
eventualities?

Then how does the same Constitution continue to serve the country? The
answer to this question is:

• Our Constitution accepts the necessity of modifications according to

changing needs of the society.

• In the actual working of the Constitution, there has been enough flexibility
of interpretations. Both
political practice and judicial rulings have shown maturity and flexibility in
implementing the
Constitution.

• These above factors have made our Constitution a living document rather
than a closed and static rulebook.

Challenging Issue of Constitution and Solutions

• The provisions of the constitution would naturally reflect efforts to tackle

the problems that the society is facing at the time of making of the
constitution.

• The constitution must be a document that provides the framework of the

government for the future as well.
• The constitution has to be able to respond to the challenges that may arise
in the future.

• The constitution will always have something that is contemporary and

something that has a more durable importance.
• A constitution is not a frozen and unalterable document.

• The constitution is a framework for the democratic governance of the

society.

• Thus from the above the Indian Constitution is a combination of both the
approaches mentioned above that the constitution is a sacred document
and that it is an instrument that may require changes from time to time or
we can say that; our Constitution is not a static document, it is not the final
word about everything, it is not unalterable.

How to Amend the Constitution?

• Article 368 deals with the amending power of the parliament i.e.
Parliament may in exercise of its constituent power amend by way of
addition, variation or repeal any provision of this constitution in
accordance with the procedure laid down in this article.

Balancing approach of our Constitution

• The Constitution must be amended if so required. But it must be

protected from unnecessary
and frequent changes.

• In other words, the Constitution to be flexible and at the same time rigid'.

• Flexible means open to changes and rigid means resistant to changes. A

constitution that can be very easily changed or modified is often called
flexible.

• In the case of constitutions, which are very difficult to amend, they are
described as rigid.
• The Indian Constitution combines both these characteristics.

If Faults or Mistake in our Constitution?

• Whenever such mistakes would come to light, the Constitution to be

easily amended and to be
able to get rid of these mistakes.

• Then there were some provisions in the Constitution that were of

temporary nature and it was decided that these could be altered later on
once the new Parliament was elected.

• But at the same time, the Constitution was framing a federal polity and
therefore, the rights and powers of the States could not be changed without
the consent of the States.

• Note that all amendments to the Constitution are initiated only in the
Parliament. Besides the special majority in the Parliament no outside
agency like a constitution commission or a separate body is required for
amending the Constitution.

• An amendment bill, like all other bills, goes to the President for his assent,
but in this case, the President has no powers to send it back for
reconsideration.

• These details show how rigid and complicated the amending process
could have been.
• Only elected representatives of the people are empowered to consider
and take final decisions on the question of amendments.

• Thus, sovereignty of elected representatives (parliamentary sovereignty)

is the basis of the amendment procedure.

Special Majority

Amendment to the Constitution requires two different kinds of special

majorities

• In the first place, those voting in favour of the amendment bill should
constitute at least half
of the total strength of that House.
• Secondly, the supporters of the amendment bill must also constitute two-
thirds of those who actually take part in voting.

• Both Houses of the Parliament must pass the amendment bill separately
in this same manner (there is no provision for a joint session). For every
amendment bill, this special majority is required.

• The basic principle behind the amending procedure is that it should be

based on broad support among the political parties and parliamentarians.

Ratification by States

• For some articles of the Constitution, special majority is not sufficient.

• When an amendment aims to modify an article related to distribution of

powers between the States and the central government, or articles related
to representation, it is necessary that the States must be consulted and that
they give their consent.

• The Constitution has ensured this by providing that legislatures of half the
States have to pass the amendment bill before the amendment comes into
effect.

• Apart from the provisions related to federal structure, provisions about

fundamental rights are also protected in this way.

• The Constitution of India can be amended through large-scale consensus

and limited participation of the States.

Why have there been so many Amendments?

• There is always a criticism about the number of amendments. It is said

that there have been far too many amendments to the Constitution of India.

• On the face of it, the fact that ninety-three amendments took place in fifty-
five years does seem to be somewhat odd. Amendments are not only due to
political considerations.

• Barring the first decade after the commencement of the Constitution,

every decade has witnessed a steady stream of amendments.

• This means that irrespective of the nature of politics and the party in
power, amendments were required to be made from time to time.

Was this because of the inadequacies of the original Constitution? Is

the Constitution too flexible?

• The anti-defection amendment (52nd amendment), this period saw a

series of amendments
in spite of the political turbulence.

• Apart from the anti-defection amendments (52nd and 919) these

amendments include the amendment bringing down the minimum age for
voting from 21 to 18 years, the 73rd and the
74th amendments, etc.

• In this same period, there were some amendments clarifying and

expanding the scope
of reservations in jobs and admissions.

• After 1992-93, an overall consensus emerged in the country about these

measures and therefore, amendments regarding these measures were
passed without much difficulty (77th, 81st, and 82nd amendments).

Controversial Amendments

• In particular, the 38th, 39th and 42 amendments have been the most
controversial amendments so far.

• These three amendments were made in the background of internal

emergency declared in the country from June 1975.

• They sought to make basic changes in many crucial parts of the

Constitution.

42nd Amendment: An Overview

• An attempt to override the ruling of the Supreme Court given in the

Kesavananda case.

• Even the duration of the Lok Sabha was extended from five to six years. In
the chapter on Rights, you have read about fundamental duties.

• They were included in the Constitution by this amendment act. The 42nd
amendment also put restrictions on the review powers of the Judiciary.

• This amendment made changes to the Preamble, to the seventh schedule

of the Constitution and to 53 articles of the Constitution.

Basic Structure and Evolution of the Consitution

Most famous case: Kesavananda Bharati

• It has set specific limits to the Parliament's power to amend the

Constitution.

• It says that no amendment can violate the basic structure of the

Constitution.

• It allows the Parliament to amend any and all parts of the Constitution
(within this limitation).

• It places the Judiciary as the final authority in deciding if an amendment

violates basic structure and what constitutes the basic structure.

The theory of basic structure

• There is no mention of this theory in the Constitution.

• It has emerged from judicial interpretation.

• The Judiciary and its interpretation have practically amended the

Constitution without a formal amendment.

Examples of how judicial interpretation changed our understanding of the

Constitution.

• Reservations in jobs and educational institutions cannot exceed fifty per

cent of the total seats.

• Reservations for other backward classes, the Supreme Court introduced

the idea of creamy layer and ruled that persons belonging to this category
were not entitled to benefits under reservations.

• The Judiciary has contributed to an informal amendment by interpreting

various provisions concerning right to education, right to life and liberty
and the right to form and manage minority educational institutions.

Parliamentary Democracy

• In a parliamentary democracy, the Parliament represents the people and

therefore, it is expected
to have an upper hand over both Executive and Judiciary.

• At the same time, there is the text of the Constitution and it has given
powers to other organs of
the government.

• Therefore, the supremacy of the Parliament has to operate within this

framework.

• Democracy is not only about votes and people's representation.

• It is also about the principle of rule of law.

• Democracy is also about developing institutions and working through
these institutions.

All the political institutions must be responsible to the people and maintain
a balance with each other.
10. THE PHILOSOPHY OF THE
CONSTITUTION

What is meant by Philosophy of the Constitution?

We have three things in mind.

• First, we need to understand the conceptual structure of the constitution.

What does this mean? It means that we must ask questions like what are
the possible meanings of terms used in the constitution such as rights',
citizenship, minority or democracy?

• Furthermore, we must attempt to work out a coherent vision of society

and polity conditional
upon an interpretation of the key concepts of the constitution. We must
have a better grasp of the set of ideals embedded in the constitution.

• Our final point is that the Indian Constitution must be read in conjunction
with the Constituent Assembly Debates in order to refine and raise to a
higher theoretical plane, the justification of values embedded in the
Constitution. A philosophical treatment of a value is incomplete if a detailed
justification for it is not provided. When the framers of the Constitution
chose to guide Indian society and polity by a set of values, there must have
been a corresponding set of reasons. Many of them, though, may not have
been fully explained.

Why in Need?

• A political philosophy approach to the constitution is needed not only to

find out the moral content expressed in it and to evaluate its claims but
possibly to use it to arbitrate between varying interpretations of the many
core values in our polity.

Constitution as Means of Democratic Transformation

• Provide peaceful, democratic means to bring about social transformation.

Moreover, for a hitherto colonized people, constitutions announce and
embody the first real exercise of political self-determination.

• The Indian Constitution was designed to break the shackles of traditional

social hierarchies and
to usher in a new era of freedom, equality and justice.

• Constitutions exist not only to limit people in power but to empower

those who traditionally
have been deprived of it. Constitutions can give vulnerable people the
power to achieve collective good.

What is the Political Philosophy of our Constitution?

• It is hard to describe this philosophy in one word.

• It resists any single label because it is liberal, democratic, egalitarian,

secular, and federal, open to community values, sensitive to the needs of
religious and linguistic minorities as well as historically disadvantaged
groups, and committed to building a common national identity.

• In short, it is committed to freedom, equality, social justice, and some

form of national unity.

• But underneath all this, there is a clear emphasis on peaceful and

democratic measures for putting this philosophy into practice.
Individual freedom
• The first point to note about the Constitution is its commitment to
individual freedom.

• Remember Rammohan Roy protested against curtailment of the freedom

of the press by the
British colonial state.

• It is not surprising therefore that freedom of expression is an integral part

of the Indian Constitution. So is the freedom from arbitrary arrest.

• The infamous Rowlatt Act, which the national movement opposed so

vehemently, sought to deny this basic freedom.

Social Justice

Classical liberalism always privileges rights of the individuals over

demands of social justice and community values.

The liberalism of the Indian Constitution differs from this version in two
ways.

• First, it was always linked to social justice. The best example of this is the
provision for
reservations for Scheduled Castes and Scheduled Tribes in the Constitution.
The makers of the Constitution believed that the mere granting of the right
to equality was not enough to overcome age-old injustices suffered by these
groups or to give real meaning to their right to vote.

• Special constitutional measures were required to advance their interests.

Therefore the constitution makers provided a number of special measures
to protect the interests of Scheduled Castes and Scheduled Tribes such as
the reservation of seats in legislatures. The Constitution also made it
possible for the government to reserve public sector jobs for these
groups.

Respect for diversity and minority rights

• The Indian Constitution encourages equal respect between communities.

• This was not easy in our country, first because communities do not
always have a relationship of
equality; they tend to have hierarchical relationships with one another (as
in the case of caste).

• Second, when these communities do see each other as equals, they also
tend to become rivals (as
in the case of religious communities).

• It was important to ensure that no one community systematically

dominates others. This made
it mandatory for our Constitution to recognize community based rights.

• One such right is the right of religious communities to establish and run
their own educational institutions.
• Such institutions may receive money from the government. This provision
shows that the Indian
Constitution does not see religion merely as a private matter concerning
the individual.

Secularism

• The term secular was not initially mentioned; the Indian Constitution has
always been secular.
• The mainstream, western conception, of secularism means mutual
exclusion of state and religion
in order to protect values such as individual freedom and citizenship rights
of individuals.

• The term mutual exclusion means this: both religion and state must stay
away from the internal affairs of one another. The state must not intervene
in the domain of religion; religion likewise should not dictate state policy or
influence the conduct of the state. In other words,
mutual exclusion means that religion and state must be strictly separated.

• To protect religious freedom of individuals, therefore, state must not help

religious
organizations. But at the same time, state should not tell religious
organisations how to manage their affairs.

Rights of Religious Groups

• The Indian Constitution grants rights to all religious communities such as
the right to establish and maintain their educational institutions. Freedom
of religion in India means the freedom of religion of both individuals and
communities.

State's Power of Intervention

• The state simply had to interfere in the affairs of religion.

• The state could also help religious communities by giving aid to

educational institutions run by them.

• The state may help or hinder religious communities depending on which

mode of action promotes values such as freedom and equality.
Procedural Achievements

• First, the Indian Constitution reflects a faith in political deliberation. We

know that many groups and interests were not adequately represented in
the Constituent Assembly. But the debates in the Assembly amply show
that the makers of the Constitution wanted to be as inclusive in their
approach as possible. This open-ended approach indicates the willingness
of people to modify their existing preferences, in short, to justify outcomes
by reference not to self-interest but to reasons. It also shows a willingness
to recognize creative value in difference and disagreement.

• Second, it reflects a spirit of compromise and accommodation. These

words, compromise and accommodation, should not always be seen with
disapproval. Not all compromises are bad.

Criticisms

• The Indian Constitution can be subjected to many criticisms of which

three may be briefly mentioned:

• First, that it is unwieldy

• Second, that it is unrepresentative and
• Third, that it is alien to our conditions.

1st Criticism

• The criticism that it is unwieldy is based on the assumption that the entire
constitution of a
country must be found in one compact document.

• The fact is that a country's constitution is to be identified with a compact

document and with
other written documents with constitutional status.

• In the case of India, many such details, practices and statements are
included in one
single document and this has made that document somewhat large in size.

• Many countries for instance, do not have provisions for election

commission or the civil service commission in the document known as
constitution.

• But in India, many such matters are attended to by the Constitutional

document itself.

2nd Criticism

Here we must distinguish two components of representation, one that

might be called voice and the other opinion.
• The voice component of representation is important. People must be
recognised in their
own language or voice, not in the language of the masters. If we look at the
Indian Constitution from this dimension, it is indeed unrepresentative
because members of the Constituent Assembly were chosen by a restricted
franchise, not by universal suffrage.

• However, if we examine the other dimension, we may not find it

altogether lacking in representativeness. The claim that almost every shade
of opinion was represented in the Constituent Assembly may be a trifle
exaggerated but may have something to it. If we read the debates that took
place in the Constituent Assembly, we find that a vast range of issues and
opinions were mentioned, members raised matters not only based on their
individual social concerns but based on the perceived interests and
concerns of various social sections as well.
3rd criticism

• It alleges that the Indian Constitution is entirely an alien document,

borrowed article by article from western constitutions and sits uneasily
with the cultural ethos of the Indian people. This criticism is often voiced by
many. Even in the Constituent Assembly itself, there were some voices that
echo this concern.

The limitations of the Constitution

• First, the Indian Constitution has a centralised idea of national unity.

• Second, it appears to have glossed over some important issues of gender

justice, particularly within the family.

• Third, it is not clear why in a poor developing country, certain basic socio-
economic rights were relegated to the section on Directive Principles rather
than made an integral feature of our fundamental rights.
….