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Indian Constitution at Work-Class-XI

CHAPTER-1: CONSTITUTION WHY AND HOW?

What & Why do we need a Constitution?

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

constituted or governed.
 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:

1. Parliament has the authority to enact laws which constitutes government in the 1st
place.
2. Specifies who has the power to make decisions in a s o c i e t y .
3. It decides how the government will be constituted.
4. To set some limits on what a govt. can impose on its citizens.
5. The most common way of limiting the power of government is to specify certain
fundamental rights that all of us possess as citizens and which no government can ever
be allowed to violate.
6. To enable the government to fulfill the aspirations of a society and create conditions for a
just society.

Fundamental identity of a people:

1. Constitution expresses the fundamental identity of a people.

2. The people as a collective entity come into being only through the basic constitution.
3. Constitutional norms are the overarching framework within which one pursues
individual aspirations, goals and freedoms.
4. The constitution sets authoritative constraints upon what one may or may not do.
5. It defines the fundamental values that we may not trespass. So the constitution also gives
one a moral identity.
6. Many basic political and moral values are now shared across different constitutional traditions.

Mode of promulgation

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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 why?

1. Crafted by military leaders

2. Leaders who are not popular
3. Do not have the ability to carry the people with them.

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:

1. Formally created by a Constituent Assembly between December 1946 and

November 1949
2. Drew upon a long history of the nationalist movement that had a remarkable ability to
take along different sections of Indian society together
3. 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

Provision of the Constitution:

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

2. Allowed permanent majorities to oppress minority groups within society
3. 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
4. The more a constitution preserves the freedom and equality of all its members, the
more likely it is to succeed.

Balanced Institutional Design:

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

power.
2. 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.
3. This ensures that even if one institution wants to subvert the Constitution, others can

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check its transgressions.

4. An intelligent system of checks and balances has facilitated the success of the Indian
Constitution.
5. 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.
6. 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.

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 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 Objectives 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:

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From British Constitution:

 Nominal Head – President (like Queen)
 Cabinet System of Ministers
 Post of PM
 Parliamentary Type of Govt.
 Bicameral Parliament
 Lower House more powerful
 Council of Ministers responsible to Lower House
 Speaker in Lok Sabha
 First past the Post
 Law Making Procedure
 The Idea of the rule of law

From U.S Constitution:

 Nominal Head – President (like Queen)
 Cabinet System of Ministers
 Post of PM
 Parliamentary Type of Govt.
 Bicameral Parliament
 Lower House more powerful
 Council of Ministers responsible to Lowe House
 Speaker in Lok Sabha

From USSR:
 Fundamental Duties
 Five year Plan

From Australia:
 Concurrent list
 Language of the preamble
 Provision regarding trade, commerce and intercourse

From Japan:
 Law on which the Supreme Court function.

From WEIMAR CONSTITUION OF GERMANY:

 Suspension of Fundamental Rights during the emergency.

From CANADA:
 Scheme of federation with a strong centre
 Distribution of powers between centre and the states and placing. Residuary
Powers with the centre

From IRELAND:

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 Concept of Directive Principles of States Policy(Ireland borrowed it from

SPAIN)
 Method of election of President
 Nomination of members in the Rajya Sabha by the President

CHAPTER-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:

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 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;
– practise 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

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 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.
 Freedomto 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:

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 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 minoritycommunity.
RIGHT TO CONSTITUTIONAL REMEDIES

 Dr. Ambedkar considered the right to constitutional remedies as ‗heart and soul of
the constitution‘.
 Why? 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.

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):

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 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.

Chapter-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.

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 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 hasbeen 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
 E.g-U.K and India

PR:

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 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, 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.

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 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?

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 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

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Commission became multi-member and has remained multi-member 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 CEC who refuses
to favour it in elections.

Special Majority

Special majority means:

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

 Simple majority of the total membership of the House.

The Election Commission of India has a wide range of functions:

 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

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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.

ELECTORAL REFORMS:
Suggestions are:
 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.

Chapter-4-Executive

WHAT IS AN EXECUTIVE?
 The organ of government that primarily looks after the function of implementation and
administration is 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

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responsible for day to day administration are called the permanent executive.

WHAT ARE THE DIFFERENT TYPES OF EXECUTIVE?

In a 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

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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.

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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 e l e c t e d .

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

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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 over the 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.

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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.

Chapter-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 P A R L I A M E N T ?

 The term ‗Parliament‘ refers to the national legislature.
 The legislature of the States is described as State legislature.

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 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 bicamerallegislature.
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

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smaller population get.

 Members are elected for a term of six years.
 Canget 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.

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 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 analyse any or every issue that faces the nation.
 These discussions constitute the heart of democratic decision making.
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.

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 Establishes committees and commissions and considers their reports.

Powers of the Rajya 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 Rajya 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 forits 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.

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Bill

Law

The legislative procedure is identical in both the Houses of Parliament. Every bill has to pass through the
same stages in each House. A bill is a proposal for legislation and it becomes an act or law when duly
enacted.

Public Bill Private Bill

1. It is introduced in the Parliament by a minister. 1. It is introduced by any member of Parliament

other than a minister.
2. It reflects of the policies of the government 2. It reflects the stand of opposition party on
(ruling party). publicmatter.
3. It has greater chance to be approved by the 3. It has lesser chance to be approved by the
Parliament. Parliament

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4. Its rejection by the House amounts to the exp- 4. Its rejection by the House has no implication on
ression of want of parliamentary confidence in the parliamentary confidence in the government
the government and may lead to its resignation. or its resignation.
5. Its introduction in the House requires seven 5. Its introduction in the House requires one month‘s
days‘ notice. notice.
6. It is drafted by the concerned department in 6. Its drafting is the responsibility of the member
consultation with the law department. concerned.

The bills introduced in the Parliament can also be classified into four categories:
1. Ordinary bills, which are concerned with any matter other than financial subjects.
2. Money bills, which are concerned with the financial matters like taxation, public expenditure,
etc.
3. Financial bills, which are also concerned with financial matters (but are different from money
bills).
4. Constitution amendment bills, which are concerned with the amendment of the provisions of the
Constitution.
The Constitution has laid down separate procedures for the enactment of all the four types of bills. The
procedures with regard to ordinary bills, money bills and financial bills are explained here. The procedure
with regard to Constitution amendment bills is explained in detail in Chapter 10.

Ordinary Bills
Every ordinary bill has to pass through the following five stages in the Parliament before it finds a
place on the Statute Book:

1. First Reading
2. Second Reading
Stage of General Discussion, Committee Stage, Consideration Stage

3. Third Reading

4. Bill in the Second House In the second House also, the bill passes through all the three stages, that is,
first reading, second reading and third reading. There are four alternatives before this House:

(a) it may pass the bill as sent by the first house (ie, without amendments);
(b) it may pass the bill with amendments and return it to the first House for reconsideration;
(c) it may reject the bill altogether; and
(d) it may not take any action and thus keep the bill pending.

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 If the second House passes the bill without any amendments or the first House accepts t h e
amendments suggested by the second House, the bill is deemed to have been passed by both the
Houses and the same is sent to the president for his assent.
 On the other hand, if the first House rejects the amendments suggested by the second House or the
second House rejects the bill altogether or the second House does not take any action for six
months, a deadlock is deemed to have taken place.
 To resolve such a deadlock, the president can summon a joint sitting of the two Houses. If the
majority of members present and voting in the joint sitting approves the bill, the bill is deemed to
have been passed by both the Houses.

5. Assent of the President Every bill after being passed by both Houses of Parliament either singly
or at a joint sitting, is presented to the president for his assent. There are three alternatives before the
president:

(a) he may give his assent to the bill; or

(b) he may withhold his assent to the bill; or
(c) he may return the bill for reconsideration of the Houses.
 If the president gives his assent to the bill, the bill becomes an act and is placed on the Statute Book.
If the President withholds his assent to the bill, it ends and does not become an act.
 If the President returns the bill for reconsideration and if it is passed by both the Houses again with
or without amendments and presented to the President for his assent, the president must give his
assent to the bill. Thus, the President enjoys only a ―suspensive veto.‖

Money Bills
Article 110 of the Constitution deals with the definition of money bills.
It states that a bill is deemed to be a money bill if it contains ‗only‘ provisions dealing with all or any of the
following matters:
1. The imposition, abolition, remission, alteration or regulation of anytax;
2. The regulation of the borrowing of money by the Union government;
3. The custody of the Consolidated Fund of India or the contingency fund of India, the payment of
moneys into or the withdrawal of money from any such fund;
4. The appropriation of money out of the Consolidated Fund of India;
5. Declaration of any expenditure charged on the Consolidated Fund of India or increasing the
amount of any such expenditure;
6. The receipt of money on account of the Consolidated Fund of India or the public account of India
or the custody or issue of such money, or the audit of the accounts of the Union or of a state; or
7. Any matter incidental to any of the matters specified above.
However, a bill is not to be deemed to be a money bill by reason only that it provides for:

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1. the imposition of fines or other pecuniary penalties, or

2. the demand or payment of fees for licenses or fees for services rendered; or
3. the imposition, abolition, remission, alteration or regulation of any tax by any local authority or
body for local purposes.
 If any question arises whether a bill is a money bill or not, the decision of the Speaker of the
Lok Sabha is final. His decision in this regard cannot be questioned in any court of law or in
the either House of Parliament or even the president.
 When a money bill is transmitted to the Rajya Sabha for recommendation and presented to the
president for assent, the Speaker endorses it as a money bill.
 A money bill can only be introduced in the Lok Sabha and that too on the recommendation of the
president. Every such bill is considered to be a government bill and can be introduced only
by a minister.
 The Rajya Sabha has restricted powers with regard to a money bill. It cannot reject or amend a
money bill. It can only make the recommendations. It must return the bill to the Lok Sabha within 14
days, wither with or without recommendations. The Lok Sabha can either accept or reject all or
any of the recommendations of the Rajya Sabha.
 If the Rajya Sabha does not return the bill to the Lok Sabha within 14 days, the bill is deemed to
have been passed by both the Houses in the form originally passed by the Lok Sabha. Thus, the Lok
Sabha has more powers than Rajya Sabha with regard to a money bill.
 On the other hand, both the Houses have equal powers with regard to an ordinary bill.
 Finally, when a money bill is presented to the president, he may either give his assent to the bill
or withhold his assent to the bill but cannot return the bill for reconsideration of the Houses.
Normally, the president gives his assent to a money bill as it is introduced in the Parliament with his
prior permission.

Financial Bills
 Financial bills are those bills that deal with fiscal matters, that is, revenue or expenditure.
However, the Constitution uses the term ‗financial bill‘ in a technical sense. Financial bills are of
three kinds:
1. Money bills—Article 110
2. Financial bills (I)—Article 117 (1)
3. Financial bills (II)—Article 117 (3)

 money bills are simply a species of financial bills. Hence, all money bills are financial bills but all
financial bills are not money bills.

 Only those financial bills are money bills which contain exclusively those matters which are
mentioned in Article 110 of the Constitution.

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 These are also certified by the Speaker of Lok Sabha as money bills. The financial bills (I) and
(II), on the other hand, have been dealt with in Article 117 of the Constitution.
Ordinary Bill Money Bill
1. It can be introduced either in the Lok 1. It can be introduced only in the Lok Sabha and
Sabha or the RajyaSabha. not in the Rajya Sabha.
2. It can be introduced either by a 2. It can be introduced only by a minister.
minister or by a privatemember.
3. It is introduced without the 3. It can be introduced only on the recommendation of
recommendation of the president. the President.
4. It can be amended or rejected by the Rajya 4. It cannot be amended or rejected by the Rajya
Sabha. Sabha. The Rajya Sabha should return the bill with
or without recommendations, which may be
accepted or rejected by the Lok Sabha.

5. It can be detained by the Rajya Sabha for a 5. It can be detained by the Rajya Sabha for a
maximum period of six months. maximum period of 14 days only.
6. It does not require the certification of the 6. It requires the certification of the Speaker when
Speaker when transmitted to the Rajya transmitted to the Rajya Sabha.
Sabha (if it has originated in the Lok
Sabha).
7. It is sent for the President‘s assent only 7. It is sent for the President‘s assent even if it is
after being approved by both the Houses. approved by only Lok Sabha. There is no chance
In case of a deadlock due to disagreement of any disagreement between the two Houses and
between the two Houses, a joint sitting of hence, there is no provision of joint sitting of
both the houses can be summoned by the both the Houses in this regard.
president to resolve the deadlock.
8. Its defeat in the Lok Sabha may lead to the 8. Its defeat in the Lok Sabha leads to the
resignation of the government (if it is resignation of the government.
introduced by a minister).
9. It can be rejected, approved, or returned 9. It can be rejected or approved but cannot be
for reconsideration by the President. returned for reconsideration by the President.

Financial Bills (I)

 Contains not only any or all the matters mentioned in Article 110, but also other matters of general
legislation.
 A bill that contains a borrowing clause, but does not exclusively deal with borrowing. In two
respects, a financial bill (I) is similar to a money bill—(a) both of them can be introduced only
in the Lok Sabha and not in the Rajya Sabha, and (b) both of them can be introduced only on the
recommendation of the president.

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 In all other respects, a financial bill (I) is governed by the same legislative procedure applicable
to an ordinary bill.
 Hence, it can be either rejected or amended by the Rajya Sabha (except that an amendment other than
for reduction or abolition of a tax cannot be moved in either House without the recommendation of
the president).
 In case of a disagreement between the two Houses over such a bill, the president can summon a
joint sitting of the two Houses to resolve the deadlock.

Financial Bills (II)

 A financial bill (II) contains provisions involving expenditure from the Consolidated Fund of
India, but does not include any of the matters mentioned in Article 110.
 It is treated as an ordinary bill and in all respects, it is governed by the same legislative procedure
which is applicable to an ordinary bill. The only special feature of this bill is that it cannot be
passed by either House of Parliament unless the President has recommended to that House the
consideration of the bill.
 financial bill (II) can be introduced in either House of Parliament and recommendation of the
President is not necessary for its introduction. It can be either rejected or amended by either House
of Parliament. In case of a disagreement between the two Houses over such a bill, the President can
summon a joint sitting of the two Houses to resolve the deadlock.

Joint Sitting of Two Houses

 Joint sitting is an extraordinary machinery provided by the Constitution to resolve a
deadlock between the two Houses over the passage of a bill. A deadlock is deemed to have taken place
under any one of the following three situations after a bill has been passed by one House and transmitted
to the other House:
1. if the bill is rejected by the other House;
2. if the Houses have finally disagreed as to the amendments to be made in the bill; or
3. if more than six months have elapsed from the date of the receipt of the bill by the other House
without the bill being passed by it.
 In the above three situations, the president can summon both the Houses to meet in a joint sitting
for the purpose of deliberating and voting on the bill.
 It must be noted here that the provision of joint sitting is applicable to ordinary bills or financial
bills only and not to money bills or Constitutional amendment bills.
 In the case of a money bill, the Lok Sabha has overriding powers, while a Constitutional amendment
bill must be passed by each House separately.
 In reckoning the period of six months, no account can be taken of any period during which the
other House (to which the bill has been sent) is prorogued or adjourned for more than four
consecutive days.
 If the bill (under dispute) has already lapsed due to the dissolution of the Lok Sabha, no joint

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sitting can be summoned.

 But, the joint sitting can be held if the Lok Sabha is dissolved after the President has notified his
intention to summon such a sitting (as the bill does not lapse in this case). After the President
notifies his intention to summon a joint sitting of the two Houses, none of the Houses can proceed
further with the bill.
 The Speaker of Lok Sabha presides over a joint sitting of the two Houses and the Deputy Speaker, in
his absence.
 If the Deputy Speaker is also absent from a joint sitting, the Deputy Chairman of Rajya Sabha
presides.
 If he is also absent, such other person as may be determined by the members present at the joint
sitting, presides over the meeting. It is clear that the Chairman of Rajya Sabha does not preside over
a joint sitting as he is not a member of either House of Parliament.
The Constitution has specified that at a joint sitting, new amendments to the bill cannot be proposed
except in two cases:
1. Those amendments that have caused final disagreement between the Houses; and those amendments
that might have become necessary due to the delay in the passage of the bill.

Instruments of Parliamentary Control

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-an – hour
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.

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 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.A rule 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

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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 carriedout smoothly and its dignity is intact.
 The presiding officer of the legislature is the final authority in matters of
regulating the businessof 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?

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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 as anti-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.

Chapter-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 j u s t i c e .
 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.

How can the independence of judiciary be provided and protected?

 The Indian Constitution has ensured the independence of the judiciary through a
number of measures.
 The legislature is not involved in the process of appointment of judges.

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 In order to be appointed as a judge, a person must have experience as a lawyer and/or

must be well versed in law.
 The judges have a fixed tenure. They hold office till reaching the age of retirement.
 Only in exceptional cases, judges may be removed.
 But otherwise, they have security of tenure.
 Security of tenure ensures that judges could function without fear or favour.
 The Constitution prescribes a very difficult procedure for removal of judges.
 The Constitution makers believed that a difficult procedure of removal would
provide security of office to the members of judiciary.
 The judiciary is not financially dependent on either the executive or legislature.
 The Constitution provides that the salaries and allowances of the judges are not subjected to
the approval of the legislature.
 The actions and decisions of the judges are immune from personal criticisms.
 The judiciary has the power to penalise those who are found guilty of contempt of court.
This authority of the court is seen as an effective protection to the judges from unfair
criticism.
 Parliament cannot discuss the conduct of the judges except when the proceeding to
remove a judge is being carried out. This gives the judiciary independence to adjudicate
without fear of being criticised.

STRUCTURE OF THE 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:

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 Consider cases of civil and criminal nature

Jurisdiction of Supreme Court:

Original: Settles 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 judgement 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.

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 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 or
that 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.

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 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 Courts 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.

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 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?

Chapter-7-FEDERALISM

What is Federalism?

Federalism as a principle of government has evolved differently in different

situations.

 Essentially, federalism is an institutional mechanism to accommodate two 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 Gujaratis or Jharkhandis
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

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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: (1) India, that is Bharat, shall be a Union of States.

 (2) 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)
and
 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 meagre 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.

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 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 P a r l i a m e n t is empowered to ‗form a new 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 l e g i s l a t u r e .
 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 also
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.
 As you will study later, 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

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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.
The following extract from an article of the Constitutionmakes this clear.
You have already studied in the chapter on executive that we have an integrated
administrative system. The all-India services are common to the entire territory of
India and officers chosen for these services serve in the administration of the
States. Thus, an IAS officer who becomes the collector or an IPS officer who serves as
the Commissioner of Police, are under the control of the central government.
States can neither take disciplinary action nor can they remove these officers from
service.
 Articles 33 and 34 authorize 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 provision 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:
The Centre-state relations can be studied under three heads:
• Legislative relations.
• Administrative relations.
• Financial relations
Legislative Relations
 Articles 245 to 255 in Part XI of the Constitution deal with the legislative relations between the Centre
and the states.
 Like any other Federal Constitution, the Indian Constitution also divides the legislative powers between
the Centre and the states with respect to both the territory and the subjects of legislation.
 Further, the Constitution provides for the parliamentary legislation in the state field under five
extraordinary situations as well as the centre‗s control over state legislation in certain cases.
 Thus, there are four aspects in the Centre–states legislative relations, viz.,
 Territorial extent of Central and state legislation;
 Distribution of legislative subjects;
 Parliamentary legislation in the state field;and
 Centre‗s control over state legislation.
(More details are compiled at M. Laxmikantha)

Demands for Autonomy

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Reasons:

 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, a u t o n o m y 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 Hindi-speaking
areas over the others. In fact, during the decade of 1960s, there were
agitations in some Statesagainst 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.

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 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 neighbouring 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

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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&K.

Chapter-8-LOCAL GOVERNMENT

What is local Govt.? An Overview:

 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 Govt.

 It is so near the people

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 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 Govt. in India:

 self-governing village communities existed in India from the earliest times in the form
of ‗sabhas‘
 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 decentralisation 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-justiciable 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.

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 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 to urban 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 govt 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.

73rd Amendment:

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All about Panchayat Raj Institutions,

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:

 1/3rd 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.

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 Some subjects listed in the 11th 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 73rd Amendment Act is applicable to whole of the state?

 No the provisions of the 73rd 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:

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 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.

Chapter-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?

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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 & 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?

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 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.

How to amend the

Constitution?

Special majority in
Parliament in both
Similar to ordinary
Houses separately: Special majority
law: simple majority
as per article 368 +
in Parliament: as
Legislatures of half
mentioned in some the states: article
articles 368

 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.

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 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 91st) 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.

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 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 42nd 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 CONSTITUTION

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); and
 ―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

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 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.

Chapter 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:

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 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.

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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

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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 recognise 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.

A second criticism of the Constitution is that it is unrepresentative.

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.

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A final criticism 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.

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