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RAHAAR
The final hit to UPSC Exam
Comprehensive, Integrated and Current Linked Notes for CSE Mains 2021

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 PRAHAAR- The final hit to UPSC Exam-2021

PREFACE

Dear aspirants, OnlyIAS team is ecstatic to present this book to you, which is certainly
going to be your best companion in your prepration.

This book has been designed by considering the issues and challenges students face
during mains preparation. While preparing this book, our team was aiming to solve as much
problems as possible. For example, students are many a times so confused about what to study
and what not, which news is relevant and which news is to be ignored, how much in depth we
should go for any topic, what kind of questions UPSC asks from particular topic, how to link
static with current etc.

This book is an honest attempt to solve these problems and to help students perform
better in exam, save time in preparation and get rid of various confusions which they basically
come across.

Right from the number of pages, to what topic to be covered, our team has done
research on every aspect to make it the finest version of itself. Covering everything comes with
a limitation of retention power, relevancy, possibility of revision, too many pages which makes
it beyond bulky and ultimately lot of time consumption of students for not so important things
adding to that a kind of distracted paths.

This book is an attempt to make your preparation to the point, relevant, based on UPSC
ongoing trend and pattern, revision friendly, and most updated.

OnlyIAS team wish you all the best for your preparation with all humility and
humbleness and we are hopeful that this book will do wonders for you. Keep reading.

Sumit Rewri and team

Note: Although our team has tried best, yet if any important issue we found
which needs updating we will do the same and current issues of last few months
will be updated and a supplementary of few issues will be compiled and will be
released soon.
OnlyIAS Nothing Else PRAHAAR: Indian Polity

Issues & Challenges Pertaining to the Federal Structure _____________________________________11

Federalism in India And Centre State Relations _________________________________________________11
Is India truly federal? ________________________________________________________________________ 11
Features which make India a federal state _____________________________________________________ 11
Non-federal features ______________________________________________________________________ 11
Asymmetric federalism in India ________________________________________________________________ 12
Importance of asymmetric federalism in case of India ____________________________________________ 12
Challenges of asymmetric federalism _________________________________________________________ 12
Centre State Relationship _______________________________________________________________________ 12
Constitutional provisions _____________________________________________________________________ 12
Evolution of Centre State relationship post-independence __________________________________________ 13
Phase 1 (1950-67)– Centre’s domination over the states. ________________________________________ 14
Phase 2 (1967-77) – Process of Centralization __________________________________________________ 14
Phase 3 (1977-89) –Coalition ________________________________________________________________ 14
Current phase of centre state relations _______________________________________________________ 14
Important Supreme Court cases related to Centre State relations ____________________________________ 15
Irritants in Centre State relationship ____________________________________________________________ 15
Other issues in news _____________________________________________________________________________ 16
Inter-State River waters dispute __________________________________________________________________ 16
Supreme Court judgement in Cauvery water dispute ____________________________________________ 18
Demand for smaller states. Is it time for a second state reorganization Commission? _______________________ 18
Article 370 ___________________________________________________________________________________ 20
Govt. of National Capital Territory (Amendment) Bill,2021 ____________________________________________ 21
Misuse of Disaster Management Act during COVID 19 ________________________________________________ 22
Farm laws and Centre State relations _____________________________________________________________ 23
Farm laws by Punjab _________________________________________________________________________ 24
Assam Mizoram border dispute __________________________________________________________________ 25
Brus reject resettlement offer ___________________________________________________________________ 25
Centre state relations during covid-19 _____________________________________________________________ 26
Special Category status to states _________________________________________________________________ 26
Maharashtra Denies Consent to CBI _______________________________________________________________ 27
Odisha’s Border Disputes _______________________________________________________________________ 28
NITI Aayog – a tool to promote cooperative federalism _______________________________________________ 29
Recommendations to better manage Centre-state relationship ________________________________________ 30
First Administrative Reforms Commission ________________________________________________________ 30
Sarkaria Commission ________________________________________________________________________ 30
M M Punchhi Commission ____________________________________________________________________ 30
NCRWC ___________________________________________________________________________________ 30
Way forward- ______________________________________________________________________________ 31

Separation of Power _________________________________________________________________32

Models of Separation of Powers _________________________________________________________________ 33
Functional Overlapping_____________________________________________________________________33
Between Executive and Legislature _____________________________________________________________ 33
Increase in ordinance promulgation _______________________________________________________________ 33
Recent Case studies: ______________________________________________________________________ 34
Constitutional Objectivity _______________________________________________________________________ 34
Members of Parliament Local Area Development Scheme (MPLADS) ____________________________________ 35
Between Judiciary and Executive _____________________________________________________________35
Central Vista Project and Judicial Review ___________________________________________________________ 35
Tussle between the judiciary and the elected government in Andhra Pradesh _____________________________ 36
Between Judiciary and Legislature ____________________________________________________________37
Doctrine of Checks & Balance ____________________________________________________________________ 37
Instances of checks and balances _______________________________________________________________ 37
Conclusion _________________________________________________________________________________ 38

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OnlyIAS Nothing Else PRAHAAR: Indian Polity

Parliament and State Legislatures—Structure, Functioning, Conduct of Business, Powers & Privileges
and Issues Arising out of these. _________________________________________________________39
Introduction _______________________________________________________________________________ 39
Constitutional provisions ___________________________________________________________________39
Features of Parliamentary form of govt __________________________________________________________ 40
Reasons for adopting parliamentary form of government ___________________________________________ 40
Difference between the parliamentary and presidential form of government: ________________________40
Functions OF the Parliament: ____________________________________________________________________ 40
Issues faced by Indian legislature _________________________________________________________________ 41
Implications of poor functioning of legislature ____________________________________________________ 41
Suggested Parliamentary Reforms ______________________________________________________________ 42
various other issues faced by Indian legislature _________________________________________________42
Falling productivity of Rajya Sabha ________________________________________________________________ 42
Important facts ___________________________________________________________________________ 42
Relevance of Rajya Sabha _____________________________________________________________________ 43
Reasons for low productivity: __________________________________________________________________ 43
Position of Rajya Sabha vis-à-vis Lok Sabha _______________________________________________________ 43
Way forward _____________________________________________________________________________ 44
Conclusion ______________________________________________________________________________ 44
Parliamentary privileges ________________________________________________________________________ 44
Types of Parliamentary privileges ____________________________________________________________ 44
Parliamentary privileges and evolution: _________________________________________________________ 45
Importance of privileges: _____________________________________________________________________ 45
Issues with these privileges: ___________________________________________________________________ 45
Balance between free speech and parliamentary privileges: ___________________________________________ 45
Supreme court on privileges: __________________________________________________________________ 46
Way forward: ____________________________________________________________________________ 46
Conclusion ______________________________________________________________________________ 46
Role of opposition _____________________________________________________________________________ 46
Role of the opposition on Indian democracy: _____________________________________________________ 46
Issues of opposition in India: __________________________________________________________________ 47
Impact of weak opposition: ___________________________________________________________________ 47
What reforms are needed? ___________________________________________________________________ 47
Role of president and governor as part of the legislature ______________________________________________ 47
Role of President as part of the legislature: ______________________________________________________ 48
Role of Governor as part of the legislature: ______________________________________________________ 48
Issue of the ordinance: _______________________________________________________________________ 48
Recent case studies: _______________________________________________________________________ 49
Socio-economic profile of the parliament __________________________________________________________ 49
Slumbering parliament _________________________________________________________________________ 50
Criminalization of politics _______________________________________________________________________ 50
Reasons: __________________________________________________________________________________ 51
Effects of criminalization of politics: ____________________________________________________________ 51
Measures to be taken: _______________________________________________________________________ 51
Low participation of women in politics ____________________________________________________________ 51
Status of participation and important data: ______________________________________________________ 52
Reasons/Challenges for women in parliament: ____________________________________________________ 52
Importance of women in parliament and other decision making bodies: _______________________________ 52
Way forward: ______________________________________________________________________________ 52
Anti-Defection Law ____________________________________________________________________________ 53
Anti-defection law: __________________________________________________________________________ 53
Need of Anti-defection law ___________________________________________________________________ 53
Importance of Anti defection law: ______________________________________________________________ 53
Issues with Anti defection law:_________________________________________________________________ 54

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● Affects the independence of the MPs: It violets their freedom of speech and they can't take any
independent stand over issue. Even in the USA when motion was bought up against Mr Trump’s impeachment
seven legislators of Republican Party voted to impeach him and faced no consequences. _________________ 54
IMPACT OF DEFECTION POLITICS ON INDIAN DEMOCRACY __________________________________________ 54
Karnataka post-election crisis-2019 _____________________________________________________________ 54
Role of the presiding officer _____________________________________________________________________ 55
Functions performed by presiding officer ________________________________________________________ 55
Concerns relating to presiding officer ___________________________________________________________ 55
Important Judgments relating to speaker ________________________________________________________ 56
KEISHAM MEGHACHANDRA SINGH V. UNION OF INDIA __________________________________________ 56
KihotoHollohan v Zachillhu and others ________________________________________________________ 56
Recommendations of various committees on Anti-defection law _____________________________________ 56
Way Forward ____________________________________________________________________________ 56
Case studies of Andhra Pradesh and Telengana: ___________________________________________________ 57
SEDITION ____________________________________________________________________________________ 57
History of Sedition __________________________________________________________________________ 57
Arguments in favour of Sedition _______________________________________________________________ 58
The argument against Section _________________________________________________________________ 58
SUPREME COURT JUDGMENTS ON SEDITION _____________________________________________________ 59
Law Commission views on Sedition: ____________________________________________________________ 59
PARLIAMENTARY SCRUTINY _____________________________________________________________________ 60
Various methods of Parliamentary scrutiny of the government ______________________________________ 60
REASONS FOR INEFFECTIVE PARLIAMENTARY SCRUTINY: ___________________________________________ 60
Way forward: ______________________________________________________________________________ 61
QUESTION HOUR and erosion of Parliamentary oversight _____________________________________________ 61
IMPORTANCE OF QUESTION HOUR _____________________________________________________________ 61
Impact of the decision to suspend question hour: _________________________________________________ 61
Parliamentary oversight ______________________________________________________________________ 62
Mechanisms for Parliamentary oversight over executive _________________________________________ 62
Erosion of Parliamentary oversight: _____________________________________________________________ 62
Reasons for the erosion of Parliamentary oversight: _______________________________________________ 62
How to strengthen parliamentary oversight: _____________________________________________________ 62
Way forward: ______________________________________________________________________________ 63
Performance of the 16th Lok Sabha: ______________________________________________________________ 63
State Legislature __________________________________________________________________________64
Utility of Second Chamber in States _______________________________________________________________ 64
Criticism of Second Chamber in States __________________________________________________________ 64
Issues faced by state legislature ________________________________________________________________ 65

Judiciary ___________________________________________________________________________65
Comparison of Indian and other Judicial systems: _______________________________________________66
India-USa ____________________________________________________________________________________ 66
India-UK _____________________________________________________________________________________ 67
Convergence _________________________________________________________________________________ 67
Various significant roles that judiciary plays ____________________________________________________67
Judiciary as protector of Fundamental rights _______________________________________________________ 67
Judiciary as protector constitution and saviour from the arbitrariness of government/state _________________ 68
The role played by the judiciary during a pandemic __________________________________________________ 68
Important Judicial concepts: ________________________________________________________________69
Principle of Natural justice: ___________________________________________________________________ 69
Issues in Indian Judiciary ___________________________________________________________________70
Judicial Pendency _____________________________________________________________________________ 70
Judicial appointments: _________________________________________________________________________ 71
Three-Judge Cases __________________________________________________________________________ 72
Lacuna in Collegium System: __________________________________________________________________ 72
Steps taken:________________________________________________________________________________ 72
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OnlyIAS Nothing Else PRAHAAR: Indian Polity

• Memorandum of Procedure (MOP): ________________________________________________________ 72

Advantages of MOP:_______________________________________________________________________ 73
Way Forward: ______________________________________________________________________________ 73
Removal of Judges _____________________________________________________________________________ 73
Transfer of judges _____________________________________________________________________________ 74
Judge’s Recusal _______________________________________________________________________________ 74
Judicial accountability: _________________________________________________________________________ 75
Need of judicial accountability: ________________________________________________________________ 75
Areas where judicial accountability is lacking: ____________________________________________________ 75
Steps taken to ensure judicial accountability: _____________________________________________________ 76
Steps required: _____________________________________________________________________________ 76
Corruption in judiciary and need of vigilance wing ___________________________________________________ 76
Reasons for judicial corruption: ________________________________________________________________ 76
Steps to control corruption: ___________________________________________________________________ 77
Lack of transparency in Judiciary--Virtually outside RTI _______________________________________________ 77
Article 131 ___________________________________________________________________________________ 77
Judicial activism and judicial overreach ____________________________________________________________ 78
Benefits of Judicial activism:___________________________________________________________________ 79
Judicial Overreach: __________________________________________________________________________ 79
Causes of Judicial activism and Judicial Overreach: ______________________________________________ 79
Concerns over Judicial overreach ____________________________________________________________ 79
Way ahead ________________________________________________________________________________ 80
Judicial restraint under article 142: ___________________________________________________________ 80
Contempt of Court ____________________________________________________________________________ 80
Need of contempt power: ____________________________________________________________________ 80
Argument against: __________________________________________________________________________ 81
lack of representation of Women in Judiciary _______________________________________________________ 82
Facts _____________________________________________________________________________________ 83
Importance of women representation: __________________________________________________________ 83
Important issues ____________________________________________________________________________ 83
Challenges to improve participation ____________________________________________________________ 84
Way forward: ______________________________________________________________________________ 84
Judges and Post Retirement Positions _____________________________________________________________ 84
Solutions for issues faced by THE Indian Judiciary _______________________________________________86
Moving Towards Virtual Courts __________________________________________________________________ 86
Advantages of virtual Judicial proceedings: _______________________________________________________ 86
Challenges: ________________________________________________________________________________ 86
Various initiatives undertaken: ________________________________________________________________ 86
Way Forward: ______________________________________________________________________________ 86
Fast Track Courts ______________________________________________________________________________ 86
Historical evolution: _________________________________________________________________________ 87
Advantages of FTC: __________________________________________________________________________ 87
Issues faced: _______________________________________________________________________________ 87
Way Forward: ______________________________________________________________________________ 87
Regional Bench of Supreme Court ________________________________________________________________ 88
Need for Regional Benches ___________________________________________________________________ 88
Concerns __________________________________________________________________________________ 88
Tribunals ____________________________________________________________________________________ 88
Advantages Tribunals: _______________________________________________________________________ 89
Concerns with tribunals: ______________________________________________________________________ 89
Way forward: ______________________________________________________________________________ 89
ADR (Alternative Dispute Resolution) _____________________________________________________________ 90
Advantages of ADR: _________________________________________________________________________ 90
Limitation of ADR ___________________________________________________________________________ 90
Way forward: ______________________________________________________________________________ 91
ZERO PENDENCY COURTS PROJECT-_______________________________________________________________ 91
ALL INDIA JUDICIAL SERVICES ____________________________________________________________________ 91
Need of AIJS: _______________________________________________________________________________ 91

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Challenges: ________________________________________________________________________________ 92
Way Forward: ______________________________________________________________________________ 92
Gram nyayalayas ______________________________________________________________________________ 92
Evolution of Gram nyayalayas: _________________________________________________________________ 92
Reason for poor functioning of Gram Nyayalaya: __________________________________________________ 93
Way forward: ______________________________________________________________________________ 93
NALSA ______________________________________________________________________________________ 93
Main functions: _____________________________________________________________________________ 94
Challenges faced in ensuring free legal aid: _______________________________________________________ 94
Way Forward _______________________________________________________________________________ 94
Conclusion _______________________________________________________________________________94
Dispute redressal mechanism __________________________________________________________95
Tribunals (Part XIV-A; Article 323A, 323B) ______________________________________________________96
Central Administrative Tribunal __________________________________________________________________ 96
TribunaliZation _______________________________________________________________________________ 97
The Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021 ______________________________ 98
Criticism of Ordinance _______________________________________________________________________ 99
Concerns with tribunals: _____________________________________________________________________ 100
Advantages of Tribunals: ____________________________________________________________________ 100
Way forward: _____________________________________________________________________________ 100
Inter-State Water Disputes _____________________________________________________________________ 100
Inter-State Water Disputes Act (ISWD), 1956 ______________________________________________________ 101
Issues with Inter-State Water Tribunals_________________________________________________________ 102
The Inter-State River Water Disputes (Amendment) Bill, 2019_________________________________________ 103
Issues with the Bill _________________________________________________________________________ 104
Way forward ______________________________________________________________________________ 104
Recent Cases of River Water dispute between the states __________________________________________ 104
Vamsadhara River Water Dispute _______________________________________________________________ 104
Decision by Tribunal: _______________________________________________________________________ 105
Water Dispute between Telangana and Andhra Pradesh _____________________________________________ 105
Godavari Water Dispute Tribunal (GWDT) ______________________________________________________ 105
Krishna Water Dispute Tribunal (KWDT _________________________________________________________ 105
Alternative Dispute Resolution (ADR) Mechanisms _____________________________________________106
ADR techniques ______________________________________________________________________________ 106
Arbitration ________________________________________________________________________________ 107
Conciliation _______________________________________________________________________________ 107
Case study ______________________________________________________________________________ 107
Mediation ________________________________________________________________________________ 107
Negotiation _______________________________________________________________________________ 107
SAROD-Ports: Dispute Resolution Mechanism______________________________________________________ 107
Lok Adalats _________________________________________________________________________________ 108
Advantages of ADR: ________________________________________________________________________ 109
Limitation of ADR __________________________________________________________________________ 109
Way forward: _____________________________________________________________________________ 110
Issues in News _____________________________________________________________________________ 110
Online Dispute Resolution _____________________________________________________________________ 110
Benefits of ODR ____________________________________________________________________________ 111
Challenges associated with ODR ______________________________________________________________ 111
Way ahead _______________________________________________________________________________ 112
Arbitration and Conciliation (Amendment) Bill, 2021 ________________________________________________ 112
Key features ______________________________________________________________________________ 113
Issue with proposed bill: _____________________________________________________________________ 113

Local self-government (Part IX, PART IX-A) ______________________________________________113

THE PanchayaTS _________________________________________________________________________114
Issues and challenges faced by Panchayati Raj government ___________________________________________ 115

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Fund_____________________________________________________________________________________ 115
Functions _________________________________________________________________________________ 116
Functionaries______________________________________________________________________________ 116
Other issues related to panchayats in news _____________________________________________________ 116
Right to recall panchayat member _______________________________________________________________ 116
Education criteria for panchayat elections _________________________________________________________ 117
25 years to Panchayat Raj – analysing numbers ____________________________________________________ 118
Devolution Index, 2019 ___________________________________________________________________ 118
Government Servants as Gram Panchayat Administrator _____________________________________________ 118
Rotation of Panchayat Seats between Men and Women _____________________________________________ 119
Way Forward/Suggestions _____________________________________________________________________ 119
PESA Act of 1996 (Extension Act) ______________________________________________________________ 120
The Municipalities ________________________________________________________________________120
Issues in Municipalities ________________________________________________________________________ 121
Recent news about ULB’s ____________________________________________________________________ 122
Urban local body reforms ______________________________________________________________________ 122
Role of local government during COVID ___________________________________________________________ 122
Performance - success stories __________________________________________________________________ 122
Way forward ________________________________________________________________________________ 123
Conclusion ________________________________________________________________________________ 123

constitutional posts – appointment , functions & powers ___________________________________124

Comptroller and Auditor General of India _____________________________________________________124
Current context ____________________________________________________________________________ 124
Introduction ______________________________________________________________________________ 124
Constitutional provisions: ____________________________________________________________________ 124
Duties and Power of CAG ____________________________________________________________________ 124
Independence of CAG _______________________________________________________________________ 124
Limitation of office of CAG ___________________________________________________________________ 125
CAG’s role in pandemic time: ___________________________________________________________________ 125
Way forward for complete topic of CAG ________________________________________________________ 126
Conclusion: _______________________________________________________________________________ 126
NCSC, NCST, NCBC ________________________________________________________________________126
Constitutional provisions: ____________________________________________________________________ 126
Functions of NCSC/NCST/NCBC _______________________________________________________________ 126
Specific functions of NCST: ___________________________________________________________________ 127
Limitations of constitutional bodies to protect vulnerable sections: __________________________________ 127
102nd constitutional amendment act _____________________________________________________________ 127
Positive effects of giving constitutional status to NCBC: _________________________________________ 127
Concerns that remains: ___________________________________________________________________ 127
Steps need to be taken: _____________________________________________________________________ 128
Performance evaluation of NCSC and NCST: _____________________________________________________ 128
Real issues of the communities seem to be not addressed completely. _____________________________ 128
UPSC and SPSC __________________________________________________________________________129
Constitutional provisions ____________________________________________________________________ 129
UPSC ____________________________________________________________________________________ 129
SPSC _____________________________________________________________________________________ 129
Independence of commission ________________________________________________________________ 129
Functions _________________________________________________________________________________ 130
Limitations________________________________________________________________________________ 130
Conclusion: _______________________________________________________________________________ 130
Election Commission ______________________________________________________________________130
Introduction ______________________________________________________________________________ 130
Constitutional provisions ____________________________________________________________________ 131
About election commission of India____________________________________________________________ 131
Powers and functions _______________________________________________________________________ 131

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OnlyIAS Nothing Else PRAHAAR: Indian Polity

Independence _____________________________________________________________________________ 131

Concerns with Election commissioners _________________________________________________________ 131
Steps to address issues in appointment: ________________________________________________________ 132
Issues faced by Election Commission ___________________________________________________________ 132
Way Forward ______________________________________________________________________________ 132
State election commission _________________________________________________________________132
Role of the Election commission of India in regulating the political parties __________________________ 133
Steps required to improve effectiveness: _____________________________________________________ 133
Conclusion: _____________________________________________________________________________ 133
Simultaneous Elections - PM on One Nation, One Election ___________________________________________ 133
Arguments against simultaneous elections: ___________________________________________________ 134
Way forward: ___________________________________________________________________________ 134
Conclusion _____________________________________________________________________________ 134
A Single Voters’ List ___________________________________________________________________________ 134
Reasons for the demand for a Single voter’s list ________________________________________________ 134
Challenges: _____________________________________________________________________________ 134
EVM controversy _____________________________________________________________________________ 135
Concerns regarding EVMs: _________________________________________________________________ 135
Advantages of EVMs over paper ballot: ______________________________________________________ 135
Way forward: ___________________________________________________________________________ 136
NOTA ______________________________________________________________________________________ 136
About NOTA:____________________________________________________________________________ 136
Significance of NOTA/Arguments in favor of Right to reject: ______________________________________ 136
Arguments against the right to reject: _______________________________________________________ 136
Reasons for lower votes for NOTA: __________________________________________________________ 136
Way forwards: __________________________________________________________________________ 137
Elections during COVID times ___________________________________________________________________ 137
Challenges to conducting elections during a pandemic: _________________________________________ 137
Way forward: ___________________________________________________________________________ 137
Powers of Election Commission to Delay Polls _____________________________________________________ 137
Constitutional provisions: _________________________________________________________________ 138
Provisions for postponement of election: _____________________________________________________ 138
Way forward: ___________________________________________________________________________ 138
Model Code of Conduct(MCC) __________________________________________________________________ 138
About MCC: ____________________________________________________________________________ 138
Challenges: _____________________________________________________________________________ 138
Way forwards: __________________________________________________________________________ 139
Shall we make MCC legally enforceable? _____________________________________________________ 139
Star campaigner _____________________________________________________________________________ 139
ECI excluded Mr. Kamalnath from the star campaigner list for MP bypolls and Ex-telecom minister M. Raja for
making certain remarks during the campaign which violates MCC. ___________________________________ 139
Ceiling on star campaigner number ____________________________________________________________ 139
Recognised National/State party -40 ___________________________________________________________ 139
Unrecognised political party-20 _______________________________________________________________ 139
Election funding______________________________________________________________________________ 140
RPA provisions: __________________________________________________________________________ 140
Challenges with election funding: ___________________________________________________________ 140
Way forward: ___________________________________________________________________________ 141
Electoral bonds: ______________________________________________________________________________ 142
Arguments in Favour: _____________________________________________________________________ 142
Concerns raised by courts: _________________________________________________________________ 142
Election Commission Tackling Criminalization of Politics _____________________________________________ 142
ADR data on Criminalisation of politics: ______________________________________________________ 142
Reason for the criminalization of politics: _____________________________________________________ 142
Consequences of criminalization of politics: ___________________________________________________ 143
Steps taken _______________________________________________________________________________ 143
By Supreme court ________________________________________________________________________ 143
By the Election commission: _______________________________________________________________ 144

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OnlyIAS Nothing Else PRAHAAR: Indian Polity

Way forwards: __________________________________________________________________________ 144

Right to Recall _______________________________________________________________________________ 144
About right to recall: _____________________________________________________________________ 144
Advantages: ____________________________________________________________________________ 144
CHALLENGES: ___________________________________________________________________________ 145
Amendments in Postal Ballot System __________________________________________________________ 145
Annulment of Election of MLA ________________________________________________________________ 145
Election petition: _____________________________________________________________________________ 145
Grounds for disqualifications of MP/MLA _____________________________________________________ 145
Blockchain Technology in Voting ________________________________________________________________ 146
Advantages: ____________________________________________________________________________ 146
Conclusion: _____________________________________________________________________________ 146
Autocratisation Goes Viral Report: V-Dem Institute _________________________________________________ 146
Role of Social media in Election: ______________________________________________________________ 147
Comparison of Indian and USA election commission ______________________________________________ 147
Delimitation commission: __________________________________________________________________148
Special Officer For Linguistic Minority ________________________________________________________149
Attorney General of India __________________________________________________________________149
nhrc and shrc ____________________________________________________________________________150
Protection of Human Rights (Amendments) Act, 2019 _______________________________________________ 151
central information commission and state information commission________________________________152
central vigillance commission_______________________________________________________________153
Union Executive & State Executive _____________________________________________________155
President _______________________________________________________________________________155
Constitutional Provisions ____________________________________________________________________ 155
Vice- President __________________________________________________________________________156
Constitutional Provisions: ____________________________________________________________________ 156
Powers & Functions of vice-president __________________________________________________________ 156
Elections of president & vice-president _________________________________________________________ 156
Comparison of election of president & vice president ___________________________________________ 156
Why Constitution preferred indirect election? _________________________________________________ 157
Why there is difference between election of president & Vice-President?___________________________ 157
Term, qualification & removal of president & governor ____________________________________________ 157
Impeachment Process of President ____________________________________________________________ 157
Governor _______________________________________________________________________________158
Constitutional Provisions ____________________________________________________________________ 158
Arguments against elected Governor _______________________________________________________ 159
Arguments in favour of elected Governor (against nominated) __________________________________ 159
Powers of President & Governor ________________________________________________________________ 159
Executive Powers __________________________________________________________________________ 159
President reappointed AG _________________________________________________________________ 160
President Rule in Puducherry ______________________________________________________________ 160
Legislative Powers__________________________________________________________________________ 160
The powers to summon the House __________________________________________________________ 161
Maharashtra Govt and Governor loggerhead over LC nominations ________________________________ 162
President Ramnath Kovind addressed first Parliament session of 2021 _____________________________ 162
Kerala Governor Arif Mohammad Khan addressed the Legislative Assembly of the State _______________ 162
What If the President/Governor disagrees with the text of the speech ? ____________________________ 162
Financial Powers ___________________________________________________________________________ 162
Haryana constituted 6th Finance commission __________________________________________________ 163
Judicial Powers ____________________________________________________________________________ 163
48th CJI of India – Justice N V Ramana ________________________________________________________ 163
Other Powers of President ___________________________________________________________________ 163

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Privileges and Immunities enjoyed by President & Governor (Article 361) _____________________________ 164
veto powers of president ______________________________________________________________________ 164
Comparison of veto power of President & Governor ____________________________________________ 164
ordinance making power of president & governor __________________________________________________ 165
Presidential overreach/Governor Overreach ____________________________________________________ 166
Why ordinance route is considered undemocratic? _____________________________________________ 167
pardoning power of president & governor ________________________________________________________ 167
Difference between Pardoning powers of President & Governor ____________________________________ 168
Issue of granting remission to convicts by state/Governor _______________________________________ 168
Pardon plea of A G Perarivalan _____________________________________________________________ 169
Mercy petition filed by death row convict ____________________________________________________ 169
discretion powers of president & governor ________________________________________________________ 169
Issues related to governor _____________________________________________________________________ 170
Recommendations of sarkaria commission ________________________________________________________ 170
Prime minister & Chief minister _____________________________________________________________171
Constitutional Provisions ____________________________________________________________________ 171
Factors that strengthen the position of PM in India _______________________________________________ 172
Powers & functions of PM & CM ______________________________________________________________ 173
In Relation to Council of Ministers __________________________________________________________ 173
In Relation to President/Governor __________________________________________________________ 173
In relation to Parliament/State Legislature ____________________________________________________ 173
Other Power & Functions of PM ____________________________________________________________ 174
Other Power & Functions of CM ____________________________________________________________ 174
Uttarkhand CM is not a member of the legislative assembly yet. ____________________________________ 174
Complaint Against PM under Lokpal ___________________________________________________________ 175
Council of ministers ______________________________________________________________________175
Constitutional Provisions ____________________________________________________________________ 175
Responsibility of ministers ___________________________________________________________________ 176
Collective Responsibility __________________________________________________________________ 176
Individual Responsibility __________________________________________________________________ 176
Composition of council of ministers____________________________________________________________ 177
Cabinet ________________________________________________________________________________ 177
Difference between CoM & Cabinet _________________________________________________________ 177
Kitchen Cabinet _________________________________________________________________________ 178
Cabinet Committees ______________________________________________________________________ 178
Government set up 2 new Cabinet Committees ________________________________________________ 179
GROUP OF MINISTERS AND EMPOWERED GROUP OF MINISTERS _________________________________ 179
GoM on Onion Crises _____________________________________________________________________ 180
GoM to examine possible waiver of GST on COVID related relief material ___________________________ 180

Ministries & department of government ________________________________________________181

Parliamentary Secretaries ______________________________________________________________________ 181
Parliamentary Committees: ____________________________________________________________________ 182
Role of parliamentary committees_____________________________________________________________ 182
Issues faced by committees: _________________________________________________________________ 183
Way forward: _____________________________________________________________________________ 183
Group of Ministers: Media Strategy ______________________________________________________________ 183
Challenges with GoMs: ______________________________________________________________________ 184
Group of Ministers (GoM) Report on Media Strategy: _____________________________________________ 184

Pressure Groups & fORMAL/ INFORMAL ASSOCIATIONS AND THEIR ROLE IN POLITY _____________185
BASIC CHARACTERISTICS OF PRESSURE GROUPS ____________________________________________________ 185
Types of pressure groups ______________________________________________________________________ 185
TECHNIQUES/METHODS OF PRESSURE GROUPS ____________________________________________________ 185
Role & Importance of Pressure groups ___________________________________________________________ 186
Some pressure groups in india __________________________________________________________________ 186
BenEfits associated with pressure groups _________________________________________________________ 187
Issues OF PRESSURE GROUPS and their critical evaluation ____________________________________________ 187

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ISSUES IN NEWS _________________________________________________________________________187

REGULATION OF NGO’S IN INDIA ________________________________________________________________ 188
Amnesty international halts in india______________________________________________________________ 188
REGULATIONS FOR ott (OVER-THE-TOP) PLATFORMS and news _______________________________________ 189
TELEVISION RATING IN INDIA ___________________________________________________________________ 191
THREATS TO FREEDOM OF PRESS IN INDIA ________________________________________________________ 191
conclusion: _____________________________________________________________________________192
Representation of peoples’ Act ________________________________________________________193
Official machinery under the act For conduct of election _____________________________________________ 193
provisions regarding DisQualifications in rpa, 1951 _________________________________________________ 194
Registration of Political parties __________________________________________________________________ 195
Right to know _______________________________________________________________________________ 196
Form 26 ____________________________________________________________________________________ 197
Election petition _____________________________________________________________________________ 198
Corrupt practices _____________________________________________________________________________ 199
Electoral offences ____________________________________________________________________________ 199
Related issues in news ___________________________________________________________________________ 200
Paid news ___________________________________________________________________________________ 200
Voting rights to non-resident indians through postal ballot ___________________________________________ 201

Constitutional Comparison ___________________________________________________________203

India and USA ___________________________________________________________________________203
India and Britain _________________________________________________________________________205
India and France _________________________________________________________________________207
India and China __________________________________________________________________________208

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OnlyIAS Nothing Else PRAHAAR: Indian Polity

ISSUES & CHALLENGES PERTAINING TO THE FEDERAL STRUCTURE

FEDERALISM IN INDIA AND CENTRE STATE RELATIONS

Introduction
Federalism is a system of government in which power is divided between a central authority and constituent
political units. Indian Federalism is different from the type of Federalism practiced in countries like the United States
of America.
Indian model of federalism is called a quasi-federal system as it contains major features of both a federation and
union. It can be better phrased as ‘federation sui generis‘ or federation of its own kind.
Is India truly federal?
• The term ‘federation’ is nowhere mentioned in the Constitution. Article 1 on the other hand describes
India as ‘Union of States’.
• This implies that unlike USA, Indian federation is not the result of agreement between the states rather
states have been created out of India and powers have been distributed between the governments for
the purpose of better administration and governance.
Features which make India a federal state
▪ Two governments – There is Union government at the Central level and State governments at the state
level.
▪ Division of powers- The seventh schedule divides the power between the Central and the state
governments.
▪ Written Constitution- Unlike UK, India has a written Constitution.
▪ Supremacy of the Constitution- India is different from UK where Parliament is supreme.
▪ Rigidity of the Constitution- Indian Constitution cannot be amended by a simple majority. Also, the power
to amend the Constitution lies with only the Parliament.
▪ Independent judiciary- judiciary is independent from the legislative and the executive to impartially decide
the case between the governments.
▪ Bicameralism- While the Lok Sabha has people’s representatives, the Rajya Sabha has representatives of
the states.
▪ Electoral federalism- In India, federalism is not merely a legal division of power, democracy and voters too
are becoming federal. Huge vote swings between national and state elections, separated by only few
months, in the same constituencies serve as example of this behaviour.
Non-federal features
▪ Single Constitution- Unlike USA, Indian states do not have separate constitution.
▪ Single Citizenship- In USA, a citizen of California will have the Citizenship of both California as well as USA.
However, India provides only a single citizenship
▪ Integrated judiciary- There is no state and federal judiciary in India, rather an integrated judiciary.
▪ Strong Centre- India assumes a unitary character during emergency.
▪ Flexibility of the Constitution – In USA Constitution cannot be amended without the concurrence of the
states. However, in India several provisions can be amended by Parliament alone.
▪ Centralised nature of fiscal architecture – Centrally sponsored schemes (CSS) form sizeable chunk of
intergovernmental fiscal transfers. In 2021-22 CSS forms 23% of transfers to states. The problem with CSS
is that it is transferred under Article 282 of the Constitution which is ‘Miscellaneous Financial Provision’.
Further, states lack autonomy in spending CSS funds.
▪ Demos-enabling federalism- the design of India federalism places fewer checks on the power of national
majorities.
o For eg. the composition of Rajya Sabha mirrors the composition of Lok Sabha rather than providing
equal powers to states.
▪ Lack of equivalent powers to states-Under Article 355, it is the duty of Union government to ensure that
government of every state is carried in accordance with the provisions of the Constitution. However, no
equivalent power is given to state government.

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o For eg, when several state governments raised objections against National Population Register, Union
government reminded the state’s obligations under Article 355.
Conclusion- Even though the States are sovereign in their prescribed legislative field, and their executive power is
co-extensive with their legislative powers, it is clear that “the powers of the States are not coordinate with the
Union”. This is why the Constitution is often described as ‘quasi-federal’.

Asymmetric federalism in India

Introduction - Asymmetric federalism” is understood to mean federalism based on unequal powers and
relationships in political, administrative and fiscal arrangements spheres between the units constituting a
federation. Asymmetry in the arrangements in a federation can be viewed in both vertical (between Centre and
states) and horizontal (among the states) senses.

Importance of asymmetric federalism in case of India

▪ Securing rights - The Constitution's special clauses have aided in the protection of fundamental rights and
have compensated for initial differences in the social structure.
▪ Protecting ethnicity and culture- Article 371 provides special powers to northeastern states. The
safeguards provided to these states through special provisions include respect for customary laws, religious
and social practices etc.
▪ Consolidate social fabric- People feel empowered and less separated when special powers and semi-
autonomy are provided. It prevents secessionist and separatist tendencies.
▪ Strengthens democracy- by providing representation to minority areas.
▪ Strengthens the concept of Unity in diversity – by protecting vulnerable groups through special powers.
▪ Social justice- through the provisions of special status and special category status
Challenges of asymmetric federalism
▪ Source of conflict between the states and the centre- demand of special category status by several states
like Bihar and Andhra Pradesh have become a source of conflict between centre and states.
▪ Allegation of Partisanship – for eg southern states had alleged about discriminatory terms of reference of
the 15 Finance Commission.
th

▪ Arbitrariness – discriminating between the units can create problems. For eg. questions have emerged on
why special category status has not been given to states like Jharkhand and Chhattisgarh despite
satisfying the criteria.
▪ Lack of quantifiable criteria to discriminate among the units. Many times, preferential treatment given
to some units is governed by politics rather than need.

Conclusion- There is a need to have transparent and rule based asymmetry in India which should be aligned with
changing socio-economic order. To understand Indian federalism and its dynamics we need to closely examine
centre state relation in India as federalism is about division of power among both.

CENTRE STATE RELATIONSHIP

• In a system of multi-level governance, operating essentially in a federal framework, like that of India,
harmonious relations between the Centre and the States are critical for the stability, security and economic
development of the country
• Power division: The Constitution divided the powers between the Centre and the states in terms of the
Union List, State List and Concurrent List in the Seventh Schedule. The Union List consists of 100 subjects,
the State List 61 subjects and the Concurrent List 52 subjects.
Constitutional provisions
Article 245 Extent of laws made by Parliament & Article 251 Inconsistency between laws made by
state legislature Parliament U/A 249 & 250 and laws
made by state legislature

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Article 246- Subject matters of laws made by Article 252 Powers of Parliament to legislate for two
Parliament & state legislature or more states
Article 247- Power of Parliament to provide for Article 253 Legislation for effecting international
additional courts. agreement.
Article 248 Residuary powers of legislation Article 254 Inconsistency between laws made by
Parliament & state legislature
Article 249 Powers of Parliament to legislate on Article 255 Requirements as to recommendations
matters of state list in national interest and previous sanctions to be regarded as
matters of procedure only
Article 250- Powers of Parliament to legislate on Article 256 Obligations of states and Union
matters of state list if proclamation of
emergency is in operation
Article 257- Control of the Union over states in Article 260 Jurisdiction of Union in relation to
certain cases territories outside India
Article Assistance to states by deployment of Article 261 Public acts, records & judicial
257A armed forces proceedings
Article 258- Power of Union to confer powers to Article 262 Adjudication of Inter-state river water
states in certain cases disputes
Article Powers of states to entrust functions to Article 263 Provision of inter-state Council
258A Union
Article 268 Duties levied by the Centre but collected Article 274- Prior recommendation of President for
and appropriated by states bills affecting taxation in which states
are interested
Article 269 Taxes levied and collected by Union but Article 275 Grants from Union to certain states
assigned to states
Article GST on supplies in course of inter-state Article GST Council to be formed by the
269A trade 279A President to administer and govern GST
Article 270 Taxes levied and distributed between Article 280 Finance Commission
the Union and states
Article 271 Surcharge on certain duties and taxes

The Indian Constitution contains elaborate provisions to regulate various dimensions of relations between the
Centre and the states.
• Legislative Relations – Articles 245 to 255 deal with legislative relations between the Centre and the states.
The seventh schedule divides the legislative authority in three lists i.e. Union list, State list and the
Concurrent list.
• Administrative relations - Articles 256 to 263 deal with legislative relations between the Centre and the
states. The administrative jurisdiction of the Union and the State Governments extends to the subjects in
the Union list and State list respectively.
• Financial relations - Article 268 to 293 deals with the provisions of financial relations between the Centre
and States. As per Article 280, a Finance Commission is set up by the President every five years to make
recommendations regarding distribution of financial resources

Evolution of Centre State relationship post-independence

Political experts have classified the evolution of Centre state relationship in India post-independence into four
phases.

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Phase 1 (1950-67)– Centre’s domination over the states.

• Dominance of the Congress party both at the Centre as well as in the states, Irritants in the Centre state
relationship were solved at the level of the party. Congress party resorted to consultation, accommodation
and consensus
• Centre through the Planning Commission and National development Council exerted influence over the
states. For eg Planning Commission looked after several matters such as agriculture, health, education
which were state subjects.
• Zonal Council was created in this phase to foster Cooperative federalism.

Phase 2 (1967-77) – Process of Centralization

• Assertion by the states as the Congress party lost nearly half of the Indian states at the fourth general
elections to the opposition or the coalition parties.
• Misuse of Article 356: Several attempts were made by the congress party to regain political power in the
states including misuse of Article 356. Mrs Indira Gandhi tried to use the dominance of the congress party
to make the Centre stronger.
• Centre-state conflict was at its peak during the period of 1967-71.
• Strong centre: Forty-second Constitutional amendment was passed in the process to make the Centre
stronger. This process of Centralization led to the imposition of a national emergency in 1975-77.

Phase 3 (1977-89) –Coalition

• Congress lost its power: In the year 1977, Congress lost its power at the Centre and the Janta party came
to power which believed in economic and political decentralization. It dismissed nine state governments
ruled by the congress party.
• The congress party returned to power in the general election of 1980 and resorted to the same tactics
followed by the Janata party by dismissing state governments of nine states.
• Demand for autonomy: This phase saw demand for autonomy from several states and regions. For
example, the four southern states declared formation of a regional council to put forth their demand for
more economy.
• When the Rajiv Gandhi government came to power, it tried to build a coalition but at the same time tried
to centralize powers.

Fourth Phase (1989 onwards)- Greater federalization

• Coaliation government: The general election of 1989 to Lok Sabha witnessed the emergence of a multi-
party system and with this began the process of greater federalization. From 1989 to 2014, no party was
able to get a majority at the Centre and the coalition government became a norm.
• The regional parties played a decisive role at the Central level. Since the 1990s, the importance of Rajya
Sabha as a Federal second chamber has become more pronounced.

Current phase of centre state relations

➢ Cooperative federalism, the central government and the states have a horizontal partnership in which they
"cooperate" for the greater good.
• Ensure states participation: It's a crucial tool for allowing states to participate in the development and
execution of national policies.
• Work together: The union and the states are required by the constitution to work together on the issues
mentioned in Schedule VII of the constitution.
• The Constitution of India had provided for the cooperative federalism in the inter-state council, Zonal
Council.
o For Example:- Implementation of GST is recent instance of cooperative federalism apart from this
presentation of states and union territories at NITI aayog strengthening the horizontal relation
between state and union and promoting cooperative federalism.

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➢ Competitive federalism: The endowments of governments, their available resource base, and their
comparative advantages all promote a competitive spirit in a free-market economy. Globalisation, on the other
hand, exacerbated existing inequalities and imbalances between states.
• In competitive federalism, states compete for benefits both among themselves and with the central
government.
• For example:
• States compete with one another to raise funds and investment, resulting in increased administrative
performance and growth activities.
• To create a strong sense of competitiveness, state-by-state Ease of Doing Business rankings are done.
• Restructuring of centrally sponsored schemes.
Important Supreme Court cases related to Centre State relations

• Rameshwar Oraon Vs State of Bihar and • B P Singhal Vs Union of India (2010)

others(1995): Supreme court said that it is Supreme Court held that,
mandatory for state governments to act
• President can remove a Governor without
according to the directions issued by the Central
government assigning any reason
• But this power cannot be exercised in
• State of Rajasthan Vs Union of India(1977) :
arbitrary or capricious manner
Supreme Court held that issuance of direction
• Change in Central government cannot be a
by the Centre to the state government is
ground for removal of Governors
justified under Article 256 if the manner in
which executive power of the state is exercised
is contravention to the enforcement of Central • Kuldip Nair Vs Union of India (2003)- The SC held that
laws the Indian Federalism is one of a kind in nature and is
• S R Bommai Vs Union of India (1994) custom fitted as per the particular needs of the nation.
Supreme court held that, • State of West Bengal Vs Union of India-The SC held
that decentralization of authority in India was mainly
• Power of the President to dismiss a to facilitate smooth governance of a large country and
state government is not absolute therefore, it contains many centralization features
• President can dismiss a state also.
government only when President’s rule • Sat Pal v State of Punjab and others -The court held
is approved by both the houses of the that in the absence of the terms federal or federation
Parliament and the existence of unitary features single
• Imposition of President’s rule is subject citizenship, a single constitution, integrated Judiciary,
to judicial review strong Centre, etc can help us conclude that the
• It can also reactivate a suspended Constitution of India is more Quasi-federal than
legislative assembly if it was suspended federal or unitary.
on mala fide grounds

Irritants in Centre State relationship

• Misuse of Article 356- to impose President’s rule in the state which has been used more than 125 times.
o Recent examples: imposition of President’s rule in Maharashtra after the 2019 polls.
• Appointment and removal of the Governor – Generally the coming up of a new party at the Centre is associated
with change in the Governor appointed by the previous regime.
o Recent examples: change of Governors in several states like West Bengal after the NDA government
came to power in 2014.
• Discriminatory and partisan role of the Governor- who acts as an agent of the party in power at the Centre.
o For eg, reservation of bills passed by the state government with a scrupulous motive.
• Allocation of financial resources- although state’s share in central pool of taxes has been increased, states have
complained of discrimination in allocation of financial resources.
o Eg allegation of discrimination by the southern states against 15th Finance Commission. - Unlike its
predecessor, the 15th Finance Commission decided to scrap the 1971 census and relied on 2011 census.

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This created a perception among the southern states that they were being penalised for effective
population control measures.
• Management of All India Services- State governments have no power to take disciplinary action against the
officials although they work for the state.
o Example: Recently centre recalled the West Bengal Chief Secretary after the controversy related to
cyclone review meeting.
• Encroachment of Centre on the subjects mentioned in the state list-
o Recent Examples- Many experts view the recent farm acts, like the Farmer’s Produce Trade and
Commerce act passed by the Union government as encroachment on the state list subject.
• Asymmetric federalism- where some states are not treated on equal footing.
o For eg special provision to some states like Gujarat, Maharashtra etc. (articles 371 A-H )
• Power of Centre to form or destroy states- Article 3 gives power to the Centre to create new state or alter
the boundary states even without the consent of the state.
o Example- Recently Centre bifurcated the state of Jammu and Kashmir into two Union territories viz.
Jammu and Kashmir and Ladakh.
• Issues with GST- Centre have been given disproportionate weightage in voting. States have also complained of
delay in payment of the state's share of GST by the Centre.

Other issues in news

INTER-STATE RIVER WATERS DISPUTE

• Many rivers in India flow through more than one state and this has given rise to disputes between states
for water.
Constitutional and statutory provisions related to Inter-state water disputes
1. Article 262(1) – it says that Parliament may by law 4. Inter-state River Water disputes act, 1956 – it
provide for the adjudication of inter-state river confers power to Parliament to establish a tribunal
waters dispute for settling interstate river water dispute. It also
2. Article 262(2)- it empowers Parliament to provide excludes the Supreme court from exercising
by law to prevent Supreme Court or any other jurisdiction over such cases.
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court from exercising jurisdiction with respect to 5. Seventh schedule of the constitution-
inter-state river waters dispute • entry 17 of state list – water supply, irrigation
3. Rivers Board Act, 1956- it was enacted with the and canal, drainage and embankment, water
view that the Centre would take control of storage and water power
regulation and development of interstate rivers • entry 56 of the Union List- regulation and
and valleys in public interest. development of interstate river and river valleys

• Major River water disputes in India- Cauvery water dispute, Mahanadi water dispute, Mahadayi water
dispute, Krishna water dispute, Godavari water dispute
Reasons behind rising inter-state river water disputes

1. Mismatch between demand and supply- India accounts for 18% of the world's population but only 4% of
the world's water resources.
2. Climate change- with increasing average global temperature, rivers are drying fast
3. Political factors – political leaders are linking the sentiments of people with river disputes as seen in the
Cauvery water dispute
4. Bifurcation of states- with the bifurcation of Andhra Pradesh and Telangana, dispute arose between these
states for the waters of Godavari river
5. Agriculture pattern- plantation of water guzzling crops like sugarcane and paddy in water deficit state like
Maharashtra and Karnataka has increased water demand

Issues in Inter-state water disputes

1. Constitutional-legal ambiguity- the use of river water belongs to the domain of states while the regulation
of interstate river water is the domain of the Centre. This has led to ambiguity in jurisdiction.
2. Historical-geographical ambiguity – political redrawing of territorial boundaries of the states often
undermined the natural historical heterogeneous nature of these states. This has added to the ambiguity
in the interstate river water dispute
3. Institutional ambiguity – Through the use of Article 262, Parliament has barred the Supreme Court from
interfering in interstate water disputes. But, Article 136 empowers the Supreme Court to hear the verdict
or judgement given by all the tribunal.
4. Lack of implementation of tribunal award by the executive is a major issue in resolving disputes

Issues with Interstate Water Dispute Act, 1956

1. For each inter-state water dispute, a separate tribunal has to be formed by the Central government.
2. No time frame for settling disputes- this has led to long delays in settling disputes. For eg Ravi Beas dispute
has been in existence for the last thirty years
3. There is no enforcement mechanism of the tribunal
4. Appeal against the decision of the tribunal by the parties involved further delays the settlement

Inter-state River Water Disputes (Amendment) Bill, 2019

Key features of the bill
• Dispute Resolution Committee (DRC)- it will seek to resolve disputes through negotiations within one year
extendable by six months
• Permanent Tribunal- Benches will be set up under the single tribunal with multiple benches which will take
up the dispute if it is not resolved by the Committee. A retired Supreme Court judge will head the tribunal
• Time frame- Tribunal must give its decision within three years which may be extended by two years.
• Decision of the Tribunal –the requirement to publish the decision in the official gazette has been done
away with.
• Data Bank- a data bank and information system at the national level will be maintained for each river basin

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Importance of the amendment bill

1. Reduced time and cost in settling the dispute – the bill provides for a time frame within which dispute has
to be resolved
2. The provision of DRC can help in avoiding legal disputes – the provision of DRC seeks to settle the dispute
amicably through negotiations before taking the tribunal route.
3. Transparent data collection and information systems will help in the resolution process.

Lacunas in the present bill

1. No clarity about how it is different: It is not clear as to how benches of the Permanent Tribunal would be
different from a separate tribunal constituted under the present act.
2. Ambiguity regarding finality of the award still remains as the Supreme Court can hear appeal against the
award of the tribunal.
3. Challenge of participation: Ensuring meaningful participation by the involved parties in the DRC remains a
huge challenge.
4. Politicization of dispute: The Tribunal judge selection Committee comprises three executive members
including the Prime Minister and a judicial member (Chief Justice of India). This provides the scope for
politicizing the dispute and the award of the tribunal.

Way Forward

1. Robust mechanism: There is a need for a robust mechanism to implement the award of the Tribunal.
2. Expert: The tribunal should be supported by subject matter experts.
3. Apart from the data of the river basin, other data should also be furnished on rainfall, climate change, need
of the states.
4. Greater cooperation: There is a need for greater centre-state and state-state cooperation as the possibility
of appealing to the Supreme Court after the decision of the tribunal still remains.

Supreme Court judgement in Cauvery water dispute

In the judgement, the Supreme Court stressed on the following points.

• Principle of equality- which implies just and reasonable use and drinking water requirement should be
given priority.
• Presence of groundwater- Tamil Nadu’s allocation was reduced as compared to Karnataka due to the
availability of ground water in Tamil Nadu
• Warrantable flexibility- to deal with changing demands of the states
• Helsinki rules, 1966- it recognizes equitable use of water by each basin state taking into consideration
hydrology and geology of the basin
• Campione rules- which states that basin states in the international basin would manage the water in a
fair and equitable manner.
Conclusion
• Interstate Council and Zonal Council can be used for dialogue and discussion between the states and the
Centre.
• In order to remove the ambiguity water can be brought into the concurrent list
• River Basin Organization can be set up under the River Boards Act, 1956 to regulate and develop
interstate rivers and their basins
• Treating water as a limited resource and taking steps to ensure water use efficiency. For eg – the use of
drip and sprinkler irrigation in agriculture

DEMAND FOR SMALLER STATES. IS IT TIME FOR A SECOND STATE REORGANIZATION COMMISSION?

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Over the years there has been several demands for creation of smaller states like Vidarbha, Purvanchal etc

Why does demand for smaller states arise?

1. Lack of participation in mainstream politics and decision making from a particular region.
2. Distinct cultural identity based on language, tribe etc in a particular pocket of the State. For eg demand for
the creation of Gorkhaland from the state of west Bengal
3. Stance from the power centre in the state leading to the problem of administrative inefficiency and sense
of alienation among the people.
4. Vote bank politics.
5. Economic backwardness, deprivations and discriminations. For eg Bundelkhand and purvanchal regions of
Uttar Pradesh are relatively less developed as compared to western Uttar Pradesh
6. The change in mode of electoral representation has led to assertiveness of the hitherto politically dormant
region, consequently leading to demand for smaller states.

Advantages of small States

• Administrative efficiency: It will increase administrative efficiency leading to proper utilization of
resources.
• Fiscal management: Small States are more effective for fiscal management.
• Regional needs: The popular demands, needs and problems of region may be addressed efficiently
• Greater competition: There shall be greater competition among states for more development.
• It will not add to the burden of administrative expense, which could be utilized for development work.
• Development will take place and regional disparities will become narrow.
• According to Dr B R Ambedkar, minorities(SCs and STs) would be better off in smaller states as they could
make their voices heard and have better access to political power and governance.

Challenges associated with smaller states

• Poor performance of new states: The performance of newly formed states of Uttarakhand, Chhattisgarh,
Jharkhand and Telangana is not very encouraging.
o In the Human Development Index, Uttarakhand remains at the bottom.
o In recent years, the state of Chhattisgarh has seen the most tribal displacement.
o Jharkhand has been known for its coal scams and corrupt practices.
o Telangana is heavily dependent on Central funds for its development works
• Lack of matured leadership in the newly developed states leads to governance deficit
• Pressure on fiscal resources: Creation of new administrative machinery and institutions puts a lot of
pressure on fiscal resources.
Conclusion
• Redraw the map: Even as the older federal structure served the polity created at Independence, there is
a need to redraw the map of India in keeping with the new social and political order.
• Reorganisation needs to be seen not as a task undertaken at a single point of time, but as an ongoing
process that remains unfinished.
• Careful attention: At the same time, the creation of a federation consisting of smaller states is a complex
task and requires careful attention.
• No guarantee of good governance: Many critics have correctly argued that the mere creation of smaller
states out of the existing bigger ones does not guarantee good governance and faster and inclusive
economic development.
• Need second reorganisation commission: Considering the plethora of demands being raised, it is time for
a second States Reorganisation Commission (SRC) that can redraw India’s federal map, creating many
smaller states and keeping in mind the twin criteria of economic viability and people’s aspirations.

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ARTICLE 370
• Current Event On 5 August, 2019, President of India revoked the special status granted to the state of
th

Jammu and Kashmir under Article 370.

• This was done by issuing Constitution (Application to Jammu and Kashmir) Order, 2019 in exercise of the
powers conferred by Clause (1) of Article 370.
• Further, the Jammu and Kashmir Reorganization Bill, 2019, passed by Parliament divides the state of
Jammu and Kashmir into two new Union Territories (UTs): Jammu & Kashmir, and Ladakh.
Implications of the order
• No separate constitution: Jammu and Kashmir(J&K) will no longer have a separate constitution, flag and
anthem.
• Single citizenship: J & K will now have single citizenship instead of dual citizenship.
• Applicability of laws: All laws passed by the Parliament will now be applicable to J & K including the Right
to Information Act
• IPC: The Ranbir Penal Code will be replaced by Indian Penal Code
• Article 35 A which hitherto gave special rights and privileges to the permanent residents of the state
stands null and void
Status of Union Territory of J & K and Ladakh
• J & K will have five Lok Sabha seats while Ladakh will have one Lok Sabha seat.
• J & K will have a Lt Governor instead of Governor.
• The UT of J & K will have an Assembly, like in Delhi and Puducherry which will have a term of five years
• The assembly can make laws on the subjects mentioned in the state list and concurrent list except public
order and police
Why was the special status revoked?
The need for revoking the special status was felt due to the following reasons.
• Temporary provision - Article 370 was incorporated in the Constitution as temporary and transition
provision
• Democratic deficit- a number of progressive laws such as Right to Information Act, Right to Education
were not applicable to J & K
• Mal governance – due to lack of accountability on the government people of J & K suffered from mal
governance
• Insurgency – J & K is suffering from insurgency which started during the early 1990s
• International events – like the resurgence of the Taliban in Afghanistan and rapprochement of US and
Pakistan called for sorting out issues in J & K
• Alienation of Ladakh – which led to the degradation of socio-economic status of the people of Ladakh
• Rehabilitation of Kashmiri pandits requires a conducive environment.
Positives of revoking special status of J & K
• Mainstreaming of the people of J & K and Ladakh with the rest of India by bringing uniformity in laws and
policies and schemes.
• Strengthening of democratic principles – by application of progressive laws like RTI, Right to education,
SC and ST (Prevention of atrocities) Act etc
• Inclusive development of the people of J & K and Ladakh.
• Decline in insurgency- according to reports recruitment of terrorist in the region has fallen by 42%
• Economic Growth – with increased avenues for investment economic activities in the two UTs are bound
to rise.
Issues associated with revoking of special status
• Constitutional Issue: According to clause (3) of Article 370, President would require recommendations of
the Constituent Assembly of Jammu and Kashmir to revoke the special status.
o However, to overcome this challenge a subclause was added to Article 367, according to which
the term Constituent Assembly of Jammu and Kashmir means the Legislative assembly of Jammu

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and Kashmir and Government of Jammu and Kashmir means Governor of Jammu and Kashmir
acting on the aid and advice of Council of Ministers.
• Special status of J & K was revoked without bringing a constitutional amendment
• Violation of Article 3 – which requires referring the bill for reorganization of state to the state legislature.
However, this was not done in case of J & K
• Issue of federalism – This is the first case in India where a state has been degraded to the status of Union
Territory.
• Violation of international principles – the maxim of pacta sunt servanda requires that instrument of
accession must be honoured.
• Judicial interpretation of special status of J & K – the supreme court in Santosh Kumar Vs State of Jammu
and Kashmir and others said that J & K had special status due to historical reasons.
• No concurrence of state assembly: In another case of SBI Vs Zaffar Ullah Nehru, the Supreme court had
held that Article 370 cannot be repealed without the concurrence of the Constituent Assembly of Jammu
and Kashmir.

Conclusion- Former Prime Minister of India, Atal Bihari Vajpayee had stressed on Kashmiriyat, Insaniyat and
Jamhooriyat i.e. inclusive culture of Kashmir, humanitarianism and democracy as the solution for Kashmir. These
principles need to be reemphasized for finding a lasting solution for the Kashmir problem.

GOVT. OF NATIONAL CAPITAL TERRITORY (AMENDMENT) BILL,2021

• Current Event - Recently the President gave his assent to the GNCT(amendment) bill,2019.

Background

• The 69 amendment act introduced Articles 239 AA and 239 BB in the constitution which created UT of
th

Delhi with a legislative assembly. However, the Centre and not the government of Delhi would be
responsible for public order, police and land in NCT of Delhi.
• The Constitutional amendment was supplemented by the Government of National Capital Territory of Delhi
Act. The act delineated the powers of the assembly and the discretionary powers enjoyed by LG.

Issues in LG and Delhi government relations

• Issues between the LG and the Delhi government began to surface in 2015 with the coming of different
parties in power at the Centre and Delhi.
• The major point of contention is the Article 239AA(4) which seems to give primacy to LG. Using this, LG on
many occasions has subverted the decision of the Delhi government.

Govt. of NCT of Delhi Vs Union of India case, 2018

• The Supreme Court held that LG has no independent decision-making powers

• LG was bound by the aid and advice of Council of Ministers except the matters pertaining to police, public
order and land.

Key provisions of Government of NCT of Delhi (Amendment bill)

• Restriction on laws passed by the Assembly- the term “government” referred to in any law made by the
Legislative Assembly will imply Lieutenant Governor (LG).
• Rules of Procedure of the Assembly -rules made by the Delhi assembly must be consistent with the Rules
of Procedure and Conduct of Business in the Lok Sabha.
• Inquiry by the Assembly into administrative decisions- The Bill prohibits the Legislative Assembly from
making any rule to enable itself or its Committees to: (i) consider the matters of day-to-day administration
of the NCT of Delhi and (ii) conduct any inquiry in relation to administrative decisions.

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• Assent to bills – LG can reserve certain bills for the consideration of the President such as the bills which
may diminish the powers of High Court of Delhi, bills dealing with salaries and allowances of the speaker,
deputy speaker, ministers and the members of the assembly, bills relating to official language, bills which
the President may direct to reserve
• LG’s opinion for executive matters – all executive actions must be taken in the name of the LG

Impact of the bill

▪ Undermines democracy- by degrading the powers of elected assembly
▪ Against federalism – the bill may lead to centralization of power which is against the principles of
federalism
▪ Not in harmony with the Supreme Court verdict of 2018- where the Court ruled in favour of the elected
government.
▪ Setback for Delhi’s quest for statehood.
▪ Creates ambiguity over accountability- as the elected government will lack sufficient powers to
implement its manifesto
Conclusion

• The principle of subsidiarity demands that India’s national government may take some cues from global
trends and cede more powers to the city government in capital territory.
• In Washington DC, with limited mandate, the DC Police has a say in city policing and law and order issues.
• The British Home Office, which earlier had the last word on the London Metropolitan Police, has over the
years, conceded such supervisory powers to the elected mayor of London.
• Justice DY Chandrachud, in the 2018 case of the Supreme Court had observed, “In a democratic form of
government, the real power must subsist in the elected arms of the state”. There is a need to look into the
given bill in the light of the given statement.

There is a need for greater collaboration and co-ordination between the Central government and Delhi government
so that people of NCT are not deprived of good governance.

MISUSE OF DISASTER MANAGEMENT ACT DURING COVID 19

According to political experts, the Centre's direction to the states during COVID 19 using the Disaster Management
(DM) Act violated the principles of federalism in India.

Issues

• Damaging cooperative federalism- With the Home Ministry issuing guidelines to states under DM Act,
states are compelled to cede powers which are strictly under state list healthcare and law and order. For
eg making compulsory the usage of Arogya setu app.
• National lockdown- according to experts, DM act gives power to the Centre to requisition state machinery
for localized disaster but not for national lockdown.
• Wide and vague powers to Centre under the DM act – the Centre used such powers to give orders with
respect to subjects like healthcare, law and order etc. For eg classification of the entire country into red,
orange and green zones Union Ministry of Health and Family welfare.
• Imposition of section 188 of IPC- to make the citizens comply with the orders promulgated by the public
servants was also seen encroachment on state subject

Other issues witnessed during the pandemic related to centre-state relation

• Unilateral decision making by the Centre- because of non-consultation with the states several issues arose
such as the migrant crisis.
• Financial resources of the state- the state’s financial resources were heavily impacted by sudden
imposition of lockdown and other measures by the Centre. Further, delay in payment of GST dues to states
worsened the crisis.
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• Micromanagement of COVID 19 epidemic by the Central government teams was seen as violation of the
principles of cooperative federalism

Reasons behind over-centralization followed during the pandemic

▪ Constitutional- the word disaster does not find mention in the Constitution which leads to ambiguity in
responsibilities of the governments.
▪ Lack of financial resources with the state governments - even if the state governments would have got the
rights over the subjects, they lack adequate financial resources to handle the pandemic
▪ Lack of other options- given the gravity of the situation, there were hardly any other options available with
the state governments apart from imposing lockdown.
▪ To deal with infectious disease like COVID 19, it was necessary to achieve coordination at all India level
▪ Lack of clarity regarding roles and responsibilities in the DM act- For eg the act states that the Centre can
take all such measures which it deems necessary to handle a notified disaster
▪ Issues with Epidemic disease act, 1897- the act is silent regarding government’s role in controlling the
epidemic

Conclusion

• Collaborative and consultative: National and state political and administrative agencies should be more
collaborative and consultative.
• Issues like movement of migrant labourers, availability of food, arranging livelihoods to daily wagers, relief
camps etc needs special attention.
• The ‘Report of the Task Force to review DM Act’2013 suggested that the present structure of various
authorities under the DM Act are not conducive for carrying out the tasks it has been mandated to perform.
• As per mandate of DM Act (Sec 30 and 41), a concerted effort is required to ensure that local bodies and
district administration are administratively, politically and financially empowered.
• There is a bar on jurisdiction of courts (Section 71) and there is no grievance redressal mechanism under
DM Act. There is a need to address this.

FARM LAWS AND CENTRE STATE RELATIONS

▪ Current event - Recently the Centre passed three farm laws to change the way agricultural produce
marketed, sold and stored across the country. This was followed by the farm bills of the state of Punjab to
nullify the impact of Centre’s farm laws.

Three Farm acts of the Centre are:

1. The Farmers' Produce Trade and Commerce (Promotion and Facilitation) Act, 2020,
2. The Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services Act, 2020,
3. Essential Commodities (Amendment) Act, 2020.

Arguments in favour of Central Farm acts

• No middleman: The act will create trading zones free of middle men and govt. taxes outside the ambit of
APMCs (Agricultural Produce Market Committees).
• More selling options: This will allow farmers an option to sell their produce in this zone without going
through the middlemen.
• Remove stock limits: The act seeks to remove stock holding limits as well as limitations on inter-state and
intra state trade
• Private investment: This will enable private players to invest in warehousing, grading and other
infrastructure
• Creation of FPO’s: The acts seek to promote creation of Farmer Producer Organisations and contract
farming

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• One Nation-One market: In a nutshell, these farm acts seek to create One Nation-One market for
agricultural produce

Arguments against Central Farm acts

• Encroachment of Centre on the subjects of state’s list- agriculture and market are state subjects under
entry 14 and 28 respectively of the state list. Making laws on these subjects by the centre amounts to
encroachment on the state list.
• Apprehension among farmers that MSG regime be eventually abolished- encouraging private trade may
reduce the need of APMCs which will finally do away with the MSP regime
• Ending of MSP regime will leave the small and marginal farmers at the peril of large corporates
• Reducing the role of APMC mandis will lead to loss of revenue for the state governments.
• Past examples suggest that promotion of privatization in agriculture has not helped the farmer’s cause. For
eg Bihar in 2006 tried to deregulate APMCs which did not result in any significant improvement in farmer’s
income or infrastructure.
• Reports of fraud by private players of the farmers have been witnessed in many places. For eg case of
fraud of over Rs 5 crore by traders of farmers in Madhya Pradesh.

Farm laws by Punjab

In response to the farm laws of the Centre Punjab enacted three farm bills
The bills are:
1. The Farmers Produce Trade and Commerce (Promotion and Facilitation) (Special Provisions and Punjab
Amendment) Bill, 2020.
2. The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services (Special
Provisions and Punjab Amendment Bill, 2020
3. The Essential Commodities (Special Provisions and Punjab Amendment) Bill, 2020.

Objectives of the bill are:

• To ensure MSP to farmers for wheat and paddy.

• Provides for punishment for sale or purchase of paddy below MSP
• To prevent hoarding and black marketing of agri-produce.

Critical analysis of farm laws

• In the seventh schedule, agriculture is placed in entry 14 and markets and fairs in entry 28 of the state list.
• However, entry 42 of the Union list empowers the Centre to regulate interstate trade and commerce.
• Further, trade and commerce within the state is placed in entry 26 of the state list which is subject to the
provisions of the entry 33 of the concurrent list, under which Centre can make laws that would override
the laws of the state.
• In a nutshell, the Centre is empowered to make laws to regulate both inter and intra state trade.

Conclusion

A more amicable approach which the central government could’ve been taken to avoid a legal battle with states.

1. The Rajya Sabha could’ve passed a special resolution as per Article 249 which would’ve made way for the
central government to legislate on issues that fall under the State list.
2. The second route could’ve been Article 252 of the Constitution. This allows the Parliament to frame laws
for two or more states who pass a resolution requesting it to legislate on that specific State subject.

“The government could have gotten 4 or 5 BJP-ruled states to pass a resolution in their assembly saying that we
request the central government to frame a model law and then could’ve implemented it in their respective states.
If then the benefits of the law would have been demonstrated, other states would have come around. “

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-Advocate Sanjoy Ghose

ASSAM MIZORAM BORDER DISPUTE

Current event - Recently clashes were witnessed along the Assam Mizoram border.

About the dispute

• The boundary between present-day Assam and Mizoram, 165 km long today, dates back to the colonial era,
when Mizoram was known as Lushai Hills, a district of Assam.
• The dispute stems from a notification of 1875 that differentiated Lushai Hills from the plains of Cachar, and
another of 1933 that demarcates a boundary between Lushai Hills and Manipur.
• The point of conflict between the two states is that while Mizoram insists on boundary based on the 1875
notification,
• Assam believes that boundary should be demarcated based on 1933 notification.

Agreement between Assam and Mizoram - According to it status quo should be maintained in no man’s land area
in the border area.

Conclusion-

• Agreement reached between Assam and Mizoram should be followed in letter and spirit
• Goodwill meeting between the people on both the sides of the border should be held frequently
• Centre should hold talks with both the states in order to resolve the dispute and demarcate the boundary
agreeable to both the parties.

BRUS REJECT RESETTLEMENT OFFER

Current Event- Recently, organisations representing the Bru/Reang Community have rejected the resettlement
offer in Tripura.

Background

• Ethnic clashes: In 1997, 37,000 people of the Bru (or Reang) tribe fled to Tripura from Mizoram, on account
of ethnic clashes there.
• Since then, 5,000 have returned to Mizoram while 32,000 remain in camps in Tripura.
• In January 2020, an agreement was signed by the Centre, the two state governments and Bru
representatives to allow the remaining 32,000 to permanently settle in the state.
• It led to protests from Bengali and Mizo groups in Tripura.
• They claim that settling thousands of migrants permanently in Kanchanpur sub-division of North Tripura
district would lead to demographic imbalance, exert pressure on local resources and potentially lead to law
and order problems.

Who are the Brus?

• Community indigenous: They are a community indigenous to the Northeast, living mostly in Tripura,
Mizoram, and Assam.
• PVTG: In Tripura, they are recognised as a Particularly Vulnerable Tribal Group.
• In Mizoram, they were targeted by ethnic organisations who demanded that the Brus be excluded from
electoral rolls.

What is the resettlement plan?

• Since January 2020, the state has planned 12 resettlement spots across six districts with 300 families each.

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• The Centre has announced a special development project with funding of Rs 600 crore.
• Each resettled family will get an estimated 0.03 acres (1.5 gandas) of land for building a home, Rs 1.5 lakh
as housing assistance and other benefits.

Conclusion-

The state government along with the Central government must ensure that the agreement is implemented in letter
and spirit after taking into confidence in the local communities.

CENTRE STATE RELATIONS DURING COVID-19

The COVID-19 pandemic presented an unprecedented crisis before the national and the state governments. This
affected the governments in many ways which led to re-ordering of India’s federal structure and relations
between the Union and the States.
Various aspects of Centre-state relations
• Political- The Central government implemented national lockdown using its power under the Disaster
Management Act to commandeer state and local authorities. The state governments acquiesced even
though they have power under the Epidemic Diseases Act, 1897.
• Financial – Erosion of financial capital forced the states to accept series of reforms announced by the
Central government, many of which encroached on the state functions.
o For eg, Central government increased the borrowing limit for the state governments from 3% to
5% of GDP, but only 0.5% of it was unconditional.
• GST- Failure on the part of Central government to release the dues of the states on time coupled with
lack of power with the states to charge additional tax weakened the economic capabilities of the state
governments.
• Legislative-Many experts argue that recent farm laws enacted by the Centre, like the Farmer’s Produce
Trade and Commerce Act impinge on the state autonomy. However, apart from few states like Punjab not
many states protested against it.
• Co-operative federalism-Lack of co-operation between the Centre and the state governments resulted in
pandemic mismanagement.
o For eg, many patients in Delhi hospitals lost their lives foe the lack of oxygen.
• Migrant Crisis- Lack of co-operation between the three tiers of the governments resulted in huge migrant
crisis in which lakhs of migrants were forced to leave their place of work.
Conclusion- Collaborative federalism strengthen democratic choices for better governance. Hence it is essential
that Centre and state governments should iron out the differences and fight the pandemic with collective force.
Forums like Inter State Councils can be used to advice the states and chalk out a common plan instead of coercing
the states with top-down approach.

SPECIAL CATEGORY STATUS TO STATES

• Current event - Recently states like Andhra Pradesh and Bihar have demanded Special Category status
Special category state
• Genesis: The concept of a special category state was introduced in 1969 by the Fifth Finance Commission.
• The rationale for special status is that certain states, because of inherent features, have a low resource
base and cannot mobilize resources for development.
• The decision to grant special category status lies with the National Development Council.
• No provision in constitution: The Constitution of India does not include any provision for the categorization
of any state in India as a special category state.
Criteria for special category status
(a) Hilly and difficult terrain, (b)Low population density or sizeable share of tribal population, (c) Strategic location
along borders with neighbouring countries, (d) Economic and infrastructural backwardness(e)Non-viable nature of
state finances

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Gadgil Formula
Gadgil formula was evolved in 1969 to determine how much central assistance should be provided to state plans in
India. It gave the following criteria:
• Population [60%]
• Per Capita Income (PCI) [10%]
• Tax Effort [10%]
• On-going Irrigation & Power Projects [10%] and
• Special Problems [10%]
In 1991 a revision committee under Pranab Mukherjee was constituted to accord special category status to states.
What is the difference between special category status and special status?
• Special status is provided through the Constitution whereas the special category status is granted by the
National Development Council, which is an administrative body of the government.
o For example, Jammu and Kashmir enjoyed a special status as per Article 370 and also special
category status. But now, with revocation of special status, Jammu and Kashmir has only special
category status.

Benefits to special category status states

1. The central government bears 90 percent of the state expenditure on all centrally-sponsored schemes and
external aid while the rest 10 percent is given as a loan to the state at zero percent rate of interest.
2. Preferential treatment in getting central funds
3. Concession on excise duty to attract industries to the state.
4. 30 percent of the Centre's gross budget also goes to special category states.
5. Debt swap: These states can avail the benefit of debt-swapping and debt relief schemes.
6. Exemptions: States with special category status are exempted from customs duty, corporate tax, income
tax and other taxes to attract investment.
7. No lapse: Special category states have the facility that if they have unspent money in a financial year; it
does not lapse
Why is special category status no more relevant?
• Discontinuation of Gadgil formula: After the dissolution of the planning commission and the formation of
NITI Aayog, the recommendations of the 14th Finance Commission were implemented which meant the
discontinuation of the Gadgil formula-based grants.
• No improvement: States having Special category status have not shown any perceptible improvements in
the areas where they received tax incentives.
• Intensification of demand: Granting status to some states like Bihar and Andhra Pradesh would lead to
the intensification of demand by other states.
Conclusion- A new concept of least developed states can be introduced after removing the concept of special
category status as recommended by Raghuram Rajan Committee based on certain parameters such as per capita
consumption expenditure, urbanization rate , financial inclusion etc.

MAHARASHTRA DENIES CONSENT TO CBI

• Context: The Maharashtra government recently revoked the Central Bureau of Investigation's (CBI)
general consent to investigate cases in the state.
Concerns:
• Maharashtra is the third state to do so, after West Bengal and Rajasthan.
• Use of CBI to influence: The current standoff also fuels opposition perceptions that the Centre is using the
CBI to exert influence over state governments headed by opposition parties.
• Approval of a state: The CBI is established by the Delhi Special Police Establishment Act, 1946 (DSPE Act,
1946), which requires the approval of a state government before conducting an inquiry.
o “General consent” is provided to assist the CBI in conducting its investigation into cases of
corruption involving central government employees in the affected state. Almost every state has
agreed to this.

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o Case-specific and general consent are the two types of consent. Since the CBI only has authority
over central government agencies and employees, it may only examine a case involving state
government employees or a violent crime in a specific state with the consent of the state
government.
• State can refuse: The state government has the authority under Section 6 of the DSPE Act, 1946, to grant
or refuse CBI officers permission to investigate the matter within the state.
The Effects of Withdrawal of the General consent:
• It will have no impact on the investigation of cases already filed with the CBI, since old cases were filed
when there was general consent.
• Now, without case-specific approval, the CBI would not be unable to register any new case involving a
central government official or a private citizen serving in Maharashtra.
• In its order in Ramesh Chandra Singh and others vs CBI, 2020, the Calcutta high court stated that the CBI's
power to investigate and prosecute its own officials cannot be hampered or interfered with by the state in
any way, even though the offences were committed within the state's jurisdiction.
Conclusion
• The onus of protecting the CBI's integrity falls largely on the CBI, with assistance from an independent
judiciary, because the political executive would have little motivation to do so.

ODISHA’S BORDER DISPUTES

Context: Odisha and Andhra Pradesh's border dispute resurfaced recently when Andhra Pradesh declared
panchayat polls in three villages of Kotia panchayat in Odisha's Koraput district.
• In eight of Odisha's thirty districts, there are still unresolved boundary disputes with four neighbouring
states.
Kotia Dispute:
• Since 1960, Odisha and Andhra Pradesh have been at odds over the Kotia gram panchayat. The disputes
span 21 villages in the Kotia gram panchayat.
• Dependence on both: Residents of Kotia panchayat benefit from both Pottangi block in Koraput and Salur
in Andhra Pradesh's Vizianagaram district. For their day-to-day activities, they depend on both blocks.
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Water Dispute with Andhra Pradesh:

• Odisha filed a complaint with the Central Government in 2006, citing Section 3 of the Inter-State River
Water Disputes (ISRWD) Act, 1956, in connection with its water disputes with Andhra Pradesh over the
Inter-State River Vamsadhara.
Conflicts with other states:
• West Bengal and Odisha are at odds over 27 plots in the Balasore district of Odisha, as well as some areas
in the Mayurbhanj district.
o The district of Mayurbhanj is known for its iron ore reserves and the Chhau dance (a tribal dance
in which dancers wear colourful masks).
• Jharkhand: The river Baitarani's course has changed, causing a border dispute between Odisha and
Jharkhand.
o The majority of its catchment area is in Odisha, with a small section of the upper reach in Jharkhand.
• Odisha has a dispute with Chhattisgarh over villages in the Nabarangpur and Jharsuguda districts.
• In 2018, the Mahanadi Water Disputes Tribunal was established by the Central Government.
Conclusion
To settle such conflicts, inter-state dialogues, deliberations in Inter-State councils and tribunals, and adherence to
the spirit of cooperative federalism should be used.

NITI AAYOG – A TOOL TO PROMOTE COOPERATIVE FEDERALISM

About NITI Aayog
• National Institution for Transforming India(NITI) Aayog has been established as a platform to promote
cooperative federalism, stressing on the need for effective Centre state cooperation to advance
development and inclusive growth of India.
• It has been conceptualized as a think tank where new and innovative ideas come from various sources such
as academia, industry etc.
Why the Planning Commission had to be replaced by NITI Aayog?
1. The Planning Commission was unable to capture the emerging dynamics of national macroeconomic
management.
2. Top-down” approach: The Planning Commission was criticized for its “top-down” approach where states
participated just as spectators in annual plan meetings.
3. Lesser flexibility was available with the states in spending the funds as the funds were mostly tied to
projects.
Importance of The NITI Aayog
1. Cooperative federalism- The composition of NITI Ayog is such that it allows better representation of states
which allows direct interaction with the ministries. Eg sub group of chief ministers on skill development
2. Competitive federalism- Various reports published by NITI Ayog such as the Composite Water
Management Index helps in promoting competitive federalism.
3. Evaluation of performance of various ministries- The Development monitoring and Evaluation Office
collects data from the ministries on a real time basis which helps in establishing accountability.
Issues with the NITI Aayog
1. Discretionary fund- it has no power in granting discretionary funds to the states.
2. Lack of enforceability- it only acts as advisory body with lack of enforceability power
3. It is criticized for praising the projects of the government of the day
Achievements of the NITI Aayog
1. Improving innovation ecosystem in the country- through Atal Innovation System and setting up of around
1500 Atal Incubation Centres in schools across the country
2. Various initiatives like Ayushman Bharat , National Medical Commission etc has been conceptualized by
NITI Ayog
3. Greater accountability: It has brought greater accountability in the system by capturing real time data of
the ministries.
4. Promoting growth: It has helped in promoting growth of underdeveloped areas through the Aspirational
District Program.

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Conclusion
• NITI Ayog should be given certain resources to promote growth in states that are lagging behind. Some
funding role needs to be given to NITI Ayog that can meet the dynamic aspiration of the states

RECOMMENDATIONS TO BETTER MANAGE CENTRE-STATE RELATIONSHIP

First Administrative Reforms Commission

Following were the important recommendations:
• Establishment of Inter-State Council under Article 263 of the Constitution.
• Person having long experience in public life and administration should be appointed as Governor.
• As far as possible, delegate maximum powers to the states.
• More financial resources should be transferred to the States to reduce their dependence upon the Centre.

Sarkaria Commission
Following were the important recommendations:
• Inter-State Council : A permanent Inter-State Council should be set up under Article 263.
• Article 356 (President’s rule) should be used as a last resort.
• Strengthen institutions: The institution of All-India Services should be further strengthened and some more
such services should be created.
• President should communicate state: The reasons for withholding assent to the state bills by The President
should be communicated to the state government.
• The Zonal Councils should be reactivated to promote the spirit of federalism.
• State should be consulted: The Centre should have powers to deploy its armed forces, even without the
consent of states. However, it is desirable that the states should be consulted.
• The Centre should consult the states before making a law on the subject of the Concurrent List.
• The Chief Minister of the concerned state should be consulted in the appointment of the Governor.
• The Governor’s term of five years in a state should not be disrupted except for extremely compelling
reasons.
M M Punchhi Commission
Following were the important recommendations:
• President should communicate to the states when a bill is pending for his/her consideration
• Greater flexibility should be given to states on subjects mentioned in the state list and transferred items in
the concurrent list.
• The scope of discretionary powers given to Governors under Article 163 has to be narrowly construed.
• Hung assembly: In case of hung assembly certain guidelines should be followed to appoint the Chief
Minister.
o For eg. A party or combination of parties with widest support in Legislative assembly should be
called to form the government, a pre poll alliance or coalition should be treated as one party etc.
• Finance Commission should be made a permanent body with membership changing every five years
• Judicial councils: Setting up of judicial councils to prepare judicial budget and decide on the proportion of
sharing the budget between the Centre and the states
• There should equality of seats to states in the Rajya Sabha

NCRWC
The National Commission to Review the Working of the Constitution (NCRWC) too put forth its suggestions, many
of which were a reiteration of Sarkaria Commission recommendations. Some of the unique recommendations are
enumerated in the following:
• According to Article 307, a legislative body called the Inter-State Trade and Commerce Commission should
be created.
• In the event of a political breakdown in a democracy, the state should be given an opportunity to clarify its
position and correct the situation before triggering Article 356, to the extent possible.

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Way forward-
• With changing times and pressing needs of the age, the paradigm of governance and administration is
changing.
• The centre-state relationship has been taking different forms under the broad contours of the Constitution.
• While on many occasions Central and state governments have come at loggerheads, on some occasions we
have also seen co-operation between the governments.
• It is important that Union and state governments reach a common platform to implement various
recommendations of the commissions such as the Punchhi Commission, the Sarkaria Commission etc to
smoothen centre-state relations.
Conclusion –
“Though the country and the people may be divided into different states for convenience of administration, the
country is one integral whole, its people a single people living under a single imperium derived from a single source.”
- Dr. B.R.Ambedkar

Previous Year Questions

1. How far do you think cooperation, competition and confrontation have shaped the nature of federation in
India? Cite some recent examples to validate your answer.
2. Rajya Sabha has been transformed from a ‘useless stepney tyre’ to the most useful supporting organ in past
few decades. Highlight the factors as well as the areas in which this transformation could be visible.
3. From the resolution of contentious issues regarding distribution of legislative powers by the courts, ‘Principle
of Federal Supremacy’ and ‘Harmonious Construction’ have emerged. Explain.
4. Whether the Supreme Court Judgement (July 2018) can settle the political tussle between the Lt. Governor
and elected government of Delhi? Examine.
5. Did the Government of India Act, 1935 lay down a federal constitution? Discuss.
6. The concept of cooperative federalism has been increasingly emphasized in recent years. Highlight the
drawbacks in the existing structure and the extent to which cooperative federalism would answer the
shortcomings.

Useful quotes related to federalism for essay

1. Federalism is no longer the fault line of Centre-State relations but the definition of a new partnership of Team
India. - Narendra Modi

2. Federalism should be a meeting point of all groups. -Khil Raj Regmi

3.Federalism should be able to maintain unity among all. But this does not mean that we should boycott regional
voices and the voices of ethnic groups. -Khil Raj Regmi

4. Federalism is part of the basic structure of the Indian Constitution. – The Supreme Court of India

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SEPARATION OF POWER
Previous Year Question on this topic
1. Judicial Legislation is antithetical to the doctrine of separation of powers as envisaged in the Indian
Constitution. In this context justify the filing of a large number of public interest petitions praying for
issuing guidelines to executive authorities. (2020)
2. Do you think the Constitution of India does not accept the principle of strict separation of powers rather
it is based on the principle of ‘checks and balance’? Explain (2019)
3. From the resolution of contentious issues regarding distribution of legislative powers by the courts,
‘Principle of Federal Supremacy’ and ‘Harmonious Construction’ have emerged. Explain. (2019)
4. Whether the Supreme Court Judgement (July 2018) can settle the political tussle between the Lt. Governor
and elected government of Delhi? Examine. (2018)
5. Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act,
2014’ with reference to appointment of judges of higher judiciary in India. (2017)
6. What was held in the Coelho case? In this context, can you say that judicial review is of key importance
amongst the basic features of the Constitution? (2016)
7. Resorting to ordinances has always raised concern on violation of the spirit of separation of powers
doctrine. While noting the rationales justifying the power to promulgate ordinances, analyze whether the
decisions of the Supreme Court on the issue have further facilitated resorting to this power. Should the
power to promulgate ordinances be repealed? (2015)
8. Starting from inventing the ‘basic structure’ doctrine, the judiciary has played a highly proactive role in
ensuring that India develops into a thriving democracy. In light of the statement, evaluate the role played
by judicial activism in achieving the ideals of democracy. (2014)
9. The Supreme Court of India keeps a check on the arbitrary power of the Parliament in amending the
Constitution. Discuss critically. (2013)

Introduction
• The term "trias politica" or "separation of powers" was coined by Montesquieu, an 18th century French social
and political philosopher.
• Separation of powers refers to the division of government responsibilities into distinct branches to limit any
one branch from exercising the core functions of another. The intent is to prevent the concentration of power
and provide for checks and balances.
• In India, the doctrine of Separation of Powers has not been accorded a constitutional status. Apart from the
directive principle laid down in Article 50 which enjoins separation of judiciary from the executive, the
constitutional scheme does not embody any formalistic and dogmatic division of powers. India follows a mixed
separation of power model.

Constitutional Provisions
Article Directs the State to take steps to Articles Restrict the Parliament and the State
50 separate the judiciary from the 121 and Legislature from discussing the Judicial conduct
executive 211 of a judge of the Supreme Court and the High
Courts unless the resolution of removal of the
judge is under consideration.
Articles Restrict the courts from inquiring Article Provides immunity to the President or the
74 and into the advice tendered by the 361 Governor from being answerable to any court
163 Council of Ministers to the President for the exercise and performance of the powers
and the Governor. and duties of his office.
Articles Restrict the courts from questioning
122 and the validity of proceedings in the
212 Parliament and the Legislatures.

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MODELS OF SEPARATION OF POWERS

• The USA encompasses rigid separation of powers but practically the doctrine is coupled with the doctrine of
checks and balances in a bid to produce effective and efficient governance.
• In the U.K, the concept of separation of power exists but not in the formal sense as it is in the USA.
• In India this doctrine of separation of powers has not been accepted in a stricter sense. There is functional
overlapping as well as personnel overlapping.
o Functional overlapping: For instance, the Supreme Court has been given power to declare void the
laws passed by the legislature and the actions taken by the executive if they violate any provisions of
the constitution or the laws passed by the legislature in case of executive actions.
o Personnel overlapping : On the other hand the executive has the power to affect the functioning of
the judiciary by making appointments to the office of Chief Justice and other Judges. In Indira Nehru
Gandhi vs Raj Narain case (1975) it was observed that in the Indian constitution there is separation of
powers in a broad sense only, a rigid separation of power as under the American constitution does not
apply to India.

FUNCTIONAL OVERLAPPING
Between Executive and Legislature
Between Executive and Legislature
• Executives (Article 74) are derived from legislatures (Article 79) and the council of ministers is in power at
the behest of legislatures.
• The President is the head of the executive as well as the legislature.
• Head of the executive has authority to promulgate ordinances although law making falls under legislature.
Delegated legislation is allowed i.e. legislatures outsourcing the law making work (partially) to the executives
(Bureaucrats).

In recent context

INCREASE IN ORDINANCE PROMULGATION

• The ordinance (Article 123) was originally conceived as an emergency provision. However, in recent times the
frequent use of ordinance route has led to the undermining the role of the legislature by executive and the
doctrine of Separation of powers.

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• The Constituent Assembly debates leave no manner of doubt that the said power ought not to be exercised
merely to circumvent a failure to muster support in the legislature.
o The satisfaction of the president at the time of the promulgation of an ordinance is within the purview
of judicial review.
o The government will have to satisfy the Court about whether the satisfaction for re-promulgation was
based on some relevant material
• Historically, in the 1950s, central ordinances were issued at an average of 7.1 per year. However, the number
peaked in the 1990s at 19.6 per year. The last couple of years has also seen a high spike in ordinance
promulgation (16 in 2019, 15 in 2020)
• RC Cooper Case 1970: The Supreme Court held that the President’s decision to promulgate ordinance could be
challenged on the grounds that ‘immediate action’ was not required, and the ordinance had been issued
primarily to bypass debate and discussion in the legislature.
• DC Wadhwa Case 1987: The Supreme court held that the legislative power of the executive to promulgate
ordinances is to be used in exceptional circumstances and not as a substitute for the law-making power of the
legislature.
• Krishna Kumar Singh Case 2017: The Supreme Court held that the authority to issue ordinances is not an
absolute entrustment, but is “conditional upon satisfaction that circumstances exist rendering it necessary to
take immediate action”. It further stated that the re-promulgation of ordinances is a fraud on the Constitution
and a subversion of democratic legislative processes.
o An ordinance “ceases to operate” six weeks after the two Houses reassemble, except if it is converted
into an Act by then. Re-promulgation sidesteps this limitation.

• Ordinance raj: This practice becomes unacceptable when it degenerates into an “ordinance raj”, where
ordinances are seldom brought before the legislature but are re-issued again and again, violating the spirit of
the Constitution.
• Ordinance is an undemocratic route to law-making, which is the job of the legislature. Therefore, any executive
attempt at law-making is bad.
• Fraud on the Constitution: Re-promulgation of ordinances is a fraud on the Constitution and a subversion of
the democratic legislative processes.
• Ordinance overreach: The raison d’être for this dictum is that re-promulgation represents an effort to
overreach the legislative process which is the primary source of law-making in a parliamentary democracy.

Recent Case studies:

By centre
• The Indian Medical Council Amendment Ordinance was issued in September 2018, and reissued in
January 2019, as it was passed by only one House of Parliament in the intervening session.
• The current case of the Commission for Air Quality Management is even more egregious. While the
ordinance of October 2020 was laid in Parliament on the first day of the recent Budget Session, a Bill to
replace it was not introduced. However, the ordinance has been repromulgated now.
• The Enemy Property (Amendment and Validation) Ordinance was first promulgated on January 7, 2016,
with the ostensible objective of plugging loopholes in the principal act and to ensure that the enemy
properties worth thousands of crore do not revert to the legal heirs.
States have also been using the ordinance route to enact laws.
• For example, in 2020, Kerala issued 81 ordinances, while Karnataka issued 24 and Maharashtra 21.
• Kerala has also repromulgated ordinances: one ordinance to set up a Kerala University of Digital
Sciences, Innovation and Technology has been promulgated five times between January 2020 and
February 2021

CONSTITUTIONAL OBJECTIVITY
• Justice Chandrachud in NCT vs UOI case, 2018 mentioned the term “constitutional objectivity” as the key to
checks and balances between the legislature and executive.
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• Constitutional objectivity ensures that the two operate within their allotted spheres since “legitimate
constitutional trust” is based on distribution and separation of powers with denial of absolute power to anyone
functionary being the ultimate goal.

MEMBERS OF PARLIAMENT LOCAL AREA DEVELOPMENT SCHEME ( MPLADS)

• Recently, the government has decided to suspend operation of the MPLADS for the next two financial years,
and divert Rs 7,900 crore to the fight against COVID-19.
• Scheme launched: In 1993, the government announced the MPLAD Scheme. It was formulated to enable the
members of Parliament to identify small works based on locally felt needs in their constituencies.
• The objective being to recommend works of developmental nature with emphasis on the creation of durable
community assets.
• Principle of separation of powers: In the classical constitutional construct premised upon the principle of
separation of powers, the legislature is not supposed to play an executive role.
• Challenged for being violative: In 2010 MPLADS was challenged in the Supreme Court as being violative of
Articles 275, 282, the 73rd and 74th Amendment, and the constitutional design itself.
o Stand of SC: In 2010, a five-judge bench of the SC held the scheme to be intra vires of the Constitution
and declared “Indian Constitution does not recognise strict separation of powers.
o The court said that even though MPs have been given a seemingly executive function, their role is
limited to ‘recommending’ works and actual implementation is done by the local authorities.
o Therefore, the scheme does not violate separation of powers. Panchayat raj institutions, municipal as
well as local bodies have also not been denuded of their role or jurisdiction.

BETWEEN JUDICIARY AND EXECUTIVE

Between Judiciary and Executive

Post enactment of Criminal Procedure Code in 1973 there was a separation of power between Judiciary and
Executive. The code separated the offices of judicial and executive magistrate officers. This was in line with
Article 50 (DPSP).
• Entire higher judiciary is appointed by the President (Executive)
• The President and the Governors have the power to grant mercy i.e. executive performing judicial function.
• Under the tribunal system, disputes are decided by a bench consisting of both judicial as well as executives.
During the election process the District Magistrate takes on quasi-judicial functions while acting as a returning
officer.

In recent context

CENTRAL VISTA PROJECT AND JUDICIAL REVIEW

• Context: Recently, the Supreme Court refused to treat the Central Vista project as a unique one requiring
greater or “heightened” judicial review.
• The court said that the government was “entitled to commit errors or achieve successes” in policy matters
without the court’s interference as long as it follows constitutional principles.
• The court further said that the Government may examine advantages or disadvantages of a policy at its own
end, it may or may not achieve the desired objective. It is not the court’s concern to enquire into the priorities
of an elected government. Judicial review is never meant to venture into the mind of the government and
thereby examine validity of a decision.
• The majority judgment said there is absolutely no legal basis to “heighten” the judicial review by applying
yardstick beyond the statutory scheme, especially when the government itself had accorded no special status
to the project.
• The court said the government had gone through the ordinary route of development projects as per law in the
Central Vista proposal too.

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TUSSLE BETWEEN THE JUDICIARY AND THE ELECTED GOVERNMENT IN ANDHRA PRADESH
• Recently, the Supreme Court stayed the Andhra Pradesh High Court order that sought to convene a suo moto
judicial inquiry into whether there is a “constitutional breakdown” in the Andhra Pradesh Government.
• This was clearly a case of judicial overreach by the A.P. High Court.
• The question of a “constitutional breakdown” or the failure of constitutional machinery is dealt with under
Article 356 of the Constitution, whose invoking comes under the prerogative of the executive and not the
judiciary.
• Though the Supreme Court has rightfully intervened in a tussle between the judiciary and the elected
government in Andhra Pradesh, the A.P High court’s order opens up the possibility of use or even misuse of
Article 356 by the judiciary.

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BETWEEN JUDICIARY AND LEGISLATURE

Between Judiciary and Legislature

There is a separation between judiciary and legislature which was highlighted in the case of Indira Gandhi vs Raj
Narain.
• The impeachment as well as contempt proceedings take place before the legislature and both are quasi-
judicial processes in nature.
• Sometimes the judiciary steps into the domain of legislative giving rise to judicial overreach which is not
desirable.

• There have been some cases where the courts have issued laws related orders through their judgements. These
include:
o In Vishakha case (1997) the guidelines on sexual harassment were issued by the Supreme Court.
o In 2004, in response to a petition filed after the infamous murder of NHAI Official, the Supreme Court
of India directed the Central government that, ‘administrative machinery be put in place for acting on
complaints from whistle blowers till a law is enacted.’
o Arun Gopal v. Union of India Case (2017): the Supreme Court fixed timings for bursting Diwali
fireworks and prohibited the use of non-green fireworks, although there are no laws to that effect.
o Subhash Kashinath Mahajan Case (2018): the court amended the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989, by annulling Section 18 which said that no anticipatory bail
will be granted to persons accused under the Act; by requiring a preliminary enquiry; and by prohibiting
arrest under the Act except with permission in writing by the appropriate authority.

Harmonious coordination between legislature, executive, and judiciary

• Theme of two-day 80th All India Presiding Officers Conference at Kevadia in Gujarat.
• Prime Minister Narendra Modi spoke of the “maryada” (adherence to boundaries), separation of powers, and
checks and balances built into the constitutional design, which also offers the corrective if these are disturbed.
• Vice President Venkaiah Naidu talked of the “excesses” of the executive and legislature — “violation of rights
and liberties of citizens by the executive at times is too visible. At times, the legislature too has crossed the
line.”
• President Ram Nath Kovind spoke of the importance of the role of the Opposition, the necessity for meaningful
deliberation with the ruling party.

DOCTRINE OF CHECKS & BALANCE

The doctrine aims to prevent a concentration of power or misuse or abuse of power by an individual or a group and
guards citizens against arbitrary and tyrannical powers of the State. Provisions of Checks & Balance in Indian
constitution:
• The power of the Judiciary to exercise judicial review (Article 13) over legislative and executive actions.
• The Judiciary is bound by the procedure established by law (Article 21) in adjudication on a question of law.
• Appointment of Judges by the Executive head and removal of judges on the basis of a resolution passed by the
Parliament.
• Parliamentary form of Government where the executive is responsible to the legislature.
Instances of checks and balances
Golaknath Case 1967
• 17th Constitutional Amendment Act, 1964 was placed in Ninth Schedule which infringed Fundamental Rights.
This was challenged in the court.
• The Court termed the power of the legislature to amend any of the Fundamental Rights in Part III of the
Constitution as ‘ultra vires’ which means beyond the powers.
• The court followed Doctrine of Prospective Overruling i.e. judgement will have no repercussion in past
instances.
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• To overrule the judgment of the Golaknath Case, the Parliament passed the 24th Constitutional Amendment
Act, 1971, and made the provision that the power of the legislature to amend the Constitution under Article
368 is unquestionable and unrestricted and naturally the background of the Kesavananda Bharati Case was
formed.
• The case highlighted the issue of separation of power.
Kesavananda Bharati Case 1973
• Case was on the backdrop of Whether the ‘Fundamental Rights’ contained in Part III of the Constitution are
amenable by the Parliament within the scope of Article 368 or not. Whether 24th, 25th & 29th Constitutional
Amendment Acts were valid or not.
• In Kesavananda Bharati case, the judgment of Golaknath Case was overruled and the Supreme Court
formulated the ‘Basic Structure Doctrine’ which includes separation of power also.
Indira Gandhi Vs Raj Narain Case 1975
• In this case, in order to negate the judgment of Allahabad High Court invalidating Prime Minister Indira Gandhi’s
election to parliament, the 39th Constitutional Amendment Act, 1975 was introduced by then Prime Minister
Indira Gandhi’s Government during the time of National Emergency of 1975.
• Article 329A was inserted through this Amendment which stipulated that the election of the Prime Minister
and Speaker of Lok Sabha cannot be questioned. It attempted to regularize the election of Prime Minister Indira
Gandhi and Speaker of Lok Sabha which was struck down by the Supreme Court citing the ‘Basic Features of
Democracy’, ‘Rule of Law and Equality’ as held in Kesavananda Bharati Case.
• The Supreme Court held that the specialised function of each organ should be performed by the trained minds
of that field.
o Hence High Court judgement should be overruled only by the Supreme Court and that too by a judicial
process. The legislature cannot undo a judicial order by the legislation.
Ram Jawaya vs Punjab Case (1955)
• The Punjab government nationalized the publication, printing and selling of textbooks.
• The issue was that the State government, an executive body, could not engage in any trade or business activity
without any law being enacted for that purpose.
• The court held that the action of the executive was approved by the State legislature through the Appropriation
Act. The Appropriation Act contained the expenses to carry on the business of publishing textbooks, and the
same was approved by the State legislature. Hence, the contention of the petitioners was rejected.
• This case deals with separation of power between executive and legislature.
• There can be no exact definition of executive function. Executive functions will be the residuary functions after
removing the legislative and judicial functions from the state function.
• India has adopted the British parliamentary system where the President and the governor are formal heads,
and the executive will always be subject to the legislature. The question arises as to what extent the legislature
exercises control over the executive.
• It is not expected that the executive runs to the legislature to seek its permission through special legislation to
perform the day-to-day functions.
o The executive will have the power to issue orders, notifications, etc. to perform its functions subject to
article 73 (for the union executive) and article 162 (for the state executive).
▪ According to Article 162, the executive power of a State shall extend to the matters concerning
which the Legislature of the State has the power to make laws.
• Thus, the powers of the Executive run parallel to the powers of the legislature. As long as there is umbrella
legislation, the executive will have the power to take decisions.
Conclusion
• The doctrine of separation of powers also aims to improve governance efficiency by allowing each branch to
specialise in order to fulfil its specific function. As a result, the phrase "separation and balance of powers" is
frequently used.

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PARLIAMENT AND STATE LEGISLATURES —STRUCTURE, FUNCTIONING, CONDUCT OF BUSINESS,

POWERS & PRIVILEGES AND ISSUES ARISING OUT OF THESE.

Introduction
• Indian constitution has chosen a Parliamentary System of Government. Under this system, there is a
unique mixture of the legislative and executive organs of the state. While discussing the functions of
Parliament this aspect should always be considered.
• The Parliament provides the Council of Ministers to manage the administration of the State and holds it
responsible (Article 75). The membership, of the Council of Ministers, is drawn from the two chambers of
the Parliament.

CONSTITUTIONAL PROVISIONS

Important articles associated with parliament: Important articles associated with state legislature:
• Article 79: There shall be a Parliament for the Union • Article 163: There shall be a Council of Ministers
which shall consist of the President and two Houses headed by the Chief Minister to aid and advise
to be known respectively as the council of States and governors in exercising their functions.
the House of the People. • Article 164:Chief Minister is appointed by the
• Article 80: Council of states will have a maximum of Governor and further appoints the Council of
238 members elected by the elected members of the Ministers on the advice of the Chief Minister.
Legislative Assembly of the State in accordance with They hold the office during the pleasure of the
the system of proportional representation and single Governor.
transferable vote. Twelve members to be nominated • Article 168: There shall be legislature in every
by the President consist of persons having special state and it shall consist of the governor. It can be
knowledge or practical experience in matters of both unicameral and bicameral.
Literature, science, art, and social service. • Article 169:The legislative council can be created
• Article 74: There shall be a Council of Ministers and abolished by the parliament if the state
headed by the Prime Minister to aid and advice the assembly passes a resolution with a special
president. majority to do so.
• Article 75: Ministers are collectively responsible to • Article 191: Disqualification of members from
parliament in general and to Lok Sabha in particular. either house (assembly or council) can be on the
• Article 85: President from time to time summons ground of holding the office of profit, unsound
each house of the parliament, but the maximum gap mind, discharged insolvent, and on losing
between the sessions can be six months. President citizenship.
can also prorogue or dissolve the house. • Article 174: It deals with the power of the
• Article 93: House of People as soon as possible governor to summon the house or its
choose two members among itself as Speaker and prorogation.
Deputy Speaker. • Article 178: Legislative assembly of the states as
• Article 102:Disqualification of members from either soon as possible choose two members among
house can be on the ground of holding the office of itself as Speaker and Deputy Speaker.
profit, unsound mind, discharged insolvent, and on • Article 200: The bills to become an act must be
losing citizenship. signed by the governor, governor also exercises
• Article 107: Provision of introduction and passing of his discretion in few matters associated with the
bills in the parliament. descent.
• Article 368: Powers and procedure to amend
constitution.

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Features of Parliamentary form of govt Reasons for adopting parliamentary form of

government
● Nominal and Real Executives: The President is the ● Familiarity with the System: K M Munshi
nominal executive (de jure executive or titular argued that ‘For the last thirty or forty years,
executive) while the Prime Minister is the real executive some kind of responsibility has been
(de facto executive) introduced in the governance of this country.
● Majority Party Rule: The political party which secures Our constitutional traditions have become
majority seats in the Lok Sabha forms the government Parliamentary. After this experience, why
● Collective Responsibility: The ministers are collectively should we go back and buy a novel
responsible to the Parliament in general and to the Lok experience?
Sabha in particular (Article 75) ● Preference to More Responsibility Dr. B R
● Double Membership: The ministers are members of Ambedkar pointed out in the Constituent
both the legislature and the executive Assembly that ‘a democratic executive must
satisfy two conditions: stability and
● The leadership of the Prime Minister: The Prime
responsibility
Minister plays the leadership role in this system of
government ● Need to Avoid Legislative—Executive
Conflicts
● Dissolution of the Lower House: The lower house of the
Parliament (Lok Sabha) can be dissolved by the ● Nature of Indian Society: giving
President on the recommendation of the Prime representation to various section, interests,
Minister and regions in the government

DIFFERENCE BETWEEN THE PARLIAMENTARY AND PRESIDENTIAL FORM OF GOVERNMENT:

Parliamentary System Presidential System

• Features: Dual executive, Majority party rule, • Features: Single executive, President and legislators
Collective responsibility, Political homogeneity, elected separately for a fixed term, Non-
Double membership, Leadership of prime responsibility, Political homogeneity may not exist,
minister, Dissolution of Lower House, Fusion of Single membership, Domination of president, No
powers dissolution of the Lower House, Separation of
• Merits: Harmony between legislature and powers.
executive, Responsible government, Prevents • Demerits: Conflict between legislature and
despotism, Wide representation executive, Non-responsible government, May lead to
• Demerits: Unstable government, No continuity autocracy, Narrow representation
of policies, Against separation of powers, • Merits: Stable government, Definiteness in policies,
Government by amateurs Based on separation of powers, Government by
experts

FUNCTIONS OF THE PARLIAMENT:

● Law making: Parliament is the legislative organ of the body and is entrusted with the functions of making laws,
policies and also makes amendments to the constitution. It is also the ground of debates and discussions for
parliamentarians on matter of public and national interest.
● Control the executive: The Council and Ministers are responsible for the lower house and the executives are
controlled using No confidence motion, censure motion, question hour, etc.
● Judicial functions: With the provisions like enquire committees, impeachment of president, removal of judges
of high court and Supreme Court and parliamentary privileges makes parliament a quasi judicial body.
● Election function: The elections of President and Vice President are carried out by parliament, internally they
also elects Chairperson of the house and heads of other parliamentary committees.

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● Management of finances: Executive cannot withdraw or use any money from Consolidated Fund of India
without authorization of the parliament. Budget is submitted before the parliament, Public Accounts
Committee and Estimates Committee also scrutinize the expenditure.

ISSUES FACED BY INDIAN LEGISLATURE

● The decline in the number of sittings: The 16th Lok Sabha functioned for a total number of 1,615 hours,
20% more than the 15th Lok Sabha. However, this is 40% less than the average of all full-term Lok Sabha
(2,689 hours).
● Discipline and decorum: Statistics from the last five years which reveal that nearly 60% of the time allotted
for the hour has been lost due to disruptions. This, not only, results in the wastage of time of the House but
also adversely affects the very purpose of Parliament.
o Recent example: The passage of three farm laws in Rajya Sabha and discussions related to
abrogation of Art 370 showed us the glimpses of lack of discipline.
● Declining quality of parliamentary debates: Parliamentary discussion, which focussed on national and
important issues, are now more about local issues and parliamentary time used for settling political scores.
o Recent example: The last year sessions saw political discussion for the acts of comedians and
actors. Debates over tweets were also witnessed rather than focusing on productive debates
related to national interest
● The low representation of women: Although women’s representation has steadily increased in the Lok
Sabha, only 5% of the House in the first-ever election to 14% in the 17th Lok Sabha, this is still unequal
when compared to democracies like the U.S. that has 32%.
● Inadequate Discussion: Bills are being passed with no/least discussion and by voice vote amidst
confusion in the House.
o Recent example: This year only five ministries demands were presented in the parliament and
three of them were discussed and the finance bill was passed in mere 18 minutes of introduction.
● Reduced Scrutiny by Parliamentary Committees: In the 16th Lok Sabha, 25% of the Bills introduced were
referred to Committees, much lower than 71% and 60% in the 15th and 14th Lok Sabha respectively
● Legislation through Ordinances: there has been an overuse of a frequent and large number of Ordinances
even when there is no necessity or unusual circumstances.
o Recent example: Use of ordinance of “Indian Medical Council (Amendment) Ordinance” despite
opposition from medical fraternity across the nation represents an attempt bypass the legislative
setup. The Aadhaar and Other laws (Amendment) 2019 also present the same vibes.
● Codifying Parliamentary Privileges: Parliamentary privileges have not been codified leading to scepticism
and concern over their misuse.

Implications of poor functioning of legislature

● Declining trust in the democratic process: Parliament becomes less relevant for national policymaking
● Lack of accountability: If the parliament doesn’t work properly, it can not hold the government
accountable for its actions.
● Less productivity: Disruptions and a very low number of sittings lead to a decrease in productivity.
● Legislative Vacuum: Delay in policymaking creates a legislative gap which is then filled with other bodies in
a direct assault on the doctrine of Separation of Powers.
● Cost: Certain legislations when delayed lead to high costs to the public exchequer and also bear a huge
cost to society.
o For exa: Official estimates suggest the cost of one session to be Rs 2 crore. And last year as per PRS
India 71% of the sessions were disrupted causing burden on exchequer.

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Suggested Parliamentary Reforms

● Fix a minimum number of settings: 120 for Lok Sabha, and 100 for Rajya Sabha as was recommended by
the National Commission to Review the Working of the Constitution
● Codifying Parliamentary Privileges: The privileges should not be allowed to be used in such a way as to
revoke themselves and become rights against the people
● Departmental Committees and Improving Accountability: These Committees strengthen the Government
by providing valuable insights into its working and more surveillance tools, and restoring the balance
between Parliament’s legislative and deliberative functions and its role as a representational body
(National Commission to Review the Working of the Constitution)
● Planning Legislation and improving its Quality: By streamlining the functions of the Parliamentary and
Legal Affairs Committee, making greater use of the Law Commission, etc
● Improving information supply: Members of the Parliament must remain up to date with the latest
information regarding developments in all areas of parliamentary concern (National Commission to
Review the Working of the Constitution)
● Reducing expenditure: There is a need to reduce parliamentary spending under various heads. The strictest
self-control is necessary.
● Improving the quality of Members: Members of important parliamentary committees need to lay down a
strict code of conduct for themselves. (National Commission to Review the Working of the Constitution)
● Building a better image of Parliament: Parliament must have access to public opinion and the public must
have access to Parliament.
● Training of Members: Institutionalized arrangements are necessary to provide the much needed
professional training and orientation to every newly elected/nominated Member.
● Virtual meetings: Our parliamentary rules do not require MPs to meet physically at the Parliament House.
The only requirement for a duly constituted sitting of a house is that it be presided over by the
chairman/speaker or any authorised MP. Hence, crucial legislative work could continue in crisis like COVID-
19 pandemic by leveraging technology for virtual meetings as Courts across the country are doing.

VARIOUS OTHER ISSUES FACED BY INDIAN LEGISLATURE

FALLING PRODUCTIVITY OF RAJYA SABHA

PYQs:
1. Rajya Sabha has been transformed from a ‘useless Stepney tyre’ to the most useful supporting organ in
the past few decades. Highlight the factors as well as the areas in which this transformation could be
visible. (2020)
2. Individual Parliamentarian’s role as the national lawmaker is on a decline, which in turn, has adversely
impacted the quality of debates and their outcome. Discuss. (2019)
3. Explain the relevance of the Rajya Sabha as a second chamber in the federal setup of the Indian
Parliamentary System. (2003)
4. In what ways is the RAJYA SABHA expected to play a special role in today's changing political
Scenario?(1999)

Rajya Sabha:Articles 79 to 122 in Part V of the Constitution deal with the organization, composition, duration,
officers, procedures, privileges, powers, and so on of the Parliament

Recent context:Rajya Sabha Chairman lately presented a “Report to the people”, highlighting the below-par
execution of the Upper House and the need to hold legislatures responsible.
Important facts
Highlights of report

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• From June 2014, to the last day of last session of 16th Lok Sabha - the Rajya Sabha held 18 sessions and
329 sittings till date and passed 154 Bills — which comes to less than one Bill in two sittings.
• The legislative output of the Rajya Sabha during 2014-2019 has been far lower than during the 2009-
2014. In 2009-2014, it cleared 188 Bills and in 2004-09 it cleared 251 Bills.
• In contrast, since 2014, the Upper House has been unable to function for 40% of its allotted time due to
disruptions.

Relevance of Rajya Sabha

● Permanent House: Rajya Sabha is the permanent house of parliament. Hence it provides national
leadership and stability.
● Checks against populist measures: While Lok Sabha may work under populist compulsions; Rajya being the
permanent and less political house can take a deeper and non-populist look at bills
● Representation of States:It maintains the federal equilibrium as it protects the interests of the states.
● Space for Experts: It provides for representation of eminent society members via nomination who
otherwise may not participate in elections.
● Sharing the legislative burden:Bills passed hastily in Lok Sabha are intensely scrutinized in the RS.
o Examples -: Rajya Sabha recently up roared against the controversial National Capital of Delhi
(Amendment) Bill 2021. It also scrutinized and criticised passage of Aadhaar Bill 2019.

Reasons for low productivity:

● Political Tussle between the government and opposition leads to disturbance in function and hence
decreases productivity.
● Lack of consent: It also reflects that there is a lack of consent on many issues and the government is not
able to take the opposition in confidence on such matters.
● Backdoor entry: Rajya sabha has become a backdoor entry for those who have not been elected in the
election.
● Criminalization: due to backdoor entries criminalization of politics has been increasing which in turn has
led to decreasing productivity of Rajya sabha.
o Example: According to an analysis by the Association for Democratic Reforms (ADR), about 24% of
the sitting Rajya Sabha members have declared criminal cases against themselves.
● Veto: Government often passes bill by tagging them as Money Bill which cannot be rejected by Rajya Sabha.
It is an indirect veto with Lok Sabha.
o Eg- Aadhaar and Other Laws (Amendment) Act 2019 was passed as Money bill.

Position of Rajya Sabha vis-à-vis Lok Sabha

Equal Status with Lok Sabha Unequal Status with Lok Sabha Special Powers of
Rajya Sabha

• Introduction and passage of • A Money Bill can be introduced only in the Lok It can authorise the
ordinary bills, Constitutional Sabha and not in the Rajya Sabha. Parliament to make a
amendment bills and financial • Rajya Sabha cannot amend or reject a Money Bill. law on a subject
bills involving expenditure It should return the bill to the Lok Sabha within 14 enumerated in the
from the Consolidated Fund of days, either with recommendations or without State List (Article
India. Recommendations. 249).
• Election and impeachment of • The Lok Sabha can either accept or reject all or
the president. any of there commendations of the Rajya Sabha. It can authorise the
• Election and removal of the In both the cases, the money bill is deemed to Parliament to create
Vice-President. However, have been passed by the two Houses. new All-India Services
Rajya Sabha alone can initiate common to both the

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the removal of the vice- • A financial bill, not containing solely the matters Centre and states
president. He is removed by a of Article 110, also can be introduced only in the (Article 312)
resolution passed by the Rajya Lok Sabha and not in the Rajya Sabha. But, With
Sabha by a special majority regard to its passage, both the Houses have equal
and agreed toby the Lok powers.
Sabha by a simple majority. • The final power to decide whether a particular bill
is a Money Bill or not is vested in the Speaker of
the Lok Sabha.

• An analysis of the above points makes it clear that the position of the Rajya Sabha in our constitutional
system is not as weak as that of the House of Lords in the British constitutional system nor as strong as that
of the Senate in the American constitutional system.
• Except in financial matters and control over the council of ministers, the powers and status of the Rajya
Sabha in all other spheres are broadly equal and coordinate with that of the Lok Sabha

Way forward
● Stricter Rules of Procedure and Conduct of business to deal with the violent behavior
● Legislative Measures: Parliament (Enhancement of Productivity) Bill, 2017 seeks to decide the minimum
number of days (100 days for Rajya Sabha).
● Re examining the Anti-Defection Law as it gives full powers to the political parties
● Continued Evaluation of the performance of our parliament and the MPs at regular intervals can be
undertaken by Citizen’s pressure groups to put pressure on MPs to perform.

Conclusion: Lessons should be taken from the parliaments in Europe and Australia, where if the bill is rejected twice
in the Upper House (House of Lords/Senate), a joint sitting of both the houses is held, where the bills are passed by
an absolute majority.

PARLIAMENTARY PRIVILEGES

PYQs
1. The ‘Powers, Privileges and Immunities of Parliament and its members’ as envisaged in Article 105 of the
Constitution leave room for a large number of un-codified and unenumerated privileges to continue’.
Assess the reasons for the absence of the legal codification of parliamentary privileges. How can this
problem be addressed?

Parliamentary privileges are special rights, immunities, and exemptions enjoyed by the two Houses of
Parliament, their committees, and their members. According to Article 105 and 194, the powers, privileges, and
immunities of Parliament and MPs are to be defined by the Parliament. No law has so far been enacted in this
respect.

Types of Parliamentary privileges

Collective privileges Individual privileges
The privileges belonging to each House of Parliament collectively The privileges belonging to the members
• right to publish its reports, debates, and proceedings and individually
also the right to prohibit others from publishing the same • They cannot be arrested during the
• can exclude strangers from its proceedings and hold secret session of Parliament and 40 days before
sittings the beginning and 40 days after the end
• can make rules to regulate its own procedure and the of a session
conduct of its business

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• can punish members as well as outsiders for breach of its • They have freedom of speech in
privileges Parliament
• They are exempted from jury service.

Parliamentary privileges and evolution:

• At British parliament: It was introduced to prevent arrest and harassment of legislators in the House of
Commons when they criticized the crown.
• The Indian story: Our founding fathers provided the parliamentarians absolute freedom of speech in the house
while citizen’s freedom was restricted. The Supreme Court also upheld the decision based on its respect to the
legislators who were mostly freedom fighters.
• Powers to codify: The founding fathers left the decision to codify the privileges on wisdom of parliament, but
the current legislators fell the codification would take out sovereignty of parliament. They even went to argue
they don not constitute civil servants that was struck down in P V Narsimha Rao Case.
• Current scenario: Parliamentarians cannot be arrested during sessions and 40 days before the session.
Considering three sessions per year their immunity crosses more than 365 days. Slapping of privileges on
citizens, civil servants and journalist is commonly observed.
Importance of privileges:
● To Perform their functions: freedom from arrest or freedom of speech belong primarily to individual members
of each House and exist because the House cannot perform its functions without unimpeded use of the services
of its members
● For the protection of its members: the power to punish for contempt and the power to regulate its own
constitution belong primarily to each House as a collective body, for the protection of its members and the
vindication of its own authority and dignity
● Eliminate external interference: Legislative privileges are provided so that legislatures can discharge their
duties without fear and favour and without external interference.

Issues with these privileges:

● Invades on constitutionalism: Our legislators have the power to be the sole judges to decide what their
privileges are, what constitutes their breach, and what punishment is to be given. Such wide power is against
constitutionalism.
● Increased misuse: In 2017, the Karnataka assembly Speaker ordered the imprisonment of two journalists for
a year based on recommendations in two separate reports of its privilege committees.
● Against rule of law: The concept of parliamentary privileges provided by the Constitution and the usual Rule of
Law is supposed to be inconsistent with each other. The absolute freedom of speech places them above the
citizens that hinders our preambular value that starts with “We the People of India” and not “We the
parliamentarians of India”
● Affecting equality: Giving special rights and immunities to parliamentarians is contemplated as opposing and
undermining the equality. The frequent uproar for Uniform Civil Code is heard in parliament but they step back
when issue of codification of privileges is brought to the table.
● Immunity from court: The most controversial aspect of parliamentary privilege is the power and jurisdiction of
courts to review parliamentary privileges.
● Global experience: Today even the British Parliament has broken away from its tradition of treating criticism
as infringe to parliamentary privileges. The U.S House of Representatives has been working without any penal
powers for nearly two centuries and Australia has also codified the privileges.

BALANCE BETWEEN FREE SPEECH AND PARLIAMENTARY PRIVILEGES:

• Context:

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➢ Delhi assembly has summoned facebook and has placed it before Peace and Harmony committee on the
grounds violation to parliamentary privileges. This has broken the debate between fundamental right of
free speech and parliamentary privileges.
➢ Some political scientist also have demanded taking away of parliamentary privileges from the state
assembly and restricting it to parliament alone.
• Parliamentary privileges: They are set of rights and privileges essential for independent functioning of the
parliament. Its origin traces to 1689 House of Commons which have been adopted by our constitution.
• Importance of privileges:
➢ Legislatures also have a separate non judicial power of inquiry under which privileges are defined. As
per Waltor Bagehot it fulfils the expressive and informative function of the house as they represent
voice of people. For example although Atomic energy is in union list but still state legislators can raise
the issue of public interest and concern.
➢ There is prevalence of Doctrine of Pith and Substance where courts solve the issue of over reach of
legislation but it’s not fair at applying pre-emptively at inquiry stage.
➢ The concept of cooperative federalism fails as, how cans a state cooperates if it is barred from the
discussion.
➢ Courts cannot discuss on the issues what can and cannot be discussed in the parliamentarians as they
are only balancing wheel and not supreme as seen in the USA constitution.
Supreme court on privileges:
● The Supreme Court’s decision in M.S.M. Sharma (1958), gave primacy to the privileges over free speech.
However, by 1967, the Supreme Court was convinced that Parliament should not have absolute powers.
● In the case of PV Narsimha Rao v. State, it was held that ‘it is true that a house can hold a member accepting
a bribe for voting guilty of its contempt, but the house has very limited penal powers.
Way forward:
● Codification: codification would enhance the accountability of legislatures as once the privileges are
embodied in the legislature enactment,
● Judicial scrutiny: codification would be open to judicial scrutiny and would be tested consistently with
constitutionalism.
● Global examples:Countries such as Australia, the USA, New Zealand, and Canada have also codified
privileges

Conclusion
The constitution review commission headed by Justice M.N. Venkatachaliah had also recommended that
privileges should be defined and delimited for the free and independent functioning of the legislatures. Holding
freedom of speech subject to legislative privileges is not in tune with modern notions of human rights. The balance
between fundamental rights and parliamentary privilege must be re-examined.

ROLE OF OPPOSITION

The opposition is an integral part of our democracy without which we cannot expect a pluralistic society, and more
importantly, it is the soul of democracy. In the absence of opposition, any autocratic ruling party can arbitrarily
impose or promote its ideology, beliefs, religion, caste, creed, etc on the rest of the nation. Many political analysts
comment on Indian democracy to revive its important part i.e. - Opposition.

Role of the opposition on Indian democracy:

• Act as the voice of the voiceless: A strong opposition must uphold the views of the people in a true sense
and act as the voice of the unheard. For example the opposition’s role in extending PM-Garib Kalyan Ann
Yojana during the national lockdown.
• Accountability: The role of any party is not just to win elections but also to act as per manifesto and
democratic principles.

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o For example, The fight against corruption is also an important role of government, the combined
effort of oppositions in 2012 in India against corruption ensured governments accountability in
framing Lokpal.
• Safeguarding rights and liberty of people: Opposition must also highlight the wrong happening during the
reign of government and uphold people’s rights. For example use of question hour using the 2020 Kisan
Andolan was constructive in the rising rights of protestors.

Issues of opposition in India:

• Electoral strength: Indian National Congress (INC) is the largest opposition in the parliament but lacks the
numerical strength to challenge the ruling party. The opposition should rise above fragile coalitions,
dynastic politics by throwing away Hamlets and Macbeths for the larger interest of the nation.
• United efforts: The opposition is divided between the party and regional interest. Most of the opposition
party remain silent on issues that are not their forte.
o For example when the Farm bills were passed Akali Dal MP’s retracted the support to the
government while the rest remain silent. The same applies to MP’s of Tamil Nadu alone protest for
reforms in NEET exams.
• Defection: When self-interest is prioritized over national interest people the issues of defection surface and
it weakens the role of opposition. The 2019 National elections witnessed numerous political defections to
ensure personal victory.

Impact of weak opposition:

• Democratic nature of society: The absence of democracy is like a body without a soul. Even the Democracy
Index of EIU (Economist Intelligence Unit)tagged India as a flawed democracy due to weak opposition.
• Tyranny of the cabinet: History tells us, whenever the opposition weakens the cabinet strengthens itself
and people take the burn. The growing number of protests be it students protest, Citizenship Amendment
Act protest, or farmers revolt, all depict the failure of opposition and strengthening of the cabinet.
• Impact on governance: As the discontent rises among the masses due to unpopular bills, acts, and
ordinances people and local government tend to act insensitively towards administration paralyzing the
governance.
o For example when farm bills were passed with minimal resistance from the opposition several state
governments enacted law to nullify the changes causing deadlock for administration.

What reforms are needed?

● Legal reform: There arises a problem when no party in opposition secures 55 or more seats. In such
situations, the numerically largest party in the opposition should have the right to have a leader recognized
as a leader of the opposition by the speaker.
● Reforms in status: Besides, the 10% formulation is inconsistent with the law ‘the salary and allowances of
leaders of opposition in Parliament Act, 1977’ which only says that the largest opposition party should get
the post.
● National interest Opposition should unite cutting across party lines for the welfare of society at large on at
least issue of national or constitutional importance.
● Strengthening anti-defection law: Defection laws should be revisited as multiple legal loopholes have been
identified by the legislators.

Conclusion:
An effective opposition is essential for the successful operation of the parliamentary democracy prevalent in
India. However in last 50 years, an effective, strong, organized and viable national opposition could never emerge
except in flashes. An active opposition is indeed the symbol of alive democracy. We must adopt best practices like
setting up of Shadow Cabinet as witnessed in the UK.

ROLE OF PRESIDENT AND GOVERNOR AS PART OF THE LEGISLATURE

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President and the Governor are part of parliament and state legislature but they do not participate directly in
legislation. They aid the process and act as an important link in the due process. Their role in legislation can be
summarized as following.
Role of President as part of the legislature:
➢ Ordinance: President promulgates ordinance when the parliament is not in session or when either one
house is not in session.
➢ Business of house: President summons or prorogue the parliament and can also dissolve the Lok Sabha
when Prime minister advises or when the council losses confidence in the house.
➢ Disqualification of MP’s: President in consultation with Election Commission decides on the question of
disqualification of MP’s.
➢ Control the legislations: His prior recommendation is needed to introduce certain kinds of bills for example
withdrawing funds from Consolidated Fund of India, a bill aiming at the alteration of boundaries of the
state.
Role of Governor as part of the legislature:
➢ Business of the house: Governor summons or prorogue the state legislature and can also dissolve the house
when Chief Minister Advices or when the council losses confidence in the house.
➢ Power to nominate: Governor can nominate one-sixth of the members to the legislative council from
amongst the people having special knowledge in literature, art, science, and social service. He can also
nominate one member of the Anglo Indian community to the legislative assembly.
➢ Disqualification: He decides on the questions of disqualification of MLA or MLC in consultation with the
Election Commission of India.
➢ Reservation of bills: Governor also reserves the bill that endangers the position of the High Court,
derogatory towards the constitution or against the larger public interest.
➢ Ordinance: Governor also promulgates ordinance when the state legislature is not in session.

Issue of the ordinance:

➢ Historic importance: The ordinance was incorporated by Dr. B R Ambedkar despite opposition from H V
Kamath as well as H N Kunzru. He argued the use of ordinance was during emergencies when the house
is not in the state to legislate.
➢ Context:
• In the recent Krishna Kumar Singh v State of Bihar, the Supreme Court ruled that ordinance is
distinct from temporary legislation and thus does not automatically create rights and liabilities that
go beyond its term of operation. In other words, courts could now independently assess the effects
of the ordinance.
• The central government issued three successive ordinances related to land acquisition to bypass
the legislature especially Rajya Sabha due to numerical shortcomings in the upper house.
➢ Important cases:
• R C Cooper case 1970: The Supreme Court held that the President’s decision to promulgate
ordinance could be challenged on the grounds that ‘immediate action’ was not required, and
the ordinance had been issued primarily to bypass debate and discussion in the legislature.
• Krishna Kumar Case 2017: The Supreme Court held that the legislative power of the executive
to promulgate ordinances is to be used in exceptional circumstances and not as a substitute
for the law-making power of the legislature.
➢ Against separation of powers: Our founding fathers laid importance on separation of power between
organs of the government. But the ordinance-making power cuts across the legislative power as the
executive gets leverage. This is against the core of our constitution thus can only be controlled by regulated
use.
o For example, in the 1950s, central ordinances were issued at an average of 7.1 per year. However,
the number peaked in the 1990s at 19.6 per year. The last couple of years has also seen a high
spike in ordinance promulgation (16 in 2019, 15 in 2020)
➢ Standard Operating Procedure (SOP): Law commission should draft an SOP on the issue and clearly define
the situation in which an ordinance can be issued. They should include a sunset clause or minimum

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instances on which ordinance can be drafted on an issue. Re-promulgation of ordinances is a fraud on the
Constitution and a subversion of the democratic legislative processes.
Recent case studies:
• Issued by the centre:
▪ The Indian Medical Council Amendment Ordinance was issued twice in 2018 and 2019.
▪ Commission for Air Quality Management issues has been again addressed in the
monsoon session by ordinance replacing 2020 ordinance.
▪ The Enemy Property (Amendment and Validation) Ordinance which deals with
property and the rights of their heirs has been reintroduced again.
• Issued by the states:
▪ Kerala has also repromulgated ordinances: one ordinance to set up a Kerala University
of Digital Sciences, Innovation and Technology has been promulgated five times
between January 2020 and February 2021.
▪ In 2020 alone, Kerala issued 81 ordinances, while Karnataka issued 24 and
Maharashtra 21.
➢ Way forward: Issuing of ordinance in times other than emergency if not favourable. The opposition
should act with maturity and the ruling party must respect the legislative procedures. Courts them self
can create a standard operating process and define the pre requisite conditions to issue the ordinance.

SOCIO-ECONOMIC PROFILE OF THE PARLIAMENT

The Parliament of any country is the mirror of society. As it is an elected body it depicts the societal ethos and also
the aspirations of the society. Thus by observing the socio-economic profile we can decipher the amendments
needed for the Nobel good.

➢ The first phase (1947-67):

• Initially, it was dominated by Brahmins and OBC and women were under-represented.
Parliamentarians were graduates from foreign universities.
• Lawyers followed by agriculturalists dominated in terms of profession.
➢ Second phase(1967-89):
• This era is termed as “Democratic Upsurge” by Prof Yogendra Yadav as consolidation of OBC was
witnessed.
• Parliamentarians maximum were represented from OBC followed by the agricultural community.
In terms of profession due to J P Movement and Youth Congress movement politics in itself
became a full-time profession dominated by agriculturalists and social workers.
➢ The third phase (1989-present):
• It is termed as the “Plebeianisation phase” where politics is dominated by members of the OBC
community due to numerical advantage and political consolidation.
• It also marks the entry of business personalities into politics. For example, the number of people
from the business profession increased from 23% in 2014 to 29% in 2019. It was also the phase of
criminalization of politics.

The parameter in the Data

17th Lok Sabha
Agriculturalist 38%
Social workers 39%
Business personalities 29%
MP’s 12th pass 27%
MP’s Graduates 72%
Mp’s with PG 29%

Changing socio-economic profile:

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• Religion: In terms of religious composition, 90.4% of the MPs of the new Lok Sabha are Hindus. There are
five more Muslims elected than in 2014, which brings Muslim representation to 5.2% (from 4.2%). Other
religious minorities, such as Sikhs and Christians, represent 4% of the MPs.
• Caste: It is similar to 16th Lok Sabha. 28.6% of the MP’s belong to upper caste Hindus while the number of
parliamentarians from intermediary caste has reduced from 83 to 77.
• Profession: Around 303 elected MP’s have filed agriculture being their primary profession, the winners
filing politics as their profession has increased from 38 to 61. Film actors, folk singers have almost
performed well and have amassed nearly 55% of the vote share in their constituencies.
• Gender: There is marginal improvement in women participation from 11.6% to 14.6%. It has
automatically reduced male seats from 88.4% to 85.4%.
• First timers: Around 277 Mp’s were elected for the first time, 226 re-running MP’s were elected and 118
third time runners were elected. This depicts the importance of political party than individual
contribution.

SLUMBERING PARLIAMENT

Political scientist W H Morris Jones in 1957 referred to the Indian parliament as “Unmistakably a story of
success” based on the nature of its debates and its conduct. But the passage of Finance Bill 2018 in mere 18
minutes of introduction highlights the level of deterioration.
Issues in parliament:
➢ Trends of shorter parliamentary sessions: The FY20 budget session ended two weeks before the
determined date, the monsoon session lasted for ten days and the winter session got cancelled. This
trend depicts the lethargic behaviour among the parliamentarians.
➢ Weakened legislative scrutiny: Quick word should be referred to as a sign of abdication by the parliament
of its duty to scrutinize the bill. According to the data by PRS India the 60% of the Bills in the 14th Lok
Sabha and 71% in the 15th Lok Sabha were wetted by the DRSCs concerned, this proportion came
down to 27% in the 16th Lok Sabha
➢ Discipline and decorum: The frequent disruptions during the sessions lead to adjournment of the house
leading to loss to exchequer and time reserved for legislations. As per the reports of PRS India 46% of Lok
Sabha and 26% of Rajya Sabha time gets disrupted due to lack of discipline.
➢ Discussion in the budget: The budget session of FY21 listed the budget of only five ministries and
discussed only three of them. The rest of the discussion that accounted for 27 lakh crore was passed by
guiltion. The situation is much worse in state legislatures.
➢ Private members bills: They form an important part of legislation and they depict the will of opposition.
The lapse of Shashi Tharror’s Transgender Protection bill also depicts low or no room for the opposition
in law making.
Way forward:
➢ Strengthen the system of scrutiny: Time for Members to scrutinize the bill should be increased and a
strong culture of research and support should be created. Public feedback should be made
mandatory in certain bills and should be assigned relevant weight age.
➢ Legislative Impact Assessment: The Social, economic, and environmental impact of the bill must be
made mandatory to understand the impact which can be used in debates.
➢ Role of opposition: The role of opposition has to be strengthened by the creation of a shadow
cabinet in line with the British Parliament.

CRIMINALIZATION OF POLITICS

• Participation of criminal elements of the society in the elections and further getting elected as Member of
Parliament and Member of State Legislature Assembly is termed as Criminalization of Politics.

• Context: According to an analysis of their self-sworn affidavits by the Association for Democratic Reforms
(ADR) released 24% of Rajya Sabha members face criminal cases.

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Reasons:
➢ Lack of political will: There is an unsaid understanding among the political parties related to the issue
which makes them reluctant towards decriminalization. For example despite multiple attempts of NGOs
like “NEW” since 2000 minimum yields are observed.
➢ Issues in enforcement: Criminal justice system consisting of the judiciary and police are not on par with
the level of crimes. For instance, the 17th Lok Sabha has 43% of the elected MP’s facing criminal charges.
➢ The self-interest of voters: Major chunks of voters tend to vote on the narrow prism of caste and
community, thus the candidates are not scrutinized by the public.
➢ MMM: The unholy nexus of Money-Muscle-Men are used by the criminal entities; as a result, they can
win the elections. Voters are also left with no choice as most competing candidates have some crime
record associate with them.
➢ Legal issues: Section 8 of the Representation of Peoples (RP) Act, 1951 disqualifies a person convicted with
a sentence of two years or more from contesting elections. But those under trial continued to be eligible
to contest elections.

Effects of criminalization of politics:

➢ Free and fair elections: It is against the ethos of free and fair elections as the criminal has an unfair
advantage of money and muscle power hindering the basics of free and fair elections.
➢ Impact on good governance: When the law breakers become lawmakers there is a direct impact on good
governance.
➢ The integrity of public servants: The practice of corruption also tends to rise due to the entry of criminal
entities. Social disharmony also rises due to the enhanced culture of knowledge and circulation of black
money.
➢ Loss of public faith in Judicial machinery: It is apparent that those with political influence take advantage
of their power by delaying hearings, obtaining repeated adjournments, and filing innumerable interlocutory
petitions to stall any meaningful progress

Measures to be taken:
➢ Transparency: Supreme Court has ordered parties to publish criminal history along with the facts
considered that led to their suspension.
➢ Citizen awareness: In the famous Public Interest Foundation V Union of India case the political parties
were forced to publish online the pending criminal cases and in election mandates.
➢ Dinesh Goswami's committee: It was formulated to provide recommendations on the issues. Some
recommendations on the issue are,
• State funding of elections is essential to level the field in terms of money and muscle power.
• Strengthen the implementation of the Model Code of Conduct (MCC) and provide statutory status
to it.
• Enhance voter awareness on the issues like money, gifts, and other inducements.
➢ Right to recall: It confers the power on the registered voters in a constituency to recall their elected
representatives from the house on the grounds of non-performance.
➢ Curb the high cost of campaigning: There is a need to curb the high cost of campaigning to provide a level
playing field for anyone who wants to contest elections

Conclusion: Citizens must vote in elections based on character, conduct and capability of the candidates and
not based on cash, caste, community, and criminal prowess. This could be the ultimate solution to check money
power in politics.

LOW PARTICIPATION OF WOMEN IN POLITICS

Context: TheVice president VenkaiaNaidu said that although the 17th Lok Sabha has the highest number of 78
women members, they account only for 14% of the total number. Pointing out that reservations for women in the

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local bodies have politically empowered lakhs of women in the country, he said introducing reservation for women
in Parliament and legislatures needs urgent attention and consensus of all political parties.
Status of participation and important data:
➢ India ranks 153 of 190 nations as per Inter Parliamentarian Union (IPU) with an average of 15% women
in the lower house of parliament. Even nations like Pakistan have 20% of women representation in the
lower house.
➢ Rwanda tops the list with 61% women in the lower house and followed by Scandinavian countries with
40% participation.
➢ Women MLA’s account on average of 9% in state legislatures. Bihar and Rajasthan top the list with 14%
female representation.

Reasons/Challenges for women in parliament:

➢ Lack of political will: Multiple times there was lapse of the bill providing reservation of one-third of
women participation depicts the lack of political will among the parliamentarians. The bill is yet part of all
parties manifesto but has never been implemented.
➢ Patriarchy: Women although hold the power but they do not experience it as the decisions are influenced
by male partners or other family members. This is much visible in Panchayati in form of creation of
Sarpanchpathi.
➢ Masking of the identity:In 2019 elections 206 women participated independently and only one of them
won. This indicates the influence of political party and the family background in ensuring their political
victory. The party and family identity masks her identity.
➢ Attitudinal issues:People still believe that women are not equal to men and it is prevalent in top political
class. Recently when a women MLA in Delhi was criticised in the session for working late night in the
office.
➢ Awareness: Women are comparatively less literate to counter parts thus lack general awareness. Literacy
among women is 65% as compared to men ie-82%.
➢ Work-life balance: Women in the culture are tend more confined behind the walls, thus have to ensure
domestic tasks like rearing of children. This impacts their political careers.
➢ Financial support: Socio-cultural norms never let women earn significantly and the modern world that
confined women to pink collared jobs ensures they remain financially dependent.

Importance of women in parliament and other decision making bodies:

➢ Efficiency: Germany, New Zealand, and Taiwan were some of the few countries which effectively
controlled the pandemic quickly. The common thing between them is, all are governed by women as
state heads. Even in the USA, the state with female governors outperformed their male counterparts.
They are found highly efficient in taking decisive decisions like lockdowns.
➢ Women-centric approach: The female legislators or state heads are observed to be more women-centric.
This can be observed in the Indian Panchayati system where female pradhans have concentrated more on
issues like public toilets, self-help groups, domestic violence, etc.
➢ The contrast between suffrage and political presence: Women vote equally as men but yet we only have
one female Chief Minister currently. We have witnessed charismatic women leaders like Indira Gandhi,
Jayalalitha, and Sushma Swaraj but their quantum is minimal.
➢ International relationship: Recently UK’s special envoy Ms. Roper visited India for advocating the greater
role of women in conflict resolution and long-lasting peace. She quoted “women account for 2% of
mediators, 8% of negotiators, 5% of witnesses to the peace process. But they ensure real success as 60%
of negotiations involving women are likely to fail, and 35% last at least 15 years.”

Way forward:

➢ Zipper system is a practice followed in countries like Rwanda where every third seat in the party is
reserved for women. Such changes can be adopted for better results.
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➢ Deconstruct the stereotype in women of confining them to family and household tasks.
➢ Passage of reservation of one-third of seats is of prime importance to the current situation.
➢ INC and BJP are major parties in parliament. They suo moto can reserve one-third of seats in their party
that can lead to enactment of reservation for women when substantial women are seen in such parties.

ANTI-DEFECTION LAW

PYQs:
1. The role of individual MPs (Members of Parliament) has diminished over the years and as a result,
healthy constructive debates on policy issues are not usually witnessed. How far can this be attributed
to the anti-defection law which was legislated but with a different intention?(2013)
2. What are the grounds of disqualification of a Member of Parliament from either House? Quote relevant
provisions in your answer. (2010)
3. On What grounds can a member be disqualified from either House of Parliament? (2006)
4. Describe the salient features of Anti-Defection Law (1995)

Why in the news?

Sachin Pilot and 18 Members of Legislative Assembly (MLA) from Indian National Congress (INC) were served a
disqualification notice by the Speaker of Rajasthan Legislative Assembly for carrying out anti-party activities
according to INC. Sachin Pilot has also been officially removed from the post of Deputy Chief Minister in Rajasthan
by the President of INC

Anti-defection law:
The 52nd amendment 1985 to the Constitution added the Tenth Schedule which laid down the processby which
legislators may be disqualified on grounds of defection. The main intent of the law was tocombat “the evil of
political defections”

The Tenth Schedule contains the following provisions for the disqualification of members of Parliament and the
state legislatures on the ground of defection:

1. Members of Political Parties: If he voluntarily gives up his membership of such political party; or abstains
from voting in such House contrary to any direction issued by his political party without obtaining prior
permission of such party
2. Independent Members: An independent member of a House becomes disqualified if he joins any political
party after such election.
3. Nominated Members: A nominated member of a House becomes disqualified for being a member of the
House if he joins any political party after the expiry of six months from the date on which he takes his seat
in the House

Need of Anti-defection law

● Ensure Stability: Anti-defection Provides stability to the government by preventing shifts of party
allegiance.
● Increases faith: Anti-defection Ensures that candidates elected with party support and on the basis of party
manifestos remain loyal to the party policies.
● Party Discipline: Anti-defection promotes party discipline.
● Increases public trust: It prevents breach of trust of people due to defection

Importance of Anti defection law:

● It was introduced to maintain rule of law, reduced political corruption, and bribery.
● Reduced horse-trading: Anti-defection law was brought to curb the power of money after election within
the house. The horse-trading and unstable government caused by money power and bribery was said to be
rampant in the cross-voting
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● Reduce money power: It has succeeded in reducing the money power within house voting for passing
legislation and the survival of the government.
● This provision restricts individual decision-making and mandates a faithful adherence to the directions of
the party whip.

Issues with Anti defection law:

● Affects the independence of the MPs: It violets their freedom of speech and they can't take any
independent stand over issue. Even in the USA when motion was bought up against Mr Trump’s
impeachment seven legislators of Republican Party voted to impeach him and faced no consequences.
● Injustice to the Constituencies: those have elected them in the elections. Being the people’s
representatives they should be allowed to boldly air their grievances and speak up for their constituencies’
requirements.
● Accountability vs efficiency: Dr. B R Ambedkar while drafting favoured stability and accountability over
efficiency thus adopting parliamentary form of government. The weakening of anti defection law neither
provides efficiency nor stability.
● Limited deliberations: They have indeed reduced the quality of Parliamentary debates/deliberations. It
could in the long run generate faulty legislation with various loopholes. It could also pave way for delegated
legislation rendering Parliament ineffective in the long run.
● Misuse of law by the speaker: False dissent by the speaker on MPAs as seen in the cases of Arunachal
Pradesh and Uttarakhand.
● Role of MP’s and MLA’s are undermined: The legislators are tasked with twin of acting as agent of people
and participate in important legislations. But when they vote only on party lines it hinders the primary
goals.
● Emerging loopholes: Post Karnataka elections MLA’s were made to resign to artificially weaken the
numerical strength and by polls were held to topple the government. As the discretion lies with speaker
this also tends to add complexity in the issue.

IMPACT OF DEFECTION POLITICS ON INDIAN DEMOCRACY

● Undermines Electoral Democracy & Betrays Public Mandate: Members not chosen by the public can
become ministers.
o Examples: When the MLA’s of Karnataka who resigned from the party and post by polls again rised
back victoriously show a situation of decline in democratic ethos both among public and leaders.
● Promotes Corruption through Horse Trading: With help of defectors, any majority government can be
converted into a minority government or toppled. This hampers the stability of the government.
o Example: Post Maharashtra State elections the imposition of president rule and its recovery in
suspicious timings suggest to the fact that, Horse trading is legitimized by the parties.
● Promotes immoral activities against constitutional and democratic norms or behaviour.

Karnataka post-election crisis-2019

• Inbuilt loopholes: The elected MLA’s were first asked to resign from the party to artificially reduce the
majority. Loss in these seats led to collapse of the post-election collation (JDS and INC). Speaker appointed
the party with maximum votes (BJP). Later the same defected leaders participated in bi-elections on other
party ticket and won. They returned to the assembly with lucrative posts like ministers and deputy chief
ministers.
• Compromised constitutional machinery: BR Ambedkar pointed out soon after the framing of the
Constitution; every constitutional text can be subverted if those charged with running the affairs of
government are inclined to do so. Some issues of concern were seen in,
➢ Role of Governor: Governor act as agent of centre in such matters and tries to favour the union
government on such matters. For example The Karnataka Ex-Chief Minister was not called to form
government even though post-election coalition was held the sufficient numbers.

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➢ Prevalence of loop holes in 10th schedule: The MLA’s post resignations are allowed to contest the
election as it is not considered defection. This has led to increased instability in state governments.
➢ Judiciary: Although horse trading is illegal in elections, but despite of open defections and several
media reports judiciary seems to act selectively as seen in Karnataka case when the MLA’s in
resorts were not convicted.
• Large power play of money: The rogue MLA’s were lured with monetary and non-monetary benefits like
ministry posts. This chunk of money is offered due to prevalence of Electoral Bonds. They source funds
from various sources without disclosing the information and these funds are used to destabilize the states.

Way forward: Anti-defection law must be improved we must amend the constitution or judiciary should releases
guidelines on the issue. Changes like barring the defectors or legislators who resign from their seat should be barred
from contesting election for a sufficient time. The role of money can also be curbed by revisiting the provisions of
electoral bond.

ROLE OF THE PRESIDING OFFICER

The Speaker of Lok Sabha or State Legislative Assembly is elected from amongst its members and is mentioned
in Art 94 and Art 96 of the constitution. He is the guardian of powers and privileges of the members, the House as
a whole, and its committees.

Functions performed by presiding officer

● Maintains order and decorum in the House for conducting its business and regulating its proceedings.
Maintaining impartiality of the office, he ensures that ample time is given to Parliament as a whole and
opposition in particular to ensure accountability.
● Adjourns the House and suspends the meeting in absence of a quorum.
● Decides whether a bill is a money bill or not and his decision on this is final.
● Decides on the question of disqualification of a member arising on the ground of defection (although not
outside the purview of Judicial review –Kihoto Hollohan Case 1992).
● Appoints the chairman of all Parliamentary Committees of Lok Sabha and supervises their functioning. He
is the chairman of the Business Advisory Committee, the Rules Committee, and the General Purpose
Committee.
Concerns relating to presiding officer
However, in recent times, the office of Speaker has been criticized for not being as impartial or effective as had
been envisaged:
● Non adherence to Standard Operating Procedure (SOP):The Speaker of Uttarakhand Assembly decided on
a case of defection while a notice of resolution for his removal from the office is pending. The Supreme
Court had to intervene and observed that the Speaker should refrain in such cases.
● In-appropriate use of money bill provisions: The Supreme Court has accepted a plea with respect to the
Speaker’s approval of the Aadhaar Bill, 2016 as a Money Bill. It is argued that declaring a bill that includes
larger concerns like privacy, data protection, etc. should also involve Rajya Sabha to have a meaningful
debate.
● Failure to maintain decorum: The parliamentary logjam has been a consistent scene on the floor of
parliament whereby speakers have been unable to facilitate smooth functioning and accused of bias.

Our constitutional maker envisaged integrity and impartiality from the office. But it has been progressively
eclipsed by political interests and made subservient to the needs of the ruling party.

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Important Judgments relating to speaker

KEISHAM MEGHACHANDRA SINGH V. UNION OF INDIA
● Legal status: Decision on Anti-defection operates independently and not subject to the approval of LS or
SLA
● Powers of speaker: The decision of the Speaker on anti-defection can be judicially reviewed and the
immunity is only on procedures followed.
● Provisions: Judicial Review is allowed on grounds of infirmities based on violations of constitutional
mandates, mala fides, non-compliance with Rules of Natural Justice, and perversity
● Roles: Speaker/Chairman acts as Quasi-Judicial Authority while deciding cases of Anti-defection under Xth
Schedule of the Constitution.
● Time period: The decision to be taken within Reasonable Time Period – within 3 months as per Kihoto
Hollohan judgment.
● Implementation of the verdict: Such persons who have incurred disqualification do not deserve to be
MPs/MLAs even for a single day (as observed in Rajendra Singh Rana case)

KihotoHollohan v Zachillhu and others

● The majority judgment (3:2) held that the Speakers/Chairmen hold a pivotal position in the scheme of
Parliamentary democracy and are guardians of the rights and privileges of the House.
● The Court ruled that Speaker/Chairman while deciding cases of anti-defection acts as a Tribunal and
accordingly the decision of Speaker/Chairman is subject to judicial review
Recommendations of various committees on Anti-defection law
● Dinesh Goswami Committee on electoral reforms (1990):The issue of disqualification should be decided
by the President/ Governor on the advice of the Election Commission
● Law Commission (170th Report, 1999): Political parties should limit the issuance of whips to instances only
when the government is in danger.
● Election Commission Constitution Review Commission (2002):Decisions under the Tenth Schedule should
be made by the President/ Governor on the binding advice of the Election Commission.
● NCRWC: The power of disqualification of the legislators on ground of defection should lie with Election
commission and not speaker.

Way Forward
• Judicial review is also used in exceptional circumstances. We need a permanent institutional solution.
o Best practices: UK’s model of appointing a committee of two senior legislators to assist the speaker
over the question of a money bill is a case to consider. In the UK, a parliamentary convention has
developed, where an MP elected as Speaker, resigns from the respective party. This lends credence
to his impartiality.
• Cooperation among govt and opposition:Both, government and the opposition need to cooperate so that
parliament can function smoothly and the speaker is not put into difficult situations too often.
• Democratic ethos: Also, Speaker needs to keep in mind the democratic ethos while presiding over the
esteemed office and his actions must appear to be objective and neutral as “Justice should not only be done,
it must also be seen to be done”
• Define procedures: Need to define the entire procedure clearly and set definite and reasonable time limits
for each step of the process, ensuring transparency.
• Question of disqualification:Power to decide upon the question of disqualification can be taken away from
the Speaker and entrusted to some independent constitutional authority like the Election commission of
India.
● Need amendment: There is a need for amendment in the law to sync it with representative democracy and
not become a system of blindly following the instruction of party leadership Thus allowing legislators the

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right to dissent and promote independent thinking as allowed in other democracies of the world such as
the US, UK, Australia, etc.

Case studies of Andhra Pradesh and Telengana:

● In recent years, opposition MLAs in some states, such as Andhra Pradesh and Telangana, have broken
away in small groups gradually to join the ruling party. In some of these cases, more than 2/3rd of the
opposition has defected to the ruling party.
● In these scenarios, the MLAs were subject to disqualification while defecting to the ruling party in smaller
groups. However, it is not clear if they will still face disqualification if the Presiding Officer makes a
decision after more than 2/3rd of the opposition has defected to the ruling party.
● The Telangana Speaker in March 2016 allowed the merger of the TDP Legislature Party in Telangana with
the ruling TRS, citing that in total, 80% of the TDP MLAs (12 out of 15) had joined the TRS at the time of
taking the decision

SEDITION
Context
• Voicing dissent against govt. does not amount to sedition: Supreme Court
• It’s time to define limits of sedition, says SC
• Journalists entitled to protection against sedition, says Supreme Court (Court quashes sedition case
against journalist Vinod Dua)
Background
• In Kedar Nath Singh v. State of Bihar (1962), the Supreme Court upheld the constitutional validity of sedition
and noted it as being a reasonable restriction on free speech as provided in Article 19(2) of the Constitution.
• It made clear that a citizen has the right to say or write whatever she likes about the government, or its
measures, by way of criticism or comments, as long as she does not incite people to violence against the
government established by law or with the intention of creating public disorder.
• So, the question remains as to why sedition is used by the government as a coercive law to invoke fear in
the minds of citizens of India.

About Sedition

History of Sedition
● Sedition laws were enacted in 17th century England when lawmakers believed that only good opinions
of the government should survive, as bad opinions were detrimental to the government and monarchy.
This sentiment and law were borrowed and inserted into the IPC in 1870.
● Section 113 of Macaulay‘s Draft Penal Code corresponds to the present section 124A of IPC on sedition.
The punishment proposed was life imprisonment. The offense of sedition is provided under section 124A
of the Indian Penal Code, 1860 (IPC).
● Even in Constituent Assembly, an attempt was made to incorporate sedition to restrict free speech which
was opposed by Jawaharlal Nehru
● Bal Gangadhar Tilak, Annie Besant, the Ali Brothers, Maulana Azad, Gandhi, and very many others
suffered imprisonment under this law

Sedition as defined in Indian Penal Code under section 124A:

Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or
attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government
established by law in, shall be punished with imprisonment for life, to which fine may be added, or with
imprisonment which may extend to three years, to which fine may be added, or with fine

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Arguments in favour of Sedition

● Implementation issues: The problem is not with sedition but its abuse, so the courts are entitled to protect
Article 19. Thus functioning of courts should be reformed. For example the Delhi High Court recently buried
a 22 year old Disha Ravi who was charged with sedition. Court should act swiftly in all such similar cases.
● Will of the society: If the law was so indiscriminately used social movements would have started to repeal
it. It was observed in case was repealing POTA 2002 that was draconian in nature.
● Attitudinal changes: Scrapping of laws is not the key for their inefficient implementation. If this provision
is scrapped some other provision will be used. Thus both people and the police must be made aware of the
provisions to prevent the misuse.
● Not very old law- Now after the Supreme Court’s directions, its jurisdiction has been narrowed down and
it has been updated by the various judgments of SC.
● Application is a part of reasonable restrictions- Fundamental right of freedom and speech have reasonable
restrictions provided under Article 19 (2)
● Don’t curb free speech- One can criticize the government policies without having sedition but that criticism
should not break the country.
● Threats to unity and integrity of nation Because of the presence of anti-national elements like Naxals,
separatists who are getting support from inside and outside the country.

The argument against Section

● Against democratic models: It reduces the democratic and fundamental right of people to criticize the
government. The recent NCRB (National Crime Record Bureau) shows indiscriminate use from past four
years and its number has grown exponentially after Citizenship Amendment Act and Farm Laws.
● Colonial legacy: Sedition is the same law against which Gandhi and Tilak protested, keeping the law for
administrative convince is disrespect to the freedom struggle movement. Many political scientists tagged
it as “flirting with fascism” .
● The incompetent capacity of State Machinery - The police might not have the “requisite” training to
understand the consequences of imposing such a “stringent” provision. For example recently in Karnataka
a school principle, parents and a young child was charged with sedition for a political play during school
fest.
● Views from other limbs of the constitution: Two High Courts have already found it inconsistent with our
constitution and even the Law commission paper calls a revisit into the law.
● Promotes self-censorship: As the law has less conviction rate the government uses it for creating fear
rather than acting against the sedition. The recent example where 49 eminent personalities were charged
of sedition for just writing a letter to Prime Minister against Mob Lynching highlights the true intent of the
law in use.
● Distinction between criticism and sedition: In the Balwant Singh v State of Punjab 1995 where some
people chanted pro-Khalistani slogans was buried on the ground it did not directly incite violence. Such
broad prism should be adopted by the media, police and politicians where a strong criticism should be
differentiated from sedition.
● Probability of Misuse- It has been frequently used to curb dissent. In many cases, the main targets have
been writers, journalists, activists who question government policy and projects, and political dissenters.
Eg. in Bhima Koregaon case.
● The age-old nature of this law: as the crime is non-bailable, non-cognizable and punishment can extend
for life—it has a strong hindrance effect on disagreement even if it is not used.
● Used to decline the freedom of the press: The press should be defended so that it could bare the secrets
of the government. Only a free press can effectively expose fraud in government.

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SUPREME COURT JUDGMENTS ON SEDITION

● Romesh Thapar v State of Madras - Supreme Court declared that unless the freedom of speech and
expression threatens the security of or tends to overthrow the State, any law imposing restriction upon
the same would not fall within the purview of Article 19(2) of the Constitution.
● Kedarnath Singh vs State of Bihar,1962 - Constitution Bench had ruled in favour of the constitutional
validity of Section 124A (sedition) in the IPC. The Court held that a person can be prosecuted for sedition
only - if his acts caused “incitement to violence or intention or tendency to create public disorder or
cause disturbance of public peace”. Unless an act of a person does not incite violence or disturb public
order cannot be booked under the dangerous section of sedition.
● Balwant Singh v State of Punjab, 1995 - Supreme Court, in, acquitted persons from charges of sedition
for shouting slogans such as “Khalistan Zindabaad” and “Raj Karega Khalsa” outside a cinema after Indira
Gandhi’s assassination.
● S. P Gupta v. Union of India - Supreme Court held that the right to know is inherent in the right to
freedom of speech and expression under Article 19(1) (a).
● Javed Habib v State of Delhi - it was held that Holding an opinion against the Prime Minister or his actions
or criticism of the actions of government or drawing inference from the speeches and actions of the
leader of the government that the leader was against a particular community and was in league with
certain other political leaders, cannot be considered as sedition under Section 124A of the IPC

Law Commission views on Sedition:

● Dissent and criticism of the government are an essential ingredients of a robust public debate in a
vibrant democracy. Thus, if the country is not open to positive criticism, there lies little difference
between the pre-and post-Independence eras.
● The right to criticize one’s own history and the right to offend are rights protected under free speech
under Article 19 of the Constitution. While it is essential to protect national integrity, it should not be
misused as a tool to curb free speech.
● Every restriction on free speech and expression must be carefully scrutinized to avoid unwarranted
restrictions
● The Commission also asked whether it would be worthwhile to rename Section 124A and find a suitable
substitute for the term – sedition

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PARLIAMENTARY SCRUTINY
Why in news
• The recent protests over Agricultural Reform laws by farmers has reignited the debate on ‘ineffectiveness of
Parliamentary scrutiny over the executive
Various methods of Parliamentary scrutiny of the government
● Discussion/debate: During discussions/debates on Bills, matters of public or national interest on in Parliament
legislatures could point out
● Question Hour: During the Question Hour the members can ask questions on every aspect of administration
and Governmental activity.
● Parliamentary committees: Parliament has put in place large machinery of committees to scrutinize the Bills
which are brought before it by the government.
● Finance Committees: The Committee on Estimates reviews budgetary estimates of regulators. The annual audit
reports on the accounts of the regulators are tabled before Parliament and reviewed by the Public Accounts
Committee (PAC). The PAC may require the regulator’s officers to depose before the Committee.
● Ad-hoc Committees: Parliament may establish ad-hoc committees which may examine the working of
regulators.

REASONS FOR INEFFECTIVE PARLIAMENTARY SCRUTINY:

● Decrease in number of sessions: For example, recently the winter session of the Parliament was truncated
owing to the COVID-19 Pandemic
● Disruptions during Question Hour: In the 16th Lok Sabha, question hour has functioned in Lok Sabha for 77%
of the scheduled time, while in Rajya Sabha it has functioned for 47%
● Not referring bills to the Parliament committees: While 60% of the Bills in the 14th Lok Sabha and 71% in the
15th Lok Sabha were vetted by the Parliamentary committees, this proportion came down to 27% in the 16th
Lok Sabha.
● No effective leader of the opposition

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Way forward:
● The Question Hour and Zero Hour must be returned immediately when the Pandemic situation improves.
● Periodically examined: According to the National Commission to Review the Working of the Constitution
(NCRWC), DRSCs should be periodically examined so that the committees which have outlasted their utility can
be replaced with fresh ones.
● New parliamentary committees: As there is increasing complexity in matters of economy and technological
progress, there is a need for setting up new parliamentary committees.
● Major reports of all Committees should be discussed in Parliament especially in cases where there is a
disagreement between a Committee and the government
● The opposition should be proactive in asking the question to the government
● 2nd ARC also recommends that annual reports submitted by the regulators to Parliament should include the
progress on pre-agreed evaluation parameters and should be discussed in the parliamentary committee
● Expert support should be provided to MPs as effective scrutiny depends on their skill and resources.

Conclusion: Strengthening the instruments of Parliamentary Scrutiny can go a long way in minimizing the potential
implementation challenges.

QUESTION HOUR AND EROSION OF PARLIAMENTARY OVERSIGHT

Why in the news?
• Recognizing the COVID pandemic, the government has done away with Question Hour in the Monsoon
Session.
Question Hour: The first hour of every parliamentary sitting is reserved for this. During the time, the members ask
questions and the ministers usually give answers. The questions are of three kinds, namely, starred, unstarred and
short notice.
IMPORTANCE OF QUESTION HOUR
● Ensures Accountability & Transparency: Question hour make Parliament transparent and
accountable since it covers every aspect of government activity, domestic and foreign.
● Makes Government Accountable: The government of the day gets to know the pulse of the nation and
gives the public a view of the performance.
● Addressing of Questions: The reliability of the answers given are matters of utmost importance and rules
allow correction of mistakes by the Minister concerned
● Extract Wider Debates: Questions asked during Question Hour are in general to the point and very precise
to the issue. Answers provided at times have extracted wider debates and inquiries on the government’s
performance
● Helps Government to Define their Stand: Question Hour also helps the government to tell their position
on any issue both to the member concerned and also to the public in general.
Impact of the decision to suspend question hour:
• Question hour is the golden hour: Oppositions tagged question hour as a golden hour as it is used to ask
questions of general public importance.
• Accountability: As the question hour is a parliamentary tool it is used to check the government in the
parliamentary system. But when it is nullified the Indian system leans towards a presidential form where
their executive are not responsible.
• Fall of democratic ethos: One of the parliamentarians said “Government is using the pandemic to destroy
the democratic ethos of the nation”. Such allegations have been made because the question hour was
never suspended since 1950.
• Impact on states: State governments are currently conducting question hour but this unprecedented move
from the centre might trigger a domino effect. And the central government has not shortened the business
hours but yet resort to suspending the question hour.
• Wasted hours: Data released from the Rajya Sabha wing highlights that from 2014 to 2019 of 332 hours of
question hours 133 hours were wasted by the parliamentarians, i.e.- nearly 60% of the allocated time. Thus

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it is the duty of the elected to spend the allocated hours for the betterment of people rather than score
settlements.
Parliamentary oversight
• Parliament performs four major functions: representation of citizens, law making, oversight of the
executive, and scrutiny of the budget.
• Through its oversight function, Parliament holds the government accountable and ensures that policies are
efficient and in keeping with the needs of citizens.
• In addition, parliamentary oversight is essential to prevent arbitrary and unconstitutional action by the
government.
There are two key mechanisms of parliamentary oversight:
(i) questions and debates on the floor of the House, and
(ii) parliamentary committees which scrutinise government policies.

Mechanisms for Parliamentary oversight over executive

● Question Hour: During this time, the members ask questions and the ministers usually give answers.
● Debates and motions: No discussion on a matter of general public importance can take place except on a
motion made with the consent of the presiding officer. The House communicates its decisions or views on
various concerns through the adoption or rejection of motions moved by either ministers or private
members
● Zero Hour: it is an informal device available to the members of the Parliament to raise matters without any
prior notice
● Parliamentary committees which scrutinize government policies

Erosion of Parliamentary oversight:

● Abolition of Question Hour and Zero Hour during the monsoon session of parliament.
● Passage of farm bills without much talk and deliberation in midst of protests by opposition MP’s.
● The 16th Lok Sabha witnessed 25% of bills transferred to parliamentary committees, a fine drop from 71%
under 15th Lok Sabha.
● Importance bills like Aadhar, Farm bills, etc were passed without being assigned to Parliamentary
Committees.
● Disturbance of parliamentary proceedings has become the model which further erodes parliamentary
oversight as it decreases the time for discussion.
Reasons for the erosion of Parliamentary oversight:
● Covid 19: The covid-19 pandemic was the reason given by the government for the abolition of zero hours.
● The urgency to pass bills to achieve reforms invites guillotine closure.
o Ex: Farms Bills, Abrogation of Article 370
● Absence of Leader of Opposition and powerful opposition
● Single party dominance in the Lok Sabha
How to strengthen parliamentary oversight:
• Allow parliament to convene itself: Generally it is the President (Council of Ministers) who convene the
parliament thus they adjust the time to suit their agenda. Thus a parliament with a set decorum should be
able to convene itself on nation interest rather than political motives.
• Strengthen the opposition: India should adopt UK and USA model where the opposition is allowed to
decide the agenda of the parliament for 20 and 22 days respectively. This was also recommended by 13th
All Whips Conference.
• Ensure accountability: The rules of each house can be modified separately, thus many such provision has
to be re-examined to ensure accountability.

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➢ Question hour: Prime Minister alone is required to answer questions related to ministries allocated
for him, however in UK the PM answers all question of question hour related to government
policies.
➢ Strengthening discussions: Chairman currently decides on the question to admit a discussion or
motion and its nature. It has to be changed to voting as often disagreements on the nature arise.
➢ Examination of the reports: The National Commission to Review the Working of the Constitution
has recommended that all committee reports have to be discussed in the parliament.
• Reforms in the committee system: Certain reforms in the committee system has to be made which are
mentioned below,
➢ Increase the transparency by adopting the best practices like video recording of committee
meetings as seen in US and UK.
➢ Greater public participation especially in Department Related Standing Committees should be
ensured.
• Oversight of regulators: Regulators like RBI (Reserve Bank of India) and TRAI (Telecom Regulatory Authority
of India) have powers devolved from the parliament. Thus they must be ensured to appear before the
specific parliamentary committee at least once in five years to explain their policies.
• Oversight of intelligence agencies: Intelligence agencies like IB and RAW have limited oversight for obvious
reasons, but some level of oversight especially in the matters of human rights and violation of rule of law
should be brought to notice of parliament or its committees. Even nations like USA, UK and Germany follow
similar rules of oversight.
Way forward:
● The Question Hour and Zero Hour must be returned immediately when the Pandemic situation improves.
● Periodically examined: According to the National Commission to Review the Working of the Constitution
(NCRWC), DRSCs should be periodically examined so that the committees which have outlasted their utility
can be replaced with fresh ones.
● New parliamentary committees: As there is increasing complexity in matters of economy and technological
progress, there is a need for setting up new parliamentary committees.
● Major reports of all Committees should be discussed in Parliament especially in cases where there is a
disagreement between a Committee and the government
● The opposition should be proactive in asking the question to the government
● The media should ask a question to the government with relevant facts and data

News in brief
Strength of M.P. Ministry exceeds Constitutional limit
• The recent expansion of the Ministry in Madhya Pradesh has increased the Council of Ministers
strength to 34, which is more than 15% of the effective strength of the legislators at 206.
• The effective strength of the House is calculated by deducting the vacant seats out of the total strength
of the House.
• Article 164 (1A) of the Constitution prescribed that the total number of Ministers, including the Chief
Minister, in the Council of Ministers in a State shall not exceed 15% of the total number of members of
the Legislative Assembly of that State
Rajya Sabha deputy chairman faces no-confidence motion
• A no-confidence motion against the deputy chairman was a first in parliament. Twelve opposition
parties had given notice for a no-confidence motion against Singh, accusing him of violating the
parliamentary procedures in trying to pass the farm sector Bills in haste, circumventing all demands for
proper voting.

PERFORMANCE OF THE 16TH LOK SABHA:

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Why in the news?

• Association for Democratic Reforms (ADR) and National Election Watch (NEW) have analyzed the
performance of 16th Lok Sabha and MPs(2014 to 2019).

Lok Sabha
Articles 79 to 122 in Part V of the Constitution deal with the organization, composition, duration, officers,
procedures, privileges, powers, and so on of the Parliament

Summary and Highlights

● Out of 273 bills introduced in the 16th Lok Sabha, 240 were passed, 10 bills were withdrawn and 23 bills
remain pending.
● In the 16th Lok Sabha, on average, 562 MPs have asked 251 questions and attended 221 out of 312 sittings.

Comparison with previous Lok Sabha:

Performance of bill:
● Compared to the first Lok Sabha, later ones have spent less proportion of time on legislative business.
This 16th Lok Sabha spent 32% of its time on legislative business, higher than the average of other Lok
Sabhas (25%)

Union Budget Discussion

● 17% of the budget was discussed in the 16th Lok Sabha, higher than the previous two Lok Sabhas.
● In the budget session 2018-19, 100% of demands were passed without discussion. This also happened in
2004-05 and 2013-14 during the 14th and 15th Lok Sabha respectively.

STATE LEGISLATURE

India is a federal state, with a parliamentary form of government composed of legislaturesat the Union and
State levels. Articles 168 to 212 in Part VI of the Constitution administer the organization, composition, duration,
officers, procedures, privileges, powers, and so on of the state legislature.

UTILITY OF SECOND CHAMBER IN STATES

1. Checks and balances: It checks the hasty, defective, careless, and ill-considered legislation made by the
assembly by making provision for revision and thought.
2. Expert opinion: It facilitates the representation of eminent professionals and experts who cannot face
direct elections. The governor nominates one-sixth of members of the council to provide representation to
such people.
3. Platform to experts: provides a platform for experts and intellectuals.
4. It provides a mechanism for serious appraisal of legislation.

Criticism of Second Chamber in States

1. Plays Unnecessary and obstructive Role: If a majority of the members in the upper house belong to a
similar party the upper house will become a mere copy chamber
2. Not an adequate check: Powers of the Legislative Councils are restricted to the extent that they can hardly
impose any useful control on the Assemblies
3. Centre of vested interests: It serves as a centre of vested interests, who are not expected to support
progressive legislation.
4. Backdoor entry of defeated members: It is used to include discredited party-men who may not be able to
return to Assemblies through popular votes
5. Expensive institution: It is a big waste on the State’s treasury.

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Issues faced by state legislature

1. Legislative assemblies are treated as paragon of virtue: The MLA’s and MLC’s often tend to violate the
decorum of house with activities like climbing on speakers dais as seen in Karnataka’s state council during
passage of anti-cow slaughter bill.
2. Reduction in time for deliberation: The time duration allocated for framing polices has reduced as the
legislators rarely visit the assemblies. For example the Haryana recorded an average of 12 assembly sittings
and Kerala being highest stands at 48 days.
3. Legislative business: Based on the data from 2015 the average number of bills passed per year are 19 and
it is as low as 10 for North Eastern States. These are disturbing figures considering three session yearly.
4. Scrutiny of budget: Most of the states do not enjoy time like parliament on budgets. They take up
discussion of important ministries and rest are guillotined.

The 2nd ARC suggested that the Legislative Council must work as representatives of the Panchayati Raj
Institutions and the Constitution may be suitably amended to give the required powers to the council to work for
strengthening the local governance.

Conclusion to complete topic of parliament:

• “In a parliamentary democracy, the legislature, as a body representing the wishes of the people, occupies
a high position of power and responsibility. Here lies the democratic potential of the Parliament”.
• The ongoing issues of sedition, ordinance and deterioration of quality of debates must be addressed by
the combined effort of all four pillars namely media, parliament itself, judiciary and executives. People
themselves can initiate a social change by means of lawful protest to overthrow the slumbering issues of
the parliament.

JUDICIARY
Introduction
In any society, disputes are bound to arise between individuals, between groups, and between individuals or groups
and the government. All such disputes must be settled by an independent body following the principle of rule of
law.

The Judiciary which is an important organ of the government performs the role of independent dispute resolution.
Indian judiciary, one of the very powerful judiciary in the world has been the nation’s moral conscience, speaking

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truth to political power, upholding the rights of citizens, mediating Centre-state conflicts, providing justice to the
rich and poor alike, and on several momentous occasions, saving democracy itself.

Constitutional provisions of the judiciary:

Article Provision Article Provision

13 Declaring Laws inconsistent with 142 Enforcement of decrees and orders of S.C.
fundamental rights as unconstitutional
32 Right to move to S.C. for enforcement of 143 Power of President to consult S.C.
fundamental rights and writs
50 Separation of judiciary from the 214 High courts for states
executive
124 Constitution of Supreme Court 215 H.C. as a court of record- Contempt power
129 S.C. as the court of record- Contempt 226 Power of high courts to issue certain writs
power
131 Original jurisdiction of S.C. 227 Superintendence over all courts and tribunal
functioning in its territorial jurisdiction
133 Appellate jurisdiction – Civil matters 233 Appointment of district judges
134 Appellate jurisdiction – Criminal matters 235 Control on subordinate courts vested in H.C.
136 Special leave to appeal by S.C. – PIL 247 Parliament to establish additional courts for
source better administration of parliamentary laws.

COMPARISON OF INDIAN AND OTHER JUDICIAL SYSTEMS:

Previous year question on this topic

The judicial systems in India and UK seem to be converging as well as diverging in recent times. Highlight the key
points of convergence and divergence between the two nations in terms of their judicial practices. (Answer in
150 words) (CSE2020)

INDIA-USA
Judiciary of India America

Judicial system Integrated system: Hierarchy of courts Double system of courts: Federal judiciary
i.e Supreme courts, High courts, and for federal laws and state judiciary for state
subordinate courts. laws.
Jury system Does not exist. Allowed.
Appointment of Collegium system. The Judiciary has a Justices are nominated by the President
judges greater role in the appointment. and confirmed by the Senate i.e. greater
role to elected representatives.

Retirement age for Supreme court: 65 years Judges serve for a lifetime
judges High court and other subordinate
courts: 62 years

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Original Jurisdiction Confined to federal cases Federal cases + cases relating to naval
of the supreme court forces, maritime activities, ambassadors, ,
etc.
Appellate Jurisdiction Constitutional, civil, and criminal cases. Only constitutional cases
of the supreme court
Deciding of cases Indian Judges sit on several benches of All American judges sit together for
3 to 5 judges and if necessary then decision making
more number of judges.
Advisory Jurisdiction Yes No
of supreme court
Change in Jurisdiction Can be enlarged by Parliament. Powers are limited to that conferred by the
Constitution.
Control over integrated judicial system: Power of double (or separated) judicial system-> no
subordinate courts judicial superintendence over HCs. such power.

INDIA-UK

Divergence India UK
Jury system Not Present Present
Judicial review Originally Procedure established by law. Post Due process of law-> Parliament is
Maneka Gandhi case: ‘Due Process of law’. supreme and the court does not check the
Thus, its scope of judicial review has been fairness of the law.
widened.
Judicial Collegium system: Greater role of the Judicial appointment commission->
appointment judiciary which results in less transparency. Primacy to parliament-> Greater
transparency.

Convergence
• Independence of judiciary: Ensured through the doctrine of separation of power in both countries.
o Eg. the UK removed the judicial function from the office of lord chancellor similar to the
Keshavanand Bharati case of 1973.
• Alternate dispute resolution: Both countries are discovering ADR mechanisms to improve justice delivery.
o E.g. The UK established the Ministry of Justice in 2007. Similarly, India has started a national mission
for justice delivery and legal reform.
• Accountability: India is discovering ways to ensure transparency in judicial appointments through steps like
NJAC.

VARIOUS SIGNIFICANT ROLES THAT JUDICIARY PLAYS

JUDICIARY AS PROTECTOR OF FUNDAMENTAL RIGHTS

Judiciary is entrusted with the task of protecting the rights of individuals. 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(Art-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 (article 13).
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Together these two provisions of the Constitution establish the Supreme Court as the protector of fundamental
rights of the citizen on the one hand and interpreter of the Constitution on the other.

JUDICIARY AS PROTECTOR CONSTITUTION AND SAVIOUR FROM THE ARBITRARINESS OF

GOVERNMENT/STATE

Indian judiciary act as a protector of the constitution using the following provisions:
• Judicial review of constitutional amendments, legislation of the Parliament and State Legislatures,
subordinate legislation, and administrative action of the Union and State authorities.
• Interpretation of constitution: Doctrine of basic structure pronounced in Keshavananda Bharati case
enables the judiciary to validate the action of legislature and executive vis-a-vis constitutional principles.
• Article 142 allows the Supreme Court in the exercise of its jurisdiction to pass such decree or make such
order as is necessary for doing complete justice. E.g. Bhopal gas tragedy case the court had awarded
compensation of $470 million to the victims, to do “complete justice”.

Therefore the founding fathers incorporated in the Constitution itself the provisions of judicial review. This enables
the judiciary to maintain the balance of federalism, to protect the Fundamental Rights and Fundamental Freedoms
of citizens. It adjusts the Constitution to meet new conditions and needs of the time.

THE ROLE PLAYED BY THE JUDICIARY DURING A PANDEMIC

During the tough time of the pandemic, the constitutional courts felt obliged to take it upon themselves to protect
the right to life and good health of the population. To ensure the same Courts across the country have acted with
immense judicial responsibility. This is a legal landscape that deserves to be encouraged.
The important pronouncement by Judiciary:

• Migrant’s welfare: The Supreme Court directed governments to finish transportation for migrant workers
within 15 days and formulate employment schemes using skill mapping for rehabilitation.
• Oxygen availability:
- SC ordered forming a 12-members national task force for transparent allocation of medical
oxygen to States and UTs “on a scientific, rational and equitable basis”.
- High courts like Nagpur bench of Bombay high courts were hearing cases for oxygen shortage
till midnight.
• Online justice delivery: SC used the VIDYO App hosted by the NIC, Some platforms like Zoom, WhatsApp,
and WebEx are being used in some high courts for hearings.
- The top court directed that district courts in each state shall adopt the mode of video-
conferencing prescribed by the concerned high court.
• Judicial activism: Considering rising infection, Gujarat and Allahabad high courts ordered state
governments to impose lockdowns to control covid cases.
• Accountability: Courts have asked tough questions to bodies like the election commission of India and
some state election commissions for holding elections when cases were rising.
• Upholding constitutional spirit: In Parmanand Katara v. Union of India (1989), S.C. said that the right
to emergency medical treatment is a fundamental right. Constitutional courts performed their duty to
protect this right.

Challenges faced by judiciary:

• Accessibility: Judiciary has come under immense pressure to innovate during this pandemic to balance
public health concerns with access to justice.
• Increased pendency: Only limited benches presiding over select matters daily, cases pending before
constitution benches have been increasing.

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• Stalled Judicial appointments: The appointment of over 120 high court judges is pending with the Central
government.
• Stalled Quasi-judicial body: Bodies like NGT which was hearing cases through video conferencing even
before lockdown had stopped hearing during the lockdown.
• Judicial overreach: Judiciary is often being criticized for encroaching in the executive domain.

Justice D.Y. Chandrachud has clarified that the Court was not usurping the executive’s role, but only wanted to
facilitate a dialogue among stakeholders. As long as this position is clear, the present intervention need not be seen
as a dangerous overreach.

IMPORTANT JUDICIAL CONCEPTS:

1. The doctrine of separation of powers: Three organs of states and all shall function independently without
encroaching on another’s function.
2. Checks and balances: Judiciary -> watchdog to check that the executive and the legislature are functioning
limits of their constitutional power and not interfering in each other’s functioning.
3. Difference between procedure established by law and Due process of law.

Procedure established by Law Due process of Law

Borrowed from British USA
Test to check the a) Whether there exists a law that authorizes Along with Procedure established by Law
validity of a law the executive action; also examines the inherent goodness of
b) Whether the legislature had the the law using principles of natural justice.
competence to pass that law;
c) Whether the legislature followed the
established procedure to enact that law.
Relies upon Good sense of legislature and the strength Also upon Judicial conscience.
of the public opinion.
Judicial power Limited. Can declare laws violative of rights Can declare laws violative of rights of
of citizens only on procedural grounds. citizens on both substantive and
procedural grounds.
Protection against The arbitrary action of the only executive The arbitrary action of both the
and not legislature. executive and the legislature

Constitutional basis: Article 21: No person shall be deprived of his life or personal liberty except according to
procedures established by law.
Supreme Court in Maneka Gandhi vs. GOI, 1978 case: Article 21 includes the doctrine of due process of law by
incorporating the principles of natural justice.
Principle of Natural justice:
• No man should be punished without being heard.
• No man shall be the judge of his own case.
• An authority shall act bonafide (in good faith) without any bias.

Importance of PNJ:
• Humanize the decision-making process by demanding human rationality in decisions.
• Ensures fairness and reduces arbitrariness in decisions.
• Supreme court judgments:

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Maneka Gandhi vs. GOI, 1978:Article 21 incorporate principles of natural justice

Central Inland Water Transport Corporation Ltd. vs. Brojo Nath Ganguly, 1986: PNJ are implicit to the right
of equality under Article 14.

ISSUES IN INDIAN JUDICIARY

JUDICIAL PENDENCY

Facts: Economic survey 2018-19:

• Total 3.53 cr cases are pending in various courts. Out of this 0.16% are in the Supreme court, 12.6%
are in the High court and 87.54% are pending in Subordinate courts.
• Average disposal time (Compared to Europe): 4.4 times in civil cases and 6 times in criminal cases.
• Law commission: It will take 464 years to clear pendency with present judges' strength.
Reasons:
• Shortages of judges: 419 out of 1080 Sanctioned judges posts in the 25 High Courts are vacant on March 1
(2021)
• 20 judges/million population (Law commission recommend 50/million)
• Lacuna in the collegiums system: Average at least 127 days for government response and average
119 days for the judiciary to merely forward the file to the government.
• Frequent adjournment: more than 50% of cases violate the rule of 3 adjournments per case
• Poor court infrastructure: 0.09% of GDP spent on court infrastructure.2016 report-> existing infrastructure
could accommodate only 15,540 out of sanctioned 20,558 judicial officers.
• Special leave petition (Article136): comprises 40% of the court’s pendency.
• Government litigation: Centre and the States were responsible for over 46% of the pending cases.
• Working days: Supreme
court works on average
188 days despite the rule
mandating a minimum of
225 days. Summer
vacation for judges
reflects colonial
hangover.
• Inefficient operational
management: Dedicated posts for court managers to help improve court operations, optimize case
movement and judicial time -> Vacant in many courts.
• Delayed Investigations: Lack of modern and scientific tools has resulted in a handicapped police
investigation.
• Increased right awareness-> Increased reporting of cases.
Steps to reduce pendency
• Economic survey 2018-19 recommendations:
• 100% case clearance to prevent further accumulation.
• Definite time frame to dispose of the cases: Set annual targets and action plans for the subordinate
judiciary and the High Courts.
• Establish Indian tribunal and court services like US, UK.
• Clearing backlog with additional strength as below

Additional judges Supreme court High Court Subordinate court

In 1 year 1 93 2300
In 5 years 8 360 8200

- Within 1-year additional judges: 1 in SC, 93 in HC, and 2300 in subordinate courts.
- Within 5 years additional judges: 8 in SC, 360 in HC, and 8200 in subordinate courts.

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• 120th Law commission: appoint efficient and experienced judges as Ad-hoc judges (Article 128 and Article
224A)
• Vice President recommended establishing regional benches of the supreme court.
• Law Commission and Supreme court in Vasantha Case: Separate supreme courts function into the court
of appeal and constitutional court.
• Judges allocations considering the need and factors like:
- Criminal cases have a 2.5 times higher backlog.
- Life Cycle Analysis to Identify specific stage for causing delay i.e. procedural inefficiency/human
resource shortage. E.g. Zero pendency case of Delhi HC
- State-wise case clearance rate: Gujarat has 100% CCR and Bihar has 55.8%CCR
• Increasing court productivity:
- Increase the number of working days.
- Strict codes of conduct for judicial officers to ensure the adequate performance of duties.
- Business process reengineering.
- Deployment of modern technology: NJDG under e-court; Big data analytics of cases.
- Online filing of cases.
• Three-pronged approach as recommended by Justice Ramana:
- Improving judicial infrastructure through the use of e-platforms and setting up of more courts
- Disputes settlement at the pre-litigation stage through counseling.
- Strengthening the existing Alternative Dispute Resolution (ADR) mechanism
• Appoint retired judges: Invoke article 224A to appoint retired judges of High courts in High courts for a
temporary period to clear case pendency. However same shall not be at the cost of the appointment of
regular judges.
• Grouping of cases: Cases of specific types having high pendency shall be identified and a special committee
shall be appointed for the same. E.g. Recently court recommended panel to clear cheque bounce cases
which constitutes almost 30% to 40% of cases in trial courts.
• Legal Information Management and Briefing System (LIMBS) is a web-based application created by the
Department of Legal Affairs under the Ministry of Law and Justice, to make the legal data available at one
single point and streamline the procedure of litigation matters conducted on behalf of Union of India.
Conclusion:
The culture of rule of law must prevail as the government cannot be improved in silos. Well-functioned, accessible,
affordable, and speedy justice delivery act as an economic and social multiplier.

JUDICIAL APPOINTMENTS:

Previous year question on this topic

Critically examine the Supreme Court’s judgement on ‘National Judicial Appointments Commission Act, 2014’
with reference to appointment of judges of higher judiciary in India. (150 words) (CSE 2017)

Current context: Recently, Parliament has passed the amendment to the Supreme Court (Number of Judges) Act,
1956 to increase the sanctioned strength of the Supreme Court from 31 to 34 including the Chief Justice of India.
Constitutional provision related to appointment
• Article 124 (2): Appointment of SC judges
o CJI- By President after consulting such judges of the SC and HC as the President deems necessary.
o Other Judges- By President after consulting CJI and other SC and HC judges as he considers necessary.
• Article 217: Appointment of HC judges
• Chief justice of HC: BY President after consultation with CJI and governor of the state concerned.
• Other Judges: By President after consultation with CJI and governor of the concerned state and chief
justice of concerned HC.

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• Collegium System: a committee of the Chief Justice of India, four senior judges of the Supreme Court take
decisions related to appointments and transfer of judges in the SC and HC.
Three-Judge Cases
• First Judges Case (S P Gupta Case) 1981 - Consultation with CJI doesn’t mean concurrence and it only implies
exchange of views. Greater say to the executive.
• Second Judges Case, 1993: Consultation with CJI means concurrence i.e. advice tendered by CJI is binding
on the president. However, CJI needs to consult two senior-most judges. Objections raised by the executive
on the appointment, Collegium may or may not change their recommendation, which is binding on the
executive.
• Third Judges Case, 1998: CJI should consult with four senior-most SC judges to form his opinion.
Lacuna in Collegium System:
• Against Constituent Assembly views: rejected the proposal to vest the CJI with veto power over
appointments.
• Autocratic: It isn’t a constitutional body. The constitution of collegium can be perceived as an act of the
judiciary to control the appointments and transfer in the judiciary
• Opaqueness: Lack of transparency in functioning -> Undemocratic.
• Merit vs Seniority: Due to the seniority rule people with better qualifications and better track records
have been side lined to make way for someone incompetent.
• No system of checks and balances: Second Judges case made CJI recommendation binding on President
-> virtually no say to the executive.
• Appointments failure: The collegiums has failed to appoint judges as per the vacancies
• Law Commission (230th report)
• Nepotism, corruption, and personal patronage are prevalent in the functioning of the collegium
system (Uncle Judges Syndrome).
• Violation of Article 74: President to act on the aid and advice of the Council of Ministers

Steps taken:
National Judicial appointment commission was established by the 99th constitutional amendment(2014).
• Panel of 6 persons: CJI (head) + 2 SC judges + Law minister + 2 eminent persons (3 year tenure)
• 4th Judges case(2015): The Court struck down the amendment due to
o No adequate representation to the judiciary
o Insufficient to preserve the primacy of the judiciary in the matter of selection and appointment
o Affects the independence of the judiciary and separation of powers.
o Centre to consult the CJI for drafting the new memorandum for appointments of judges.
• Memorandum of Procedure (MOP): Drafted in 2016 to set a fresh set of guidelines for making higher
judiciary appointments. It has the following key recommendations:
• Seniority & Merit: For the promotion of a High Court Chief Justice or a judge to the Supreme Court, the
criteria of seniority, merit, and integrity would be followed. However, considering seniority preference
should be given to Chief Justices of the High Courts.
• Written explanation: - If a senior Chief Justice is overlooked for elevation to the Supreme Court, the
reasons for the same should be recorded in writing. This will ensure transparency and avoid favoritism.
• The quota for jurist: Upto three judges may be appointed from the Bar or distinguished jurists with
proven track records.
• Committee & Secretariat:
• Committee: Institutional mechanism to assist the Collegium in the evaluation of the suitability of
prospective candidates.
• Secretariat: To maintain a database of judges, schedules Collegium meetings, maintain records,
and receives recommendations and complaints related to judges' postings.
• Rejection criteria: The government proposed to add national security and larger public interests as a reason
for the rejection of the Collegium recommendation.

However, it is pending due to lack of agreement between government & judiciary on the following points.
• Judiciary view:

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o Recordings of reasons in writing for overlooking a Chief Justice or a senior judge may affect his/her
prospects to elevate to the Supreme Court in the future.
o Restriction to intake of up to three judges from the bar does not fall within the framework of the
Constitutional provisions.
• The Parliamentary Standing Committee on law and justice:
▪ Rejection criteria of national security and larger public interest are vague and it gives unlimited
veto power to the government to withhold any name duly approved by the collegium.
Advantages of MOP:
• Merit and Integrity: Prime criteria for appointment of Judges to higher Judiciary.
• Performance appraisal for appointing chief justices of high courts and Supreme Court judges.
• Evaluation of judgment delivered in the last 5 years and steps taken to improve administration.
• Appointment of SC judges: Prime criteria: Seniority as chief justice/ judge of the high court.
o The Union Law Minister to seek the recommendation of the incumbent CJI at least one month
before his retirement for the appointment of his successor.
• Three SC judges: To be appointed from the eminent members of the Bar and distinguished jurists with a
proven track record in their respective fields.
• Permanent secretariat in SC: To maintain HC judges record, to schedule collegium meetings, to receive
complaints in matters of appointment.
• Notice for vacancies of judges: Put up on the website of the HCs at the beginning of the year.
• National security and public interest: New ground of objection. If the government has objections on this
ground -> convey the same to the collegium. The collegium to take a final call.
Way Forward:
• Early Finalisation of Memorandum of Procedure (MoP).
• Permanent independent body: Adequate safeguards to preserve the judiciary’s independence, judicial
primacy but not judicial exclusivity.
• Collaborative process: Filling up vacancies is a continuous process involving the executive and the judiciary
so difficult to have a time frame-> It should ensure independence, diversity, professional competence, and
integrity.
• Objective eligibility criteria: To understand reasons for an appointment or non-appointment.
o Recently SC Collegium has decided to put all its recommendations in Public Domain indicating the
reasons is a positive step.
• Collegium must provide a panel of possible names to the President to appoint in order of preference and
other valid criteria.
• Law Commission: Parliament to pass a law restoring the primacy of the CJI, while ensuring that the
executive played a role in making judicial appointments-> Ensures power balance.

REMOVAL OF JUDGES
Constitutional provision for removal
• Article 124(4): Judge of SC can be removed only by the President.
• Ground: ‘proved misbehavior’ or ‘incapacity’ only after a motion to this effect is passed by both the Houses
of Parliament by a special majority.
Concern in removal procedure:
• Vagueness: Lack of clarity as terms like misbehavior is undefined and open to interpretation.
• Lengthy process: Cumbersome and tedious Impeachment process -> virtually no accountability of judges.
• Against PNJ: Three members committee to investigate is headed by CJI or the SC judge. This leads to judges
removing the judges' situation.
• Lack of Transparency: Secrecy in the procedure of committee.
• The judge continues to hold the post
• Both the Constitution and the Judges (Inquiry) Act of 1968 -> silent on whether a judge facing an
impeachment motion should recuse from judicial work or not.
• The Judge during an investigation is not prohibited from discharging duties in court.
• Politicization: e.g.Congress abstained from voting on the motion for removal of Justice V. Ramaswami
resulted in failure of the process.

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Way forward:
• Transparency in Appointment- As listed in MoP integrity shall be the primary criteria.-> only judges of
high calibre and impeccable integrity are appointed to the higher courts.
• Greater Internal regulation: Prompt disciplinary actions on misconduct. ->National Judicial Oversight
Committee should be created by parliament to scrutinize the complaints and investigation.
• Judicial accountability: New Judicial Standards and Accountability Bill -> set of legally enforceable
standards to uphold the dignity of the judiciary.
• The Judges (Inquiry) Bill, 2006: proposed the National Judicial Council (NJC) to conduct inquiries into
allegations of incapacity or mis-behaviour by High Court and Supreme Court judges by people.

TRANSFER OF JUDGES
Current context

• Transfer of Justice Muralidhar of Delhi HC after his remarks on Delhi riots raised several questions in the
public domain.
• Transfer of Chief justice of Madras HC Tahilramani’s transfer to the Meghalaya HC

Constitutional provision:

• Article 222: Deals with the procedure relating transfer of judges from one high court to another.
• Judges are transferred by the President of India. President takes concurrence of CJI. CJI must give its
decision after consulting 4 senior-most judges of S.C. and CJ of concerned high courts.
• Lacuna in the transfer of judges: (Same as lacunae of Collegium mentioned above)

Conclusion:
An independent and impartial Judiciary is the important organ of the democratic state. The transfer of the judges
must not be arbitrary and mentioning the reasons for transfer can be a step toward providing a clear picture to the
public. The faith of the citizens in the judiciary must be preserved.

JUDGE’S RECUSAL
Current context:

• CJI Ranjan Gogoi himself hearing a case involving sexual harassment allegations against him.
• Andhra High Court rejects the plea for recusal of a judge from hearing petitions filed against the proposed
sale of government land in Guntur and Visakhapatnam districts under “Mission Build A.P.”
Definition:
• Recusal is the act of abstaining from participation in a particular official action as a judge or policymaker due to
a conflict of interest or prior association with the parties in the case.
Constitutional/Legal provisions:
• No written rules/provision and it is left to the conscience of judges.
• The reasons for recusal may or may not be disclosed in an order of the court. Some judges orally convey
reasons to the lawyers involved in the case, many do not.

Need of recusal:

• In-line with the Principle of natural justice.

• Upheld oath of judicial office i.e perform duties, to deliver justice, “without fear or favour, affection or ill-
will”.
• Judiciary banks on the trust of people and Recusal of judges help to restore the same.

Concerns with recusal:

• Undermine judicial independence: In many cases, the litigants demand recusal of a particular judge from
the particular case. This may allow litigants to pick a bench of their choice, which impairs judicial fairness.
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• Affect Impartiality: Using this tool to choose a bench of own choice undermines the impartiality of judges.
• Hamper judicial image:
• Absence of rules: Fails to establish a basic standard.
• When judges choose to recuse without a rational motive, without expressing their decision in
writing, they hamper very basic ideas of judicial righteousness.
• A judge refusing the recusal despite having a conflict of interest hampers people’s trust in the
judiciary.
• Vagueness: No person shall be a judge in own case -> It has subjective interpretations. What constitutes
interest? What shall be processed if the judge's interest appears in the middle of the case? All these create
confusion.
Way Forward:
• Avoid misuse: Using Recusals as a tool to manoeuvre justice by picking benches of a party’s choice to evade
judicial work.
• Judicial contentment: Judicial officers shall resist pressure and temptation of all types.
• Upholding oath of office: Impartial justice delivery is the constitutional duty of all judicial officers->
deviation will undermine the independence of the judiciary and the Constitution itself.
• Formulating Rules: A rule to determine the need for recusal should be made at the earliest.
• Supreme Court Advocates-on-Record Association v. Union of India (2015): Where a judge has a pecuniary
interest, no further inquiry as to whether there was a ‘real danger’ or ‘reasonable suspicion of bias is
required to be undertaken.

JUDICIAL ACCOUNTABILITY:

Current context: Allegation of sexual harassment against the Chief Justice of India (CJI) made by a former Supreme
Court employee.

Definition:
• Judicial accountability describes the view that judges should be held accountable in some way for their work.
This could be public accountability i.e getting approval from voters in elections or accountability to another
political body like a governor or legislature.

Need of judicial accountability:

• Constitutional duty: Judiciary has the role of Guardian, Protector, and watchdog for rule of law and to
uphold the rights of people.
• Against constitutionalism: The principle of checks and balance ensures no organ of state misuses its
power.
• To uphold public trust: Recent remarks like asking a rape victim to marry a rapist, prioritizing cases of some
people for hearing, and delaying others erodes trust in the judiciary.
• Judicial Independence: Without accountability, Judicial independence can be used for the personal benefit
of judges, and not for the protection of the rule of law, and the rights of citizens.
• Principle of natural justice: CJI decides master of rolls despite himself being a party in a case. E.g. Recent
press conference by four senior-most judges against CJI.
• Rising executive influence: Due to post-retirement positions on different tribunals and bodies.

Areas where judicial accountability is lacking:

• Judicial Appointment: The collegium system results in judges appointing judges with virtually no role of
executive and legislature.
• Removal: The procedure under Articles 124(1) and 217(1) is long and difficult.
• Conduct of judges: Recent allegations of corruption on Justice Ramaswami, Allegation of sexual harassment
on Justice Ranjan Gogoi raises a question on the character of CJI.
• Opacity in operation: Under the blanket of judicial independence judiciary restricts outside body’s
involvement in the investigation of corruption cases and sets up in-house mechanisms.

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• Information asymmetry: Virtually outside RTI - Supreme court rules do not provide a Time frame, appeal
mechanism, penalty for the delay to give information.
• Contempt of court: Being utilized for rightful critics also. E.g. Recent contempt proceedings against Kunal
Kamra and Prashant Bhushan.
• Judicial overreach: Activism towards citizen grievances has encroached on a line of overreach. E.g National
anthem case, Highway liquor ban.
• Non-declaration of assets by judges.

Steps taken to ensure judicial accountability:

• Adoption of a charter ‘Restatement of Values of Judicial Life’ by Supreme court in 1997 and Bangalore
Principles of Judicial Conduct in 2002.
• Judicial Standards and Accountability Bill, 2010 - Establishes the National Judicial Oversight Committee->
may issue advisories or warnings to judges, and also recommend their removal to the President.
• The Supreme Court (SC) approves live-streaming of court proceedings.
• Draft Memorandum of Procedure, 2016:
• Include “merit and integrity” as “prime criteria” for the appointment of judges.
• Permanent secretariat in Supreme Court for maintaining records of high court judges
• SC vs Subhash Chandra Agrawal case: CJI is declared as a public authority under the RTI act.

Steps required:
• The media shall study the judgment. Comment on it academically so that judges know that they are being
watched. That is the way to ensure accountability - Arun Shourie
• Independent judicial Lokapal for complaint against judges.
• Comprehensive code of conduct for judges
• Two-level judicial discipline model - 1st level: Fine/suspend; 2nd level: Removal.
• Awareness and sensitivity of the appointees to the country’s diversity - Criteria in the appointment

Conclusion:
• An independent judiciary is a primary prerequisite for a healthy, vibrant, functioning democracy like India
and any attempt to erode judicial independence is suicidal, but at the same time, judicial accountability is
also of equal importance.

CORRUPTION IN JUDICIARY AND NEED OF VIGILANCE WING

Current context:

• Allegations of corruption against sitting supreme court judge by Andhra Pradesh CM and also interfering in
high courts business to put stay on the investigation of these corruption cases.
• Madras high court has pitched for the judiciary to strengthen its vigilance wing to crush corrupt practices

The sheer number of cases pending, the high number of vacant judges post across various states result in delays
and inefficiencies. This becomes ideal conditions for middlemen to step in.

Reasons for judicial corruption:

• Inaccessibility: The judicial system is highly dilatory and ordinary citizens find it hard to seek redress, as
litigation is expensive and often extra money is required to oil the wheels of the system.

• Misuse of power: There are instances of judges demanding bribes, sexual favour in return for a favourable
judgement.
- A person making any allegation of corruption against a sitting judge can be punished for contempt
of court. This is a deterrent against more such instances coming to light.

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• Difficult impeachment process: As per

Supreme Court ruling no FIR can be
registered against a judge without prior
approval of the CJI. Their immunity is
reinforced by cumbersome impeachment
procedure which is also susceptible to
political influence.
• Slow and inefficient: Complicated and
inefficient judicial processes coupled with
inadequate judicial staff drag cases for years. Bribes are paid to advance the judgement or bend it.
• In-house process of inquiring corruption charges(1997): Court ruled that such cases shall be kept
confidential. This often results in many credible cases getting ignored.

Steps to control corruption:

Use of technology Reduce the gap Making the judiciary accountable
Digitization court records Vigilance cell to redress Code of conduct for judges
and introduction of public grievances. Bar associations must act against a corrupt member
modern tracking methods Promotion of ADR.
to eliminate petty An Indian judicial service must be created
corruption in lower Increase number of proposed National Judicial Commission should have
courts. judicial officers and powers to fire a judge
number of fast track
Maintain court video courts. Inquiry of corruption charges by retired judges of high
recordings. credibility.
Conclusion: Building citizens’ confidence in the judiciary is the constitutional mandate of the judiciary. The
conscience of the court would not permit if it fails to mention the increasing corrupt practices in the judiciary as
well as on the court premises. Justice requires equal treatment of all the citizens and consistency in the justice
delivery.

LACK OF TRANSPARENCY IN JUDICIARY--VIRTUALLY OUTSIDE RTI

Section 2(h) of RTI includes SC as a public authority. However, Study by Vidhi Centre has found that there is a
“yawning gap" between the judiciary’s pronouncements on the RTI Act and how the High Courts are implementing
it.

• Inappropriate use of Article 225 and section 28 of RTI: High courts rule against section 22 of RTI which
makes the RTI act override all other acts. Also, the High courts’ rules demand good cause to be shown for
disclosure of information, unlike RTI which doesn’t ask for the reason.
• Voluntary disclosure under Section 4(1)(b): Poor quality proactive disclosures by several High Courts on
their websites marks the failure of the High Courts to discharge the statutory obligation.
• Financial transparency: Most HCs do not proactively publish details of their budgets. Few HCs are willing
to provide copies of their budgets and audit reports under the RTI Act.
• Section 8: Section 8 of the RTI Act restricts the number of grounds for denying information. But RTI rules
of several High Courts have included additional grounds for rejecting information.
• Cumbersome process: Rejection of modes of payment like postal orders, asking for only court fee stamps
as accepted payment mode which are available at only a few locations.
• Logistical challenges: Most HCs and S.C. require the physical filing of application with the Registry, and a
hearing before a judge to determine whether records should be given.

ARTICLE 131

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Current context: Kerala and Chhattisgarh have invoked Article 131 to file a petition against the Citizenship
Amendment Act (Kerala) and the National Investigation Agency Act (Chhattisgarh) in the Supreme court.

Constitutional provision: Article 131-> Original jurisdiction of Supreme

court to decide the disputes arising between different units of the Indian Federation like->
• Between the Centre and a state; the Centre and a state on the one side and another state on the other
side; and two or more states.
• Disputes involve a question of law or fact on which the existence of a legal right of the state or the Centre
depends.
Significance of Article 131:
• Quasi-federal constitutional structure: Inter-governmental disputes are bound to happen. Article 131
provides exclusive original jurisdiction to the Supreme Court for their resolution.
• Dispute resolution tool: Whenever a State feels that it’s legal rights are under threat or have been violated,
it can take the “dispute” to the Supreme Court.
Concerns with Article 131:
• Question of law: The dispute must involve a question of law or question of fact that transcends a legal or
a constitutional right, and should not include political conflict.
• Not for private citizens: Suit brought before the Supreme Court by a private citizen against the Centre or a
state cannot be entertained under this article.
• Subject to other provisions: if a remedy to any issue is present under any other Article of the Constitution,
then this article will not be available. E.g. Water disputes under Article 262.
• Question of legality- Conflicting judgement by SC Can a State Challenge a Central Law under Article 131?
• State of Madhya Pradesh vs Union of India, 2011: The issue dealing with electricity was raised -
> Court held that States cannot challenge a central law under Article 131
• State of Jharkhand Vs State of Bihar, 2015: The SC took the opposite stance and referred the
question of law to a larger Bench for final determination.-> final judgment is awaited
Way forward:
• Politically motivated pleas must not be entertained by the SC.
• NITI AAYOG: Creation of a list enumerating the federal crimes which must only be investigated by the NIA
or CBI.
• Effective consultation and debates: Representatives of states Speak up in the Parliament when the laws
are being framed & passed.
• Cooperative Federalism is a two-way street. Both the parties to it must respect the boundaries drawn by
the Constitution.
• The States must restrain themselves while defying the implementation of Central laws
• E.g. Motor Vehicle Amendment Act, 2019, the subject matter under concurrent List-> States
cannot outrightly reject the framed Central law until and unless they are declared as void and
unconstitutional by the Higher judiciary.

JUDICIAL ACTIVISM AND JUDICIAL OVERREACH

Previous year question on this topic

Judicial Legislation is antithetical to the doctrine of separation of powers as envisaged in the Indian
Constitution. In this context justify the filing of large number of public interest petitions praying for issuing
guidelines to executive authorities. (Answer in 250 words) (CSE2020)

Current context->Supreme Court staying implementation of three farm laws

Defination: Judicial activism: proactive and assertive role played by the judiciary to force the executive and
legislature to discharge their constitutional duties to uphold the rights of citizens.

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E.g. Directing to create a new policy to handle drought, setting up a bad loans panel, Ordering to restore the Internet
in Kashmir, , etc.
Benefits of Judicial activism:

• Checks and balance: Creativity to bring out

innovation in the form of a solution e.g. Giving
the order to ban the polluting industry in the area
around Taj Mahal which has resulted in the
restoration of heritage.
• Judges wisdom: E.g. Vishaka guidelines to
prevent sexual harassment at workplace.
• Constitutional obligation: Protector of rights of
people.
• Insight into the issue: Arguments and discussion
- people knowing both pros and cons of the issue.
• Prevents misuse: Many a time public power
harms the people.
• Complete delivery of justice: Invocation of Article 142 to release undertrials and for granting USD 420
million compensation to victims of Bhopal gas tragedy.
• Speedy solution: Legislature gets stuck in the issue of majority. E.g Banning of old vehicles in Delhi.

Judicial Overreach: Extreme form of judicial activism where arbitrary and unreasonable interventions are made
by the judiciary into the domain of the legislature or executive.
E.g:-
• Instituting collegiums led to denying the executive, role in the appointment of judges by an extra-
constitutional body.
• Invalidating the National Judicial Accountability Commission Act, 2014 seeking to ensure transparency
and accountability in higher judiciary.
Causes of Judicial activism and Judicial Overreach:
• Asymmetry of power: SC- judgment is binding on Executive & Legislature, can strike down their actions
and laws.
• PIL: did away - the doctrine of ‘locus standi’(no one except the affected person can approach a
court). This Lead to demands for judicial intervention to improve the administration
• The lackadaisical approach of other organs: - Corruption, delay, non-responsiveness, or inefficiency in
the governance. This creates a vacuum in governance which is then filled by the judiciary.
o E.g. Vishakha guidelines (1997) outcome of the inability of the legislature to address the matter.
• Other factors:
o Growing consciousness of people for their rights
o Globalization
o Active media and civil society organizations
o Concerns for the environment
Concerns over Judicial overreach
judiciary has used excess powers which can never be treated as judicial adjudication
• Undermining the doctrine of SOP: The power vested in SC in Article 142 is extraordinary.
• Frequent use of this power, violation of the doctrine of SOP.
• Negligence of the challenges faced by legislature and Executive:
• the legislature and Executive works depend on 4F i.e. Fund, function, framework, and
functionary. Judicial order without considering the holistic impact on these 4F can cause harm
to the economy e.g. Cancelling of coal blocks allocations and spectrum allocations resulted in
poor health of the financial institutions
• Lack of accountability of the judiciary: Judiciary - not accountable to the people as l&E

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• power of ‘Contempt of court.’ -> evade public criticism for many of its actions.
• Selfish motives of judges which can harm the public interest. E.g. Proactive censorship in Jolly LLB
• Uncertainty in laws - E.g. Cancellation of telecom license
• Knee jerk reaction: Decisions in the anxiety of doing complete justice but without considering research
on widespread consequences cause greater harm. E.g. Highways liquor ban in 500 meters from national
and state highways resulted into lacs of unemployment. However accidental deaths caused due to
drunken driving were only 4.2% as against the 44.2% caused by over-speeding.
Way ahead
Judicial restraint under article 142:
• Article 142 cases should be referred to a Constitution Bench of at least five judges. This will ensure
decision as an outcome of five independent judicial minds operating on matters having such far-
reaching impact on the lives of people.
• The government must bring out a white paper to study the beneficial as well as the negative effects
of the judgment under Article 142 after six months.
• Exercise self-restraint and eschew the temptation to act as a super-legislature.
• Improving the quality of legislation
• Appropriate when it is in the domain of legitimate judicial review. However, it should not be a norm nor
should it result in judicial overreach.

Conclusion:
Making law is the function of the legislature and the executive has to implement it properly. So that only
interpretation remains a work for the judiciary. Only the fine equilibrium between these organs of the government
can sustain the constitutional values.

CONTEMPT OF COURT
Current context: Contempt proceeding against Lawyer Prashant Bhushan and comedian Kunal Kamra.

Definition: Contempt of Courts Act, 1971defines contempt of Court as Civil contempt: Willful disobedience to any
judgment, decree, direction, order, writ, or other processes of a court or willful breach of an undertaking given to
a court.

Criminal contempt: Publication of any matter or doing any act which

• Scandalises authority of, any court
• Interfere with any judicial proceeding
• Obstruct the administration of justice in any other manner.

Constitutional provision:
• Article 129 and 215: Powers SC and HC as a court of record including the power to punish for contempt of
itself.
• Article 142(2): enables the Supreme Court to investigate and punish any person for its contempt.

Need of contempt power:

• Upheld court honour: Judiciary rest on the trust of people. Pritam Lal v. The High Court of M.P SC held
that it is the duty of the Court, to punish the contempt act to preserve its dignity.
• Rule of Law: Disobedience of court’s order violates the principle of Rule of Law. Hence contempt power
holds together the basic structure of the Constitution.
• Equality before law: Tool against the rich and the powerful by forcing compliance to the court orders.
• Independence of the judiciary: Protection from the opinion of public and media trials.
• Credibility and efficiency of judiciary: E.g. contempt proceedings against Justice Karnan for his demeaning
behaviour

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• Reasonable restricts: Article 19(1) of the Constitution provides contempt of court as a reasonable
restriction for curbing the freedom of speech and expression.
• Law Commission (274th report): several inbuilt safeguards to protect against its misuse. E.g. Section 13
of the Contempt of Courts Act, 1971 : If the degree of harm is slight and beneath notice, the court won’t
punish for contempt
• Interference in justice Administration: Brahma Prakash Sharma v State of Uttar Pradesh->It is not
necessary to specifically prove that an actual interference with the administration of justice has been
committed in contempt of court case.

Argument against:
• Free Speech and Expression
• Judicial accountability: In free democratic society criticism of the Judiciary is inevitable to hold it
accountable. it should not be a matter of concern as long as it doesn’t obstruct Justice delivery.
• Vague grounds: Grounds such as scandalizing the court are open-ended and prone to misuse.
• Against the Principle of Natural justice: No man should be the judge in his own case. But in contempt cases,
Judges are a judge in their own cause.
• International practices:
• UK - ‘scandalizing the court’ as a ground for criminal contempt -> abolished in 2013
• Canada: Courts are free to be criticized unless -> imminent danger to justice delivery.
• USA: Dignity of the Court will not be established and respected if free discussions about the Court
were restricted on the pretext of preserving its duty.
• The contempt jurisdiction is not intended to uphold the personal dignity of the Judges.
• Period of Limitation: Despite the maximum duration for initiating contempt proceedings is one year but
many of the contempt cases are pending for more than ten years.
• NCRWC: Contempt power and judicial review restricted to SC and HC only.

Should the provision be retained or not?-> Law Commission->no requirement to amend the Act, for the reasons
stated below:

• A high number of contempt cases: -> Justify the continuing relevance of the Act.
• Source of contempt power: From the Constitution. The Act only outlines the procedure for investigation
and punishment for contempt. Therefore, deletion will not have an impact.
• Impact on subordinate courts: High Court to punish for contempt of subordinate courts. If contempt
definition is narrowed, subordinate courts will suffer as there will be no remedy.
• Restrict court power: 1971 Act -> Lay down procedure, restricts the vast authority of the courts in wielding
contempt powers. Amending the definition of contempt will lead to ambiguity.
• International comparison:
• The last offense of Scandalising the Court in the UK was in 1931. Whereas India continues to have
a high number of criminal contempt cases.
• The offense of Scandalising the Court -> Punishable in the UK under other laws.

Way forward:
• Reduce discretion: Contempt power shall be made more determinate and principled.
• Identify the difference between contempt of court and contempt of judge.
• Proportional Punishment: Punishment for contempt is inadequate and is not a sufficient deterrent.it
should be sufficiently enhanced to deal with interference in justice delivery.
• Punishment shall be the last resort.
• Elements of ‘mens rea’ (legal concept denoting criminal intent or evil mind) may be incorporated in the
act. Establishing the ‘mens rea’ of an offender is usually necessary to prove guilt in a criminal trial.
• Supreme court: Baradanath Mishra v the Registrar of Orissa High Court ->court needs to check vilification
of a judge is in an individual category or in official capacity. If the earlier then the Court has no power to
commit for contempt and the Judge shall consider private remedies.

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Conclusion:
Public institutions in a free society must stand upon their own merits. They cannot withstand if their conduct does
not command the community's confidence. If their conduct justifies the respect of a community then they do not
need the protection under contempt rules.

LACK OF REPRESENTATION OF WOMEN IN JUDICIARY

Current context:
• Only 11 women Supreme Court judges in 71 years, three of them appointed in 2021 ()
• Madhya Pradesh High Court judge granted bail to sexual harassment accused with the condition to get
Rakhi tied.
• CJI asked the rape accused to marry the rape victim and implicitly attempted to justify marital rape.

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Facts
Supreme Court High Court Subordinate court

As of August 31, 2021- Only as of August 1, 2021. Overall, women Women's representation in the
11 of the 256 judges (4.2%) judges account for only 11% of HC judiciary is slightly better in the
who have served/ are serving judges. In five HCs, no woman served lower courts where 28% of the
at the apex court were/are as a judge, while in six others, their judges were women as of 2017.
women. Four out of the 33 share was less than 10%. The % of However, it was lower than 20% in
judges (12%) currently serving women judges at the Madras and Bihar, Jharkhand and Gujarat.
are women. Delhi High Courts was relatively high.

Importance of women representation:

• Constitutional obligation: Articles 14,15,16,39 and 42 provides for gender justice through the provision of
equality and positive discrimination in favour of women.
• Justice Quality: Empathy and sensitivity are virtues associated with women which can improve the quality
of judgement.
• Public trust: Gender diverse bench will result in judiciaries being perceived as more transparent, inclusive,
and representative of the people whose lives they affect
• Breaking Patriarchal Barrier of terming women incapable for litigation jobs.
• Accessibility: Easy availability of women advocates-> Make women victims more comfortable to
communicate problems like sexual violence -> Encourage more women to report cases.
• Sustains women in profession: Prospective promotion acts as motivation for young women to continue
the profession despite challenges and hardship.
• Global commitment: SDG 5 and SDG 16 -> having gender equality and women’s representation in public
institutions such as the judiciary.
• Role model: Any step in this direction will be a benchmark for society with many more young women
students coming forward and opting for law as a profession.
• Half of the total population: In India, women constitute 50% of the total population but their
representation is nowhere reflective of it.

Important issues
Patriarchy is one of the features of Indian society. Despite all technological advancement it continues to prevail in
various spheres of life. Even the judiciary which has the responsibility of protecting women’s right suffer from a
patriarchal mindset which is reflected in some of the judgements.
• Gender insensitivity: Recent CJI comment of asking rape accused to marry the victim. As rape is not a
compoundable offense, this statement reflects the tilt of attitude in favor of males.
• Refusal to recognize marital rape: Verma committee-> Bodily integrity and sexual autonomy of woman
can’t be permanently lost by entering into marriage. However, statements implying the husband has
authority over the wife and refusal to give direction to the government to recognize marital rape has
caused great gender injustice.
• Raising question on woman’s character: Karnataka high court while granting bail to accused, raised
question on victim’s act of going to accuses a place and consuming a drink in the night.
• Call for rapist-victim compromise: Nagpur bench order of asking accused to pay 1 lac to the victim in return
of acquittal, Orally asking convicted to fall at feet of the victim and seeking forgiveness in return of
reduction in imprisonment. All this reflects the patriarchal attitude of judges and insensitivity towards the
pain of the victim.
• Extension of societal mindset: Judgement of trial court in Bhanwari Devi case (1995), in which court’s
observations like higher caste can’t rape lower caste, older men can’t rape women are a clear indication
of caste and patriarch mindset prevailing in society.

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• Assigning a post-marriage role to women: In Narendra vs K. Meena (2016), S.C. held that a wife after
marriage shall fully integrate herself with her husband’s family and refuse to live with her in-laws can
amount to cruelty and the husband would be entitled to a divorce.
• Dilution of section 498A IPC: Anti dowry act which makes offense cognizable, non-bailable, and non-
compoundable to prevent harassment of women. However in Rajesh Sharma vs The State Of Uttar
Pradesh (2017) case court diluted the act in favour of males with provisions like No arrest till family welfare
committee’s report, same day decision on the bail application, , etc.
• Right to a dignified life of women: Kerals HC infamous judgement in Hadiya case which annulled her
marriage by considering herself as weak to make own decision and giving power to her father to decide
for her is reflection judicial patriarchy.
Challenges to improve participation
• Opaque collegium system -> Reflect biases unlike reservation and entrance exams to subordinate judiciary.
• Poor court infrastructure: poor sanitation in court premises, lack of paid maternity leave and crèches ->
Difficult for young women to work.
o According to a report by Vidhi Centre for Legal Policy in 2019, about 15 per cent of courts in India
do not have a women’s toilet.
o Another report by Vidhi Centre showed that only about 40 per cent of 555 district courts in India
have functional women’s toilet while 100 districts do not have toilet facilities for women
• Job insecurity and irregularity: No fixed working condition, lack of guaranteed income -> Tend to leave
litigation job.
o Frequent transfers: Magistrates are made to transfer every three years. This can be seen as another
challenge to fill the gender gap in the judicial system as the defined gender roles in the Indian
society makes it difficult for women to stay away from their homes for their careers
• Lack of records: No data is centrally maintained on the number of women in tribunals or lower courts ->
Limits any timely evidence-based course correction.
• Patriarchal society: According to a study by the International Commission of Jurists (ICJ) the lower
representation of women in the judiciary is often due to gender stereotyping

Way forward:
• Effective long-term plan: Collation of data of prospective women candidates in the lower judiciary,
revisiting appointment criteria to ensure marginalized section women representation.
• Transparency in collegium: Competent High court lawyers shall be made judges in the High court and
Supreme court through positive discrimination at the higher judiciary.
• Gender sensitization: Judges of “old school” and “patriarchal” in outlook, should be sensitized to prevent
them from passing orders objectifying women in sensitive cases.
• Attorney General: Courses on gender sensitization for judiciary and police forces.
• Removing the minimum age for recruitment as district judge can help young female advocates from opting
out of practice in favour of other services or corporate jobs.
• Retaining women in profession: Governments should rationalize salary and allowances of lower judiciary
and provide security of income to female lawyers to reduce uncertainty.
• Societal mindset: Judges and lawyers shall be judged on merit and not on gender.
• Judicial accountability: Reducing discretion of the court in sensitive cases and making judicial standards
and codes to hold derogatory remarks by judges accountable.
• Reservation: Higher judiciary should also have horizontal reservation for women such as subordinate
judiciary without diluting merit

JUDGES AND POST RETIREMENT POSITIONS

Current context: Nomination of Ex-CJI Ranjan Gogoi to Rajya Sabha by President under Article 80 (1)(a).
Refusal of Supreme court judge AK Sikri to the post-retirement job.

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Facts: Vidhi Centre:- 70 out of 100 Supreme Court retired judges (including 44 CJI)-> taken up post-retirement
assignments.

Way forward:
• Cooling off period: minimum 2 years like group A government officers.
• Increase age of retirement: USA-> No Supreme Court judge retires lifelong. UK-> retire at age of 70 years
and no judge has taken a post-retirement job.
• Statutory commission of majority of retired judges and other eminent to appoint judges to a tribunal and
other bodies.
• Follow Britain’s model- Every judge of the Supreme Court has the right to sit in the House of Lords for the
rest of his or her life-> automatic nomination -> no scope for questioning the independence of new
members.
• Constitutional amendment: Provision similar to Article 148 (Prohibit CAG from reappointment) can be
inserted for the judiciary.
• Justice R M Lodha: to increase transparency->options by the government before retirement
• Pension-> No government job.
• Draw existing salary-> name of such candidates should be put in a panel and when a vacancy arises,
these persons can be considered.
Conclusion:
Provisions like the security of tenure, Salaries, pensions charged on consolidated funds of India, , etc. make it clear
that the framers of the Constitution envisaged an unambitious judiciary for which the only guiding values were the
provisions of the Constitution. Post-retirement jobs undermine the expectations of constitution-makers.

Extra Edge by OnlyIAS:

• Constituent Assembly: K. T. Shah-> no temptation should be available to a judge for greater
emoluments, or greater prestige -> affect his independence as a judge – HC and SC shouldn’t accept
Post ret job
• B.R. Ambedkar:-> Judiciary decides cases in which the government has, if at all, the remotest interest,
in fact, no interest at all-> However today Govt is the biggest litigant.
• CJI Y V Chandrachud: some judges were looking for post-retirement positions and writing judgments
with that in mind.

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• CJI R S Pathak: judges with short tenures at the SC tended to be more pro-government -> since they
were looking for a suitable position after retirement.

SOLUTIONS FOR ISSUES FACED BY THE INDIAN JUDICIARY

MOVING TOWARDS VIRTUAL COURTS

Current context:
• The Supreme Court invoked its power under Article 142 and passed directions for all courts across the
country to extensively use video-conferencing for judicial proceedings.

Advantages of virtual Judicial proceedings:

• Address pendency: Online judicial services can aid to clear the backlog at reduced cost and time.
• Increased efficacy: -> System generated standard formats of routine judgments and orders
• Reduction of paperwork-> Pudges and other court staff can focus on judicial functions.
• Real-time online data-> Better case categorization and effective monitoring by HC
• Addressing Infra constraints: Audio-Video hearings-> reduced cost on building, infra, staff, security.
• Judicial accountability: Audio-video recordings of court proceedings -> transparency of court processes
also discourage improper conduct in courts and wastage of court time.
• Data management: Judicial statistics in public domain -> key stakeholders like advocates, litigants,
researchers, and the public better informed about the state of the judiciary.
• Ease of doing business: Online dispute resolution of the contract will boost the confidence of domestic and
foreign businesses.
Challenges:
• Financial constraints: To deploy new age technology like high-speed internet, the latest audio, and video
equipment, cloud computing, , etc.
• Human capacity: Lack of technical skills of court staff and absence of dedicated in-house technical support.
• Digital divide: non-availability of electricity and internet connectivity and low digital literacy in rural areas
-> inequality in access to justice.
• Low awareness: PRS: only 40% of cases were filed exclusively through a computerized system.
• Cybersecurity threats: Frequent attacks on banking infra and other critical infra raises concern.
• Procedural problems: Tools like deep fake, edited audio-video can mislead proceedings.
Various initiatives undertaken:
• LIMBS: Legal information management and briefing system
• Re-engineering committee of High Courts
• National Judicial data grid
• E-Court mission mode project
• e-committee of SC
• Judicial service centre
Way Forward:
• Digital infrastructure: Convergence with schemes like common service centers to facilitate e-filing and
video conferencing.
• Capacity development: Training through online courses for judges and court staff for using online systems
and maintenance of e-data.
• Business process reengineering: To incorporate audio-video proceeding and its recording and maintaining
standard system-generated formats of routine judgments and orders.
• Amending rules for use of electronic evidence.
• Creating a user-friendly e-courts mechanism and awareness generation.
• Data privacy rules: To prevent the breach of data and ensure the privacy of people.

FAST TRACK COURTS

Current context:

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• A Constitution Bench of the Supreme Court has proposed setting up fast-track courts for a limited time to
clear dishonored cheque cases.
• Ministry of Law and Justice ->scheme for setting up 1023 FTCs for rape and POSCO act cases, as a part of
National Mission for Safety of Women (NMSW).

Definition: Fast Track Courts are ad-hoc institutions set up to deal with a particular type of cases under a shortened
and simplified procedure. e.g. ad hoc courts set up to deal just with cases involving sexual assault or POSCO.

Constitutional provision: Article 247: Parliament to establish certain additional courts for the better administration
of laws made by it or of any existing laws with respect to a Union List.

Historical evolution:
• 11th finance commission (2000): Establish 1734 Fast track courts-> speedy disposal of pending cases
especially undertrials in the lower judiciary.
• HC appointed judges on an ad hoc basis from retired HC judges, eligible bar members, etc
• 2005: 1562 FTC functional -> scheme extended till 2011 -> 2011: 1192 FTC functional.
• Post-2011: No central funding and state to establish FTC with their fund.
• 14th Finance Commission: Setting up 1800 FTCs (Rs.4144.00 crore) and urged the State to utilize the
enhanced devolution of central taxes(42%) to fund this effort.
• Important cases handled: 26/11 attack case, Best bakery case.

Advantages of FTC:
• Reducing pendency: FTCs have solved millions of cases to reduce the burden on other courts.
• Judicial efficacy: Simplified procedure-> High case clearance rate and speedy trial rate -> increases Judicial
efficacy.
• Promote specialization: FTCs are established to handle specific types of cases. This enables the
appointment of experts in that field as judges.
• consistency and predictability: FTCs have high-performance rates and are stable and steady. It renders
justice with high accuracy.
Issues faced:
• Systemic issues:
• An insufficient number of FTCs and judges compared to cases to be handled. E.g. Delhi FTCs have
only one or two judges.
• Ad-Hocism: Instead of establishing to address pendency, established based on specific incidents.
• Heavy workload: Increasing cases assigned without increasing number of judges -> Increased pendency in
FTCs e.g. As per PRS data 5.9 lakh pending cases in 581 operational FTCs(March-19)
• No special or speedier procedure: Usual delay like the regular courts. NCRB (2018): 78% out of 28,000 trials
done in FTCs took more than a year to complete.
• Lack of infrastructure: Often housed in an existing court and various equipments needed to conduct video
and audio recordings of victims -> Reduces the effectiveness
• Financial constraints: SC in Brij Mohan Lal case: continuation of FTCs is in the state domain with their
funds. E.g. As per PRS date(March 2019) 56% of the States and UT had no FTCs.
• Lack of Coordination: tribunals -> managed by different ministries. fast-track courts and special courts ->
under different judicial bodies, with little coordination or uniformity among them.
Way Forward:
• Capacity building and improving infrastructure: Appointment of additional judges, making FTCs
permanent, dedicated courtrooms, technological facilities, etc shall be the priority.
• Suggested by the Supreme Court, the ad-hoc judges and support staff should be granted permanent
appointments shall be a priority.
• Modern technologies: Tools like Big data analysis, AI shall be used to ensure better grouping of cases and
decide priority.
• Sensitizing State Governments: Conference of Chief Ministers and Chief Justices, the State in consultation
with Chief Justices of HC -> establish a suitable number of FTCs and provide adequate funds.
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• Cooperation: States should engage with senior district judges to get a sense of issues the courts are facing
in various districts.
• Coordination: FTCs and special courts -> under different judicial bodies with little coordination -> a lead
agency to be established by Central and State Governments to streamline the functioning of courts
systematically.
• Holistic approach: Police reforms to improve investigation, Special procedure for speedy disposal of cases.

REGIONAL BENCH OF SUPREME COURT

Current event: Vice President-> suggested setting up of four Regional Benches of the Supreme Court.

Constitutional provision: Article 130->SC may sit at other places than Delhi on the order of the CJI with the prior
approval of the President. No constitutional amendment would be required.

Need for Regional Benches

• Inclusive Justice delivery: Article 39A directs states to make provisions to ensure that no person shall be
deprived of getting justice.
• Accessibility: For the poor and people living in far-off places like the north-east access to SC seats in Delhi
is less.
• High Pendency: As per NJDG approx 65,000 cases are pending in SC and disposal of appeals takes many
years.
• Constitutional court: Cases decided by constitution benches (i.e 5+ judges) have declined from about 15%
(1950s) to 0.12% (last decade). With regional benches, SC in Delhi can only hear matters of constitutional
law.
• Economic growth: More prosperous states have higher civil litigation rates. But Judicial backlogs
discouraged civil case filings-> regional bench is a step-in right direction.
• Recommended by various committees:
• Parliamentary standing committees in 2004,2006 and 2008 recommended the same.
• Law commission: 229th Report: Constitution Bench in Delhi for constitutional and allied issues,
and four Cassation Benches in Delhi, Chennai/Hyderabad, Kolkata, and Mumbai for all appellate
work.
• Supreme Court(1986): Establishment of National Court of Appeal with regional Benches at
Chennai, Mumbai, and Kolkata.
• V. Vasantha Kumar case, 2016 the SC referred the matter to a Constitutional Bench for the decision
on the National Court of Appeal.
Concerns
• May dilute superiority of the SC decisions: Fundamental change in the character of SC and its aura as Apex
court. It would require amending Article 130 which might not stand basic structure.
• Affect integrated judiciary system: In 2010, CJI and 27 judges had rejected law commission
recommendations for regional Benches citing this reason.
Conclusion:
Various high courts have successfully established multiple benches without facing any of the apprehension made
above. Hence establishing regional benches to full-fill the constitutional obligation under Article 39A is the best way
forward.

TRIBUNALS

Previous year questions on this topic

1. The Central Administration Tribunal which was established for redressal of grievances and complaints by
or against central government employees nowadays is exercising its powers as an independent judicial
authority.” Explain. (10M 150 words) (CSE2019)
2. How far do you agree with the view that tribunals curtail the jurisdiction of ordinary courts? In view of the
above, discuss the constitutional validity and competency of the tribunals in India. (15) (CSE2018)

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3. What is quasi-judicial body? Explain with the help of concrete examples. (150 words 10M) (CSE2016)

Current context:
• CJI suggested having as few tribunals as possible.
• The Ministry of Finance has framed new rules prescribing uniform norms for the appointment and service
conditions of members to various Tribunals.

Definition: Tribunal is a quasi-judicial institution constituted with the objective of speedy, inexpensive, and
decentralized dispute resolution in various matters like administrative or tax-related disputes.

Constitutional provision: Constitution by 42nd Amendment Act, 1976 (Swaran Singh Committee)

Article 323-A Article 323-B

Purpose Administrative Tribunals. tribunals for other matters
established by only by Parliament both by Parliament and state
Hierarchy No May be created

Advantages Tribunals:
• Flexibility: Not restrained by rigid rules under the Civil Procedure Code and the Indian Evidence Act ->
follow the principles of Natural Justice.
• Less Expensive: Less formal and a faster way to resolve disputes than the traditional court.
• Technical expertise: Provision to appoint expert members->critical role in the adjudication of matters
demanding technical expertise.
• Legally binding decisions: Same powers as a civil court, viz., issuing summons and allowing witnesses to
give evidence. Its decisions are legally binding on the parties, subject to appeal.
• Relief to Courts: Relief to overburdened ordinary courts of law.

Concerns with tribunals:

• Against the separation of powers: It has both administrative and judicial members.
• conflict of interest: Appointments -> by executive and executive is also the largest litigant in the country.
• Lack of autonomy: Operates under parent administrative ministries -> at their mercy for facilities,
infrastructure, and also rule-making.
• Low transparency: Lack of information available on the functioning, Websites are routinely non-existent,
unresponsive, or not updated.
• Undermining Judicial Authority: Largely replaced HC for disputes under the various Acts. -> Appeal against
appellate tribunal-> directly to SC, side-stepping the HC. (L. Chandrakumar’s case: 1st appeal to HC)
• Increasing Pendency: Average pendency -> 3.8 years (pendency in high courts is 4.3 years)
• Overlapping Jurisdiction: Tribunals function under various ministries and departments -> create confusion
about the management of the tribunals. Also, multiple tribunals performing similar functions.
• Huge vacancies: defeated the purpose of creation of these specialized quasi-judicial forums.
• Reduces SC to merely court of appeal.
• Low accessibility: Most of them are located in only one city unlike HC and also lack infra for efficient
functioning.
• Delayed awards: Cauvery Interstate water dispute tribunal was established in 1990 and took 17 years to
pronounce its judgment in 2007. This was further challenged in the supreme court. This reflects the very
purpose of the tribunal as a quick dispute resolution mechanism.

Way forward:
• Law Commission: Procedure for improving the working of the tribunal system
• Qualification of judges: transfer of HC jurisdiction-> qualified to be HC judge.

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• Appointment: Nodal agency under law ministry to ensure uniformity in the appointment, tenure, and
service conditions of all members appointed in the tribunals.
• Vacancy: Filled preferably within six months before occurrence by initiating the procedure well in time.
• Selection of the members: impartial with minimal involvement of government agencies.
• Separate Selection Committee, for both judicial and administrative members.
• Tenure: Chairman - 3 years / 70years and Vice-Chairman and Members -> 3 years/ 67 years.
• Accessibility: benches in different parts of the country ideally where the HC are situated.
• Aligning with the basic structure: tribunal order may be challenged before the Division Bench of the HC
having territorial jurisdiction over the Tribunal

ADR (ALTERNATIVE DISPUTE RESOLUTION)

Definition:
ADR means any procedure, agreed to by the parties of a dispute, in which they use the services of a neutral party
to assist them in reaching an agreement and avoiding litigation.

Constitutional basis:
• Article 14-> Equality before
Law
• Article 32-> Right to
Constitutional remedies) ->
right of people to seek
justice.
• Article 39A-> Equal Justice
and Free legal Aid under.

Advantages of ADR:
• Law Commission: Report 222
(Need for justice
dispensation)
• Less expensive.
• Less time consuming-> No appeal -> speedy dispute resolution
• Free from technicalities: it is more flexible and responsive to the individual needs of the people
involved
• Parties are free to discuss their differences of opinion without any fear of disclosure before the
court.
• Continuing relationship: No Feeling of winning and losing among parties and grievances getting redressed-
>More likely to preserve goodwill.
• Improved enforcement: As per WB’s ease of doing business average days for enforcement of contracts ->
ADR can help to improve it.
• Greater compliance: The parties' involvement in the process creates greater commitment to the result so
that compliance is more likely.
• Saving Forex reserves: Significant amounts of forex are lost on arbitration in foreign countries like
Singapore.

Limitation of ADR
• Lack of awareness: People, lawyers, and judicial officers are unaware of the mandate to transfer cases to
arbitration and conciliation.
• The good faith of the parties is necessary for the success of ADR. Uninformed parties remain at a
disadvantage of succeeding in an ADR.
• Scepticism about the process and result: Many of the litigants are not satisfied and invariably dissociate
themselves and go to formal courts.
• Decisions are forced on poor people and women.

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• Voluntary process: Without a mutually signed agreement parties Can’t be forced to resolve their disputes
by ADR. Making all the parties agree to an arbitration agreement is a difficult task.
• Forcible transfers by the judiciary to end judicial pendencies.
• Neutral arbitrator: Unsatisfied party invariably blames the arbitrator for bias and non-fairness.
• Non resolution of disputes: except arbitration (a binding decision), the ADR process may not always yield
a resolution. It can be used just as a stalling tactic.
• Limited scope: ADR resolves only issues of money or civil disputes and its proceedings will not result in
injunctive orders (ordering parties to do or not do something).
• No appeal: Unlike courts where appeal to a higher court is available, the decision of a neutral arbitrator
cannot be appealed.

Way forward:
• Opportunity: The COVID-19 pandemic->shut down of the majority of court proceedings ->opportunity for
India to build a strong ADR mechanism.
• Coordinated Efforts by the judiciary, lawyers, government, and litigants to create a conducive ecosystem
for mediation.
• Expand scope: Establish Arbitration and mediation centres for non-commercial disputes.
• Attitudinal change needs to bring among people to choose ADR mechanisms with confidence and trust.
• Speedy and successful ADR: Incorporating tools like E-Lok Adalat, expanding scope in prelitigation -> build
confidence in the litigants and make them opt for ADR mechanisms.
• Promote as a career: By creating trained arbitrators, mediators, laying down procedures for quality control,
ethical standards, and accountability of arbitrators.
• Reducing judicial pendency: In 46% of the pending cases, governments are litigants. opting for the ADR
mechanism can unburden the courts and build a culture of ADR.
• Other measures: infrastructure for ADR, Skilling of lawyers in ADR, providing required manpower.
• Enact arbitration and Conciliation (Amendment) Bill, 2018 to fill the legislative lacunae.
• Arbitration Council of India: Appointment of arbitrator by SC/HC; Electronic depository of arbitral awards.
• Protect the arbitrator from legal proceedings for an action done in good faith.

ZERO PENDENCY COURTS PROJECT-

• It is an experimental pilot project run by the Delhi High Court for over two years. The project studied timelines
for disposal of different types of cases and studying the effects of an absence of backlog on judicial delay.
• For the project, 11 subordinate courts with no backlog were chosen in Delhi as ‘pilot courts’, and their
functioning was compared with 11 courts with a regular workload.
• The outcome of this project will enable evidence-based planning, resource allocation, and necessary reforms
in stages that are causing delays in judicial pronouncements.

ALL INDIA JUDICIAL SERVICES

What is it?
AIJS aims at creating a centralized cadre of District Judges to be recruited centrally through an all-India examination
and allocated to each State like All India Services (AIS).
Constitutional provision:
Article 312: Amended by the 42nd Constitutional amendment Act,1976 provides for the creation of AIJS.
Need of AIJS:
• Enrich justice quality: Proper training-> Innovation at work -> Decreases appeal.
• Increases Efficiency: A well-organized judicial service-> Recognition of merit-> can attract talent. Such well-
informed judicial officers as additional district judges can make a difference.
• Addressing Judicial pendency:
• As per economic survey 2019-20: 87% of 3.5 crore cases are pending in lower courts.

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• Vacancy: More than 5000 vacancies in subordinate courts (approx 24%)-> Streamlined and objective
recruitment process -> good quality judicial officers for vacant posts.
• Transparent appointment: Reduces nepotism and ensures the appointment of competent people.
• Quality of judges: Better quality of judges promoted to HC and SC through promotions to avoid incidents
like Justice Karnan, MP HC asking rape accused to tie Rakhi to the victim.
• Reservation: This will ensure representation to all sections of society.
• Infrastructural constraints: Adjudication is a specialization requiring state-of-the-art training institutes ->
Lack of specialized state training institutions may deprive interns of such exposure.
• Cooperative federalism: A unified judiciary + uniform laws + an all-India judiciary = institutionalize the idea
of cooperative federalism.
o Recommended by 2nd ARC, NCRWC, and NITI Aayog.
Challenges:
• Undermine independence of judiciary: Article 233 enables HC to appoint District judges. AIJS will transfer
this power to the executive.
• Division of power: Presently centre has no say in the appointment of district judges. AIJS will lead to a
duality of control.
• Increased cost: Law and order is state subject and each state has its criminal and civil laws-> Increasing the
costs of training
• Language barrier: CPC and CrPC provide for civil and criminal court proceedings in the language prescribed
by the state government.
• Bureaucratization: Lead to bureaucratization and centralization of the Judiciary.
• Promotions: The career prospects of lower-level judges are affected. It undermines the experience of
judges through fieldwork.
• Challenges for weaker sections: National exams put weaker sections those can't afford coachings at risk of
missing out from the judicial services.
Way Forward:
• Law Commission (116th report): Appointments, postings, and promotions to the AIJS by a proposed
National Judicial Service Commission consisting of retired and sitting judges of the Supreme Courts,
members of the bar, and legal academics.
• Cooperation among all states and high courts on the line of GST council.
• Intensive training to the recruits for picking up one more language of the State to which he or she is
allocated.
• AIJS is not a panacea for all judicial issues and the need of the hour is reform in judicial proceedings,
promoting ADR, and timely judicial appointments.

GRAM NYAYALAYAS
Current context: Supreme Court has directed all the states to come out with notifications for establishing ‘Gram
Nyayalayas’ and has asked the HCs to expedite the process of consultation with state governments.

Evolution of Gram nyayalayas:

• Law commission in 114th report recommended establishing them with the following purpose:
- More humane and accessible justice delivery to the most marginalized sections
- Reduce around 50 % of case pendency in subordinate courts
- Reduce workload on higher tiers of the judiciary.
• Gram Nayalayas Act, 2008: It was expected to set up 5000 Gram Nyayalayas and Central Government
allocated about Rs.1400 crores as assistance to the States/UTs.
• Present scenario: As per reply in parliament 12 states in India have notified 395 Gram Nyayalayas thus far.
However only 204 functional gram nyayalaya in 2019 against 2500 planned by the end of 12th FYP.
• The uniqueness of Gram nyayalayas:
• Mobile courts presided over by Nyayadhikaris (judicial officer equivalent of Judicial Magistrates of
the first class.)

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• Appointed by the state governments in consultation with its High Court

• Powers of both criminal and civil courts and their judicial competence were to be limited to
disputes specified in the first three schedules of the act
• Aim for the settlement of disputes using reconciliation.
• Not bound by the rules of evidence under the Indian Evidence Act of 1872, but subject to rules
framed by respective HCs and guided by the principles of natural justice.
• Appeal: to the District Court in civil cases and Sessions Court in criminal cases.
• Established at headquarter of every Panchayat at the intermediate level or a group of contiguous
panchayat in a district where there is no panchayat at the intermediate level

Reason for poor functioning of Gram Nyayalaya:

• Overlapping jurisdiction: Over the years many states have established regular courts at the Taluka level
thereby lessening the need for an additional institution of gram nyayalaya.
• Lack of attention: Despite 1400 Cr allocations by the central government Gram Nyayalayas have simply
been side-lined by most state governments in their pecking order of policy priorities.
• Funds: The slow pace of funds utilization under the Scheme due to the lack of proposals from the States
for setting up of Gram Nyayalayas.
• Human resources: Shortage of judicial officers for Gram Nyayadhikaries post, Non-availability of notaries,
stamp vendors, etc have hampered the progress.
• Lack of clarity: Whether Gram Nyayalayas gives an additional option for quick dispute resolution or not is
doubtful as alternative forums such as labor courts, family courts are already available.
• Functioning: Lack of coordination between HCs and state governments results in gram nyayalayas
functioning on a part-time basis (weekly once or twice) instead of adding to the existing court.
• Lack of awareness: In general awareness among all stakeholders i.e. litigants, lawyers, police officers
involved in case resolutions remain extremely limited.

Way forward:
• Mass awareness campaigns to sensitize stakeholders on the utility and benefits of such a forum for
availing justice.
• Establishing permanent Gram Nyayalayas in every Panchayats and making new judicial officers
mandatory to serve in it, to train Gram Nyayadhikaris.
• A cadre of Gram Nyayadhikari: Individuals with a degree in social work along with law shall be recruited
to this service.
• The judicial, political and executive will has been completely missing to establish gram nyayalayas. This
needs to be changed first and foremost.
• Clarity on mandates of these institutions. This will enable us to commit appropriate resources and choose
the right means to achieve the same.
• Other measures: Creation of necessary infrastructure like Separate building, Local language training to
recruited Nyayadhikaris, etc.

Conclusion:
The parliamentary standing committee stressed on creation of courts commensurate with the workload of courts
for rule of law. It felt the creation of more Courts, rather than the creation of an additional tier would ease Court’s
burden. Gram Nyayalayas have the potential to achieve the same by making justice more accessible, affordable,
and attainable as envisioned in the constitution.

NALSA

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The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authorities Act, 1987
to monitor and evaluate the implementation of legal aid programs and to lay down policies and principles for
making legal services available under the Act.

Constitutional basis: Article 39A provides for free legal aid to the poor and weaker sections of the society and
ensures justice for all. Articles 14 and 22(1) make it obligatory for the State to ensure equality before the law and
a legal system that promotes justice based on equal opportunity to all.

Main functions:
State Legal Services Authorities, District Legal Services Authorities, Taluka Legal Services Committees discharge the
following main functions on regular basis:

• To provide free and competent legal services to the eligible persons.

• To organize Lok Adalats for amicable settlement of disputes.
• To organize legal awareness camps in the rural areas.

Challenges faced in ensuring free legal aid:

• Lack of awareness among people about their basic rights of free legal aid.
• Free aid vs Quality: There is a perception that free service doesn’t provide quality services.
• Human resources: Dearth of enough lawyers to deliver free legal aid by the legal services authorities.
• Lack of motivation: Though Lawyers are assigned to provide legal aid and paid with public funds, They lack
interest in their clients. This hampers the quality of arguments by lawyers.
• Demand for money: Assigned lawyers compel many innocent clients to pay additional amounts of money
to them, even though services are free.
• Inefficiency: The system for free legal aid is not very streamlined and standardized. This has resulted in
inefficient delivery of free legal aid.

Way Forward
• Encourage more lawyers to deliver free legal supplemented with an awareness campaign to inform people
about free legal aid.
• The use of ICT, Big data analytics, etc can minimize the average time between application for legal aid and
lawyer assigned time which at present is 11 days nationally.
• Incentivising lawyer for free legal aid with a decent salary and other additional perks like a priority in any
appointment process
• International experience: For seamless delivery of free legal aid countries like South Africa, Kenya, , etc.
categorized it as “essential services”.

Conclusion:
SDG-16 seeks to "Promote peaceful and inclusive societies for sustainable development, provide access to justice
for all and build effective, accountable and inclusive institutions at all levels. The role played by NALSA and its
networks assist in achieving the same.

CONCLUSION
In this way, the Indian judiciary through roles assigned to it and power vested in it has made the Indian constitution
a living document that can withstand test of time. It acted as an important wheel in India’s journey from nascent
democracy to a matured democracy through its various judgements.

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DISPUTE REDRESSAL MECHANISM

Introduction

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A dispute Redressal mechanism is a structured process that addresses disputes or grievances that arise between
two or more parties engaged in business, legal, or societal relationships. Dispute Redressal mechanisms are used
in dispute resolution, and may incorporate conciliation, conflict resolution, mediation, and negotiation.
Dispute Redressal Mechanisms are typical non-judicial in nature, meaning that they are not resolved within the
court of law.
• The different mechanisms formed in India are Gram Sabha, Nyaya Panchayat, Lok Adalat, Family Court,
Counseling Centers, Commission of Inquiry, Tribunal, Consumer Court, Indian Legislation on ADR, etc.
o In essence the system focuses on: Mediation rather than winner take all; Increasing Accessibility
to justice and Improving efficiency and reducing court delays.

TRIBUNALS (PART XIV-A; ARTICLE 323A, 323B)

PYQ
1. “The Central Administrative Tribunal which was established for redressal of grievances and complaints by or
against central government employees nowadays is exercising its powers as an independent judicial
authority.” Explain. (2019)
2. How far do you agree with the view that tribunals curtail the jurisdiction of ordinary courts? In view of the
above, discuss the constitutional validity and competency of the tribunals in India. (2018)
3. What is quasi judicial body? Explain with the help of concrete examples. (2016)

Introduction
● Tribunal is a quasi-judicial institution constituted with the objective of speedy, inexpensive, and decentralized
dispute resolution in various matters like administrative or tax-related disputes.

Constitutional Provisions
Article 323A (Administrative Tribunals)
• Under Article 323A, tribunals can be established only by Parliament.
• Article 323A provides for setting up of Administrative Tribunals at Centre and State level.
The 42nd Amendment Act 1976 introduced these provisions in accordance with the recommendations of the
Swaran Singh Committee.

CENTRAL ADMINISTRATIVE TRIBUNAL

It was established in 1985 through the Administrative Tribunals Act.
• Members: drawn from judicial and administrative streams
• Select committee: Chaired by a sitting Judge of the Supreme Court
• Appointment: by President
• Tenure: 5 years or 65 years of age (Chairman); 5 years or 62 years of age (Members)
• It has original jurisdiction in relation to recruitment and all service matters of public servants covered by
it. But excludes: the members of the Defence Forces; officers and servants of the Supreme Court;
secretarial staff of the Parliament.
• Follows the Principle of Natural Justice (PNJ).
• Parliament has established CAT to adjudicate matters related to employment under the central
government and SAT for the state government.
• The appeal against the orders of a tribunal could be made only in the High Courts and not in the Supreme
Court (L Chandra Kumar Case, 1997).

Article 323B (Tribunals for other matters)

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• Under Article 323B, tribunals can be established by both Parliament and State legislatures.
o A hierarchy of tribunals may be created.
• Matters: Taxation; Foreign exchange, import and export; Industrial and labour; Land reform; Ceiling on urban
property; Elections to Parliament and State legislatures; Food stuffs; Rent and Tenancy rights.

Similarity between Article 323A and 323B

There are four similarity with respect to powers:
1. To establish the tribunal
2. To empower it
3. Procedure to be followed in Tribunal
4. Exclusion of jurisdiction by the legislature under Article 323A and 323B
But in L Chandra Kumar Case (1997), the Supreme Court undertook Judicial Review of the 4th provision and held
it to be unconstitutional on the following grounds:
● Article 32 and 226 are part of the basic structure of the constitution and so cannot be excluded.
● While the legislature is excluding the jurisdiction of HC and SC it is not creating an equally effective
substitute for them.
However, SC said Tribunals will have a supplementary role to perform on whichever field they are created. They
shall be the court of first instance from where appeal shall be allowed before the HC and SC.
Thus, the L Chandra Kumar case has defeated the purpose for which tribunals were created. The Law Commission’s
215th report has recommended a review of this judgment.

TRIBUNALIZATION
• It means transfer of the entire field of cases from traditional courts to specialized courts.
Advantages
●They provide speedy, cost affordable and user friendly justice systems. On the contrary, the civil court
based on Indian Evidence Act is time consuming.
● They help cope with ‘Docket Explosion’. The concept of docket explosion is also a sign which signifies that
the Indian citizenry reposes faith in the judicial system of the country and are approaching the courts in
their quest for justice.
● They provide a very high standard of adjudication.
● They are best suited for social welfare legislation where large numbers of small claims are filed.
Disadvantages
●
Tribunals have not performed well because they lack independence, being under the control of the
sponsoring department or ministry which controls its fund as well as the appointment.
● Sometimes tribunals function without technical members also.
○ Recently, the Securities Appellate Tribunal (SAT) heard matters in the absence of a technical
member in the bench. This was objected to by SEBI.
○ In response, SAT told SEBI that the tribunals are established in aid of the constitutional courts and
inclusion of technical members is only to bring specialized knowledge but that does not mean that
it can substitute a judicial member nor can it mean that a judicial member does not possess
specialized knowledge.
Reforms needed
● The Supreme Court laid down following guidelines to reform the tribunals:
○ Single nodal ministry to administer all tribunal.
○ Establish an independent supervisory body to look after administrative requirements of tribunals. It
should clearly spell out the manner of fund allocation and appointment.
● The 74th report of the parliamentary standing committee recommends the creation of a National Tribunal
Commission. This idea was first mooted in the L. Chandra Kumar case (1997), but it has still not seen the light
of day.

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○The NTC will support uniform administration across all tribunals. The NTC could pave the way for the
separation of the administrative and judicial functions carried out by various tribunals.
● Vacancies: Another serious problem affecting the efficacy of tribunals is the large number of vacancies that
are not filled for long periods. The Law Commission recommends that the procedure for filling up vacancies
start six months before the seats fall vacant.
○ The recent delay is because of contrast between apex court ruling and ordinance brought by the Centre
on the issue of tenure of members of tribunals as SC in its ruling said that the tenure should be of five
years but the Ordinance fixed it at four years. The ordinance has been challenged and is pending in SC.
Conclusion
• In the absence of reforms, tribunals will become bureaucratic boards and tribunalization will lead to
‘trivialization of the justice system’ in India.

The Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021

The Bill seeks to dissolve certain existing appellate bodies and transfer their functions (such as adjudication of
appeals) to other existing judicial bodies.

Transfer of functions of key appellate bodies as proposed under the Bill

Acts Appellate body Proposed entity
The Cinematograph Act, 1952 Appellate Tribunal High Court
The Trade Marks Act, 1999 Appellate Board High Court
The Copyright Act, 1957 Appellate Board Commercial Court or the Commercial Division of a
High Court
The Customs Act, 1962 Authority for Advance High Court
Rulings
The Patents Act, 1970 Appellate Board High Court
The Airports Authority of India Airport Appellate Central government, for disputes arising from the
Act, 1994 Tribunal disposal of properties left on airport premises by
unauthorized occupants.
High Court, for appeals against orders of an eviction
officer.
The Control of National Highways Airport Appellate Civil Court
(Land and Traffic) Act, 2002 Tribunal
The Geographical Indications of Appellate Board High Court
Goods (Registration and
Protection) Act, 1999

Finance Bill 2017 and amendment in Tribunal rules

These changes were initiated with finance bill of 2017 and the Finance Act, 2017 empowered the central
government to notify rules on
● qualifications of members of tribunals,
● terms and conditions of their service, and
● composition of search-cum-selection committees for 19 tribunals (such as Customs, Excise, and Service Tax
Appellate Tribunal).
These Rules formulated by the Central Government under Section 184 of the Finance Act, 2017. But supreme
court struck down in entirety Rules framed by the government. Further court directed the central government
to: -

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• Re-formulate the Rules within six months strictly in conformity with the principles delineated by the
Supreme Court.
• The new set of Rules to be formulated by the Central Government shall ensure
o non-discriminatory and uniform conditions of service, including assured tenure,
o Chairperson and Members appointed after retirement and those who are appointed other
specialised professions/services, constitute two separate and distinct homogeneous classes.
Thus, government came with The Tribunals Reforms (Rationalisation and Conditions of Service) Bill, 2021. This
amends the 2017 Act to include provisions related to the
● composition of search-cum-selection committees, and
● term of office of members in the Act itself.
Search-cum-selection committees: The Chairperson and Members of the Tribunals will be appointed by the central
government on the recommendation of a Search-cum-Selection Committee. The Committee will consist of:
● the Chief Justice of India, or a Supreme Court Judge nominated by him, as the Chairperson (with casting
vote),
● two Secretaries nominated by the central government,
● the sitting or outgoing Chairperson, or a retired Supreme Court Judge, or a retired Chief Justice of a High
Court, and
● the Secretary of the Ministry under which the Tribunal is constituted (with no voting right).
Term of office: The Bill specifies that the term of office for the Chairperson of the tribunals will be of four years or
till the attainment of the age of seventy years, whichever is earlier.
• For other members of the tribunals, the term will be of four years or till the age of sixty-seven years,
whichever is earlier.
The Bill includes
● the National Consumer Disputes Redressal Commission established under the Consumer Protection Act,
2019 within the purview of the Finance Act, 2017
The Bill removes:
● the Airport Appellate Tribunal established under The Airports Authority of India Act, 1994,
● the Appellate Board established under the Trade Marks Act, 1999,
● the Authority of Advance Ruling established under the Income Tax Act, 1961, and
● the Film Certification Appellate Authority established under the Cinematograph Act, 1952, from the
purview of the Finance Act, 2017

Recently, the Centre has abolished several appellate tribunals and authorities and transferred their jurisdiction to
other existing judicial bodies through the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance
2021. This Ordinance has been challenged in the Supreme Court.
Criticism of Ordinance
● Bypassing the usual legislative process: The Ordinance has met with sharp criticism for not only bypassing the
usual legislative process, but also for abolishing several tribunals such as the Film Certification Appellate
Tribunal without any stakeholder consultation.
● No judicial impact assessment was conducted: Despite the Supreme Court’s direction in Rojer Mathew v.
South Indian Bank (2019), no judicial impact assessment was conducted prior to abolishing the tribunals
through this Ordinance.
● Avoiding court’s judgement: While the Ordinance has incorporated, the suggestions made in Madras Bar
Association v. Union of India (2020) on the composition of a search-cum-selection committee and its role in
disciplinary proceedings, it has also fixed a four-year tenure for Chairpersons and members of tribunals
“notwithstanding anything contained in any judgment, order, or decree of any court” by blatantly disregarding
the court’s direction for fixing a five-year term.
● Lacking oversight mechanism: Further, the Centre is yet to constitute a National Tribunals Commission (NTC),
an independent umbrella body to supervise the functioning of tribunals. Further it will:
○ Appointment of and disciplinary proceedings against members, and

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○ Take care of administrative and infrastructural needs of the tribunals.

Concerns with tribunals:

• Against the separation of powers: It has both administrative and judicial members.
• conflict of interest: Appointments -> by executive and executive is also the largest litigant in the country.
• Lack of autonomy: Operates under parent administrative ministries -> at their mercy for facilities,
infrastructure, and also rule-making.
• Low transparency: Lack of information available on the functioning, Websites are routinely non-existent,
unresponsive, or not updated.
• Undermining Judicial Authority: Largely replaced HC for disputes under the various Acts.
o Appeal against appellate tribunal goes directly to SC, side-stepping the HC. (L. Chandrakumar’s
case: 1st appeal to HC)
• Increasing Pendency: Average pendency in tribunals is 3.8 years (pendency in high courts is 4.3 years)
• Overlapping Jurisdiction: Tribunals function under various ministries and departments -> create confusion
about the management of the tribunals. Also, multiple tribunals performing similar functions.
• Huge vacancies: defeated the purpose of creation of these specialized quasi-judicial forums.
• Reduces SC to merely court of appeal.
• Low accessibility: Most of them are located in only one city unlike HC and also lack infra for efficient
functioning.
• Delayed awards: Cauvery Interstate water dispute tribunal was established in 1990 and took 17 years to
pronounce its judgment in 2007. This was further challenged in the supreme court. This reflects the very
purpose of the tribunal as a quick dispute resolution mechanism.
Advantages of Tribunals:
• Flexibility: Not restrained by rigid rules under the Civil Procedure Code and the Indian Evidence Act ->
follow the principles of Natural Justice.
• Less Expensive: Less formal and a faster way to resolve disputes than the traditional court.
• Technical expertise: Provision to appoint expert members->critical role in the adjudication of matters
demanding technical expertise.
• Legally binding decisions: Same powers as a civil court, viz., issuing summons and allowing witnesses to
give evidence. Its decisions are legally binding on the parties, subject to appeal.
• Relief to Courts: Relief to overburdened ordinary courts of law.
Way forward:
• Law Commission: Procedure for improving the working of the tribunal system
• Qualification of judges: transfer of HC jurisdiction-> qualified to be HC judge.
• Appointment: Nodal agency under law ministry to ensure uniformity in the appointment, tenure, and
service conditions of all members appointed in the tribunals.
• Vacancy: Filled preferably within six months before occurrence by initiating the procedure well in time.
• Selection of the members: impartial with minimal involvement of government agencies.
• Separate Selection Committee, for both judicial and administrative members.
• Tenure: Chairman - 3 years / 70years and Vice-Chairman and Members -> 3 years/ 67 years.
• Accessibility: benches in different parts of the country ideally where the HC are situated.
• Aligning with the basic structure: tribunal order may be challenged before the Division Bench of the HC
having territorial jurisdiction over the Tribunal

INTER-STATE WATER DISPUTES

Constitutional mechanisms to resolve the inter-state water disputes have failed to address and solve the
problems. Is the failure due to structural or process inadequacy or both? Discuss. (2013)

Introduction
• Considering the vast length of most of the Indian rivers, it is inevitable that these rivers often pass and flow
through two or more States. That automatically raises complex problems with respect to the usage and
management of water and the rights of the States in that regard.
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Constitutional Provisions
• Article 262: According to this Article, in case of disputes relating to waters:
o Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use,
distribution or control of the waters of, or in, any inter-State river or river valley.
o Parliament may by law provide that neither the Supreme Court nor any other court shall exercise
jurisdiction in respect of any such dispute or complaint as mentioned above.
• Article 246: 7th Schedule of the Constitution distinguishes between
o the use of water within a state [State List] and
o the purpose of regulating interstate water [Union List]
• Parliament has enacted two laws
o River Boards Act, 1956
▪ A river board is established by the Central government on the request of the state
governments concerned to advise them.
o Inter-State Water Disputes Act, 1956

INTER-STATE WATER DISPUTES ACT (ISWD), 1956

• The Act empowers the Central government to set up an ad hoc tribunal, if a state government makes a request
regarding any water dispute and the central government is of opinion that the water dispute cannot be settled
by negotiations.
• “Water dispute” means any dispute or difference between two or more state governments with respect to–
(i) the use, distribution or control of the waters of, or in, any inter-State river or river valley; or
(ii) the interpretation of the terms of any Agreement relating to the use, distribution or control of such
waters or the implementation of such Agreement; or
(iii) the levy of any water rate in contravention of the prohibition contained in section 7.”
● The 1956 Act was amended in 2002 hence called the Inter-State River Water Disputes Act (ISRWD).
○ The tribunal has to be constituted within one year of the request.
○ The tribunal should give the award within 3 years and in some exceptional cases, within 5 years.
○ If the award is not immediately implemented, the concerned parties can seek clarification within three
months.
● The tribunal award will have the same force as an order or decree of the Supreme Court. The award is final
and above the SC’s jurisdiction.
○ However, the states could still approach SC through Article 136 (Special Leave Petition)
○ Private persons could approach the SC under violation of Article 21 (Right to Life).

River Water Tribunals

Name of the Tribunal States Concerned Date of Present Status

Constitution

1. Godavari Water Maharashtra, Andhra April 1969 • Report & Decision given in July 1980
Disputes Tribunal Pradesh, Karnataka,
Madhya Pradesh &
Orissa

2. Krishna Water Maharashtra, Andhra April 1969 • Report & Decision given in May 1976
Disputes Tribunal - Pradesh, Karnataka,
I

3. Narmada Water Rajasthan, Madhya October 1969 • Report & Decision given in Dec 1979.
Disputes Tribunal Pradesh, Gujarat and Narmada Control Authority (NCA)

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Maharashtra was constituted to give effect to the

decision

4. Ravi & Beas Water Punjab, Haryana and April 1986* • Report & Decision given in April
Tribunal Rajasthan 1987.
• Further Report is pending

5. Cauvery Water Kerala, Karnataka, June 1990 • Report & Decision given on 5.2.2007.
Disputes Tribunal Tamil Nadu and • The Supreme Court slightly modified
Puducherry the decision on 16.02.2018.
• Cauvery Water Management
Authority (CWMA) and Cauvery
Water Regulation Committee
(CWRC) were constituted to give
effect to the decision of CWDT as
modified by the Hon’ble Supreme
Court

6. Krishna Water Karnataka, Andhra April 2004* • Report & Decision given on
Disputes Tribunal - Pradesh and 30.12.2010. SLPs filed pending in the
II Maharashtra Court. Term of the Tribunal has been
extended after the bifurcation of the
united Andhra Pradesh State. The
matter is therefore under
adjudication in the Tribunal

7. Vansadhara Water Andhra Pradesh & February 2010* • Report & Decision submitted on
Disputes Tribunal Odisha 13.09.2017.
• Further Report is pending

8. Mahadayi Water Goa, Karnataka and November • Report & Decision submitted on
Disputes Tribunal Maharashtra 2010* 14.08.2018.
• Further Report is pending

9. Mahanadi Water Chhattisgarh & Odisha March 2018* • Under Adjudication by the Tribunal.
Disputes Tribunal • Report & Decision are awaited

Source: http://cwc.gov.in/sites/default/files/Annex-III.pdf
*Active Cases
Issues with Inter-State Water Tribunals
● Time taking process at each stage from establishment of Tribunal to notification of award. Example: Krishna
Water Disputes Tribunal - I took almost 7 years (April 1969- May 1976). The Cauvery Water Disputes Tribunal
took 28 years.
● Political hurdles: In the Ravi-Beas dispute political difficulties in implementing the award led to further
reference being made to the tribunal (as provided for in the Act). And 15 years after the award given, the matter
is still before the tribunal.
● Lacking technical expertise: The tribunals have been criticised for being composed of judges as its members
and it lacks technical experts and participation of local people.
● Not exploring all the avenues: There has been a direct jump from the negotiation stage to adjudication but
conciliation and meditation is missing. Example: in the Vamshadhara dispute both Andhra Pradesh and Odisha
negotiated for five decades and then took the adjudication route.

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● Institutional ambiguity: The nature of the adjudicatory mandate in case of interstate river disputes has also led
to an institutional ambiguity between the tribunals set up by the Centre and the role of the apex court of India-
Supreme Court.
○ Article 262 bars the Supreme Court of India from interfering in the interstate water disputes. But, on
the other hand, Article 136 also empowers the Supreme Court to hear appeals against the verdict or
awards given by all Tribunals and Commissions under its appellate jurisdiction.

The Inter-State River Water Disputes (Amendment) Bill, 2019

● The bill amends the Inter-State River Water Disputes Act, 1956. The Act provides for the adjudication of
disputes relating to waters of inter-state rivers and river valleys.
○ Under the 1956 Act, a state government may request the central government to refer an inter-state
river dispute to a Tribunal for adjudication. If the central government is of the opinion that the dispute
cannot be settled through negotiations, it is required to set up a Water Disputes Tribunal for adjudication
of the dispute, within a year of receiving such a complaint.
○ The Bill seeks to replace this mechanism i.e. first the case will go to Disputes Resolution Committee
(DRC) and if required will go to the single Inter-State River Water Disputes Tribunal.
● Disputes Resolution Committee: Under the Bill, when a state puts in a request regarding any water dispute,
the central government will set up a Disputes Resolution Committee (DRC), to resolve the dispute amicably.
○ The DRC will seek to resolve the dispute through negotiations, within one year (extendable by six
months), and submit its report to the central government.
○ If a dispute cannot be settled by the DRC, the central government will refer to the Inter-State River
Water Disputes Tribunal. Such a referral must be made within three months from the receipt of the
report from the DRC.
● Tribunal: The central government will set up an Inter-State River Water Disputes Tribunal, for the adjudication
of water disputes.
○ This Tribunal can have multiple benches. All existing Tribunals will be dissolved, and the water disputes
pending adjudication before such existing Tribunals will be transferred to the new Tribunal.
● Composition of the Tribunal (1+1+3+3): The Tribunal will consist of a Chairperson, Vice-Chairperson, three
judicial members, and three expert members.
○ They will be appointed by the central government on the recommendation of a Selection Committee.
○ Each Tribunal Bench (1+1+1+2) will consist of a Chairperson or Vice-Chairperson, a judicial member,
and an expert member.
○ The central government may also appoint two experts serving in the Central Water Engineering
Service as assessors to advise the Bench in its proceedings. The assessor should not be from the state
which is a party to the dispute.
● Time frames:
○ Under the 1956 Act, the Tribunal must give its decision within three years, which may be extended by
two years.
■ Under the Bill, the proposed Tribunal must give its decision on the dispute within two years, which
may be extended by another year.
○ Under the 1956 Act, if the matter is again referred to the Tribunal by a state for further consideration,
the Tribunal must submit its report to the central government within a period of one year. This period
can be extended by the central government.
■ The Bill amends this to specify that such extension may be up to a maximum of six months.
● Decision of the Tribunal:
○ Under the 1956 Act, the decision of the Tribunal must be published by the central government in the
official gazette. This decision has the same force as that of an order of the Supreme Court.
■ The Bill removes the requirement of such publication. It adds that the decision of the Bench of
the Tribunal will be final and binding on the parties involved in the dispute.
○ The 1956 Act provided that the central government may make a scheme to give effect to the decision
of the Tribunal.
■ The Bill is making it mandatory for the central government to make such a scheme.
● Data bank:

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○ Under the 1956 Act, the central government maintains a data bank and information system at the
national level for each river basin.
■ The Bill provides that the central government will appoint or authorise an agency to maintain such
a data bank.
Issues with the Bill
• Tussle between legislative and judiciary: The Bill leaves the scope for tussle between the legislature and
judiciary. It does not address resolving mechanisms.
o The power to create dispute solving mechanism remains with Parliament but Supreme Court’s
orders and guidance create hurdles in the process.
• Politicization of tribunals: composition of selection committee might pose the risk of states politicising
disputes as well as the adjudication by the tribunal. This creates a situation where the dispute could
escalate to the Supreme Court.
• Functioning of DRC: The DRC might not be adequately empowered. The Cauvery Supervisory Committee
(CSC) which had a similar composition did not have much success.
o There is ambiguity about the DRC being a part of the Permanent Tribunal.
• Fear of Centralisation: Some states like Tamil Nadu and Odisha, have raised serious concerns about the
appropriation of more powers by the central government to decide water disputes between states
Way forward
• set up a single, permanent tribunal to adjudicate on inter-state river water disputes is a major step
towards streamlining the dispute redressal mechanism.
• Dialogues and talks must be the dispute resolving mechanisms and political opportunism must be
avoided.
• Inter-State Council (ISC) can play a useful role in facilitating dialogue and discussion towards resolving
conflicts.
• Bringing water into concurrent list: as recommended by Mihir shah report where central water authority
can be constituted to manage rivers. It was also supported by a Parliamentary Standing Committee on
Water Resources.
• Interlinking of rivers- can help in adequate distribution of river water in the basin areas.

Recent Cases of River Water dispute between the states

VAMSADHARA RIVER WATER DISPUTE

Odisha is the upper riparian State while Andhra Pradesh is the lower riparian State of Vamsadhara River Basin.
Background of issue
• Andhra Pradesh in 1950 proposed construction of Gotta Reservoir and Neradi Barrage across the river
Vamsadhara. Andhra Pradesh constructed Gotta Barrage (1977) as a result some areas of the agricultural
land on the side of Andhra Pradesh were submerged.
• The proposal to construct the Neradi barrage was proposed to be constructed 48 km upstream of Gotta
Barrage.
o Since the said project when constructed would result in submergence of some land in Odisha.
Hence mutual consultations between Governments of Andhra Pradesh and Odisha were necessary.
• Both the Governments decided to resolve the matter through cooperation and with the intent of flexibilities
so as to accommodate each other.
• In September 1980, unprecedented floods occurred in the Vansadhara Basin. Thus, Odisha wanted Andhra
Pradesh to modify the design of Neradi Barrage so as to be able to meet such emergency situations in
future.
Present case

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• In 2009, Odisha filed a Writ Petition under Article 32 in Supreme Court, to direct the Government of India
to constitute an appropriate Tribunal under Section 4 of the ISWD Act, 1956.
• In 2009, the Supreme Court directed the Central Government to constitute a Water Disputes Tribunal
within a period of six months.

Andhra Pradesh also filed a complaint under Section 3 of the ISWD Act, 1956 referring to its proposal with regard
to the construction of Neradi barrage on the inter-State river Vamsadhara.
The Central Government, in terms of the provisions of Section 4 of the ISWD Act, 1956, constituted a Tribunal in
February 2010.
Decision by Tribunal:
● Andhra Pradesh can construct the Neradi barrage along with the ancillary structures. The 115 TMC ft.
water of the river was instructed to be divided in equal proportions between the two states.
● Odisha was instructed to acquire the 106 acres of land that is required to facilitate the construction and
hand it over to Andhra Pradesh for a span of one year. Andhra Pradesh shall compensate the state of Odisha
for all the due costs incurred for the acquisition of the land.
● The tribunal also provided for setting up an Inter-state regulatory body for effective implementation of the
tribunal’s decision.
Implementation:
● The decisions of the tribunal have not been implemented on the ground.
● In 2017, Odisha and the Central Government filed a reference under Section 5(3) of the ISRWD Act, 1956.
The matter is thus under adjudication in the Tribunal.
● In recent (2020) developments, the chief ministers of Odisha and Andhra Pradesh have decided to hold
talks to iron out the barriers to the construction of the Neradi barrage.

WATER DISPUTE BETWEEN TELANGANA AND ANDHRA PRADESH

● Both states share stretches of the Krishna and the Godavari and own their tributaries.
● Both states have proposed several new projects without getting clearance from the river boards, the
Central Water Commission and the Apex Council, as mandated by the Andhra Pradesh Reorganisation Act,
2014.
● The AP Reorganisation Act, 2014 mandates for the constitution of an Apex Council by the Central
Government.
● Apex Council for the supervision of the functioning of the Godavari River Management Board and Krishna
River Management Board.
● The Apex Council (1+1+1) comprises the Union Water Resources Minister and the Chief Ministers of
Telangana and Andhra Pradesh.
● The Andhra Pradesh government’s proposal to increase the utilisation of the Krishna water from a section
of the river above the Srisailam Reservoir led to the Telangana government filing a complaint against
Andhra Pradesh.
Godavari Water Dispute Tribunal (GWDT)
● The Godavari Water Dispute Tribunal was constituted by the Government in April, 1969.
● Tasked to look after the dispute over Godavari River between Andhra Pradesh, Madhya Pradesh,
Chhattisgarh, Odisha, and Karnataka over the sharing of the Godavari river water.
● The Tribunal gave its final award in 1980. Accordingly, each State was free to utilise the flow in Godavari
and its tributaries up to a certain level.
● Once Telangana came into existence in 2014, the Polavaram project became the bone of contention
between Telangana and Andhra Pradesh.
○ Odisha too has expressed its reservations over the Polavaram dam’s design.
Krishna Water Dispute Tribunal (KWDT)
● As of now, two tribunals have been constituted to resolve the disputes of the Krishna water. Andhra
Pradesh has countered the second Krishna Water Dispute Tribunal (KWDT) order issued by the 2nd tribunal
in 2010.
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● The Tribunal has allocated 81 thousand million cubic feet (tmcft) of surplus water to Maharashtra, 177
tmcft to Karnataka and only 196 tmcft to Andhra Pradesh.
● After the creation of Telangana as a separate state in 2014, Andhra Pradesh is asking to include Telangana
as a separate party at the KWDT.
● It has challenged the order of the Tribunal in the Supreme Court.

Apex Council meetings of KWDT

The first meeting of the Apex Council was held in 2016.
● no breakthrough was made on water disputes between the two States
The second meeting of the Apex Council was held in October 2020.
● On request of Telangana for a Tribunal under Section 3 of ISRWD Act, 1956, Telangana has to withdraw
the case it has filed in the Supreme Court on the subject.
● The Ministry of Jal Shakti will seek legal opinion on whether a new Tribunal has to be appointed or new
Terms of Reference can be issued to the existing KWDT-II to hear the matter.
● Both the States agreed for setting up of a Godavari Tribunal for adjudicating on the sharing of the waters
of Godavari River between AP and Telangana.
Conclusion
• Inter-state river water disputes hinder the cooperative federalism of our nation and provide parochial
mindset making regional issues superior to national issues. One should realise that our nation is a family
in which all states are its members.

ALTERNATIVE DISPUTE RESOLUTION (ADR) MECHANISMS

PYQ
What are the major changes brought in the Arbitration and Conciliation Act, 1996 through the recent Ordinance
promulgated by the President? How far will it improve India’s dispute resolution mechanism? Discuss (2015)
Introduction
Alternative Dispute Resolution is an alternative to the traditional process of dispute resolution through courts. It
consists of a set of practices and techniques to resolve disputes outside the courts. The most popular ADR
techniques are:
● Arbitration
● Conciliation
● Mediation
● Negotiation
● Lok Adalat is a method of ADR in India
ADR mechanisms are broadly classified into two major types.
● Adjudicatory ADR mechanisms: In adjudicatory ADR mechanism, the decision of the dispute shall be
decided on merits.
● Non-Adjudicatory ADR mechanisms: in non-adjudicatory ADR mechanism, the dispute shall be resolved
through compromise or cooperative resolution.
Arbitration is considered as adjudicatory ADR mechanisms whereas, Negotiation, Mediation, Lok Adalat excluding
permanent Lok Adalat are considered as non-adjudicatory ADR mechanisms.
Constitutional Provisions promoting ADR
● Article 14 (Equality before law) and
● Article 21 (Right to life and personal liberty)
● Article 39A (Equal justice and free legal aid) can be achieved by the ADR.

ADR TECHNIQUES

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Arbitration
● Arbitration is considered as an adjudicatory alternate dispute resolution mechanism in which the neutral third
party known as the arbitrator will decide the dispute on merits.
● Present status: Arbitration is currently the only legally enforceable and binding option to traditional court
proceedings.
● Related statutory Provisions: The Arbitration and Conciliation Act 1996 has consolidated the law related to
domestic arbitration, international commercial arbitration, and enforcement of foreign arbitral awards.
○ It has minimized judicial intervention and has provided the mechanism for removal and replacement
of arbitrators.
● The 1996 Act got further amended in 2015 and 2019 for ensuring speedy disposal of disputes by the arbitral
tribunals, encouraging institutional arbitration and ensuring fairness in arbitral proceedings.
Conciliation
● Conciliation is one of non-adjudicatory alternate dispute resolution mechanism in which a neutral third party
helps the disputing parties to resolve their disputes amicably.
● Role of conciliator: In conciliation, the conciliator may give his views and suggestions to the parties for the
resolution of the disputes. In conciliation, the conciliator plays an active role.
● Related provisions: In 1980, UNCITRAL framed Conciliation Rules for resolving international commercial
disputes through Conciliation uniformly across the world.
○ This model rule was adopted by the UN General Assembly in 1980. India is one of the signatories to
these rules. Hence, it has an obligation to incorporate the same in its domestic legislation.
Case study
The Himachal Pradesh High Court had initiated a “Conciliation Court” pilot project in the entire state of Himachal
Pradesh and asked the trial courts of the civil side to refer all the cases to Conciliation Courts before the
commencement of trial. It was a substantial success.
Mediation
● Mediation is known as third-party facilitated negotiation in which the neutral third party will facilitate the
disputants to come with amicable settlement.
● In mediation, the mediator plays a passive role.
● Role of mediator: Mediation can be termed as assisted negotiation, wherein the mediator, by virtue of his
influence, brings the parties to the negotiating table and assists in the settlement of their disputes.
○ In India, a conciliator has wider powers than a mediator. The conciliator can make a proposal for
settlement and he can formulate and reformulate the terms of settlement of the dispute whereas the
mediator facilitates the parties to come with settlement.
● Present status: The court-annexed mediation centers are functioning in many trial courts across the country
including Allahabad, Lucknow, Chandigarh, Ahmedabad, Rajkot, Jamnagar, Surat.
● Statutory provisions: There are some Acts that mandate the courts to conciliate/mediate their disputes before
it proceeds further hearing of the disputes. Example:
○ Hindu Marriage Act mandates the trial court must try for the reconciliation of the disputants to resolve
their dispute amicably before preceding its hearings.
○ The Family Courts Act also encourages the resolution of the matrimonial dispute through conciliation
and mediation.
Negotiation
● Negotiation closely resembles mediation. However, it is more often referred to as a method wherein the
parties to the dispute themselves would settle their disputes.
● Even if a third party negotiator is involved in the process of negotiation, his role would be limited to inducing
the parties to the process of negotiation.
● Mediation and negotiation provide better and satisfactory solutions to certain kinds of disputes such as family
disputes, disputes with neighbours, matrimonial disputes, industrial disputes and several petty disputes.

SAROD-PORTS: DISPUTE RESOLUTION MECHANISM

● SAROD-Ports (Society for Affordable Redressal of Disputes – Ports)
● By Ministry for Shipping

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● In January 2018, the amendments in the Model Concession Agreement (MCA), envisaged the constitution of
SAROD-PORTS as a dispute resolution mechanism for PPP Projects in the Major Ports.
● Jurisdiction: SAROD-Ports is an Affordable Dispute Redressal Mechanism for all kinds of disputes of the
maritime sector.
● objective: It will become the pivotal mechanism of ummeed (hope), vishwas(trust) and nyaya (justice) in the
Port sector of India.
○ SAROD-Ports will resolve the disputes in a fair and just manner while saving huge amounts of legal
expenditure and time.
● SAROD-Ports are established under the Societies Registration Act, 1860 with the following objectives:
1. Affordable and timely resolution of disputes in a fair manner
2. Enrichment of Dispute Resolution Mechanism with the panel of technical experts as arbitrators.
● Membership: They consist of members from the Indian Ports Association (IPA) and Indian Private Ports and
Terminals Association (IPTTA).
● Role: SAROD-Ports will advise and assist in settlement of disputes through arbitrations in the maritime sector,
including ports and shipping sector in Major Port Trusts, Non-major Ports, including private ports, jetties,
terminals and harbours.
○ It will also cover disputes between granting authority and Licensee/Concessionaire /Contractor and
disputes between Licensee/Concessionaire and their contractors arising out of and during execution of
various contracts.
● ‘SAROD-Ports’ is similar to provision available in the Highway Sector in the form of SAROD-Roads constituted
by NHAI.

LOK ADALATS
● Philosophy: Lok Adalat is a unique system developed in India. It means people’s court and is based on Gandhian
principles.
○ It encompasses negotiation, mediation and conciliation as tools to settle disputes between the
parties.
○ First Lok Adalat camp in post-independence was organized in Gujarat in 1982.
● Jurisdiction: the cases (or disputes) which are pending in a court or which are at pre-litigation stage (not yet
brought before a court).
○ Some cases taken up in Lok Adalats are Matrimonial/Family Disputes, Criminal (compoundable
offences) cases, Land Acquisition cases etc.
○ Offences which are non-compoundable (serious in nature) under any law fall outside the purview of
the LA.
● Status: The Institution of Lok Adalats has been given statutory status under the Legal Services Authorities Act
1987.
● Organising authority: The State/District Legal Services Authority or SC/HC/Taluk Legal Services Committee may
organize Lok Adalats.
● Members: Lok Adalat members consist of a judicial officer (Chairman), a lawyer (advocate) and a social worker.
● Power of civil court: Lok Adalats have same powers as vested in Civil Courts under Code of Civil Procedure
(1908), Code of Criminal Procedure (1973)
● No appeal shall lie to any court against the award of the Lok Adalat.
● One of the advantages of Lok Adalat is that a number of disputes between different parties can be settled at
one go without wasting much time.
● Revolutionary changes are also happening in the administration of Lok Adalats with the introduction of mobile
Lok Adalat systems to bring justice to the doorsteps of the needy and poor.
Permanent Lok Adalats
● Origin: The Legal Services Authorities Act 1987 was amended in 2002 to provide for the establishment of the
Permanent Lok Adalats for providing compulsory pre-litigative mechanism for conciliation and settlement of
cases relating to the public utility services like transportation, electricity, postal services, telecommunication
services, hospital, and dispensary services.
● The pecuniary jurisdiction of the Permanent Lok Adalat shall be up to ₹10 lakhs. The Central government may
increase it.

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● Permanent Lok Adalats consist of

○ Chairman who is or has been a District judge or Additional district judge or has held judicial officer
higher in rank than the District judge
○ two other persons having adequate experience in public utility services
● In case parties to the dispute fail to reach an agreement, the PLA shall decide the dispute on merits.

Difference between Lok Adalat and Permanent Lok Adalat:

Subject matter Lok Adalat Permanent Lok Adalat

Establishment It is temporary in body It is a permanent institution

Nature of disputes It can hear all civil disputes and other It can hear only public utility services related to
disputes except disputes on non- disputes.
compoundable offences.

Pecuniary limit It can hear dispute which is civil and It can hear the public utility services related
compoundable in nature irrespective of disputes if the value of the claim is of INR 10
pecuniary value of the dispute Lakh and below.

Decision making It can only pass an award on the basis of It can pass an award on the merits of the
settlement made by the parties. dispute if the conciliation fails.

The finality of the The award passed by the Lok Adalat is The aggrieved party can challenge the award of
award final and binding to the parties. In permanent Lok Adalat in courts.
general, it cannot be challenged.

Advantages of ADR:
• Law Commission: Report 222 (Need for justice dispensation)
• Less expensive.
• Less time consuming-> No appeal -> speedy dispute resolution
• Free from technicalities: it is more flexible and responsive to the individual needs of the people
involved
• Parties are free to discuss their differences of opinion without any fear of disclosure before the
court.
• Continuing relationship: No Feeling of winning and losing among parties and grievances getting redressed-
>More likely to preserve goodwill.
• Improved enforcement: As per WB’s ease of doing business average days for enforcement of contracts ->
ADR can help to improve it.
• Greater compliance: The parties' involvement in the process creates greater commitment to the result so
that compliance is more likely.
• Saving Forex reserves: Significant amounts of forex are lost on arbitration in foreign countries like
Singapore.
Limitation of ADR
• Lack of awareness: People, lawyers, and judicial officers are unaware of the mandate to transfer cases to
arbitration and conciliation.
• The good faith of the parties is necessary for the success of ADR. Uninformed parties remain at a
disadvantage of succeeding in an ADR.
• Skepticism about the process and result: Many of the litigants are not satisfied and invariably dissociate
themselves and go to formal courts.
• Decisions are forced on poor people and women.
• Voluntary process: Without a mutually signed agreement parties Can’t be forced to resolve their disputes
by ADR. Making all the parties agree to an arbitration agreement is a difficult task.
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• Forcible transfers by the judiciary to end judicial pendencies.

• Neutral arbitrator: Unsatisfied party invariably blames the arbitrator for bias and non-fairness.
• Non resolution of disputes: except arbitration (a binding decision), the ADR process may not always yield
a resolution. It can be used just as a stalling tactic.
• Limited scope: ADR resolves only issues of money or civil disputes and its proceedings will not result in
injunctive orders (ordering parties to do or not do something).
• No appeal: Unlike courts where appeal to a higher court is available, the decision of a neutral arbitrator
cannot be appealed.

Way forward:
• Opportunity: The COVID-19 pandemic->shut down of the majority of court proceedings ->opportunity for
India to build a strong ADR mechanism.
• Coordinated Efforts by the judiciary, lawyers, government, and litigants to create a conducive ecosystem
for mediation.
• Expand scope: Establish Arbitration and mediation centres for non-commercial disputes.
• Attitudinal change needs to bring among people to choose ADR mechanisms with confidence and trust.
• Speedy and successful ADR: Incorporating tools like E-Lok Adalat, expanding scope in prelitigation -> build
confidence in the litigants and make them opt for ADR mechanisms.
• Promote as a career: By creating trained arbitrators, mediators, laying down procedures for quality control,
ethical standards, and accountability of arbitrators.
• Reducing judicial pendency: In 46% of the pending cases, governments are litigants. opting for the ADR
mechanism can unburden the courts and build a culture of ADR.
• Other measures: infrastructure for ADR, Skilling of lawyers in ADR, providing required manpower.
• Enact arbitration and Conciliation (Amendment) Bill, 2018 to fill the legislative lacunae.
• Arbitration Council of India: Appointment of arbitrator by SC/HC; Electronic depository of arbitral awards.
Protect the arbitrator from legal proceedings for an action done in good faith.
Issues in News

ONLINE DISPUTE RESOLUTION

ODR is the resolution of disputes, particularly small- and medium-value cases, using digital technology and
techniques of alternate dispute resolution (ADR), such as negotiation, mediation, and arbitration.
Present status of ODR in India
● The RBI's ODR Policy on Digital Payments: In 2019, the Reserve Bank of India's Nandan Nilekani-led High Level
Committee on Deepening Digital Payments advocated the establishment of a two-tiered ODR framework to
manage complaints originating from digital payments.
● e-Court mission: Under the direction of the E-Committee for Monitoring the Use of Technology and
Administrative Reforms in the Indian Judiciary, the e-Courts Mission Mode Project is underway.
● e-Lok Adalats: The COVID-19 pandemic has given authorities a push to employ online procedures in their day-
to-day operations. As a result, India has seen the formation of numerous e-Lok Adalats across the country. The
state of Chhattisgarh hosted the first e-Lok Adalat.
● Hybrid modes adopted by various High courts: Karnataka high court and Gujarat high court using hybrid mode
and Gujarat high court uploading their session on YouTube for transparency and public education.

NITI Aayog, in association with Agami and Omidyar Network India, brought together key stakeholders in a virtual
meeting in June 2020 for advancing online dispute resolution in India.
● Covid-19 has instilled an urgent need for ODR that requires decisive action, with the likelihood of a spurt in
disputes before the courts—most notably in lending, credit, property, commerce, and retail.
● ODR however should not be merely understood to mean ICT integration in ADR or e-ADR. ODR has a potential
to provide a comprehensive access to justice, as articulated by Richard Susskind, by encompassing the
following stages in the life cycle of a dispute:
○ Legal Health Promotion: ODR can play an important role in promoting legal health by making people
aware about the law, their rights and duties, and the remedies available with them.
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○ Dispute Avoidance: ODR can help avoid disputes by creating legal education and solution explorer
modules, which empowers citizens to make an informed choice based on the strengths and weaknesses
of their position in law.
○ Dispute Containment: At a primary level, ODR can enable informal and pragmatic containment of
dispute before it enters court systems. ODR processes such as online mediation and online arbitration
can play an important role in the containment of disputes.

○ Dispute Resolution: Additionally, at an advanced stage, ODR also holds immense potential to
improve the dispute resolution experience through intelligent decision support systems, smart
negotiation tools, automated resolution, and machine learning.
Benefits of ODR
• Improve legal health of the society: Easier access to dispute resolution processes will improve the judicial
health of society by ensuring that individuals and businesses are aware of their rights and have the tools
to enforce them.
• Cost effective: ODR has the potential to lower legal costs by shortening the time it takes to resolve disputes
and eliminating the need for legal counsel.
• Convenient and quick dispute resolutions: It will reduce travel time and cost associated with it. By
providing a speedier and more convenient mechanism for resolving disputes, ODR can help to reduce
delays.
• Removes unconscious bias: While resolving conflicts, ODR techniques reduce the neutral's implicit
prejudice. ODR platforms separate audio visual cues relating to gender, socioeconomic position, ethnicity,
race, and other factors, and aid in the resolution of conflicts based on the claims and information provided
by disputing parties.
• Increased access to justice: ODR tools such as online negotiation and mediation are based on the parties
coming to a consensual agreement, making the dispute resolution process less confrontational and
complicated for the parties, hence
increasing access to justice.

Challenges associated with ODR

• Archaic Legal Processes: The
antiquated procedure does not
function well with the end-to-end
online dispute resolution process
and creates obstacles for ODR.
Furthermore, Notarization of
documents is only possible in
person under the Notaries Rule of
1956, therefore online assistance will be problematic.

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• Digital infrastructure: Adoption of ODR will necessitate critical technological infrastructure across the
country, with high-bandwidth internet connections. Digital India mission and BharatNet mission can be
instrumental in achieving seamless digital connectivity.
• Digital Gender divide: According to the Internet India Report 2019, women account for only 1/3 of all
internet users in India, with rural areas accounting for 28%. Such a gender disparity in internet access
could lead to unequal access to ODR services, compounding the gender divide.
• Lack of awareness regarding ODR: Due to a lack of understanding about ODR, plaintiffs and their
attorneys are more likely to file lawsuits. Businesses with a low level of trust in ODR will practice little
ODR usage.
• Privacy issues: Online impersonation, violation of confidentiality through the circulation of papers and
data given during ODR processes, and tampering with digital evidence or digitally transmitted
awards/agreements are only a few privacy related issues.
Way ahead
• Improving digital connectivity and digital literacy: Digital India mission and BharatNet mission can be
instrumental in achieving seamless digital connectivity. PMGDISHA mission aiming to improving digital
literacy in rural areas.
• Adoption of ODR for Government litigation mechanism: According to the Ministry of Law and Justice,
government departments are a party to around ‘46 percent’ of court cases.
• Capacity building: Time to time skill upgradation of employees associated in ODR mechanism to make
technological adoption easier.
• Augmenting archaic laws and regulation of ODR mechanism: It is critical that the regulatory approach
safeguards end users' rights while avoiding overregulation that stifles innovation.

ARBITRATION AND CONCILIATION (AMENDMENT) BILL, 2021

● The Bill seeks to amend the Arbitration and Conciliation Act, 1996.
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○ The Act contains provisions to deal with domestic and international arbitration and defines the law
for conducting conciliation proceedings.
Key features
● Automatic stay on awards:
○ The 1996 Act allowed a party to file an application to set aside an arbitral award (i.e., the order given
in an arbitration proceeding). Courts had interpreted this provision to mean that an automatic stay on
an arbitral award was granted the moment an application for setting aside an arbitral award was made
before a court. In 2015, the Act was amended to state that an arbitral award would not be
automatically stayed merely because an application is made to a court to set aside the arbitral award.
○ The Bill specifies that a stay on the arbitral award can be provided (even during the pendency of the
setting aside of the application) if the court is satisfied that:
○ the relevant arbitration agreement or contract, or
○ the making of the award, was induced, or affected by fraud or corruption.
This change will be effective from October 23, 2015.
● Qualifications of arbitrators:
○ The 1996 Act specified certain qualifications, experience, and accreditation norms for arbitrators under its
8 schedule. The requirements include that the arbitrator must be:
■ an advocate under the Advocates Act, 1961 with 10 years of experience, or
■ an officer of the Indian Legal Service, among others.
Further, the general norms applicable to arbitrators include that they must be conversant with the
Constitution of India.
○ The amendment Bill 2021 removes the Schedule for arbitrators and states that the qualifications,
experience, and norms for accreditation of arbitrations will be specified under the regulations.
Issue with proposed bill:
● Bill does not give comprehensive and clear meaning of fraud and corruption.
● Can open floodgate of litigations: As the amendment in act is in retrospective manner and provide for
automatic stay from 2015.
● affect enforcement of contracts: Through the implementation of these legislative changes, resolution of
commercial disputes could take longer duration now onwards.
● Prolonged litigation process: It is relatively easy for the losing party to accuse the arbitrator of corruption and
seek an automatic stay on the arbitral award's enforcement. As a result, by attracting parties to Courts and
rendering them prone to lengthy litigation, this violates the fundamental purpose of alternative conflict
mechanisms.
Conclusion:
• According to the World Bank's ease of doing business report, India continues to fall behind when it
comes to contract enforcement. As a result, this measure may be a step in the right path in addressing
the challenges by facilitating speedy contract enforcement and easy monetary claim recovery.

LOCAL SELF-GOVERNMENT (PART IX, PART IX-A)

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Previous Year Questions

1. “The reservation of seats for women in the institution of local self-government has had a limited impact
on the patriarchal character of the Indian political process”. Comment. (2019)
2. Assess the importance of the Panchayat system in India as a part of local government. Apart from
government grants, what sources the Panchayats can look out for financing developmental projects?
(2018)
3. “The local self-government system in India has not proved to be an effective instrument of governance”.
Critically examine the statement and give your views to improve the situation. (2017)
4. In the absence of a well-educated and organized local level government system, `Panchayats’ and ‘Samitis’
have remained mainly political institutions and not effective instruments of governance. Critically discuss.
(2015)

Introduction
• Local self-government in India refers to governmental jurisdictions below the level of the state. India is a
federal republic with three spheres of government: central, state and local. The 73rd and 74th
constitutional amendments gave recognition and protection to local governments and in addition each
state has its own local government legislation.

THE PANCHAYATS

Evolution of Panchayati Raj during British rule Evolution of Panchayati Raj after independence
• Mayo's Resolution (1870) gave the needed impetus • Balwant Rai Mehta (1957) recommended 3-tier
to the development of local institutions. system: Gram panchayat at village level,
• Ripon Resolution (1882) focused on towns hence Panchayat Samiti at block Level and Zila Parishad
rural decentralization remained a neglected area. at district Level.
• Royal Commission on Decentralization (1907) • Ashok Mehta Committee (1977) recommended
recognized the importance of panchayats at the 2-tier system: Zila Parishad at district level and
village level. Mandal Panchayat.
• Montagu-Chelmsford reforms (1919) entrusted • Other Committees: GVK Rao Committee (1985),
local self-government to Indian ministers in the LM Singhvi Committee (1986), Thungon
provinces as a provincially transferred subject. The Committee (1988), Gadgil Committee (1988)
reform was unable to make panchayat institutions
really democratic due to organisational and financial
constraints.
• Government of India Act, 1935 the provincial
autonomy marked the evolution of panchayats in
India. But the system of responsible government at
the grassroots level was least responsible.

Constitution Provisions
73rd Amendment Act 1992 (Part IX: Article 243-243O)

• Article 243 contains definitions of district, Grams • Article 243-F. Disqualifications for membership
Sabha, intermediate level, Panchayat, Panchayat • Article 243-G: makes it mandatory for the state
area, and village. governments to devolve powers, responsibilities
• Article 243-A: A Gram Sabha may exercise such and authority to the panchayats. The
powers and perform such functions at the village implementation of schemes for economic

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level as the Legislature of a State may, by law, development and social justice as may be
provide. entrusted to panchayats including those in relation
• Article 243-B: There shall be constituted in every to the matters listed in the Eleventh Schedule.
State, Panchayats at the village, intermediate and • Article 243-H: Powers to impose taxes by, and
district levels in accordance with the provisions of Funds of, the Panchayats
this Part. Panchayats at the intermediate level may • Article 243-I: Constitution of State Finance
not be constituted in a State having a population Commission to review financial position.
not exceeding twenty lakhs. • Article 243-J. Audit of accounts of Panchayats.
• Article 243-C: Subject to the provisions of this Part, • Article 243-K. State Election Commission have
the Legislature of a State may, by law, make been provided with the mechanism to conduct
provisions with respect to the composition of independent elections to the village panchayats.
Panchayats. Direct elections for members at all • Article 243-L: Application to Union territories.
levels. Indirect elections for chairperson at • Article 243-M: Part not to apply to Scheduled
intermediate and district levels Areas and the tribal areas.
• Article 243-D: gives provisions for the due • Article 243-N. Continuance of existing laws and
representation of women and SC/STs. Panchayats.
• Article 243-E: Duration of Panchayats: fixed tenure • Article 243-O: Bar to interference by courts in
of 5 years. electoral matters.

Finances of Panchayats
• Grants: by Centre (Article 280) and State Government
• Devolution from State Government based on State FC.
• Loans: from State Government
• Internal Resource Generation (tax and non-tax)
• Programme specific allocation under Centrally Sponsored Schemes and Additional Central Assistance.

ISSUES AND CHALLENGES FACED BY PANCHAYATI RAJ GOVERNMENT

Second ARC mentions 3Fs (Function, Fund and Functionaries) for the ineffectiveness of panchayats. The
Constitution of India has not defined Devolution. Devolution is very often equated with agency function and
assignment of schemes. Such understanding has not helped in the growth of local governments.
Fund
• Inadequate Funds: With little of own funds and inadequate devolution from the States, PRIs in many states
have been reduced to simple agents of higher-level
The15th Finance Commission
governments.
recommendations
• Conditional Grants: Much of the money given is inflexible; even
in the case of untied grants mandated by the Union and State • It has recommended grants of Rs
Finance Commissions, their use is constrained through the 4,36,361 crore from the Union
imposition of several conditions. government to local governments for
th
o E.g. 15 FC has recommended imposing entry-level 2021-26.
conditions for local bodies to receive grants. • This is an increase of 52 per cent over
• Inadequate powers to generate revenue: PRIs have limited the corresponding grant of Rs
powers in respect of imposing cesses and taxes. Further, they 2,87,436 crore by its predecessor for
are usually hesitant to collect required funds for fear of losing 2015-20.
public support. Also, there is little investment in enabling and • FFC has recommended Rs 70,051
strengthening local governments to raise their own taxes and crore for plugging the critical gaps in
user charges. primary healthcare.
• State Finance Commission: Many State Governments have • It has also recommended Rs 8,000
failed in appointing the State Finance Commission on time as crore as performance-based grants for
mandated by Article 243 (I). incubation of new cities and Rs 450
o The 15th FC has made mandatory to setup of State crore for shared municipal services
Finance Commissions in States before March 2024 to
receive grants for local bodies.
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Functions
• Poor devolution of functions to local bodies: Article 243G is at the mayhem of State legislatures for devolving
the functions. The Act do not provide a separate list for local governments, the Eleventh Schedule that lists 29
subjects for PRIs carry no operational meaning because almost all local functions are State-Concurrent.
o Example: Core functions like water supply, sanitation, link roads, street lighting, maintenance of
community assets, etc., continue to be in the hands of State governments.
• Unfunctional District Planning Committee: Despite the availability of the District Planning Committee as a
constitutional mechanism for integrated planning of rural and urban areas, most states have not made them
functionally empowered.
• Women have token representation: Most states now have 50% of Panchayats seats reserved for women, there
still continues dominant narrative about how these women remain titular post holders with their husbands
taking the lead.
• Parallel Bodies: Most States continue to create parallel bodies (often fiefdoms of ministers and senior
bureaucrats) that make inroads into the functional domain of local governments.
o For example, Haryana has created a Rural Development Agency, presided over by the Chief Minister,
to enter into the functional domain of panchayats.
Functionaries
• Lack of staff: The local governments do not have the staff to perform even basic tasks. Furthermore, as most
staff are hired by higher level departments and placed with local governments on deputation, they do not feel
responsible to the latter; they function as part of a vertically integrated departmental system.
• Excessive control by bureaucracy: Gram Panchayat Sarpanch has to spend an extraordinary amount of time
visiting BDO for funds and/or technical approvals.
• Burdened with work of other departments: Panchayats are burdened with a huge amount of work that other
departments thrust on them, without being compensated for the extra administrative costs.
• Missing accountability mechanisms: Accountability of public funds is at the heart of sound public finance. Not
enough progress has been made in this area.
o The 15th FC has include having both provisional and audited accounts online in the public domain to be
one of the entry-level conditions for local bodies to receive grants.
• Delayed Elections: in Tamil Nadu, panchayat elections were delayed over two years, resulting in the State losing
finance commission grants from the Union government.

Other issues related to panchayats in news

RIGHT TO RECALL PANCHAYAT MEMBER

• Recently, The Haryana Assembly passed a Bill which provides the right to recall members of Panchayati Raj
institutions to those who elected them and gives women 50% reservation in these rural bodies.
• Lack of performance: The Bill allows the recall of village sarpanches and members of the block-level
panchayat samitis and district-level zila parishads if they fail to perform.
• Increasing their accountability: The amendment is aimed at increasing their accountability to the voters. To
recall a sarpanch and members of the two bodies, 50% members of a ward or Gram Sabha have to give in
writing that they want to initiate proceedings.
o Secret ballot: This will be followed by a secret ballot, in which their recall will require two-third
members voting against them.
Issues with right to recall:
• Tool to destabilize: Example- Punjab: In 2008, Dewangarh, a hamlet in Punjab’s Patiala district, symbolises the
way the right to recall has been misused in the state.
o Brick kiln worker Jaswinder Singh realised this when four of his colleagues used the law to prevent him
from presiding over the panchayat for even a single day.
o He said that this law is a tool for the influential to destabilise legally elected people. How can they term
me inefficient when they didn’t allow me to work for a single day?

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• Redundant if candidate gets re-elected: Example- Madhya Pradesh: Shyam Bai, the Dalit woman chairperson
of the Sanchi Nagar Panchayat in Raisen district, formed in 1997, was among the first elected representatives
to face a recall motion moved by the corporators in Madhya Pradesh.
o In May 2001, 12 out of the 15 councillors of the Nagar Panchayat submitted affidavits to the district
collector demanding that she be recalled.
o Shyam Bai said that she was ready to face the recall motion, adding that she didn’t really campaign to
get people to vote in her favour.
o She support this system of even though had to face one herself. Later she won the vote, became more
confident and managed to get much more done for Sanchi.

Conclusion: A detailed study of Right to Recall need to be done at local before extending it to the Vidhan Sabha and
Parliament. This was also a demand of Anna Hazare.

EDUCATION CRITERIA FOR PANCHAYAT ELECTIONS

• Context: Recently, the Rajasthan Assembly passed two Bills which seek to end the minimum education
criterion for panchayat and civic poll candidates.
• Historical background: The previous state government had introduced education criterion in 2015 which
required a candidate to pass Class X for contesting zila parishad, panchayat samiti and municipal elections.
o Mandatory qualification: For contesting elections for sarpanch of a panchayat in scheduled and non-
scheduled areas, it was mandatory to pass Class V and VIII, respectively.
Protagonists:
• Rajbala v. State of Haryana case (2015): the Supreme Court said that the right to contest is neither a
fundamental right nor a statutory right, but is a constitutional right, and can be regulated by laws passed by the
legislature.
o Education criteria is relevant: The court opined that it is only education which gives a human being the
power to discriminate between right and wrong, good and bad. Therefore, prescription of an
educational qualification is not irrelevant for better administration of panchayats.
Antagonists:
• Ambedkar’s view: Amebedkar did not believe that education had to be a criterion in electoral matters.
According to him those who insist on literacy as a test and insist upon making it a condition precedent to
enfranchisement commits two mistakes.
o The first mistake is believing that an illiterate person is necessarily an unintelligent person.
o The second mistake is presuming that literacy necessarily imports a higher level of intelligence or
knowledge than what the illiterate possesses.
• Contradictions: The educational criteria is in contradiction with the philosophy of the Indian Constitution, which
allowed every Indian to contest elections in 1951 while the literacy rate was 18.33 per cent.

Issues with education as criteria for election

• It’s a failure of state: Article 45 of the Indian Constitution had put the onus on the state to provide free and
compulsory education for all children within a period of ten years from the commencement of the Constitution.
o Constitutional obligation of state: It is unwise to blame the people for not being formally educated,
when in fact it reflects the state’s failure to discharge its constitutional obligations effectively.
o Also, there are quality concerns around the education imparted in government schools. ASER 2018
report suggests that in Rajasthan, only 39.1% of students enrolled in class V could read class II level
texts.
• Provision of compulsory education was enforced late: It is by a 2002 constitutional amendment that
education has been made compulsory for all children up to the age of 14 years. The law giving effect to the
provision was brought in some years later. Under that law, it is compulsory to educate children only up to
class 8.
• Participation is a tool of awareness: The 73rd Constitutional Amendment, with reservations for marginalised
social groups, was intended to empower these vulnerable groups and deepen their participation in governance.
o Low literacy hampers: But low levels of literacy will hamper this process.

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▪ E.g. In 2015, 68% of Dalit women and over 50% of all women were disenfranchised because of
the Haryana law with same provisions.
• Disenfranchisement of large section of people: The facts mentioned below gives strong indication that if the
educational qualification is not removed then majority of them will be disenfranchised and will lose a chance
to contest in future election.
o The marginalised communities in Rajasthan is among the bottom five states in terms of literacy rate
for the SCs and among the last six for the STs. The female literacy rate of women belonging to the SC
community is 44.5% and 37.3% for the ST community.
o The overall female literacy rate in Rajasthan stands abysmally low at 52.12%.
Conclusion: Awareness of functions of representatives and training about it also devolution of fund, functions and
functionaries will contribute to decentralisation in true sense with participation of people bringing democracy at
grassroot level.

25 YEARS TO PANCHAYAT RAJ – ANALYSING NUMBERS

• The year 2018 marked the 25th anniversary of the 73th Amendment.
• Increased PIRs and ULB’s: There are about 250,000 PRIs and urban local bodies, and over three million elected
local government representatives.
• Women’s due participation: The 73rd and 74th Amendments required that no less than one-third of the total
seats in local bodies should be reserved for women. At 1.4 million, India has the most women in elected
positions. Seats and sarpanch/Pradhan positions were also reserved for SC/ST candidates.
• The positive impact of the 73rd Amendment in rural India is clearly visible as it has changed power equations
significantly.
• Regular elections: Elections to the Panchayats in most states are being held regularly. Through over 600 District
Panchayats, around 6000 Intermediate Panchayats and 2.3 lakh Gram Panchayats, more than 28 lakh persons
now have a formal position in our representative democracy.
• Where it lacks?
o No defined role : Still, the proper definition of the role of Devolution Index, 2019
the bureaucracy is lacking. It does not clearly define the • It is published by Ministry of
role of the state government. Panchayati Raj.
o lack of awareness: On practical level, people are illiterate • The index measures the functions,
in India and they are actually not aware of these novel finance and functionaries of the
features. PRIs as also accountability in the
o Dominance of elites: The Panchayats are dominated by institutions, and accordingly ranks
effluents in some parts of the country. states.
o Financial dependence: The 3 tiers of the Panchayati Raj • 2019 - Kerala was the best
have still very limited financial powers and their viability is performer in devolving power and
entirely dependent upon the political will of the states. resources to panchayats, followed
Conclusion: In the form of this new chapter of local governance much by Maharashtra.
has been done to ensure democratic participation at local level but
much more needs to be done in the form of greater decentralisation in terms of finances and functions.

GOVERNMENT SERVANTS AS GRAM PANCHAYAT ADMINISTRATOR

• Only govt person to be appointed: Recently, the Bombay High Court passed an interim order directing that a
government servant or officer of the local authority be appointed as an administrator for nearly 15,000 gram
panchayats where the terms of these officers have ended or would be ending.
• No private person: The court also told the state government not to appoint any private person as administrator
until further orders.
o Context: This was in the backdrop of Maharashtra Government appointing private individuals as
administrators.
Why private persons were appointed?
• Urgent need: Maharashtra Government stated that there is an urgent need for administrators to run the
panchayats as pandemic has halted the election process.

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• Overburdened Officers: because of large number of gram panchayats in the State and the government servants
are already overburdened hence it’s difficult to appoint them as administrators.
• Issue with such appointment: According to the court, private individuals' appointment is not warranted in law
and such mass appointments will have a lasting adverse impact on the local governance in terms of efficiency,
impartiality and effectiveness of the work.

ROTATION OF PANCHAYAT SEATS BETWEEN MEN AND WOMEN

• 50:50 reservation in PRI: The Haryana government is planning to bring a Bill to provide 50:50 reservation in
Panchayati Raj Institutions (PRIs) for men and women candidates, and rotate the seats between male and female
representatives after each term.
• Odd-even formula: Men and women will be able to contest panchayat polls under the odd-even formula. This
will be implemented for sarpanches and members of village wards, block samitis and zila parishads.
o Rotation: If a ward or village is headed by a man in one term, it will be represented by a woman in the
next term.
• Constitutional mandate: The 73rd Constitutional Amendment Act, 1992 mandates 33.3% reservation for
women in PRIs across the country.
• The Bill is not meant as reservation for women but to ensure equal opportunities for men and women.
• Issue: An analysis shows that a majority of women representatives could not get re-elected because their seats
were de-reserved in the next election.
• Way forward: This points to the need to rethink the system of rotating seats reserved for women so that they
are given 10 to 15 years of continued opportunity.

Initiatives for PRIs

• eGramSwaraj -It is a user-friendly web-based portal which unifies the planning, accounting and
monitoring functions of Gram Panchayats. it aims to bring in better transparency in the decentralised
planning, progress reporting and work-based accounting.
• Rashtriya Gram Swaraj Abhiyan (RGSA) - Launched in 2018, this centrally sponsored scheme is an effort
in the direction of achieving “Sabka Sath, Sabka Gaon, Sabka Vikas”.
• People’s Plan Campaign (PPC)- Sabki Yojana Sabka Vikas - It aims to draw up Gram Panchayat
Development Plans (GPDPs) in the country and place them on a website where anyone can see the status
of the various government’s flagship schemes.

WAY FORWARD/SUGGESTIONS
• 2nd ARC Recommendation: It recommends amendment to Article 243G to increase the functions of PRIs. The
Commission recommends that while the States should constitute the Panchayats, the tiers of local government
should be left for the State Legislature to decide.
• Clarify the 29 functions: There needs to be absolute clarity about the 29 functions that have been devolved to
PRIs under the Eleventh Schedule. Beyond notifying the devolution of these functions,
o For example, agriculture and agricultural extension, the States need to clearly demarcate the roles and
responsibilities of the concerned departments of the State government and the PRIs.
• Activity Mapping: Kerala showed the way in activity mapping and amended the Panchayat and Municipality
Acts as early as 1998.
• Capacity Building and Outsourcing: Capacity building should include individual as well as organisational
development. State Governments should encourage local bodies to outsource specific functions to public or
private agencies through enabling guidelines and support.
• Suo motu disclosure of information, especially with regard to duties, functions, financial transactions and
resolutions should become the norm for all the local bodies as provided under the RTI Act, 2005.
• Rationalisation of PRIs: The difficulties posed by the small size and huge number of PRIs can be circumvented
through a rationalisation of their number and use of smart technology and off-site common resources.

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• Conditional Grants and Auditing: Release of Finance Commission Grants to the local bodies can be made
conditional on acceptance of arrangements regarding technical supervision of the C&AG over audit of accounts
of local bodies.
o Recently 15th FC have made provision in this regards.
• Increase Funding for Panchayats: Recently, in a meeting with the 15th Finance Commission, the Panchayati
Raj Ministry has pitched for a fivefold increase in funding for rural local bodies. The Ministry had asked for
Rs 10 lakh crore to be allocated. However, for rural local bodies, 15th FC allocated Rs 2.4 lakh crore for 2021-
26. Funding must be increased progressively.
• Grant in Aid for Rural Local Bodies: Recently, the Ministry of Finance has released a part of grants-in-aid
(Tied Grant) of first instalment of Rs 15,187.50 crore for Rural Local Bodies (RLBs) of 28 States.
o The 15th FC (2020-21) has allocated Rs 60,750 crore, highest ever in any single year. Tied Grants are
used for the basic services of sanitation, water supply, rain water harvesting etc.
• Service-level agreements: Local governments must be enabled to hold State departments accountable and
to provide quality, corruption free service to them, through service-level agreements to ensure the are not
over burdened with work from other departments.
• Technology and Accountability: The 15th FC has recommended that upgraded PRIAsoft needs to be
integrated with Integrated Financial Management Information System (IFMIS) of the State Governments
(wherever it exists) and the Public Financial Management System (PFMS) of the Controller General of
Accounts (CGA) in order to generate online accounts by each rural local body, enable online auditing of such
accounts and their consolidation at the State and all-India level.
• Increase in transparency and accountability: AuditOnline Application for Local Bodies
o Online audit: The Ministry of Panchayati Raj has decided to conduct an online audit of accounts of
about 50,000 Gram Panchayats (GPs) on how they used Finance Commission (FC) grants through its
application AuditOnline during the financial year (2020-21).
o E-panchayat: It is an application developed as a part of Panchayat Enterprise Suite (PES) under e-
panchayat Mission Mode Project (MMP) initiated by the Ministry of Panchayati Raj (MoPR).
o Audit at all levels: It facilitates the financial audit of accounts at all the three levels of Panchayats
viz District, Block and Village Panchayats, Urban Local Bodies (ULB) and Line department by Auditors.
o Maintenance of past record: It not only facilitates the online and offline audit of accounts but also
serves the purpose of maintaining the past audit records of the auditee with an associated list of
the auditors and audit team involved in the audit.
o Also the information remains available in public domain and for usage by other PES applications.

PESA Act of 1996 (Extension Act)

Note: This topic is covered under chapter: Scheduled and Tribal Areas.
Conclusion: Spirit of participatory democracy is evolving with the time through more and more participation of
people in local governance and with increased awareness in coming times 73rd amendment act will act as wheel of
decentralisation of power.

THE MUNICIPALITIES
Constitutional Provisions
74th Amendment Act 1992 (Part IX-A: Article 243-P to 243-ZG)
• Article 243-P contains definitions of Committee, • Article 243-X. Power to impose taxes by, and
district, Metropolitan area, municipal area, Funds of, the Municipalities.
municipality, panchayat and population. • Article 243-Y: The State Finance Commission
• Article 243Q: There shall be constituted in every State: constituted under article 243-I shall also
Nagar Panchayat, Municipal and Municipal Corporation. review the financial position of the
• Article 243-R: Composition of Municipalities: Members: Municipalities.
directly elected; Chairperson: state legislature may • Article 243Z: Audit of accounts of
provide the manner of election. Municipalities.
• Article 243-S: Constitution and composition of Wards • Article 243-ZA: Elections to the Municipalities:
Committees, etc. State Election Commission
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• Article 243-T: Reservation of seats for SC, ST and • Article 243-ZB: Application to Union
Women; Reservation of Chairpersons: decided by State territories.
Legislature; Reservation for backward classes: decided • Article 243-ZC: Part not to apply to Scheduled
by State legislature Areas and the tribal areas.
• Article 243-U. Duration of Municipalities: 5 years • Article 243-ZD: Committee for district
• Article 243-V: Disqualifications for membership. planning.
• Article 243-W: Powers, authority and responsibilities of • Article 243-ZE: Committee for metropolitan
Municipalities, etc. The performance of functions and planning.
the implementation of schemes as may be entrusted to • Article 243-ZF: Continuance of existing laws
them including those in relation to the matters listed in and Municipalities.
the Twelfth Schedule (18 items). • Article 243-ZG: Bar to interference by courts
in electoral matters.

Finances of Municipality
• Grants: by Centre (Article 280) and State Government
• Devolution: from State Government based on State FC.
• Loans: from State Government as well as financial institutions (with the permission of state government)
• Internal Resource Generation (tax and non-tax revenue)
• Programme specific allocation under Centrally Sponsored Schemes and Additional Central Assistance.

ISSUES IN MUNICIPALITIES
• Encroachment of functions of ULBS by SPV: The ‘Smart City’ programme does not devolve its funds to the
municipalities; States have been forced to constitute ‘special purpose vehicles’ to ring fence these grants lest
they are tainted by mixing them up with municipality budgets.
• Poor devolution of functions: The Act do not provide a separate list for local governments, the Twelfth
Schedule with 18 subjects for urban local governments, carry no operational meaning because almost all local
functions are State-Concurrent.
• Additional responsibilities: In Kerala, in addition to the traditional roles of waste management and
implementation of various government programmes at the grassroots-level, the local bodies are also being
pushed to do more in the production and employment sectors. However this kind of experiment will backfire
in other states where municipalities are not very empowered.
• Issue of Mayors: In most municipal corporations, while the mayor is the ceremonial head, the executive powers
of the corporation are vested with the State government-appointed commissioner.
• Parallel Bodies: Municipal corporations are further denied their political role by the continued operation of
various parastatal agencies created by the State government.
o E.g. Urban Development Authorities, Public Corporations of water, electricity etc. These agencies,
which function with a certain autonomy, are accountable only to the State government, not the local
government.
• Concentration of power: Unlike the 73rd Amendment which provides for three levels of panchayats (village,
taluk, and district levels), power in urban areas is concentrated in a single municipal body (whether it is a
municipal corporation, municipal council or town panchayat).
o Singular municipality: As Indian cities have grown exponentially over the last 25 years, with some
crossing the 10 million population mark, we must rethink the present model of urban governance that
vests power in a singular municipality.
• Low Revenue: After the abolition of octroi, property tax is the single largest source of own revenue for ULBs.
However, the tax collections are low, due to wide exemptions, undervaluation of property and incomplete land
registers.
• COVID Pandemic: Cities require to address challenges of isolation and social distancing in densely populated
informal settlements. These are daunting challenges, requiring significant financial resources at the disposal of
city governments.

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Recent news about ULB’s

URBAN LOCAL BODY REFORMS

• Context: Recently, Telangana has become the 3rd State and Manipur became 4th State to successfully undertake
“Urban Local Bodies (ULB)” reform stipulated by the Department of Expenditure, Ministry of Finance.
o Both became eligible to additional borrowing through Open Market: Telangana (₹2,508 crore) and
Manipur (₹75 crore)
o Andhra Pradesh and Madhya Pradesh, are the two other State that have completed this reform.
• Aim of reforms: Reforms in the urban local bodies and the urban utilities are aimed at financial strengthening
ULBs and enable them to provide better public health and sanitation services and create civic infrastructure.
o The reforms include: the State will notify
▪ Floor rates of property tax in ULBs which are in consonance with the prevailing circle rates
(guideline rates for property transactions) and
▪ floor rates of user charges in respect of the provision of water-supply, drainage and sewerage
which reflect current costs/ past inflation.
• Borrowing limit linked to reforms: In view of the resource requirement to meet the challenges posed by the
Covid-19 pandemic, the Government of India had enhanced the borrowing limit of the States by 2 per cent of
their GSDP as part of the Atmanirbhar Bharat package. Half of this special dispensation was linked to
undertaking citizen-centric reforms by the States.
• Citizen centric areas: The States get permission to raise additional funds equivalent to 0.25 percent of GSDP on
completion of reforms in each sector. The four citizen-centric areas identified for reforms were
(a) Implementation of One Nation One Ration Card System,
(b) Ease of doing business reform,
(c) Urban Local body/ utility reforms and
(d) Power Sector reforms.

ROLE OF LOCAL GOVERNMENT DURING COVID

Role of local government during COVID is attributed to dictum One-size-fits-all national advisories never work in a
country as diverse as India, least of all during disasters.
• Additional powers to GPs: In recognition of the front-line role of Gram Panchayats, the Chief Minister of Odisha
formally conferred the powers of District Collector to Sarpanch of Gram Panchayat; now, decisions about easing
lockdown, movement of immigrants and self-isolation or quarantine can be taken by the local Gram Panchayat.
• Effective devolution: Kerala acted swiftly when the Coronavirus threat became known. A principal reason for
Kerala’s amazing performance in “flattening the curve” is their robust system of effective devolution that has
enabled the Kudumbashree programme to function in association with the panchayats.
• Strong institutional mechanism: Most panchayats in the Bhuj district were able to respond quickly to corona
pandemic with community kitchen, home quarantine and announcements of correct information about hand
washing and social distancing on loudspeakers. This was possible because of a strong institutional mechanism
in place after the earthquake in 2001.
• Nudge against vaccine hesitancy: The healthcare workers like ASHAs are helping in disseminating information
related to the side-effects, effectiveness and procedure of the vaccine locally. Thus giving nudge against vaccine
hesitancy.
• New roles: Urban local bodies sought new roles such as providers of vegetables and facilitators in arranging
groceries for people, who are reeling under the impact of COVID-19.

Performance - success stories

• Pune Municipal Corporation (PMC) has become the first local body in the country to issue municipal bonds in
nearly one and a half decades, raising Rs 200 crore for the smart city project.
• Lucknow Municipal Corporation (LMC) bonds became the first Municipal Bonds from North India to be listed
on Bombay Stock Exchange (BSE). Lucknow became the ninth city in India to have issued Municipal Bonds and
the first city to issue such a bond after the launch of AMRUT Scheme.

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• Cleanest city: Indore became the cleanest city (swachhata Surveykshan 2020) owing to segregation at source,
trust between citizens and the municipality, processing close to sources of waste and hefty fines

WAY FORWARD
• Leveraging city economy: Each city needs to be recognized as a distinct unit of the economy. In larger cities,
City Economic Councils can serve as a clearinghouse between business and governments to hasten the
progress of specific projects, improve the ease of doing business and catalyse investments into the city.
• Decentralization and metropolitan governance: The multiplicity of agencies with overlapping jurisdictions
and fragmented roles and responsibilities is common in Indian cities. This leads to delays in implementation of
projects and inefficient service delivery.
o To achieve the decentralization goals of 74th CAA, there is an urgent need for articulating a
framework for governance of cities that includes development authorities, other parastatals, special
purpose vehicles (SPVs) and Census Towns.
• Encourage transfer of FFF: State governments can be encouraged to transfer 12th Schedule funds, functions
and functionaries to the ULBs.
• Downstream accountability: Governance should be devolved to the ward and area levels to enhance
downstream accountability mechanisms.
• Spatial planning and land titling: There is urgent need for a synchronous and modern national framework for
the spatial planning of cities that replaces the current Urban Development Plans Formulation and
Implementation (UDPFI) guidelines.
• Strengthening finances of ULB’s and civic agencies : This comprises fiscal decentralization, medium term
fiscal plans, innovative models to improve revenue collection, optimizing return on assets especially land and
buildings, value capture methods, market-oriented revenue models, PPPs in urban infrastructure and
services, and financial accountability through audited balance sheets and performance MIS reports.
o Issuances of municipal bond: Municipal Bonds can help the Urban Local Bodies (ULBs) to garner
revenue.
• Citizen participation: Enhanced citizen participation is needed for greater trust between citizens and
governments, improved sustainability, better service delivery and accountability.
o Ward committees and area sabhas should be activated with a technology enabled ‘Open Cities
Framework’ and the use of digital tools for feedback and reporting.

Conclusion
We have given ourselves a reasonably robust democratic structure for local governance over the last two decades
and more. It is for us to give life to this structure, through the practice of a robust democratic culture. Moving the
73rd Amendment Bill on December 1, 1992, the Minister of State in the Rural Development Ministry underscored
the “duty on the Centre as well as the States to establish and nourish the village panchayats so as to make them
effective-self-governing institutions.” The efforts need to be channelize to achieve the said aim at its maximum.

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CONSTITUTIONAL POSTS – APPOINTMENT , FUNCTIONS & POWERS

COMPTROLLER AND AUDITOR GENERAL OF INDIA

Previous year Question

1. “The Comptroller and Auditor General (CAG) has a very vital role to play.” Explain how this is reflected
in the method and terms of his appointment as well as the range of powers he can exercise. (10M,
CSE2018)

Current context
CAG has highlighted that the off-budget borrowings of the Kerala Infrastructure Investment Fund Board for
critical infra projects have bypassed the constitutional limits under Article 293(1) on government borrowings and
these borrowings do not have legislative approval.

Introduction
• CAG is the guardian of the public purse and controls the entire financial system of the country. He must
uphold the Constitution of India and the laws of Parliament in the field of financial administration. This is
the reason why Dr. B.R. Ambedkar termed him as one of the bulwarks of the democratic system of
government in India.

Constitutional provisions:
Article Provision
148 Comptroller and Auditor-General of India
149 Empowers the Parliament to prescribe the duties and powers of the CAG

Duties and Power of CAG: laiddown by the Parliament in CAG’s (Duties, Powers and Conditions of Service)
act, 1971
• Government account audits: • Audits receipts and expenditure of:
- Central government expenditure from - Bodies substantially financed from the Central
Consolidated Fund of India, Contingency Fund or state revenues.
of India, and the Public Account of India - Government companies
- State government and UT with legislative • Article 150: Advises the President about the
assembly: Expenditure from Consolidated prescription of the form in which the accounts of
Fund of the state, Contingency fund of the the Centre and the states shall be kept.
state, and the public account of the state. • Article 279: Ascertains and certifies the net
• Audits of Central and state government proceeds of any tax or duty.
department:All trading, manufacturing, profit & • Compiles and maintains the accounts of state
loss accounts, balance sheets, and other governments.
subsidiary accounts. • Acts as a guide, friend, and philosopher of the
Public Accounts Committee of the Parliament.

Independence of CAG
• Security of tenure: CAG can be removed by the president same as judge of the Supreme Court.
• Post-retirement office: Not eligible for further office, either under Central or State Government.
• Salary and other service conditions: Determined by the Parliament and these cannot be altered to his/her
disadvantage after his/her appointment.

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• Expenses: The administrative expenses of the office, salaries, allowances, and pensions are charged upon the
CFI.
• Administrative powers: Conditions of service of persons serving in the Indian Audit and Accounts Department
and the administrative powers of the CAG are prescribed by the president after consultation with the CAG.

Limitation of office of CAG

• Appointment: The appointment of CAG is the • Discourage risk-taking: CAG while looking into
complete discretion of the executive. This limits the ‘wisdom, faithfulness, economy’ of policy,
its role of holding the executive accountable. may not consider practical problems of
• Auditor general and not comptroller: Its report administration. This may discourage risk-taking
is post-facto, unlike in the UK where no money by the administration.
can be drawn from the public exchequer without • Independence: Conflict of interest due tothe
the approval of the CAG. appointment of former secretaries as CAG,
• Limited usefulness: Auditors know what is compromise the independence of the institution.
auditing, and not administration; it is a highly • Secret service expenditure: CAG cannot ask for
pedestrian function with a narrow perspective particulars of expenditure incurred and has to
and very limited usefulness. accept a certificate from the competent
• Shorter tenure: Age cap of 65 years works affects administrative authority.
the proper functioning of the institution due to • Intentional obstruction in audits: Tools like the
lack of continuity of leadership and loss of delayed supply of crucial documents to the
expertise. E.g. US,UK 10-15 years tenure auditors at the end of the audit program to
• Exceeding mandate: Some sections criticized obstruct meaningful audit.
CAG’s reports on 2G, Coal blocks allocation as • Redactive pricing: In case of Rafale procurement
beyond its jurisdiction and mandate. audit, government withheld full commercial
• Limited resources: Shortage of manpower as details citing security concerns.
compared to responsibility results in very few (Redaction is the selection or adaption by ‘obscuring
accounts being audited annually. or removing sensitive information’ from a document
prior to publication.)

CAG’S ROLE IN PANDEMIC TIME:

Current event:
Karnataka State Legislature’s Public Accounts Committee (PAC) directed the CAG to conduct a special audit into
the purchase of COVID-19 equipment within 15 days.

Significance:
• Opportunity to corruption: Emergency procurement to save lives and reduce sufferings provide an
opportunity for scamsters to siphon off public money where normal and prudential financial regulations
cannot be fully enforced and questions of inconsistencies are likely to be overlooked.
• Violation of right to health: Inferior quality of medical equipment and protective gears violate right to
life of people as well as health workers.
• Improved pandemic handling: If all the major purchases by government at all levels are audited by the
CAG, it will usher in better transparency, effective service delivery and compliance with rules and
procedures.

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• Constitutional obligation: Pandemic management is not an exception to CAG’s inescapable constitutional

and statutory mandate and responsibility to ensure public accountability, transparency, effective service
delivery and good governance.
• Effective service delivery: CAG’s performance audits are driven by economy, efficiency and effectiveness.
The audit will focus on expense tracking and achievement of outputs and outcome, in qualitative and
quantitative terms.
• Vaccine audit: Amount of vaccine produced and supplied to whom can help to address missing vaccine
issue and plan effectively to address vaccine shortage in country.

Way forward:
• Recently CAG has issued an order to create a new vertical of health, welfare and rural development. It is
necessary that the CAG undertakes performance audits of COVID-19 related procurements, the Central
Government Health Scheme (CGHS) and Employee State Insurance (ESI) hospitals.
• Audit objectives may include the procurement of equipment and drugs for CGHS wellness centres and
polyclinics, laboratories and hospitals. This will bring out efficacy of service delivery and the availability
and quality of drugs.

Way forward for complete topic of CAG

• Appointment by a multi-member body on the line of Lokpal or NHRC.
• Timely access to information: Like RTI Act, auditors should be provided priority access to records within
seven days, else the department head to explain the circumstances for delay.
• All-India conference of PACs of Parliament and State legislatures: Complete independence of the CAG by
making it a part of the PAC, like in the UK and Australia.
• Modern tools: Due to the increased complexity of auditing functions, the need of the hour is to
incorporate modern technology like AI, Big data analytics in auditing.
• Statutory status to IA&AD: This will improve the quality of audit and give credibility to the work done by
the officers and staff of the IA&AD, thereby leading to greater impact and better outcomes.
Conclusion:
The CAG has the inescapable constitutional and statutory mandate and responsibility to ensure public
accountability, transparency, effective service delivery and good governance.

NCSC, NCST, NCBC

Constitutional provisions:

Article Provision
338 Establishment of NCSC and its function
338A Establishment of NCST and its function (89th constitutional amendment)
338B Establishment of NCBC and its function(102nd constitutional amendment)

Composition: Chairman + Vice chairman + 3 Members = Appointed by President.

Functions of NCSC/NCST/NCBC
• Investigate and monitor all matters relating to the constitutional and other legal safeguards.
• Inquire into specific complaints concerning the deprivation of rights
• Participate and advise on the planning process of socio-economic development and evaluate the progress
of their development under the Union or a state.
• Annual reports to the president upon the working of safeguards.
• Recommend measures to Union/state for the effective implementation of those safeguards and other
measures for the protection, welfare, and socio-economic development of these sections.

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• Online complains: Complaints of atrocities against Scheduled Castes can now be registered with the
National Commission for Scheduled Castes (NCSC) through its online portal launched.

Specific functions of NCST:

Conferring ownership rights of minor forest produce Safeguard rights of the tribal communities over
to STs living in forest areas. mineral resources, water resources, etc. as per law.
Measures for the development of tribals and to Improve the efficacy of rehabilitation measures for
work for more viable livelihood strategies. tribalsdisplaced by development projects.
Cooperation and involvement of tribal for protecting Measures to reduce and ultimately eliminate the
forests and undertaking social afforestation practice of shifting cultivation by tribals.
Measures to ensure full implementation of PESA

Limitations of constitutional bodies to protect vulnerable sections:

• Lack of infrastructure
• Lack of Capacity and insensitiveness of the institutions.
• Commission’s recommendations are not binding
• Inefficient functioning,
• vague selection and appointment process, exorbitant budget.

Current event:

102 ND CONSTITUTIONAL AMENDMENT ACT

The 102nd Constitutional amendment act added Article 338-B which granted constitutional status to NCBC. This
amendment enlarged functions of NCBC to safeguard the interests of the socially and educationally backward
classes more effectively.

Positive effects of giving constitutional status to Concerns that remains:

NCBC:
• Giving more teeth: Constitutional status increases • Non-binding recommendation: This may lead to
the status of NCBC and the sole constitutional body secondary priority for the report of NCBC and in
for BC will be better placed to ensure the welfare budget allocations.
of BCs. • No power to define: NCBC has no power to define
• Greater objectivity: Article 342A makes it backwardness. Hence it cannot resolve the issue of
mandatory to take the Parliament concurrence for demands of various castes to be included as BCs.
adding or deleting any community in the backward • Composition: Does not provide exclusively for
list. The misuse of creamy criteria by certain appointment of experts in the body and leaves it on
sections will be reduced. executive without any mention qualification.
• Annual report: Constitutional obligation on central • Revision of BC list: Article 338B (5) is silent on the
and state governments to give a valid reason for periodic revision of the BC list in consultation with
not taking action on the report of the committee. NCBC.
• Grievance redress: Exclusive function with all • Multi-dimensional challenges: Mere
power of civil courts will enable it to ensure justice constitutional status can’t solve diverse prevalent
to backward classes. issues like skewed representation of BCs, Cornering
• Wider responsibility: NCBC with an additional of benefits by few castes, etc.
scope can look beyond reservation, to ensure • No link with Art 340: Article 340 which ensures
holistic development and advancement of each welfare and protection of BCs has not been linked
community towards equality in all parameters of in Article 338B.
development.

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Steps need to be taken:

• Composition: Mandatorily include experts and females to ensure gender sensitivity.
• Transparency: Recommendation of commission and tracker of action taken shall be available in the public
domain.
• Capacity building and sensitization of lawyers, judges, and policemen to ensure empathetic treatment and
timely redressal of grievances of backward class members.
• Effective implementation of existing government policies and impact evaluation for timely course
correction.
• Ease to register a complaint: Steps like online portals to register complaints as done by NCSC.
• Other steps required: Coordination with civil society, incentivize Good Social Work, entrepreneurship
promotion, etc.
• Holding regional level meet: On the line of NCSC, NCBC shall hold regional level meets to increase
accessibility to the commission.
Performance evaluation of NCSC and NCST:
• Services Safeguards Wing: Complaints relate mostly to promotions, discrimination and harassment on
various counts, the conduct of departmental enquires, transfers, etc.,
• Monitoring safeguards: Implementation of the various safeguards against atrocities against Dalits.
o E.g. Recently ordered an inquiry in on the alleged assault on SC at the Makkal Gram Sabha in
Tamilnadu.
• Holding regional level meet: On
the line of NCSC, NCBC shall hold
regional level meets to increase
accessibility to the commission.
• Institutionalized response: The
system of liaison officers and
special SC and ST cells in all
central ministries and public
sector enterprises.
• Social development: Both
ensure improvement in literacy
and educational development
and have taken a special interest in female literacy rates among SC and ST.
• Economic empowerment: Recommended land ceiling, redistribution of surplus land, tenancy reforms, and
several measures to prevent land alienation among tribal.

Real issues of the communities seem to be not addressed completely.

• Increased atrocities: NCRB data revealed 60% out of 16000 complaints received by NCSC were related to
atrocities in public places and Service Atrocities.
o E.g. caste-related honor killings in Haryana
• High pendency: More than 20,000 complaints are pending disposal.
• Delayed appointment: Recently petition was filed in SC for the appointment of a full-time chairman for
NCSC and NCST. The headless-Commissions have been reduced to paper-tigers and were fast losing their
relevance, becoming non-functional.
• Social attitude: Cases like Rohit Vemula is a textbook example of caste-related discrimination which is still
prevalent in society and the failure of the commission to address that effectively.
• Judicial apathy: SC order for anticipatory bail for offenders under atrocities act reflects that SC/ST issues are
seen as exaggerated even by the apex court.
• Tribal eviction: NCST ineffectiveness in stopping the eviction of tribals in the name of development which
deprived them of their basic human rights.
o E.g. Rejection of more than 5 lacs tribals claim.
• Economic deprivation: Failure to the upheld spirit of FRA,2006. Depriving access to minor forest produce
due to concepts like protected forests.

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• Vanishing cultural identity: As per a report by the People’s Linguistic Survey of India, as many as 250 tribal
languages have disappeared.

Conclusion: NCSC NCST and NSBC are the bulwarks for the rights of weaker section of the society and tool for the
upliftment of them hence posses great responsibility and so as to perform these it needs to be strengthen further.

UPSC AND SPSC

Constitutional provisions

Article Provision Article Provision

315 PSC for Unionandstates 321 Power to extend functions of PSCs

319 Prohibition on the post-retirement holding 322 Expenses of Public Service Commissions
of office by members

320 Functions of Public Service Commissions 323 Reports of Public Service Commissions

UPSC SPSC
• UPSC consists of a chairman and other members • SPSC consists of a chairman and other members
appointed by the president of India. appointed by the Governor of state.
• Strength: Discretion of the President. Usually 9 to • Strength: Discretion of the Governor of state.
11. • No qualifications prescribed for membership
• No qualifications prescribed for membership except 50%of membersshould have held office for
except 50%of membersshould have held office for at least ten years under the Government of India or
at least ten years under the Government of India or the state government.
the state government. • Term: Six years/62 years of age
• Term: Six years/ 65 years of age • Removal: President can remove them on the same
• Removal: By President on the ground of adjudged grounds and in the same manner as he can remove
an insolvent, paid employment outside the duties, a chairman or a member of the UPSC.
unfit due to infirmity of mind or body.
- For misbehavior -> By president on the inquiry
of supreme court.
Independence of commission
• Security of tenure: Chairman and members removed by President only on the ground specified in the
constitution.
• Conditions of service: Determined by the President (by the governor for SPSC) &cannot be varied to his
disadvantage after his/her appointment.
• Expenses of salaries, allowances, and pensions are charged on the Consolidated Fund of India. Thus, they
are not subject to the vote of Parliament.
• Post-retirement: Not eligible for further employment with the government. (SPSC members can be
appointed to UPSC)

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Functions Limitations
• Watchdog of merit system: Conducts examinations for • Supreme court judgments:
appointments to the all-India services, Central services - Non-binding provisions: Acting without
• Assists the states in framing and operating schemes of consultation to UPSC in the above matters
joint recruitment for any services for which candidates doesn’t invalidate the decisions of the
possessing special qualifications are required. government. The aggrieved public servant
• Serves needs of a state: On Governor’s request and has no remedy in court.
with the President’s approval. - Selection by the UPSC does not confer any
• Consult following matters of personnel management right to the post upon the candidate.
• UPSC is not consulted on the following
▪ Methods of recruitment, promotion, and transfer to matters:
civil service and for civil posts. ▪ Making reservations for any backward
▪ All disciplinary matters affecting a person serving class in appointments.
under the Government of India in a civil capacity. ▪ To consider the claims of SC and ST in
▪ Reimbursement claims of legal expenses incurred by making appointments to services and
a civil servant in defending legal proceedings posts.
instituted again him in respect of acts done in the ▪ For Selections for chairmanship or
execution of his duties. membership of commissions or tribunals,
▪ Temporary appointments exceeding 1 year and on posts of the highest diplomatic nature, and
regularisation of appointments. the bulk of group C and group D services.
▪ To grant an extension of service and reemployment ▪ For a temporary appointment, if a person
of certain retired civil servants. isn’t likely to hold the post for more than a
▪ SPSC is consulted by the governor while framing rules year.
for appointment to judicial service of the state other ▪ Classification of services, pay and service
than the posts of district judges. conditions, cadre management, training,
etc

Conclusion:
The Constitution visualizes the UPSC to be the ‘watchdog of merit system’ in India. It ensures the appointment of
the right candidates to tackle increasing challenges to administrations. Government shall ensure that the
strengthening of UPSC and SPSC shall be an integral component of steps to ensure good governance. Also, UPSC
shall incorporate new ways like psychometric tests to ensure people with the highest integrity are appointed.

ELECTION COMMISSION

Previous year question on this topic

1 In the light of recent controversy regarding the use of Electronic Voting Machines (EVM), what are the
challenges before the Election Commission of India to ensure the trustworthiness of elections in India? (150
words, CSE2018)
2. Simultaneous election to the Lok Sabha and the State Assemblies will limit the amount of time and
money spent in electioneering but it will reduce the government’s accountability to the people’
Discuss. (150 words, CSE2017)
3. To enhance the quality of democracy in India the Election Commission of India has proposed electoral
reforms in 2016. What are the suggested reforms and how far are they significant to make democracy
successful? (250 words, CSE2016)
Introduction

India has adopted a representative parliamentary form of governance. Considering this free and fair election has
utmost significance so that people have faith in the legislative body of the country. Article 324 has entrusted the
responsibility of superintendence, direction, and control of elections in the ECI.

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Constitutional provisions
Article Provision Article Provision
324 Superintendence, direction, and control 327 Power of Parliament to make provision for
of elections to be vested in an ECI. elections to Legislatures
325 Universal suffrage 329 Bars Courts to interfere in electoral matters
326 Adult suffrage 243K & State election commission
243ZA
About election commission of India
▪ Strength: Chief election commissioner and such number of other election commissioners, if any, as the
president may from time to time fix.
▪ Tenure: Six years or until they attain the age of 65 years, whichever is earlier.
▪ The chief election commissioner and the two other election commissioners have equal powers and receive
equal salary, allowances, and other perquisites which is equal to the judge of the Supreme court.
Powers and functions

• Administrative
- Delimitation: Determine the territorial constituencies throughout the country based on the
Delimitation Commission Act of Parliament.
- Electoral rolls: prepare and periodically revise the electoral rolls of all eligible voters.
- Conduct of elections: Notify the dates and schedules of elections and scrutinize nomination papers.
- Registration of political parties and granting them national or state party status and allot election
symbols to them.
- Code of conduct: To be observed by the parties & candidates at the time of elections
• Advisory
- Advise the president and governor on matters relating to the disqualifications of the members of
Parliament and state legislature respectively.
• Quasi-Judicial:
- Act as a court for settling disputes related to granting of recognition to political parties and
allotment of election symbols to them.

Independence

• Security of tenure: chief election commissioner can be removed from his office except in the same manner
and on the same grounds as a judge of the Supreme Court.
- Other election commissioners cannot be removed except on the recommendation of the chief
election commissioner.
• Service conditions of the chief election commissioner cannot be varied to his disadvantage after his
appointment.

Concerns with Election commissioners

• Qualification not prescribed: The Constitution has not prescribed the qualifications of the members of the
Election Commission.
• The term is not specified: The Constitution has not specified the term of the members of the Election
Commission.
• Constitution has not debarred the retiring election commissioners from any further appointmentby the
government.
- E.g. Recently appointment of outgoing chief election commissioner as governor of Goa.

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Steps to address issues in appointment:

• 2nd ARC: Collegium headed by the PM with the Speaker of the Lok Sabha, the Leader of Opposition in the
Lok Sabha, the Law Minister, and the Deputy Chairman of the Rajya Sabha as members for appointment of
the Chief Election Commissioner and the Election Commissioners.
• Supreme court: Ensure fair and transparent selection by filling the void in law.
• Constitutional protection to EC: Amendment to provide constitutional protection for all three of its
members as opposed to just one at present.
• Fair Elevation: Enabling provisions in the law that the senior-most EC would be automatically elevated as
CEC to insulate appointment from executive interference.

Issues faced by Election Commission

• Allegation of Partisan role: Various actions of ECI raises concern over its impartiality.
- E.g.Giving clean chits to PM for MCC violations by appealing for votes under name of the army.
• Lack of power- Article 324 has vested ECI with absolute powers under Article 324. Still, it lacks power like
de-registering of political parties, contempt powers, etc.
• Lack of proactive use of authority- The ECI has very limited power to take action against politicians who
sought votes in the name of caste or religion.
• Control over political parties: ECI doesn’t have power in matters like enforcing inner-party democracy and
regulation of party finances.
• Politicization: No bar on post-retirement employment on election commissioners becomes obstacles in the
independent functioning of the commission.
• Non-transparency: Non-transparency in the election of CEC and two commissioners and is based on the
choice of presiding government.
• Allegations on EVM: Allegations on EVMs like malfunctioning, hacking, not registering votes, etc. erodes
the trust of people in ECI.
- E.g. Recent events of EVM in cars of the ruling party after voting.

• Criminalization of politics: Inability of ECI to tackle increased use of money and criminal elements in
politics.
Way Forward
• Transparency in the election: Mandatory 25% counting from VVPAT.
• Legislative measures: Providing legal mandate to ECI on various issues like power to deregister political
parties.
• Election commissioners: Ensure that ethical and capable people head ECI as inadequate leadership is the
bane of our public institutions.
• Independence of ECI: Independent secretariat for itself and frame its own recruitment rules and shortlist
and appoint officers on its own. -> This will reduce the ECI’s dependence on DoPT, Law Ministry, and Home
Ministry.

STATE ELECTION COMMISSION

Current event:
▪ The Supreme court refused to stay on the Andhra Pradesh High court order related to the state election
commission.
Andhra Pradesh introduced the following changes and HC ruling:
Reserved State Election Commissioner (SEC) post to Doesn’t qualify the test of reasonableness specified
only retired High Court judges in Article 14

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Curtailed the tenure of the SEC from five years to The constitutional body under Article 243K and has
three years a 5-year tenure prescribed by the constitution.

Role of the Election commission of India in regulating the political parties

• Registration and recognition: ECI under RPA,1951 has the power to register political parties to ensure equal
compliance with rules laid down by EC for the conduct of the election.
• Allocation of symbols: Under Election Symbols (Reservation and Allotment) Order, 1968, ECI allot symbols
for all recognized parties for exclusive use and non-recognized parties can choose from a list of free
symbols.
• Model code of conduct: This comes into force from the announcement of the date of the election. It
prevents the party in power from gaining an unfair advantage at the time of elections.
• Ceiling on election expenditure: It ensures rich candidates don't use the money to create an undue
influence on voters. It also
mandates the maintenance
of a separate account for all
expenditure and non-
reporting of election
expenditure post-election
can lead to disqualification.
• Financial transparency: All
registered political parties
under section 29C of
RPA,1951 are mandated to
submit an annual audited
report to ECI to prevent misuse of tax-free donations parties receive.
• Appointments of observers: It appoints general observer, expenditure observer to ensure a free and fair
election.

Steps required to improve effectiveness:

• Power to deregister political parties under RPA,1951. This will help to create a deterrence effect.
• Transparency in political funding: Instruments like Electoral bonds which have resulted in 93% of donations
going to one party need rethinking.
• Principle of precedence: Similar type of electoral offense shall lead to the same action by the election
commission irrespective of party.
• 2nd ARC: Collegium Headed by the PM + Speaker of the Lok Sabha + Leader of Opposition in the Lok Sabha
+ the Law Minister + the Deputy Chairman of the Rajya Sabha -> recommendations for appointment of the
Chief Election Commissioner and the Election Commissioners.
• Independence of ECI: Constitutional security of tenure to all three election commissioners, Debarring post-
retirement positions can help to reduce executive interference in ECI.

Conclusion:
India is a multi-party democracy, where political parties have important roles in ensuring accountability of
government, electoral education of voters, etc. ECI must ensure effective regulation of them to ensure that all
parties get equal opportunity to compete and various concessions granted to them are not misused.

SIMULTANEOUS ELECTIONS - PM ON ONE NATION, ONE ELECTION

Many experts including Prime minister, NITI Aayog have pitched to initiate discussion on simultaneous elections.
About:
It implies synchronized election for Lok Sabha and State Assemblies and voters in a particular constituency vote
for both State Assembly and Lok Sabha the same day. It was prevalent in India till 1967.
Need:

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• NITI AAYOG: India is continuous in election mode. Between two general elections 5 to 7 assembly elections
every year. In addition, by-election and local body elections also take place.
• Expenditure: No cap on party expenditure result in high spendings in elections. E.g. 60,000 cr spent in
2019 general elections.
• Policy paralysis: Frequent application of MCC disrupt government functions and civic life.
• Saving resources: It makes perfect sense as same voter, booth, and security staff in both elections.
• Social harmony: During election time communalism and casteism at its pic.
• Sustainable development: Frequent elections forces politician to focus on short-term reforms.
• Global experiences: Countries like South Africa, Sweden are already implementing this.
Arguments against simultaneous elections:
• Practical difficulties: It requires reduction or expansion of term of various assemblies which will not be
supported either by many political parties.
• Constitutional hurdles: Article 83 and Article 172 don’t provide fixed tenure for LS and assemblies, needed
for synchronization.
• Anti-federalism: Ill-informed voters’ choices may lead to National issues impacting the electorate’s
behavior for voting in State Assembly elections and vice versa.
• Reduces accountability: Frequent elections keep politicians in touch with voters and ensure necessary
course correction by the government.
• Grassroot economy: Many jobs get created during the election which gives a boost to the grassroots level
economy.
• False arguments related to MCC: It stops only new schemes. Even new schemes with urgent public
importance can be launched with EC approval.
• Alternative reforms: Reforms like a cap on party expenditure, state funding of elections, 33-35 days poll
durations, and raising of more battalion for security are more feasible and effective.
Way forward:
Law commission has recommended the following ways to address hurdles:
• Amendment to constitution and RPA,1951:
- New Lok Sabha and assembly, constituted after mid-term elections, shall be only for the remainder
of the term.
- The no-confidence motion may be replaced with a constructive vote of no-confidence suggesting
alternatives.
• The election of PM / CM may by the full house like electing the speaker of the Lok Sabha, providing stability
to the government.
• Anti-defection law: This shall be diluted as an exception to prevent stalemate in the Assembly due to Hung
Parliament.
Conclusion
Good government in democracy promotes debate on any new idea rather than forcing it. However, the
simultaneous election is not the panacea of all election issues. It needs to be supplemented with comprehensive
reform in the electoral process.

A SINGLE VOTERS’ LIST

Current event:
PMO, ECI, and the law commission are checking the possibility of having a common electoral roll for PRI, ULBs, state
assembly, and the Lok Sabha elections.
Types of Voter’s list Reasons for the demand for a Single voter’s list Challenges:
• Saving resources:Combined with simultaneous • Against the spirit of
• Some state laws allow SECs elections, it prevents duplication of efforts. Federalism.
to borrow ECI’s electoral • Voter’s convenience: It saves the efforts of • Persuading state
roll. voters to register twice. Also, avoid confusion government’s to
change state laws

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• Some SECs prepare and created due to missing names from one of the to use ECI electoral
revise their roll with ECIs lists. rolls
electoral roll as a base. • It is supported by the Law commission in 2015 • The difference in
• Some states have their and ECI in 1999. boundaries of EC’s
electoral rolls and do not • Constitutional feasibility: Amendment to polling station and
adopt EC's roll for local Article 243K and 243ZA to make it mandatory Ward.
body polls. for all SECs to use ECI electoral roll.

EVM CONTROVERSY
Current event:
Recently mishandling of EVMs during the Assam election has again raised concern regarding the fallibility of EVMs.
About:
EVM consists of a control unit with a polling officer and the balloting unit in the voting compartment where the
voter casts vote in secret. EVMs in India are manufactured by Electronics Corporation of India Ltd and Bharat
Electronics Limited.
Legal provision: RPA,1951 amended in 1988 allows the use of EVM for conducting elections.
Concerns regarding EVMs:

• Mistrust: Even the possibility of hacking creates mistrust about EVM and undermines the credibility of ECI.
• Malfunctioning: Many incidents have been witnessed where EVMs stopped responding due to various reasons
including negligence of officers.
• Undermines democratic values:
o Transparency: Display and vote stored may not be the same
o Verifiability: VVPAT auditing is done in only one EVMs per constituency.
o Secrecy: Vote counting is done booth-wise without using a totalizer machine.
• International experience: Technologically advanced countries like Germany has banned EVM on the
concern about transparency.

Advantages of EVMs over paper ballot:

• Resolves conventional issues: Solve the problems associated with ballot paper like Ballot Box capturing,
casting of false votes, the high proportion of invalid votes due to incorrect stamping.
• User friendly: Voters only need to
identify the symbol of the
candidate. This allows even the
illiterate and disabled to vote
independently and ensures secrecy
of their vote.
• The integrity of election: Various
safety features of EVMs, combined
with various safety procedures
ensures a free and fair election
which is the bedrock of democracy.
• Time-saving: electronic voting and
electronic counting ensure that people can get official election results within hours, instead of weeks.
• Transparency: EVMs are completely auditable by all parties, citizens, and election commissions at every
stage.

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Way forward:
• Procedural changes: The printed paper should be given to the voter who should then drop it in the ballot box.
• Manual counting: Instead of going to court, ECI shall make a rule to make manual verification mandatory if the
winning margin is less than 10%.
• Supreme court: increase VVPAT verification rate from one to five random EVMs per constituency.
• Totalizer Machines: It increases the secrecy of voting by counting votes polled at 14 polling booths together
unlike present booth-wise results.
• Safety demonstration: ECI shall arrange a hackathon as done in 2017 where it challenged people to
demonstrate hacking of EVMs.
• Human resources: ECI shall train all its workforce to handle any issue arising in EVM at the polling station.

NOTA
Current event:
• Supreme Court has asked the Centre and the ECI to respond to a plea that fresh elections should be
conducted in constituencies where the highest number of votes polled are NOTA.
• Maharashtra State Election Commission issued an order that if NOTA emerges as the winner then a fresh
election should be held in local body polls.
About NOTA:
SC in People’s Union for Civil Liberties vs Union of India,2013 conferred the right to negative vote which leads to
the inclusion of NOTA in the ballot list.
Limitations of NOTA:->NOTA in India doesn't provide the right to reject. ECI has no power to call a fresh election
even if NOTA secures the highest votes.
Significance of NOTA/Arguments in favor of Right to reject:

• Fundamental right: NOTA ensures that people exercise their freedom of expression and right to liberty in
the political sphere through their consent or discontent to candidates.
• The credibility of election:Maximum voter turnout increases the credibility of the election. People opting
for NOTA instead of abstaining from voting ensures maximum voter turnout.
• Moral pressure:In the absence of inner-party democracy, the voter has no role in choosing election
candidates. Hence by rejecting candidates people make their voices heard.
• Supreme court: Negative voting could bring about “a systemic change in polls and political parties will be
forced to project clean candidates”
• Increasing voting share:Factors like criminalization of political parties, opaqueness in the functioning of
political parties and increased awareness among voter has increased vote share of NOTA. E.g. 1.04% in
2019 LS election.

Arguments against the right to reject:

• Instability: Frequent elections result in unstable democracy and legislature. It disrupts normal public life
and the functioning of essential services.
• Financial pressure on the public exchequer in conducting fresh elections.
• Administrative challenges:ECIneeds to arrange polling officials,security forces to ensure smooth, peaceful,
and impartial polls.
• Governance issues: Frequent imposition of MCC impacts development and governance.

Reasons for lower votes for NOTA:

No right to reject Lack of awareness No one to campaign for it on equal footing with other parties

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Way forwards:

• Awareness generation by NGOs, ECI

• Providing RTR at the local level e.g. Haryana and MP have started disqualifying candidates that get fewer
votes than NOTA in the local body elections.
• Candidates ‘rejected’ by voters should not be fielded again in the fresh polls.

ELECTIONS DURING COVID TIMES

Current event:
Elections to various legislative assemblies and local bodies have been criticized as a mass spreader event and a
major cause of the deadly second COVID-19 wave in India.
Challenges to conducting elections during a pandemic:

• Social distancing: In events like rallies, voting day, counting, and post-victory celebrations make social
distancing a distant dream.
• Non-level playing field: In COVID-19 time virtual rallies are most suitable. However, expenses for this are
affordable only for large national-level parties.
• Increased expenditure: Additional expenditure on the sanitation of polling booth, Protection gears for all
people on election duties, etc. rises poll expenditure multifold.
• Transparency: Restricted movement of various observers due to lockdowns makes effective monitoring by
these groups difficult.
• Compromised democracy: Fear of COVID-19 often results in lower turnout for election voting. When this
coupled with close election results often raises the credibility of elections.
• Legal risk: Uncertaintyabout the spread of the virus might result in postponement of election violating
constitution.
• Lack of responsible behavior by voters and political parties to flout all covid protocols made by ECI.

Way forward:

• Political consensus: Democratic tools like All-party meetings can be convened by the government to reach
out on the consensus regarding election dates.
• Strict guidelines:ECI shall prepare guidelines for the worst-case scenario and they should be executable. It
should be swift in taking action against any violation of them to create deterrence.
• Increased election campaign broadcast time: This restricts movement and increases safety for the people
and party workers through a non-contact-based campaign.E.g. for the Bihar election, ECI increased it to 90
minutes for national and state-recognized parties.
• Responsible leadership:Leaders of political parties shall avoid the organization of mass rallies and should
keep the safety of voters as their top priorities.
• Awareness: ECI shall use all types of communication channels to spread awareness about the kind of
behavior expected from voters and punishment for violations.
• Global experience: successful steps taken by some countries can be considered e.g.
- New Zealand: Online voting service; telephone dictation voting service; proxy voting, etc.
- South Korea: special polling stations for COVID patients, postal voting, and early voting.

POWERS OF ELECTION COMMISSION TO DELAY POLLS

Current event:
Various political parties haddemanded ECI to delay polls of the Bihar assembly due to the COVID-19 pandemic.

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Constitutional provisions:
Article 85 and Article 174: Maximum 6 months between two sessions of MP/MLA.

- ECI is mandated to hold elections within six months before the five-year term of the Lok Sabha or
Legislative Assembly expires.
- Early dissolution: EC has to ensure a new Lok Sabha or Assembly is in place within six months of
the dissolution.

Provisions for postponement of election:

• Article 172: In case of a state of emergencyelection can be postponed for one year at a time.
• No specific provisions for postponement of election in a non-emergency situation.
• Article 324: Extraordinary powers to delay due to law and order, natural calamities like earthquakes and
floods, or any other compelling circumstances which are beyond EC’s control.
- EC informs its inability to hold timely polls to the government.
- Government to decide to impose President’s Rule or allow the incumbent CM to continue for six
more months.

Way forward:
• The pandemic is not going to end very soon. Continuing assemblies or Lok Sabha beyond its fixed terms
violates the spirit of democracy.
• Hence ECI shall learn from successful experiments of election during covid-19 from South Korea along with
a ground-level survey to conduct elections by ensuring safety poll officials and voters.

MODEL CODE OF CONDUCT(MCC)

Current event:
Recently concluded assembly polls witnessed violations of MCC by various political parties:
About MCC:

• These are a set of guidelines laid down by ECI to govern the conduct of political parties and candidates in
the run-up to an election.
• Legal backing:
- Article 324:Power of ECI to supervise elections to the Parliament and state legislatures.
- Supreme court:SC laid down MCC in Union of India vs. Harbans Sigh Jalal and Others Case.
• Evolution:
- 1960: State administration prepared a Code of Conduct for political actors.
- 1962: ECI made code for all recognized political parties and state government
- Suboptimal implementation of MCC till 1991.
- Post-1991: ECI used its power to rebuke politicians, postponing elections for violation of MCC. Due
to stringent actions, political parties started to take it seriously.

Challenges:

• Social Media:
- Increased access to non-regulated social media leads to making campaign-related stuff viral,
bringing in celebrities to influence people, etc.
- This is used to spread unverified and deliberate fake news using tools like a deep fake.
- Difficult to Identify Perpetrators
- EC lacks resources as well as surveillance capacity to implement and punish the violation of MCC.
• Election expenditure: Latest tools like blockchain technology, digital payments, and tools like electoral
bonds have made tracing money trails and poll expenditures difficult.
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• Reduced transparency:Increased use of social media for political advertisements, reduced transparency in
functioning, and donations of political parties.
• Jurisdiction: Holding companies located overseas like Facebook accountable has been difficult for Indian
agencies.
• ECI Independency:
- Delayed responses against inappropriate statements by some powerful political leaders.
- Favorable treatment to party in rule and stringent action against oppositions
- No action was taken on a complaint made by parties due to the use of issues like National security,
Disaster management, etc.

Way forwards:

• Fake news:Create a clear set of rules andimpose a hefty fine per view of an ad that breaks the rules.
• Regulate social media: Ensure that social media will strictly follow a voluntary code of ethics that insisting
on transparency in political ads.
• Electioneering in the digital world: More steps like all candidates are to provide details of their social media
accounts to the commission and take prior approval for all political advertisements on social media.
• People participation:
- Involve people in MCC enforcement using platforms like cVIGIL.
- Awareness among people using SVEEP. So that people will reject the violator of MCC.
• Ensuring the independence of ECI:
- Separate secretariat to ECI
- Collegium for appointment of all election commissioners.

Shall we make MCC legally enforceable?

MCC is not enforceable by law. Certain provisions of the MCC are enforceablethroughprovisions of other acts such
as the IPC, 1860, CrPC,1973, and RPA,1951.
• Standing Committee on Personnel, Public Grievances, Law and Justice-> recommended making the MCC
legally binding and recommended that the MCC be made a part of the RPA 1951.
• ECI has opposed this with the reason that elections must be completed inashort time and judicial
proceedings take a longer time, therefore it is not feasible to make it enforceable by law.

STAR CAMPAIGNER
Current event:
ECI excluded Mr. Kamalnath from the star campaigner list for MP bypolls and Ex-telecom minister M. Raja for
making certain remarks during the campaign which violates MCC.

About:
Start campaigner can be anyone a celebrity or politician who seeks vote for a political party during the election.
Political parties specify their constituencies and the duration of the status.
Legal provision: Section 77(1) of RPA, 1951 read with Guidelines for Star Campaigners issued by the ECI:
selection/revocation of ‘star campaigners’ the sole prerogative of the political party.
Ceiling on star campaigner number Recognised National/State party -40 Unrecognised political party-20

Start campaigner vis-à-vis election expenditure:

• Expenditure on electioneering by the star campaigner is not added to a candidate’s poll expenditure
provided s/he limit oneself to general campaigning for the party. According to the RPA, these expenses will
be borne by the political parties.

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• PM as star campaigner: Expenditure on security like bullet-proof vehicles will be borne by the
government and excluded from the election expenses of the party or the individual candidate.
• If another campaigner travels with the PM, that candidate will have to bear 50% of the security expenditure.
Concerns with ECI order:
• Supreme court: ECI has no power to revoke start campaigner status and it is the prerogative of the
concerned political party.
• Against level playing field: The revocation of name from the ‘star campaigner’ list impeded the principle
of the free and fair election and level playing field in elections.
• ECI order is a withdrawal of the right to campaign without incurring electoral expenditure on the
candidates’ account -> Star campaigner's expenditure is excluded from candidate’s expenditure.
Conclusion:
Concerning repeated arousal of similar issues in election campaign court shall frame appropriate guidelines for
speeches during the campaign by star campaigners, keeping in mind the right to freedom of speech and
expression and concept of democratic elections.

ELECTION FUNDING
Current event:
Recently RTI revealed that more than 6000 cr were received by Political parties through electoral bonds since its
inception in the Union budget of 2017-18.
The Supreme Court flagged the possibility of misuse of money received by political parties through electoral bonds
for ulterior objects like funding terror or violent protests.
About:
Election funding implies the methods used by political parties to raise funds to finance their campaign and routine
activities like pitching itself, its objectives to get votes for itself.
RPA provisions:
• Section 29B: Parties to accept
voluntary contributions from any
person/company, except a
Government Company.
• Section 29C: Political parties declare
donations that exceed 20,000
rupees by submitting a report to ECI.
Failure to do so -> ineligible for tax
relief under the Income Tax Act,
1961.
Challenges with election funding:

• Lack of transparency: The Majority of funding to political parties is received through opaque sources like
electoral bonds, anonymous donations through cash, etc.
• Legal loopholes: There are various gaps in Indian rules, the benefit of which political parties take to avoid
any kind ofreporting. E.g. Exemption to political parties from income tax.
• Bribes: No power with ECI to take action if parties bribe voters of a constituency.
• Corporate donations: Maximum Cap of 7.5% of the profits as a donation to a political party has been lifted.
Also, an obligation to report such contributions in the company’s profit and loss account has been removed.
This may lead to the formation of shell companies specifically to fund parties.
• Foreign funding: Amended FCRA allows foreign funding to political parties, This will increase foreign
interference in domestic affairs.

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• Lack of transparency:
Violation of section 29 of
RPA, 1951-> Parties do not
submit their annual audit
reports to the Election
Commission. Also defied
that they come under the
ambit of the RTI act.
• Hamper economy: Hidden
sources of funding result in more spending of funds in election campaigns, thus impacting the economy of
the country.

Way forward:

• Donations related reforms:

- Switching to complete digital transactions.
- Anonymous donations shall be limited to 20% to break the corporate-politico nexus.
• Transparency: Political parties should be brought under the ambit of RTI as followed in countries like Bhutan
and Germany.
• National electoral fund: Donors contribute and funds are distributed among different parties according to their
respective performances in the last elections.
• 2nd ARC: State funding of elections in response to the high cost of elections.
• Cap on the expenditure of political parties: Total multiplication of Half of the maximum prescribed limit for
individual candidates and total number of candidates fielded.

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ELECTORAL BONDS:
Announced in Union Budget 2017- 18 to cleanse the system of political funding in the country.
Arguments in Favour:

• Reducing the cash: The scheme acts as a check against traditional under-the-table donations as it insists
on cheques and digital paper trails of transactions.
• Prevent black money: Use of digital transactions, cheque, or demand draft for buying bonds, mandatory
KYC norms combined with only 15 days validity help to curb black money.
• Prevent fraudulent political parties: Eligibility of 1% vote in last general or assembly election ensures that
parties are not formed just for tax evasion.
• Donor protection: Non-disclosure of the identity of the donor ensures that he/she is not victimized.
• Election commission: The scheme is one step forward compared to the old system of cash funding, which
was unaccountable and urged the Supreme court not to stay the bonds.

Concerns raised by courts:

• Anonymity: Neither the donor nor the political party is obligated to reveal the donation source.
- They are out of the purview of the requirement of maintaining records of donations above 20,000.
- exempted from the annual financial statement of Political parties under Income tax.
• Shell companies: Removal of the maximum cap of 7.5% of the profit, 3-year-old company and need to
include in financial statement-> Convenient channel for business to round-trip as they can donate an
unlimited amount anonymously to a political party.
• Unequal treatment: Benefits restricted to only those parties who had secured a 1% vote in the last election.
E.g. RTI revealed that 94% of total donations were received by the ruling party
• Information asymmetry: Bonds are purchased through SBI hence ruling party has all information about
donors.

Way forward: (Same as mentioned for Election funding)

ELECTION COMMISSION TACKLING CRIMINALIZATION OF POLITICS

Current event:
• A recent survey by National Election Watch (NEW) and Association of Democratic Reforms (ADR) has
revealed that in the Assembly elections in Assam, Kerala, Puducherry, Tamil Nadu, and West Bengal, at
least 1,157 out of 6,318 candidates have criminal cases against them.
Definition:
• The criminalization of politics implies the participation of criminals in politics which includes contesting
the election and getting elected as MP or MLA. It takes place primarily due to the nexus between
politicians and criminals. Supreme Court raised concern on it as an “extremely disastrous and lamentable
situation”.
ADR data on Criminalisation of politics:

• Winning chance of candidate: 13% in case of a

criminal background and 5% in case of a clean record.

Reason for the criminalization of politics:

• Political:

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• Missing political will: Despite various judgments from supreme courts parties are not taking steps
to bring strong laws to curb criminal participation in elections.
• Political-Criminal nexus: Greater winning ability of candidates with serious criminal backgrounds
due to greater resources at their disposal.
• Legal loopholes: RPA,1951 disqualifies from being MP/MLA after conviction but it doesn’t prohibit from
holding offices within the party.
• Voters related:
• Narrow interest: Despite knowing the entire criminal history of candidates many voters tend to
vote through a narrow prism of community interests like caste or religion.
• Vote-buying: SC observed that we as a voter are not yet organically evolved, therefore, majority
of the voters are maneuverable, purchasable.
• Election commission:
• The rising trust deficit between people and ECI due to delayed action against ruling party
candidates, Openly flouting of MCC by politicians, etc.
• Lack of infrastructure to monitor and ensure compliance
• No power under Section 8 of RPA to disqualify candidates before conviction.
• The false affidavit is not a ground for challenging of election under RPA,1951.
• Lower conviction rate: Central government data reflect only a 6% conviction rate of the criminal cases
against MPs and MLAs against 46% national average under IPC.

Consequences of criminalization of politics:

• Sanctity of parliament: Lawbreakers become lawmakers. This reduces the quality of legislation being made and
also erodes the trust of people in institutions.
• The choice to voters: It limits the choice of voters to candidates with a criminal track record. This goes against
the ethos of a free and fair election.
• Corruption: Increased circulation of money during and after election affects the integrity of public servants.
This ultimately leads to tainted democracy where money and muscle power dominates.
• Against good governance: Poor quality of legislation, Non-inclusive rules, rampant corruption all result in poor
delivery of public services.
• Social harmony: It sets wrong role models among the youth of society and promotes the culture of violence in
society.
• Faith in Judiciary: Use of political powers to delay hearings, obtaining bails and repeated appeals raises a
question on the independent and impartial working of the judiciary.

Steps taken
By Supreme court
1997 judgment Not to suspend the conviction of a person on appeal if convicted and
sentenced to imprisonment under the PoCA, 1988.
ADR vs UoI, 2002-> Contesting candidate to disclose pending criminal convictions
Lilly Thomas vs UoI, 2013 Automatic disqualification of MP and MLA upon conviction to 2 years jail
term.
People’s Union for Civil Liberties Right to negative vote i.e. NOTA to put moral pressure on political parties
vs UoI case, 2014
Public interest foundation vs Complete pending trials of MP and MLA cases within 1 year
UoI, 2014.

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Lok Prahari Vs UOI case 2018 Mandatory disclosure of the source of income of political candidates as
well as their dependants and associates.
Public interest foundation case Disclose pending criminal cases against candidates through EC & political
2018, party and publicization of same through different media.
February 2020 judgment Mandatory on political parties to publish details of pending criminal cases
against candidates & reasons to select them over others
By the Election commission:
1997->Returning Officers to reject the nomination of Voter awareness campaign using tools like SVEEP and
candidates who stand convicted on the day of filing using celebrities to spread a message to not sell their
nomination papers even if his sentence is suspended vote.
Flying squads to seize black money during elections Candidates to furnish an affidavit containing
information of criminal antecedents, their assets,
liabilities, and educational qualification.
Way forwards:

• Law commission: Amendments to following sections of RPA, 1951:

• Section 125A:conviction under as a ground of disqualification under section 8(1)
• section 125A: Sentence of a minimum of two years for filing of false affidavits.
• section 123: Include filing false affidavits as a corrupt practice.
• Barring persons from contesting the election if charged with the offense having punishment of more than
5 years.
• Complete trials in one year and automatically disqualify after the expiry of one year.
• State funding of election as recommended by Dinesh Goswami, Inderjeet Committee
• Right to recall: Confers the power on voters to recall their elected representatives from the house on the
ground of non-performance.
• Strengthen ECI with the following powers:
• Refer to any agency any matter for investigation
• Prosecution power underRPA, 1951
• Appoint special court for trial offenses under RPA, 1951

RIGHT TO RECALL
Current event:
Haryana introduced the right to recall in Panchayati raj institutions.
About right to recall:

• It is a tool of direct democracy whereby the electorate has the power to remove the elected officials before
the expiry of their terms.
• Procedure: Particular percentage of voters (Usually 50%) have to give in writing that they have to initiate
proceedings. This is followed by a secret ballot. If it receives a specified limit (Usually 2/3 rd votes) then the
person stands removed from his position.

Advantages:

• Strengthen democracy: Free and fair elections are the right of the citizen. If a representative loses the
support of people for any reason then he should be removed.
• Increases accountability: This too will ensure greater accountability of representatives which is a true
edifice of democracy.

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• Check on the criminalization of politics: The right to recall will act as a significant check on corruption and
discourage criminal candidates from contesting an election.
• Reduces election expenditure: Morally skewed candidates will limit campaign spendingwith a fear of being
recalled.
• Better delivery of services: Non-performance being primary criteria to use the right to recall, Election
promises would be fulfilled by the representative.

CHALLENGES:

• Vague criteria: Criteria like the dissatisfaction of the electorate with the performance of the candidate, is vague
and provides immense scope for political misuse against a genuine candidate.
• Unstable government: It might lead toa state of constant political turmoil and politicians would be focussing
on saving seats instead of working for people.
• Frequent elections: This might lead to excessive spending and cause fatigue among voters leading to lower
voter turnout.
• Uneconomic decisions: Constant check will deter him from taking tough and unpopular decisions. Also, lack of
security of tenure will lead to short-term plans than long-term reforms.
• Viability: Verification of authenticity of signatures and checking whether those signatures were given with free
consent or under coercion is a very difficult task.
• Wastage of resources: Additional burden on election commission and undue pressure on resources like
manpower, time, money, etc.

Amendments in Postal Ballot System

• Law Ministry has reduced the age limit for senior citizens from 80 to 65 to opt for the postal ballot in the
Lok Sabha and Assembly elections.
- Section 60 of
the RPA, 1951,
provides for the
above exception

Annulment of Election of MLA

• Current event:Gujarat High
Court has set aside the
election of anMLA on
grounds of “corrupt
practice” and “manipulation
of record”

ELECTION PETITION:
Constitutional provision:
Article 329(b): Election to the Parliament or the state legislature to be questioned by an election petition presented
to such authority and in such manner as provided by the appropriate legislature.
Article 323B: Empowers the Parliament /state legislature to establish a tribunal for the adjudication of election
disputes. So far no such tribunal has been formed hence election disputes are handled by HCs.
Grounds for disqualifications of MP/MLA
Constitution: • Holding any office of profit under the Union or State government
• Unsound mind. Undischarged insolvent

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Article 102 & • Not a citizen of India or has voluntarily acquired the citizenship of a foreign state
191 • Disqualified under any law made by Parliament.
RPA,1951 • Election offenses or corrupt practices in the elections
• Convicted for any offense resulting in imprisonment for two or more years
• Fail to lodge an account of election expenses within the time
• Interest in government contracts, works, or services
• Director or managing agentor hold an office of profit in a corporation in which
the government has at least 25% share
• Dismissed from government service for corruption or disloyalty to the state
• Punished for preaching and practicing social crimes like untouchability, dowry, sati.
• Convicted for promoting enmity between different groups or for bribery.

BLOCKCHAIN TECHNOLOGY IN VOTING

Current event:
ECI is testing the possibility of remote voting using blockchain technology to address geographical barriers and
reach every voter.
Advantages:

• Security of election: End-to-end encryption enables to safeguard of the privacy of vote.

• Voter turnout: Increased intra-country migrations have increased the demand for local voting. This will increase
the voting percentage and adds tothecredibility of the election.
• Security of voters
database: In the era of
increased cyber attack, this
will enable to safeguard
sensitive data of all
citizens.
• Supplement E-voting:
Blockchain will further
strengthen existing E-
voting with fundamental benefits over paper-based systems such as increased efficiency and accuracy.
• Expedite existing postal vote: Presently service voter receives the ballot electronically, however, they need to
return that via post only. Blockchain will enable two-way electronic transmission.
• International example: This is being tested in many countries on a pilot basis including the USA.

Conclusion:
India being the world’s largest democracy can lead the world in the sphere of a new generation voting system. India
shall test this new technology first on a trial basis in some constituencies as it had done in the case of EVM. We
can’t refuse new promising technology just because it has some concerns. Rather testing it and addressing concerns
before full-scale adoption is the right way forward.

AUTOCRATISATION GOES VIRAL REPORT: V-DEM INSTITUTE

India’s position has been downgraded from ‘electoral democracy to an “electoral autocracy” in the 2021 report of
Sweden-based Varieties of Democracy (V-Dem) Institute titled Autocratisation Goes Viral.
Possible reasons for the Downgrade:
• Silencing critics Using laws like sedition (Section 124A), defamation (Section 499), and counter-terrorism.

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• Amended Foreign
Contributions Regulation Act
(FCRA) 2010 to put restrictions
on the functioning of NGOs and
civil society organizations.
• Frequent use of laws
like Unlawful Activities
(Prevention) Act (UAPA),1967.
Role of Social media in Election:
Current event: The increased presence
of Indian voters on social media has
increased its role in deciding the
outcome of the election.

Way forward:
• Self-regulation: Social media platforms and IAMAI have adopted a Voluntary Code of Ethics for the
General Election 2019
o IEC campaigns to build awareness on electoral laws
o Train nodal officers of ECI on their products/ services
o Dedicated persons to report any violation of rules.
o Timely action on complaints: Valid legal orders will be acknowledged within 3 hours.
• Umesh Sinha Committee recommendations: 48 hours before the end of polling as a silent period and
prohibit advertising on digital and e-media.
• Mandatory disclosure of all social media handles by the candidate while filling his/her nomination.
• Accountability of Social media handles. E.g. Summoning of Facebook CEO by USA senate.

Comparison of Indian and USA election commission

Judiciary of India America

POWER Very high powers under article 324. Limited power with USA election
commission

COMPOSITION 3 Election commission and they are independent 3 members from the democratic and 3
of government from the republic. Biased working.

ROLE OF Complete control during election and judiciary All disputes including the counting of
COURTS only after results are declared votes are decided by the judiciary

TRACK No allegation till the day on ECI and there is also Often criticized for biased working and
RECORDS no incident of rejection of mandate. recently outgoing president refused to
accept election results.

WORKS Constitutional mandate and laws made by Each state has its election laws and
UNDER parliament like RPA,1951. ECI is responsible for conducts its election.
both parliament and state legislature elections.

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DELIMITATION COMMISSION:
Current event:
Recently ECI has started the delimitation process in J&K.
• Delimitation of Lok Sabha seats was governed by the Indian Constitution in J&K, but the delimitation of
Assembly seats was governed by the Jammu and Kashmir Constitution.
• Abrogation of Article 370 removed this special provision and a special delimitation commission was
constituted to demarcate Assembly and Parliament seats in the UT.
About:
Delimitation is the act of fixing or redrawing the limits or boundaries of territorial constituencies for assembly or
Lok Sabha seat.

Constitutional provisions:
• Article 81: every state and UT would be allotted seats in the Lok Sabha in such a manner that the ratio of
population to seats should be as equal as possible across states.
• Article 82: Delimitation of parliamentary constituencies after every census by Delimitation Commission
established by the GoI under Delimitation Commission Act.
• Article 170: States get divided into territorial constituencies as per Delimitation Act after every Census.
• 84th Constitutional amendment act: Freezing of delimitation till 2026.
o Reasons: Family planning and population stabilization objective.
o Implications: Violation of Article 81 due to unequal representation across constituencies.

Delimitation commission:
• Appointed by the President of India and works in collaboration with the ECI.
• Composition:
Retired SC judge +
Chief election
commissioner +
Respective state
election
commissioners.
• High powered body
with its order
having the force of
law and its orders
can’t be called into
question before
any court.
• Orders are laid before the Lok Sabha and State legislative assemblies but modification is not allowed.

Arguments against Delimitation:

• Derailing of the population control program to get maximum representation in Lok Sabha.
• Violation of constitutional limits on strength of house i.e. 550 for Lok Sabha and 250 for Rajya Sabha.
• Functioning of the house: Speaker and Chairman will find it extremely difficult to regulate houses with
increased strength. Also ensuring sufficient time for all MPs, taking questions during question hours will
become very difficult.

Conclusion:
Considering the fact India has the lowest MPs considered to its population and one MP representing approx 22 lac
voters, it is high time that recommendation of the chairman of 2002 delimitation commission to carry out the
delimitation every 5 years must be followed. It will ensure gradual changes which can e easily adopted by Indian
democracy instead of sudden shocks in 2026.

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SPECIAL OFFICER FOR LINGUISTIC MINORITY

The 7thConstitutional Amendment Act of 1956 inserted a new Article 350-Bin Part-XVII of the Constitution.
Functions

• Investigate all matters related to safeguards provided to the linguistic minorities

• Handle the representations for grievances redressal related to the safeguards for them
• Report to the President: On the status of implementation of the Constitutional and the nationally agreed
safeguards for the linguistic minorities.
• Ensure effective implementation of the safeguards provided for the linguistic minorities in the Constitution
and other safeguards, which are agreed to by the states.
• Questionnaires, visits, conferences, seminars, meetings, review mechanisms, etc to monitor
implementation.
• Provide equal opportunities to the linguistic minorities for inclusive development and national integration
• Spread awareness amongst the linguistic minorities about the safeguards available to them.

ATTORNEY GENERAL OF INDIA

Current event:
Recently SC had invited AG to suggest ways to gender-sensitize judges. He pointed out that SC never had a woman
as chief justice.
Constitutional provisions:
Article Provision Article Provision
76 Attorney-General of India (AG) 165 Advocate-General of the State
88 Rights of AG as respects the Houses of 177 Rights of Advocate-General as respects the
Parliament and its Committee Houses of State Legislature and its
Committee
105 Powers, privileges,& immunities of AG 194 Powers, privileges & immunities of
Advocate- General

• Appointment: By president
• Qualification: Qualified to be appointed a judge of the Supreme Court
• Constitution doesn’t fix
• Term of office -> Pleasure of president
• Procedure and ground for his removal
• Remuneration of office-> fixed by president.

Duties and function:

As the chief law officer of the Government of India, AG has the following duties

• Advise the Government upon such legal matters, which are referred to him by the president.
• Perform such other duties of a legal character that are assigned to him by the president.
• Discharge the functions conferred on him by the Constitution or any other law.

The president has assigned the following duties to the AG:

• Appear on behalf of the Government in all cases in the SC in which the Government is concerned.
• Represent the Government in any reference made by the president to the SC under Article 143.
• Appear in any high court in any case in which the Government of India is concerned.

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Limitations put on AG:

• Not to advise or hold a brief against the Government of India.

• Not to advise or hold a brief in cases in which he is called upon to advise or appear for GoI.
• Not to defend accused persons in criminal prosecutions without the permission of the GoI.
• Not to accept an appointment as a director in any company without the permission of GoI.
• Not to advise any ministry/ department of GoI/ any statutory organization/ PSU unless the proposal or a
reference for this is received through the Department of Legal Affairs.

Conclusion for constitutional bodies

Constitutional status to these bodies implies that they have a greater role and responsibility in the democratic
status of the country. These bodies plays important role in ensuring effective realizations of Fundamental rights
and DPSPs in letter and spirits. Also, constitutional protections to these bodies ensure that they aren’t at the mercy
of the government. All steps shall be taken to strengthen them so that Indian democracy shall thrive further.

NHRC AND SHRC

Current event:
• Justice A.K. Mishra is appointed as Chairman of NHRC.
• NHRC had commissioned six studies on human rights issues, including food security for the SC and ST, the
extent of cyber exploitation of children, and falling participation of women in the workforce.
• Parliament passed the Protection of Human Rights (Amendment) Act, 2019 to make NHRC more inclusive
and efficient in its functioning.
About:
• NHRC is a statutory body established in 1993 under the legislation, the Protection of Human Rights Act, 1993.
It is the watchdog of human rights in the country. It was established in conformity with the Paris Principles
(1991) adopted for the promotion and protection of human rights.
• Human rights: As per UN definition these rights are inherent to all human beings, regardless of race, sex,
nationality, ethnicity, language, religion, or any other status. It includes the right to life and liberty, freedom
from slavery and torture, freedom of opinion and expression, the right to work and education, etc.
Role of NHRC:
The functions of the Commission are:
• Inquire into any violation/negligence of human • Promote research in the field of human rights and
rights by a public servant, either suo-motu or on a • Spread human rights literacy among the people
petition presented to it or on an order of a court.
• Intervene in any proceeding involving an • Visit jails and detention places to study the living
allegation of violation of human rights pending conditions of inmates.
before a court
• Review the constitutional and other legal • Review the factors inhibiting the enjoyment of
safeguards for the protection of human rights and human rights including an act of terrorism and
recommend measures for their effective recommend remedial measures.
implementation.
• Study treaties and other international instruments • Encourage the efforts of NGOs working in the field
on human rights and make recommendations for of human rights.
their effective implementation

Challenges faced by NHRC:

• Absence of investigation mechanism: It is dependent on Central and concerned State Governments for
investigation of the human right violation cases.

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• Non-binding orders: NHRC has no power to enforce its decisions. The government often outrightly rejects
the recommendation of NHRC.
• Executive dependence: Vague appointment criteria have resulted in membership of NHRC as post-
retirement benefits for judges and bureaucrats.
• Lack of funds: This has compromised the independence and quality of investigation of NHRC
• Lack of Infrastructure: Despite a 1450% increase in cases between 1995-2005, its strength has been
reduced by 16%. This limits cases handled by NHRC.
• Pendency and delays: NHRC is overburdened with cases that have resulted in more than 10000 cases
pending with it.
• Staff-related issue: Maximum of its staff is on deputation. Many times investigating officers belong to the
accused service and result in a conflict of interest.
• Lack of transparency: This had caused NHRC Grade A accreditation from the Global Alliance of National
Human Rights Institutions (GANHRI)
• Limitations to handle cases:
• NHRC can’t investigate complaints registered after one year of the incident.
• The exclusion of Armed forces and paramilitary forces from its ambit.
• NHRC takes cases solely on media reports and not through its on-field work.
Way forwards:
• Enforcement Powers: Decisions of NHRC should be made enforceable.
• Commission's composition: Greater representation to civil society, human rights activists, etc. Instead of
ex-bureaucrats. This will ensure the independent functioning of the body.
• Ahmadi commission recommendations: Remove one-year ceiling to take cases by NHRC. Also, the term
of the Armed force shall not include paramilitary forces.
• Independent staff and dedicated investigating team to ensure timely disposal of cases.
• Need to establish coordination mechanism between NHRC and SHRC.
• Diversify the role of NHRC towards new emerging concerns like rights of LGBT, industries and human rights,
environmental impact on human rights, etc.

PROTECTION OF HUMAN RIGHTS (AMENDMENTS) ACT, 2019

• Composition:
• Judge of SC can also be appointed as chairman.
• Increased number of people with human rights knowledge to three with at least one woman.
• Chairpersons of the NCBC, the National Commission for the Protection of Child Rights, and the
Chief Commissioner for Persons with Disabilities have been included as ex-officio members.
• Term of office: Reduced office term to 3 years from 5 years.
• Union territories: Central government can confer function related to human rights cases of UT on nearby
SHRC.
Significance:
• Effective compliance with the Paris Principles i.e. autonomy, independence, pluralism to effectively
protect and promote human rights.
• Facilitated increased representations to civil society.
• Increased accessibility to human rights court to citizens of Union territories.
• A reduced age limit will ensure timely filling of vacancies.

Critics of NHRC:
• Soli Sorabjee: India’s teasing illusion due to its incapacity to render any practical relief to the aggrieved
party.
• Supreme court: Toothless tiger

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The positive role played by NHRC:

• It has issued the following guidelines: Prison reforms, reporting of custodial death within 48 hours, the
recommendation to public authorities to deal with manual scavenging.
• Criticized laws like POTA, TADA with the possible scope of misuse for violating human rights.
• Going beyond physical human right violation to protect the socio-economic rights of people like poverty
and starvation in Odisha’s Kalahandi.
Conclusion:
NHRC has played a significant role in many cases since its inception. Disposal of more than 15 lacs cases and more
than 100 Cr as victim compensation reflect its success. Considering rising cases against vulnerable sections it is high
time to strengthen commission in all spheres to ensure fundamental rights enshrined in the Indian constitution are
enjoyed by everyone.

CENTRAL INFORMATION COMMISSION AND STATE INFORMATION COMMISSION

Current event:
Recently parliament passed an amendment to the RTI Act,2005 which has changed service conditions of
information commissioners and provisions relating to CIC and SICs.
About CIC:
The CIC is a high-powered independent and statutory body to look into the complaints made to it about offices,
financial institutions, PSUs, etc. under the Central Government and the Union Territories.
Composition: Chief Information Commissioner + maximun ten Information Commissioners.
Appointment: By the President on the recommendation of a committee of the PM + LoP in the Lok Sabha + Union
Cabinet Minister nominated by the PM.
Qualification: Persons of eminence in public life with wide knowledge and experience in law, science, and
technology, social service, management, journalism, mass media, or administration and governance.
• Should not be MP/MLA and should not hold any office of profit.
Provisions to ensure independence: Appointment by the president, removal by the president on the fixed ground,
and no reappointment allowed.
The function of CIC:
• Inquiry into complaints and disciplinary action against information officers:
o Unable to submit information request due to non-appointment of a Public Information Officer
o Refused requested information
o Not received a response to information request within the specified time limits.
o fees charged are unreasonable
o Feels that information given is incomplete, misleading, or false.
• Power:
o Suo-moto power: It can order an inquiry into any matter if there are reasonable grounds
o Powers of a civil court while inquiring.
o Examine any record: All public records must be given to the CIC during inquiry for examination.
o Secure compliance to its decisions from the public authority
• Strengthen RTI: The RTI act will remain just a text without its enforcement by CIC and SICs.
• Promote good governance: CIC promotes citizen participation in governance and promotes transparency
and accountability in governance.
Challenges faced by CICs/SICs:
• Changes brought by recent amendments resulting in reduced independence:
• Removal of the fixed term: Instead of the earlier 5 years now terms of CIC, IC and SICs will be decided
by the central government.
• Determination of Salary by central government instead of the earlier status of equality with chief
election commissioner (in case of CIC) and Election commissioner (In case of ICs).

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• Delayed appointments: As per the RTI, since 2014 CIC was functioning without a Chief Information
Commissioner for more than 400 days and has not functioned at full strength for more than 4 years.
• Buerocratization: Despite RTI providing for the appointment of experts from various fields, CIC and IC are
occupied by retired bureaucrats.
• Pendency: As per the report by Satark Nagrik Sangathan more than 2.2 lakh RTI cases are pending at the
Central and State Information Commissions (ICs).
• Delayed case disposal: As per the report by Satark Nagrik Sangathan CIC takes an average of 388 days to
dispose case from the date that it was filed before the commission.
• Poor judgments: Government officials in only 2.2% of cases face any punishment for violating the law
despite, various analyses showing a rate of about 59% violations.
• Other issues highlighted by Satark Nagrik Sangathan report:
o Missing during Covid-19 pandemic: 21 Out of the total 29 studied ICs, were not holding any
hearings
o Absence of a centralized database of RTI applicants at the central or state level-> Inaccurate annual
RTI reports and analysis.
Way Forward
• Case related to life and liberty shall be disposed on priority.
• Timely appointment of CIC and SICs and ensuring diversity in commission composition.
• There shall be adequate funds to ensure modern infrastructure for efficient functioning.
• Adoption of modern technology like AI, Big data and digitization of functioning.
• Proactive disclosure by public authorities under section 4 of RTI act.
• Timely and effective case redressal to uphold spirit of RTI.
Conclusion:
RTI has been termed as historic legislation in India’s democratic history. To give teeth to RTI we need strong CIC
and SICs. Hence all reforms must be taken to ensure transparency and openness in the functioning of government.
(Recent amendment to RTI are covered under RTI section separately)

CENTRAL VIGILLANCE COMMISSION

Current event:
CVC has modified the guidelines about the transfer and posting of officials in the vigilance units. It has limited
posting vigilance unit at one place to three years and a mandatory three years cooling-off period before a person
can be posted again for posting in the vigilance unit.
About:
CVC was established in 1964 by an executive resolution on the recommendation of the Santhanam Committee. in
2003, the Parliament conferred a statutory status on the CVC. It is the main agency for preventing corruption in
the Central government.
Composition: Central Vigilance Commissioner + Maximum two vigilance commissioners
Independence of CVC:
• Appointment: By the President on the recommendation of a three-member committee (PM+ Home
minister + the Leader of the Opposition in the Lok Sabha.
• Removal: By president only on the ground mentioned in the statute.
• Fixed Tenure: 4 years/ 65 years whichever is earlier and ineligible for further employment under the
Central or a state government.
• Fixed salary, allowances, and service conditions: It is similar to the Chairman of UPSC (in case of chief
vigilance commissioner) and similar to a member of UPSC(in case of vigilance commissioner).
• Independent staff: CVC has its Secretariat, Chief Technical Examiners’ Wing, and a wing of Commissioners
for Departmental Inquiries.
Functions of CVC:
FUNCTIONS
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The functions of the CVC are:

• Inquiry or investigation against an alleged employee of the Central Government for an offense under the
Prevention of Corruption Act, 1988 (PoCA).
• Superintendence over the functioning of CBI and giving directions to CBI related to the investigation of
offenses under the PoCA.
• Superintendence over the vigilance administration in the ministries of the Central Government.
• Appointment: CVC act as chairperson of committee consulted for appointment of Director of Enforcement
and Directorate of prosecution in CBI.
• Notified as a specific authority to receive information on suspicious transactions under the Prevention of
Money Laundering Act,2002.
• A preliminary inquiry into complaints referred by Lokpal in respect of officials of Groups A, B, C & D.
• The competent authority under the Whistleblower protection act, 2014 for a person to make a public
interest disclosure on corruption.
• Sensitization of citizens: Steps like vigilance week, integrity pledge help to generate awareness about the
ill effects of corruption.
Challenges faced:
• Executive dependence: Appointment of CEC is indirectly under executive only, hampering its independent
functioning.
• Advisory and non-binding recommendation to ministries and government organization.
• Duplication of efforts due to overlapping jurisdiction of CBI, CVC, and Lokpal.
• A high level of coordination is required as CVC is dependent on CBI for investigation.
• Limitation on CVC: Need of prior consent of ministries for above joint secretary level officials, exemption
of private individuals limits its role in addressing corruption challenge holistically.
• Lack of funds and human resources result in huge pendency of cases.
Way Forward
• Ensure independence of commission.
• Timely appointement of CVC and VCS and ensure diversity in commission composition.
• There shall be adeqauate funds to ensure modern infrastructure for effiecent functioning.
• Adoption of modern technology like AI, Big Data and didgitization of functioning.
• Avoid Overlapping jurisdictions of various agenciences like Lokpal, CBI by ensuring role clarity.

Conclusion:
Corruption is the biggest threat to the inclusive development of the nation. Hence all the steps must be taken to
give teeth to bodies like CVC, CBI, and Lokpal to ensure PoCA is implemented in letter and spirit.

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UNION EXECUTIVE & STATE EXECUTIVE

Union Executive
• Articles 52 to 78 in Part V of the Constitution deal with the Union executive. The Union executive consists of
the President, the Vice-President, the Prime Minister, the council of ministers and the attorney general of India.
• The President is nominal executive head whereas the PM is real executive head.
• Executive power of the Union is vested in the President, and is exercised by him either directly or through
officers subordinate to him in accordance with the Constitution (Article 53).
• The president has to act in accordance with aid and advise of the council of ministers headed by the prime
minister (Article 74).

State Executive
• Articles 153 to 167 in Part VI of the Constitution deal with the state executive. The state executive consists of
the governor, the chief minister, the council of ministers and the advocate general of the state.
• The governor is the chief executive head of the state. But, like the president, he is a nominal executive head
(titular or constitutional head).
• The executive power of the state is vested in the governor and its exercised by him either directly or through
officers subordinate to him in accordance with this Constitution (Article 154).
• The Governor has to act in accordance with aid and advise of the council of ministers headed by the CM, except
his discretionary functions (Article 163).

PRESIDENT
President
• The President is the head of the Indian State. He is the first citizen of India and acts as the symbol of unity,
integrity and solidarity of the nation.

Constitutional Provisions

Art Subject matter Art Subject matter

52 The President of India 71 Matters relating to the election of President
53 Executive power of the Union 72 Pardoning power of President
54 Election of President 74 Council of ministers to aid and advise the President
55 Manner of election of President 75 Other provisions as to ministers like appointment,
term, salaries, etc.
56 Term of office of President 76 Attorney-General of India
57 Eligibility for re-election 77 Conduct of business of the Government of India
58 Qualifications for election as President 78 Duties of Prime Minister in respect to furnishing of
information to the President, etc.
59 Conditions of President’s office 85 Sessions of Parliament, prorogation and dissolution
60 Oath or affirmation by the President 111 Assent to bills passed by the Parliament
61 Procedure for impeachment of the 112 Union Budget (annual financial statement)
President
62 Time of holding election to fill vacancy in the 123 Power of President to promulgate ordinances
office of President
65 Vice-President to act as President or to 143 Power of President to consult Supreme Court
discharge his functions

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VICE- PRESIDENT

• The Vice-President occupies the second highest office in the country. This office is modelled on the lines of the
American Vice-President.
Constitutional Provisions:
Art. Subject Matter Art. Subject Matter
63 The Vice-President of India 68 Time of holding election to fill vacancy in the office of
Vice President and the term of office of person elected
to fill casual vacancy
64 The Vice-President to be ex-officio 69 Oath or affirmation by the Vice-President
Chairman of the Council of States
65 The Vice-President to act as President or 70 Discharge of President’s functions in other
to discharge his functions during casual contingencies
vacancies in the office, or during the
absence, of President
66 Election of Vice-President 71 Matters relating to, or connected with, the election of
Vice-President
67 Term of office of Vice-President

Note: Powers and functions of President are comparatively discussed with governor in subsequent pages.
Powers & Functions of vice-president

• He acts as the ex-officio Chairman of Rajya Sabha. In this capacity, his powers and functions are similar to those
of the Speaker of Lok Sabha.
• He acts as President when a vacancy occurs in the office of the Emoluments for Vice-President
President due to his resignation, removal, death or otherwise. He • The Constitution has not fixed
can act as President only for a maximum period of six months within any emoluments for the Vice-
which a new President has to be elected. President in that capacity.
• When the sitting President is unable to discharge his functions due • He draws his regular salary in his
to absence, illness or any other cause, the Vice-President discharges capacity as the ex-officio
his functions until the President resumes his office Chairman of the Rajya Sabha.
• While acting as President, the Vice-President does not perform the
duties of the office of the chairman of Rajya Sabha. During this period, those duties are performed by the
Deputy Chairman of Rajya Sabha.
Elections of president & vice-president
• The President and Vice-President both are elected by the method of indirect election (not directly by the
people) in accordance with the system of proportional representation, by means of single transferable vote.
• All doubts and disputes in connection with election of the President/Vice President are inquired into and
decided by the Supreme Court whose decision is final.

Comparison of election of president & vice president

Election of President Election of Vice-President

• Electoral college Consist Only elected members • Electoral college Consist both elected and
from Lok Sabha + Rajya Sabha + Legislative nominated members from Lok Sabha + Rajya Sabha
assemblies of State + Legislative assemblies of UTs only.
(Delhi and Puducherry only)
• Elected members of the state legislative • Does not include the members of the state
assemblies are included legislative assemblies.

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Why Constitution preferred indirect election?

• Costly and Time consuming - The direct election would have been very costly and time and energy-consuming
due to the vast size of the electorate and this is unwarranted since he is only a symbolic head.
• The President is only a nominal executive - The real powers are vested in the council of ministers headed by
the PM. Thus, it would have been anomalous to have the President elected directly by the people and not give
him any real power.
• President is above party politics - Direct election could have result in orientation of two rival power.
• He is not directly responsible to the people - The framers of the Constitution, wanted the power of the
government to reside in the CoM and the Legislature whom are representative of people.
• Ceremonial Head - According to Dr. B.R. Ambedkar the President’s place in the administration should be seen
as the “ceremonial device on a seal by which the nation’s decisions are made known”.

Why there is difference between election of president & Vice-President?

• The President is the head of the State and his power extends both to the administration by the Centre as well
as to the states. Thus, both members of Parliament and members of the state legislatures are included in the
electoral college of the President.
• Whereas, the normal functions of Vice-President are to preside over the council of states. It is only on a rare
occasion, and that too for a temporary period, that he may be called upon to assume the duties of the president.

Term, qualification & removal of president & governor

President Vice – President

Qualification • He should be citizen of India, completed • He should be citizen of India, completed 35
35 age, qualified for election as a age, qualified for election as a member of the
member of the Lok Sabha Rajya Sabha.
Conditions • should not be a member of either House • should not be a member of either House of
of office of Parliament or a House of the state Parliament or a House of the state legislature
legislature • Should not hold any office of profit under the
• Should not hold any office of profit government.
under the government.
Term • 5 years • 5 years
Resignation • To Vice President • To President
Removal • By a process of impeachment for • He can be removed by a resolution of the
‘violation of the Constitution. Rajya Sabha passed by an absolute majority
and agreed to by the Lok Sabha
Re-election • Eligible for re-election • Eligible for re-election

Impeachment Process of President

• Reason for Impeachment - President can be removed from office by a process of impeachment for ‘violation
of the Constitution.
• Impeachment Resolution - The impeachment charges can be initiated by either House of Parliament. These
charges should be signed by one-fourth members of the House (that framed the charges), and a 14 days’ notice
should be given to the President.
• 2/3rd majority in first House (where the process has been initiated) -After the impeachment resolution is passed
by a majority of two-thirds of the total membership of that House, it is sent to the other House, which should
investigate the charges.
• 2/3rd majority in second House - If the other House also sustains the charges and passes the impeachment
resolution by a majority of two-thirds of the total membership, then the President stands removed from his
office from the date on which the resolution is so passed.

Issues with the Impeachment process

• Term ‘violation of constitution’ is very vague term & has not been defined anywhere in the constitution’.

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• Elected members of legislative assemblies have no role to play in impeachment proceeding while they have
a role in election of the President.
• Nominated members of Parliament have right to vote in case of impeachment, while no voting right in
election of President.
• Procedure & authority to investigate the charges against President have not been specified nor any definite
time period has been specified.

GOVERNOR

Appointment (Article 155)

• He is appointed by the president by warrant under his hand and seal. In a way, he is a nominee of the Central
government.
• Supreme Court in 1979, held that the office of Governor of a state is not an employment under the Central
government. It is an independent constitutional office and is not under the control of or subordinate to the
Central government.

Sarkaria commissions recommendations regarding Appointment of Governor.

• The Governor should be eminent in some walk of life and from outside the state.
• He should not have taken part in politics in the recent past. Besides, he should not be a member of the
ruling party.

Constitutional Provisions
Art Subject matter Art Subject matter
153 Governors of states 165 Advocate-General for the state
154 Executive power of the state 166 Conduct of business of the government of a state
155 Appointment of Governor 167 Duties of the Chief Minister regarding furnishing of
information to the Governor, and so on
156 Term of office of Governor 174 Sessions of the state legislature, prorogation and
dissolution
157 Qualifications for appointment as 175 Right of the Governor to address and send messages to
Governor the house or houses of state legislature 176. Special
address by the Governor
158 Conditions of Governor’s office 176 Special address by the Governor
159 Oath or affirmation by the Governor 200 Assent to bills (i.e., assent of the Governor to the bills
passed by the state legislature)
160 Discharge of the functions of the 201 Bills reserved by the Governor for consideration of the
Governor in certain contingencies President
161 Power of the Governor to grant pardons 213 Power of Governor to promulgate ordinances
and others
162 Extent of executive power of state 217 Governor being consulted by the President in the matter
of the appointments of the judges of the High Courts
163 Council of ministers to aid and advise the 233 Appointment of district judges by the Governor
Governor
164 Other provisions as to ministers like 234 Appointments of persons (other than district judges) to
appointments, term, salaries, and others the judicial service of the state by the Governor

Term of Governor (Article 156)

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• A governor holds office for a term of five years; However, this term of five years is subject to the pleasure of
the President.
• He can resign at any time by addressing a resignation letter to the President.
• The SC held that the pleasure of the President is not justifiable. The governor has no security of tenure and
no fixed term of office. He may be removed by the President at any time.
• The Constitution does not lay down any grounds upon which a governor may be removed by the President.

Qualification (Article 157)

• Provided in Constitution
o He should be a citizen of India and He should have completed the age of 35 years.
• Two Conventions developed regarding appointment of governor
o He should be an outsider, that is, he should not belong to the state where he is appointed, so that he is
free from the local politics.
o While appointing the governor, the president is required to consult the CM of the state concerned, so that
the smooth functioning of the constitutional machinery in the state is ensured.
• Other conditions (similar to President)
o He should not be a member of the either house of the Parliament or house of the state legislature.
o He should not hold any office of profit under the government.

Arguments against elected Governor Arguments in favour of elected Governor

(against nominated)
• The direct election of the Governor is incompatible with • Being an outsider, he may not be aware
the parliamentary system established in the states. about the culture, language and
• The mode of direct election is more likely to create development urges of state.
conflicts between the Governor and the chief minister. • There is equal likelihood of friction in case of
• The Governor being only a constitutional (nominal) head, nominated governors.
there is no point in making elaborate arrangements for • Nominated governors violates the true spirit
his election and spending huge amount of money. of federalism.
• An elected Governor would naturally belong to a party • Mass removals can be avoided.
and would not be a neutral person and an impartial head. • Appointed governors may try to destabilize
• The system of Presidential nomination enables the state governments under instructions from
Centre to maintain its control over the states. centre.
• The CM would like his nominee to contest for • Raj Bhavan tend to become rehabilitate
governorship. Hence, a second-rate man of the ruling centre & often used for political
party is elected as Governor. Accommodation.

POWERS OF PRESIDENT & GOVERNOR

Executive Powers
President Governor
• All executive actions of the Government of India • All executive actions of the government of a state are
are formally taken in his name. formally taken in his name
• He appoints the prime minister and the other • He appoints the chief minister and other ministers.
ministers. They hold office during his pleasure. They also hold office during his pleasure. He also
appoints Tribal Welfare minister in the states of
Chhattisgarh, Jharkhand, Madhya Pradesh and
Odisha.
• He appoints the attorney general of India and • He appoints the advocate general of a state and
determines his remuneration. The attorney determines his remuneration. The advocate general
holds office during the pleasure of the governor
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general holds office during the pleasure of the

President.
• He appoints the CAG, the chief election • He appoints the state election commissioner and
commissioner and other election determines his conditions of service and tenure of
commissioners, the chairman and members of office, He appoints chairman and members of the
the UPSC, the governors of states, the chairman state public service commission
and members of finance commission etc.
• He can appoint a commission to investigate into • He can recommend the imposition of constitutional
the conditions of SCs, STs and other backward emergency in a state to the president.
classes.
• He can appoint an inter-state council to • He acts as the chancellor of universities in the state.
promote Centre–state and interstate He also appoints the vice-chancellors of universities
cooperation. He directly administers the union in the state.
territories through administrators appointed by
him
• He can declare any area as scheduled area and • The Governor of the state has special responsivities
has powers with respect to the administration with respect to tribal population in the scheduled
of scheduled areas and tribal areas. area under the fifth schedule.

Recent Context
President reappointed AG
• The 15th and current Attorney General K. K. Venugopal was reappointed by President Ram Nath Kovind in 2020.
• The Attorney General for India is the Indian government's chief legal advisor, and is highest law officer in the
country
• AG is appointed by the President of India on the advice of the Union Cabinet under Article 76(1) of
the Constitution and hold office during the pleasure of the President.
President Rule in Puducherry
• President rule was imposed in the UT of Puducherry (Feb 2021) by the president based on the report from the
administrator of the UT.
• Later, elections were held and President appointed CM and other ministers.

Legislative Powers

President Governor
• He can summon or prorogue the Parliament • He can summon or prorogue the state legislature and
and dissolve the Lok Sabha. He can also dissolve the state legislative assembly.
summon a joint sitting of both the Houses of
Parliament.
• He can address the Parliament at the • He can address the state legislature at the
commencement of the first session after each commencement of the first session after each
general election and the first session of each general election and the first session of each year.
year.
• He nominates 12 members of the Rajya Sabha • He nominates one-sixth of the members of the state
from amongst persons having special legislative council from amongst persons having
knowledge or practical experience in literature, special knowledge or practical experience in
science, art and social service. literature, science, art, cooperative movement and
social service.
• He can nominate two members to the Lok
Sabha from the Anglo-Indian Community. • He can nominate one member to the state legislature
assembly from the Anglo-Indian Community

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Please see note given below the table Please see note given below the table

• He decides on questions as to disqualifications • He decides on the question of disqualification of

of members of the Parliament, in consultation members of the state legislature in consultation with
with the Election Commission. the Election Commission.
• His prior recommendation or permission is • He can send messages to the house or houses of the
needed to introduce certain types of bills in the state legislature, with respect to a bill pending in the
Parliament. legislature or otherwise. (Similar power of President
wrt parliamentary bill)
• He can make regulations for the peace, progress • He can promulgate ordinances when the state
and good government of the Andaman and legislature is not in session. (President also
Nicobar Islands, Lakshadweep, Dadra and Nagar promulgates ordinance when parliament is not in
Haveli and Daman and Diu. session).
• Veto powers with regards to state and central • Veto Power with regard to state legislations.
legislations.
• He lays the reports of the Comptroller and • He lays the reports of the State Finance Commission,
Auditor General, Union Public Service the State Public Service Commission and the
Commission, Finance Commission, and others, Comptroller and Auditor-General relating to the
before the Parliament accounts of the state, before the state legislature.

Note :- In January 2020, the Anglo-Indian reserved seats in the Parliament and State Legislatures of India were
discontinued by the 126th Constitutional Amendment Bill of 2019, when enacted as the 104th Constitutional
Amendment Act, 2019.

Recent Context
The powers to summon the House
Why in news?
• Rajasthan Governor Kalraj Mishra had returned the proposal of the state Cabinet – seeking to convene a session
of the Assembly.
• Kerala Governor Arif Mohammad Khan and Chief Minister Pinarayi Vijayan, the Governor had turned down a
request to summon a special sitting of the Assembly to debate the new three central farm laws.

Who has the powers to summon the House?

• Article 174 of the Constitution says The Governor shall from time to time summon the House or each House of
the Legislature of the State to meet at such time and place as he thinks fit.
• According to Article 163, the Governor is required to act on the “aid and advice” of the Cabinet. So, when the
Governor summons the House under Article 174, this is not of his or her own will but on the aid and advice of
the Cabinet.
• Article 163(1) essentially limits any discretionary power of the Governor only to cases where the Constitution
expressly specifies that the Governor must act on his own and apply an independent mind.
Supreme Court 2016 judgements
• In 2016, in Nabam Rebia and Bamang Felix vs Deputy Speaker, case, SC expressly said that the power to
summon the House is not solely vested in the Governor.
• The Governor can summon, prorogue and dissolve the House, only on the aid and advice of the Council of
Ministers with the Chief Minister as the head. And not at his own.”

Way forward
• Since the Governor’s powers are limited with regard to summoning the House, there can be no legal ground to
deny a request for summoning the session. Thus, the Governor’s refusal can also be challenged in court.

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Maharashtra Govt and Governor loggerhead over LC nominations

• Recently, the Bombay High Court has sought an explanation on why the Governor has still not decided on the
nomination of members to Maharashtra's Legislative Council.
• The 12 names were submitted to the governor on November 6, 2020, after the state cabinet’s approval.
• Even after six months had elapsed the “Governor despite at least two reminders failed to nominate the 12
persons as members of the Legislative Council,”
• The failure of the Governor to act upon in accordance with the decision of the Council of Ministers is contrary
to the principles of constitutional democracy.
• It also deprives the Legislative Council of the Constitutionally provided benefit of such nominees having special
knowledge or practical experience.

President Ramnath Kovind addressed first Parliament session of 2021

• The Constitution gives the President the power to address either House or a joint sitting of the two Houses of
Parliament.
• Article 87 provides two special occasions on which the President addresses a joint sitting.
o The first is to address the opening session of a new legislature after a general election.
o The second is to address the first sitting of Parliament each year.
• A session of a new or continuing legislature cannot begin without fulfilling this requirement.
• When the Constitution came into force, the President was required to address each session of Parliament. The
First Amendment to the Constitution in 1951 changed this position and made the President’s address once a
year.
• The president address highlights the government’s accomplishments from the previous year and sets the broad
governance agenda for the coming year.
• The government uses the President’s address to make policy and legislative announcements.

Kerala Governor Arif Mohammad Khan addressed the Legislative Assembly of the State
• During his address, he stopped before reading out paragraph 18, which related to the Kerala government’s
opposition to the Citizenship Amendment Bill.
• The Governor said he was of the opinion that the paragraph did not relate to policy or programme.
• He went on to say that since the paragraph relates to the view of the government, to honour the wish of the
Chief Minister he was going to read it despite his disagreement with the CM.

What If the President/Governor disagrees with the text of the speech ?

• The President’s/Governor’s speech contains legislative and policy proposals that the government intends to
initiate.
• The President or a Governor cannot refuse to perform the constitutional duty of delivering an address to the
legislature. But there can be situations when they deviate from the text of the speech prepared by the
government.
• So far, there have been no instances of President doing so. But there has been an occasion when a Governor
skipped a portion of the address to the Assembly.
• In 1969, the Governor of West Bengal, Dharma Vira, skipped two paragraphs of the address prepared by the
United Front government.

Financial Powers
President Governor
• Money bills can be introduced in the Parliament • Money bills can be introduced in the state legislature
only with his prior recommendation. only with his prior recommendation.
• He causes to be laid before the Parliament the • He sees that the Annual Financial Statement (state
annual financial statement (the Union Budget). budget) is laid before the state legislature.

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• No demand for a grant can be made except on • No demand for a grant can be made except on his
his recommendation. recommendation.
• He can make advances out of the contingency • He can make advances out of the Contingency Fund of
fund of India to meet any unforeseen the state to meet any unforeseen expenditure
expenditure.
• He constitutes a finance commission after every • He constitutes a finance commission after every five
five years to recommend the distribution of years to review the financial position of the
revenues between the Centre and the states. panchayats and the municipalities.

Recent Context
Haryana constituted 6th Finance commission
• Haryana Governor Satyadev Narayan Arya constituted Finance commission for division of resources between
the state government and the Panchayati Raj institutions (PRIs) and the urban local bodies for a five-year period
(2021-22 to 2025-26).

Judicial Powers
President Governor
• He appoints the Chief Justice and the judges • He is consulted by the president while appointing the
of Supreme Court and high courts judges of the concerned state high court.
• He can seek advice from the Supreme Court • He makes appointments, postings and promotions of the
on any question of law or fact. However, the district judges in consultation with the state high court.
advice tendered by the Supreme Court is not • He also appoints persons to the judicial service of the
binding on the President (Art. 143). state (other than district judges) in consultation with the
state high court and the State Public Service Commission.
• He can grant pardon, reprieve, respite and • He can pardon, reprieve, respite, remit, suspend or
remission of punishment, or suspend, remit commute the punishment/sentence of any person
or commute the sentence of any person convicted of any offence against a state law.
convicted of any offence

Recent Context
48th CJI of India – Justice N V Ramana
• Justice N V Ramana has been appointed as 48th Chief Justice of India by the President of India.
• The Chief Justice of India and the Judges of the Supreme Court are appointed by the President under clause (2)
of Article 124 of the Constitution.
• The President of India appoint, in consultation with the outgoing Chief Justice, the next Chief Justice, who will
serve until they reach the age of sixty-five or are removed by impeachment.

Other Powers of President

Diplomatic Powers Military Powers Emergency Powers
• The international treaties and • He is the supreme • The Constitution confers
agreements are negotiated and commander of the extraordinary powers on the
concluded on behalf of the defence forces of India. President to deal with the
President. However, they are In that capacity, he following three types of
subject to the approval of the appoints the chiefs of the emergencies:
Parliament. Army, the Navy and the 1. National Emergency (Article 352);
• He represents India in Air Force. 2. President’s Rule (Article 356 &
international forums and affairs • He can declare war or 365); and
and sends and receives diplomats conclude peace, subject 3. Financial Emergency (Article 360).
like ambassadors, high to the approval of the
commissioners, and so on. Parliament.

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Privileges and Immunities enjoyed by President & Governor (Article 361)

• Art. 361 (1) - President, or the Governor of a State, shall not be answerable to any court for the exercise and
performance of the powers and duties of his office except the parliament authorized any tribunal, court or body
for the investigation of charge under Art. 61.
• Art. 361 (2) - No criminal proceeding can be instituted or continued against President or Governor while in
office
• Art. 361 (3) - No proceedings for the arrest or imprisonment of the President or Governor shall be done by any
court while in office.
• Art. 361 (4) - Civil proceedings against a Governor or President against things done by him in his personal
capacity can be done only with a previous 2 months’ notice.

VETO POWERS OF PRESIDENT

• President has the veto power i.e., he can withhold his assent to the bills, over the bills passed by the Parliament
& state legislatures.
• The veto power is coffered on the president/governor to prevent hasty and ill-considered legislation by the
Parliament/state legislature, to prevent a legislation which may be unconstitutional and to ensure additional
layer of check and scrutiny.
• There are four types: Importance of President Assent
1. Absolute veto - Withholding of assent to the bill passed by the • A bill passed by the Parliament can
legislature. ex- in 1954, President Dr Rajendra Prasad become an act only if it receives
withheld his assent to the PEPSU Appropriation Bill. the assent of the President.
2. Suspensive veto –When president returns a bill for • A bill passed by a state legislature
reconsideration of the Parliament and if the bill is passed can become an act only if it
again by the Parliament and again presented to the President,
receives the assent of the
it is obligatory for the President to give his assent to the bill.
3. Qualified veto – It can be overridden by the legislature with a governor or the President (in case
higher majority. the bill is reserved for the
4. Pocket veto - The President neither ratifies nor rejects nor consideration of the President).
returns the bill, but simply keeps the bill pending for an
indefinite period. ex- in 1986, President Zail Singh exercised the pocket veto with respect to the Indian
Post Office (Amendment) Bill.
• The President of India is vested with three—absolute veto, suspensive veto and pocket veto.

Comparison of veto power of President & Governor

PRESIDENT GOVERNOR
• With Regard to Ordinary Bills of parliament he • With Regard to Ordinary Bill, he may give his assent /
may give his assent / withhold his assent / withhold his assent / return the bill for reconsideration
return the bill for reconsideration of the of the Houses/ reserve the bill for the consideration of
Houses. the President.
• When a state bill is reserved by the governor for • When the governor reserves a bill for the consideration
the consideration of the President, he can give of the President, he will not have any further role in the
his assent/ withhold his assent/ return the bill enactment of the bill.
for reconsideration of the Houses. • If the bill is returned by the President for the
• In case of returning for reconsideration, If the reconsideration of the House or Houses and is passed
bill is passed by the state and presented to the again, the bill must be presented again for the
president for his assent, the president is not presidential assent only i.e., assent of the Governor is
bound to give his assent to the bill. no longer required.
• With Regard to Money Bills, he may give his • With Regard to Money Bills, he may give his assent to
assent to the bill / withhold his assent to the bill the bill / withhold his assent/ reserve the bill for the
but cannot return a money bill for the consideration of the president but cannot return a
reconsideration of the Parliament. money bill for the reconsideration of the Parliament.

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• When a Money Bill is reserved by the Governor • When the governor reserves a money bill for the
for the consideration of the President, he may consideration of the President, he will not have any
give his assent/ may give his assent but cannot further role in the enactment of the bill. If the President
return a money bill for the reconsideration of gives his assent to the bill, it becomes an Act.
the state legislature
• With Regard to Constitutional Amendment Bills • Constitutional amendment bills cannot be introduced in
He Can only ratify. He can’t reject or return the the state legislature.
bill.

ORDINANCE MAKING POWER OF PRESIDENT & GOVERNOR

• The ordinance-making power is the most important legislative power of the President.
• Article 123 of the Constitution empowers the President to promulgate ordinances during the recess of
Parliament.
• The ordinance making power of the Governor given under Art. 213 is similar to that of the President given under
Art.123).

Why ordinance power is conferred?

• The power to issue ordinance to president and governor has been conferred to deal with unforeseen or urgent
matters.
• It enables the Executive to deal with a situation that may suddenly and immediately arise when the Parliament
is not in session.

President Governor
• He can promulgate an ordinance only when both • He can promulgate an ordinance only when the
the Houses of Parliament are not in session or legislative assembly (in case of a unicameral
either of the two Houses of Parliament is not in legislature) is not in session or (in case of a bi-
session. cameral legislature) when both the Houses/either of
the two Houses of the state legislature is not in
session.
• He can make an ordinance only when he is • He can make an ordinance only when he is satisfied
satisfied that the circumstances exist that render that the circumstances exist that render it necessary
it necessary for him to take immediate action. for him to take immediate action.
• His ordinance-making power is co-extensive with • His ordinance-making power is co-extensive with the
the legislative power of the Parliament. This legislative power of the state legislature. This means
means that he can issue ordinances only on those that he can issue ordinances only on those subjects
subjects on which the Parliament can make laws. on which the state legislature can make laws.
• An ordinance issued by him has the same force • An ordinance issued by him has the same force and
and effect as an act of the Parliament. effect as an act of the Parliament.
• He can withdraw an ordinance at any time. • He can withdraw an ordinance at any time.
• Power of ordinance-making is not a discretionary • Power of ordinance-making is not a discretionary
power, and he can promulgate or withdraw an power, and he can promulgate or withdraw an
ordinance only on the advice of the council of ordinance only on the advice of the council of
ministers headed by PM.
ministers headed by CM.

• An ordinance issued by him should be laid before • An ordinance issued by him should be laid before the
both the Houses of Parliament when it legislative assembly or both the Houses of the state
reassembles. legislature (in case of a bicameral legislature) when
it reassembles.
• An ordinance issued by him ceases to operate on • An ordinance issued by him ceases to operate on the
the expiry of six weeks from the reassembly of expiry of six weeks from the reassembly of the state
Parliament. legislature.

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• It may cease to operate even earlier than the • It may cease to operate even earlier than the
prescribed six weeks, if both the Houses of prescribed six weeks, if a resolution disapproving it
Parliament passes resolutions disapproving it. is passed by the legislative assembly and is agreed to
by the legislative council (in case of a bicameral
legislature)
• He needs no instruction for making an ordinance. • He cannot make an ordinance without the
instructions from the President in three cases: a) If a
bill containing the same provisions would have
required the previous sanction of the President for
its introduction into the state legislature. b) If he
would have deemed it necessary to reserve a bill
containing the same provisions for the consideration
of the President. c) If an act of the state legislature
containing the same provisions would have been
invalid without receiving the President’s assent.
• An ordinance issued by him is subject to the same • An ordinance issued by him is subject to the same
limitations as an act of Parliament. This means limitations as an act of the state legislature. This
that an ordinance issued by him will be invalid to means that an ordinance issued by him will be invalid
the extent it makes any provision which the to the extent it makes any provision which the state
Parliament cannot make. legislature cannot make.

Characteristics of Ordinance
• Ordinance cannot abridge or take away any of the fundamental rights.
• An ordinance like any other legislation, can be retrospective, that is, it may come into force from a back date.
• These ordinances have the same force and effect as an act of Parliament/state, but are in the nature of
temporary laws.
• The maximum life of an ordinance can be six months and six weeks, in case of non-approval by the
Parliament/state legislature because 6 months is the maximum gap between the two sessions of
Parliament/state legislature.
• Ordinance can alter or amend a tax law also. However, it cannot be issued to amend the Constitution.

Cooper v.Union of India, (1970)

• The SC held that the President’s satisfaction can be questioned in a court on the ground of malafide.
• The President’s decision to issue an ordinance can be questioned in a court on the ground that the
President has prorogued one House or both Houses of Parliament deliberately with a view to promulgate
an ordinance on a controversial subject, so as to bypass the parliamentary decision and thereby
circumventing the authority of the Parliament.

Recent context
Presidential overreach/Governor Overreach
Why in News ?
• The central government has repromulgated the commission for Air Quality Management in NCR Region and
Adjoining areas ordinance, 2020.

Key Facts
• In the 1950s, central ordinances were issued at an average of 7.1 per year. The number peaked in the 90s at
19.6 per year, and declined to 7.9 per year in the 2010s. the last couple of years has seen a spike, 16 in 2019,
15 in 2020.

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• In 2013 & 2014, the securities Laws (amendment) ordinance was promulgated three times, similarly Land
Acquisition ordinance was repromulgated.
• States have also been using the ordinance route to enact laws. For ex – Kerala in 2020 issued 81 ordinances,
Karnataka issued 24 and Maharashtra 21.

Why ordinance route is considered undemocratic?

• SC in 2017 ruled that re-promulgation of ordinances is a fraud on the constitution and a subversion of
democratic legislative process.
• Primary law-making power rests with the D C Wadhwa case (1987)
legislature and not the executive. Ordinance is • In this case, the court pointed out that between
an undemocratic route to law-making, which is 1967– 1981 the Governor of Bihar promulgated 256
the job of the legislature. ordinances.
• The executive is only given the legislative power • The court ruled that successive repromulgation of
to issue an ordinance to meet an emergent ordinances with the same text without any attempt
situation, thus it shall not be invoked to get the bills passed by the assembly would amount
frequently. to violation of the Constitution.
• Re-promulgation represents an effort to • It held that the exceptional power of law-making
overreach the legislative process which is the through ordinance cannot be used as a substitute
primary source of law-making in a for the legislative power of the state legislature.
parliamentary democracy.
• Ordinance is backdoor to escape the parliamentary scrutiny, debates, discussions etc.

Way forward
• Issuing ordinance frequently and repromulgation is not permitted as that would be a usurpation of legislative
power by the executive. As governments, both at the centre and state, are violating this principle, the
legislature and the courts should check the practice. That is what separation of powers and the concept of
checks and balance means. By not checking this practice, the other two organs are also abducting their
responsibility to the constitution.

PARDONING POWER OF PRESIDENT & GOVERNOR

• Articles 72 and 161 of the Constitution empower the President of India and the governors of states to grant
pardon or suspend, remit or commute sentences in certain cases.
• The pardoning power of the President/Governor is independent of the
Judiciary; it is an executive power conferred to keep the door open for Reconsideration
correcting any judicial errors in the operation of law and to afford relief • Article 74(1) and 163(1)
from a sentence, which the President/Governor regards as unduly empowers President and
harsh. Governor respectively to
• In the Maru Ram vs Union of India in 1980, and Dhananjoy Chatterjee return it for reconsideration
vs State of West Bengal in 1994, the SC has ruled that the President once.
has to act on the advice of the Council of Ministers while deciding • If the Council of Ministers
mercy pleas. decides against any change,
• Epuru Sudhakar & Another vs Andhra Pradesh (2006) the President/Governor has
o Powers of the President or Governor under Articles 72 and 161 no option but to accept it.
are subject to judicial review.
o Their decision can be challenged on the ground that (a) it was passed without application of mind; (b) it
is mala fide; (c) it was passed on extraneous or wholly irrelevant considerations; (d) relevant materials
were kept out of consideration; (e) it suffers from arbitrariness.

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Pardoning power of the President

Pardon • It removes both the sentence and the conviction and completely absolves the convict from
all sentences, punishments and disqualifications.
Commutation • It denotes substitution of one form of punishment for a lighter form. For example, a death
sentence may be commuted to rigorous imprisonment, which in turn may be commuted to
a simple imprisonment.
Remission • It implies reducing the period of sentence without changing its character. For example, a
sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment
for one year.
Respite • - It denotes awarding a lesser sentence in place of one originally awarded due to some
special fact, such as the physical disability of a convict or the pregnancy of a woman
offender.
Reprieve • It implies a stay of the execution of a sentence (especially that of death) for a temporary
period. Its purpose is to enable the convict to have time to seek pardon or commutation from
the President.

Difference between Pardoning powers of President & Governor

President Governor
• He can pardon, reprieve, respite, remit, suspend or • He can pardon, reprieve, respite, remit, suspend or
commute the punishment/sentence of any person commute the punishment/sentence of any person
convicted of any offence against a Central law. convicted of any offence against a state law.
• He can pardon, reprieve, respite, remit, suspend or • Governor can suspend, remit or commute but
commute a death sentence. cannot pardon a death sentence.
• He has pardoning power in respect to punishment • He doesn’t possess any such power.
or sentence by a court-martial

Recent context

Issue of granting remission to convicts by state/Governor

What is issue ?
Recently the SC referred to a seven-judge bench the issue whether states can grant benefit of remission to convicts
under the Constitution by laying down a common policy and without scrutinising "facts and materials" of each case
by the Governor.
Key Points
• A murder case convict, one Pyare Lal was granted the benefit of remission by the Haryana Governor as per a
policy of the state government.
• The SC noted that, the Haryana government had not placed any individual facts or material pertaining to the
case before the Governor and the benefit was conferred by the Executive itself in terms of the Policy”.
• “The Governor, thus, did not have the occasion to look into the issues such as severity of the crime or the
manner in which the crime was committed or the impact of the crime on the Society.
Maru Ram vs Union of India 1980 case
• The SC said that “no separate order for each individual case would be necessary but a general order must be
clear enough to identify the group of cases and indicate the application of mind to the whole group”.
• However, the court in that case had refused to approve an “omnibus” order of July 1978, issued in exercise of
Article 161 powers granting benefit to convicts.
Why it has been referred to larger bench ?
• The bench pointed the inconsistency in the Maru Ram verdict and thus decided to refer the issue to a larger
bench to examine the "correctness and propriety of such a exercise" of the state.

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• The larger bench will also consider the inconsistency bet remission granting power and Section 433-A of
the Code of Criminal Procedure.
o Under Section 433-A of CrPC, a person, serving life term, cannot be granted remission benefit without
serving 14 years in prison.
Pardon plea of A G Perarivalan
• Tamil Nadu state cabinet in 2018, had recommended to the Governor for the premature release of all
seven convicts in the case.
• Last year the SC had expressed unhappiness over the pendency of a plea by a convict seeking pardon in
the Rajiv Gandhi assassination case for over two years with the Tamil Nadu Governor.
• Consequently, Governor Banwarilal Purohit, rather than taking a decision, had referred the matter to the
President.
Mercy petition filed by death row convict
• 12-year-old son of Shabnam, a death row convict from Uttar Pradesh’s Amroha, appealed to President Ram
Nath Kovind to “forgive” his mother. The same day, Shabman filed a second mercy petition with the
Governor of Uttar Pradesh and the President of India, both of whom have earlier rejected her plea.
• If executed, Shabnam will be the first woman in independent India to be hanged for a crime.

DISCRETION POWERS OF PRESIDENT & GOVERNOR

• The Governor has both situational and constitutional discretion but the president has only situational
discretion.
• After the 42nd Constitutional Amendment (1976), ministerial advice has been made binding on the President,
but no such provision has been made with respect to the governor.

Situational discretion of President & Governor

• The President/Governor can act on his discretion (that is, without the advice of the ministers) under the
following situations:
President Governor
• Appointment of Prime Minister when no party • Appointment of chief minister when no party has a
has a clear majority in the Lok Sabha or when the clear-cut majority in the state legislative assembly
Prime Minister in office dies suddenly and there or when the chief minister in office dies suddenly
is no obvious successor. and there is no obvious successor.

• Dismissal of the council of ministers when it • Dismissal of the council of ministers when it cannot
cannot prove the confidence of the Lok Sabha. prove the confidence of the state legislative
assembly.
• Dissolution of the Lok Sabha if the council of • Dissolution of the state legislative assembly if the
ministers has lost its majority. council of ministers has lost its majority.

Discretional powers of Governor

• Governor has constitutional discretion in the following cases:
o Reservation of a bill for the consideration of the President.
o Recommendation for the imposition of the President’s Rule in the state.
o While exercising his functions as the administrator of an adjoining union territory (in case of additional
charge).
o Determining the amount payable by the Government of Assam, Meghalaya, Tripura and Mizoram to an
autonomous Tribal District Council as royalty accruing from licenses for mineral exploration.
o Seeking information from the chief minister with regard to the administrative and legislative matters of
the state.

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ISSUES RELATED TO GOVERNOR

• Rehabilitative appointments - The post has been reduced to becoming a retirement package for politicians
for being politically faithful to the government of the day. Consequently, a candidate wedded to a political
ideology could find it difficult to adjust to the requirements of a constitutionally mandated neutral seat.
• Arbitrary removal - The arbitrary removal of the Governor
before the expiration of his tenure has also been an Misuse of art. 356
important issue in the recent past. • Even though Dr. Babsaheb Ambedkar
• Misuse of discretionary powers - Governor’s discretionary had assured that art. 356 would be
dead letter, it has been used (mostly
powers to invite the leader of the largest party/alliance,
misused) more than 100 times, for
post-election, to form the government has often been political consideration.
misused to favour a particular political party. • Arunacha Pradesh - In 2016 the SC had
• Abuse of position - There are numerous examples of the quashed all the decisions of the
Governor’s position being abused, usually at the behest of Governor that had led to imposition of
the ruling party at the Centre. the President’s Rule in the state, calling
his actions as “illegal” and violative of
• Partisanship Role - Recently, the Governor of Rajasthan
the Constitutional provisions.
has been charged with the violation of the model code of
• In Maharashtra (2019) the Governor
conduct. His support of the ruling party is against the spirit had recommended to impose president
of non-partisanship that is expected from the person rule without exploring the possible
sitting on constitutional posts. government formation.
• Misuse of power under Art. 356 - The imposition of
President’s rule (Art.356) in case of breakdown of constitutional machinery in a State has been frequently
misused by the central government.
• Mere rubber stamp or puppet - Governor’s work is bound by the aid and advice of his council of ministers,
this has brought down the significance of the office to a mere rubber stamp.

RECOMMENDATIONS OF SARKARIA COMMISSION

Related to Article 356
• Art. 356 should be used in very rare cases when it becomes unavoidable to restore the breakdown of
constitutional machinery in the State. It should be used as a matter of last resort.
• Before taking action under Art. 356, a warning should be issued to the state government that it is not
functioning according to the constitution.

Related to Governor
• Governor should be appointed in consultation with the Chief Minister of the State, Vice-President of India and
the Speaker of the Lok Sabha.
• His tenure of office must be guaranteed and should not be disturbed except for extremely compelling reasons
• In case of such termination or resignation by the Governor, the Govt. should lay a statement explaining the,
circumstances leading to such removal or resignation, before both the Houses of Parliament.
• Frequent removals and transfers of Governors before the end of their tenure have lowered the prestige of this
office and this should be stopped.
• After demitting his office, the person appointed as Governor should not be eligible for any other appointment
or office of profit under the Union or a State Government except for a second term as Governor or election as
Vice-President or President of India.

Related to appointment of CM

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• If there is a single party having an absolute majority in the Assembly, the leader of the party should
automatically be asked to become the Chief Minister.
• If there is no such party, the Governor should select a CM from among the following parties or groups of parties
by sounding them, in turn, in the order of preference indicated below:
1. An alliance of parties that was formed prior to the Elections.
2. The Largest Single Party staking a claim to form the government with the support of others, including
independents.
3. A post-electoral coalition with all partners joining the government.
4. A post-electoral alliance with some parties joining the government and the remaining supporting from
outside

Other
• When the President withholds his assent to the state bills, the reasons should be communicated to the state
government.
• The procedure of consulting the chief minister in the appointment of the state governor should be prescribed
in the Constitution itself.
• The Governor cannot dismiss the council of ministers so long as it commands a majority in the assembly.

PRIME MINISTER & CHIEF MINISTER

• The President/Governor is the nominal executive authority (de jure executive) and Prime Minister/chief
minister is the real executive authority (de facto executive).
• In other words, president/governor is the head of the State while Prime Minister/Chief minister is the head of
the government.

Constitutional Provisions
Prime Minister Chief Minister
Art. Subject matter Art Subject matter
74 Council of Ministers to aid and advise 163 Council of Ministers to aid and advise Governor
President
75 Other provisions as to Minister 164 Other provisions as to Ministers
77 Conduct of business of the Government of 166 Conduct of business of the Government of a State
India
78 Duties of Prime Minister as respects the 167 Duties of Chief Minister as respects the furnishing of
furnishing of information to the President, etc information to Governor, etc.

Appointment of PM & CM
The Constitution does not contain any specific procedure for the selection and appointment of the Prime Minister
or Chief minister.
• Constitutional Provisions
o Article 75 says only that the PM shall be appointed by the president. Similarly, Article 164 only says that
the CM shall be appointed by the governor.
o However, president/Governor is not free to appoint any one as the PM/CM.
• Leader of the Majority Party
o As per the conventions of the parliamentary system of government, the President has to appoint the leader
of the majority party in the Lok Sabha as the PM and the Governor has to appoint leader of the majority
party in the state legislative assembly as the CM.
• When President/Governor can exercise Discretion ?

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o President/Governor may exercise his personal discretion in the selection and appointment of the PM/CM
in following situations -
1. When no party has a clear majority in the Lok
Sabha/state legislature. • Constitutionally, the PM/CM may be a
2. When PM in office dies suddenly and there is no
member of any of the two Houses of
obvious successor.
o In the first a situation, the President/Governor usually parliament/state legislature.
appoints the leader of the largest party or coalition in the Lok• For example, Indira Gandhi (1966), Deve
Sabha/ state assembly as the PM/CM and asks him to seek a Gowda (1996) and Manmohan Singh
vote of confidence in the House within a month. (2004), were members of the Rajya
Ex - In 1979, when Neelam Sanjiv Reddy (the then President) Sabha. Similarly, Maharashtra’s CM
appointed Charan Singh (the coalition leader) as the Prime
Uddhav Thakare is member of legislative
Minister after the fall of the Janata Party Government.
o In the second situation, if the ruling party elects a new leader council.
after the death of an incumbent PM, then the President has
no choice but to appoint him as PM.
Ex – In 1984, after the death of then PM Indira Gandhi, the President Zail Singh appointed Rajiv
Gandhi as the PM. Later, Congress parliamentary party unanimously elected him as its leader.

Important Judgements
• Delhi HC (1980) - The Constitution does not require that a person must prove his majority in the Lok Sabha
before he is appointed as the PM. The President may first appoint him the PM and then ask him to prove his
majority in the Lok Sabha within a reasonable period. (Same for CM).
• SC (1997) - A person who is not a member of either House of Parliament can be appointed as PM for six
months, within which, he should become a member of either House of Parliament; otherwise, he ceases to be
the PM. (same for CM).

Oath, term and salary of PM & CM

Prime Minister Chief Minister
Oath President administers oaths of office and secrecy to Governor administers the oaths of office and
him secrecy to CM.
Term Not fixed. He holds office during the pleasure of the Not fixed. He holds office during the pleasure of
president. the Governor.
So long as the PM enjoys the majority support So long as the CM enjoys the majority support
in the Lok Sabha, President cannot dismiss him. in the Assembly, Governor cannot dismiss
• In case of loss of confidence (majority) of the him.
Lok Sabha, PM must resign or the President can • In case of loss of confidence (majority) of the
dismiss him. assembly, CM must resign or the Governor can
dismiss him.
Salary Determined by the Parliament Determined by the state legislature

Factors that strengthen the position of PM in India

• PM is the chairperson of Cabinet, CoM, important cabinet committees.
• The resignation or death of an incumbent PM automatically dissolves the CoM and thereby generates a
vacuum.
• The resignation or death of any other minister, on the other hand, merely creates a vacancy, which the PM may
or may not like to fill.
• He is the chairperson of high-powered bodies – NITI Aayog, National Integration Council (NIC), Inter-State
Councils (ISC), National Water Resource Council etc.

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• He is the chief spokesman of the Union government.

• He is leader of the party in power. PM is generally equated with Role descriptions of PM
his party. (“PM is party and Party is PM”). • Lord Morely - Prime Minister is ‘primus
• Support of high-powered bodies – PMO and Cabinet Secretariat. inter pares’ (first among equals) and
• PM becomes leader of house of which he is member. ‘key stone of the cabinet arch’.
• Ivor Jennings - “PM is, rather, a sun
Powers & functions of PM & CM around which planets revolve. He is
In Relation to Council of Ministers the key-stone of the constitution. All
• PM/CM recommends persons who can be appointed as ministers roads in the constitution lead to the
by the President/Governor. him.”
• The President/Governor can appoint only those persons as • H.R.G. Greaves - “The Government is
ministers who are recommended by the PM/CM the master of the country and he
• He allocates and reshuffles various portfolios among the (Prime Minister) is the master of the
ministers. Government.
• He can ask a minister to resign or advise the President/Governor to dismiss him in case of difference of opinion.
• He presides over the meeting of CoM and influences its decisions.
• He guides, directs, controls and coordinates the activities of all the ministers.
• His death or resignation from office can bring the collapse of the CoM.

In Relation to President/Governor

Power & Functions of PM w.r.t President Power & Functions of CM w.r.t. President
• PM is the principal channel of communication (Art. • CM is the principal channel of communication (Art.
78) between the President and the CoM 167) between the governor and CoM.
• It is the duty of the PM - • It is the duty of the CM
o To communicate to the President all decisions o To communicate to the governor all decisions
(Art. 78) of the CoM. (Art. 167) of the CoM,
o To furnish information relating to the o To furnish such information relating to the
administration and proposal for legislations as administration as the governor may call for and
the President may call for. o If the governor so requires, to submit for the
o if the President so requires, to submit for the consideration of the CoM any matter on which
consideration of the CoM any matter on which a decision has been taken by a minister but
a decision has been taken by a minister but which has not been considered by the council.
which has not been considered by the council.
• PM advises the President with regard to the • CM advises the governor with regard to the
appointment of important officials like Attorney appointment of important officials like Advocate
General of India, Comptroller and Auditor General General, chairman and members of the state public
of India, Chairperson and members of UPSC and so service commission, state election commissioner,
on. and so on.

In relation to Parliament/State Legislature

Power & Functions of PM w.r.t. Parliament Power & Functions of CM w.r.t. State Legislature
• The PM is the leader of the Lower House (Lok • The CM is the leader of the state legislative assembly
Sabha)
• He advises the President with regard to • He advises the governor with regard to summoning
summoning and proroguing of the sessions of and proroguing of the sessions of the state legislature.
the Parliament.
• He can recommend dissolution of the Lok Sabha • He can recommend dissolution of the legislative
to President at any time. assembly to governor at any time.
• He announces government policies on the floor • He announces government policies on the floor of the
of the House. House

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Other Power & Functions of PM

• Power & Functions of PM w.r.t. the Cabinet • Power & Functions of PM w.r.t. the Cabinet
o PM constitute cabinet and allocates committees
portfolios. o The PM setups Cabinet Committees and are
o He summons cabinet meeting and also headed by him when he is member.
decides agenda of meeting. o Cabinet Committee on Political Affairs (Known as
o It is the PM’s privilege to consult any person “Super-Cabinet”) – PM
on any matter he deems fit and it is his o Cabinet Committee on Economic Affairs – PM
discretion to act occasionally without any o Cabinet Committee on Appointments – PM
consultation.
• Power & Functions of PM w.r.t. the External affairs
• Power & Functions of PM w.r.t. the Planning o This domain has been personally directed by
o He is the crisis manager-in-chief at the PM.
political level during emergencies. o If PM respected by international communities, it
o He is Chairperson of National Disaster can help him acquire greater respect
Management Authority. domestically as well. ▪
o He plays a significant role in shaping the foreign
policy of the country.

Other Power & Functions of CM

• Power & Functions of CM w.r.t. State Legislature • Other Powers and Functions of CM
o The CM is the leader of the state legislative o He is a member of the Inter-State Council and
assembly. the Governing Council of NITI Aayog (both
o He advises the governor with regard to headed by the PM).
summoning and proroguing of the sessions of o CM is chairman of the State Planning Board.
the state legislature. o CM is vice-chairman of the concerned zonal
o He can recommend dissolution of the council by rotation, holding office for a
legislative assembly to governor at any time. period of one year at a time.
o He announces government policies on the floor o He is the crisis manager-in-chief at the
of the House. political level during emergencies.
o CM is Chairperson of State Disaster
• Power & Functions of CM w.r.t. Cabinet Management Authority (SDMA).
o CM constitute cabinet and allocates portfolios.
o He summons cabinet meeting and also decides
agenda of meeting.

Recent Context

Uttarkhand CM is not a member of the legislative assembly yet.

• Tirath Singh Rawat, who was sworn in as Chief Minister of Uttarakhand on 10 March, 2021, was not a member
of the legislative assembly.
• According to Article 164 (4) of the Constitution to continue as a Chief Minister, Rawat has to be elected as an
MLA before September 10; otherwise, he ceases to be the CM.
• One option before him is to get elected as an MLA by September through a by-poll.
• However, the prospects for a by-poll have been complicated by a caveat in the Representation of the People
Act, which stipulates that bypolls for a seat should be held if the incumbent elected has at least a year’s tenure
to serve.

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• Assembly elections in Uttarakhand are less than a year away — the term of the assembly was expired on 23
March 2022 and thus the provisions of the Representation of People Act did not allowed for bypolls to be held
in such a situation.
• In April 2020, the Maharashtra government was in a similar situation, requiring Chief Minister Uddhav
Thackeray to be elected to the state legislature. The pandemic had left holding a bypoll uncertain.
• The crisis was eventually resolved with Thackeray getting himself elected as a Member of the Legislative
Council.
• Mamata Banerjee also sworn in as CM of West Bengal, despite losing from Nandigram in the recent assembly
elections, thus she will have to get elected to the assembly within six months of assuming office.

Complaint Against PM under Lokpal

• The Lokpal Rules notified in 2020 and according to if a complaint is filed against a sitting or former Prime
Minister, a full bench will decide, at the admission stage, whether an inquiry should be initiated. Two-third
members needed to approve full probe against PM.
• If such a complaint is dismissed by the full bench at the admission stage, records of the inquiry shall not be
published or made available to anyone.

COUNCIL OF MINISTERS

• The principles of the parliamentary system of government are not provided in detail in the Constitution.
However, Articles i.e., 74 and 75 deal with Central council of ministers and 163 and 164 deal with State Council
of Ministers in a broad, sketchy and general manner.

Constitutional Provisions
Central council of ministers (CoM) State Council of Ministers (CoM)
• Art. 74 - There shall be a CoM with the PM at the • Art. 163 - There shall be a CoM with the CM as the
head to aid and advise the President in the exercise head to aid and advise the Governor in the exercise
of his functions. The 42nd and 44th Constitutional of his functions, except governor’s discretionary
Amendment Acts have made the advice binding on power.
the President. o SC Judgement (1971) - a council of ministers
o SC Judgement (1971) - ‘even after the must always exist to advise the governor, even
dissolution of the Lok Sabha, the council of after the dissolution of the state legislative
ministers does not cease to hold office. Article assembly or resignation of a council of
74 is mandatory and, therefore, the president ministers. Hence, the existing ministry may
cannot exercise the executive power without continue in the office until its successor
the aid and advise of the council of ministers. assumes charge.
o SC Judgement (1974) - ‘wherever the o SC Judgement (1974) - Wherever the
Constitution requires the satisfaction of the Constitution requires the satisfaction of the
President, the satisfaction is not the personal governor, the satisfaction is not the personal
satisfaction of the President but it is the satisfaction of the governor but it is the
satisfaction of the council of ministers satisfaction of the council of ministers.
• Art. 75 – The Governor shall appoint the CM and • Art. 164 – The Governor shall appoint the CM and
other ministers on the advice of CM. other ministers on the advice of CM.
o 91st Amendment Act of 2003 - The total o 91st Amendment Act of 2003 - The total
strength of CoM, including PM, shall not exceed strength of CoM, including CM, shall not exceed
15 % of the total strength of the Loksabha. 15 % of the total strength of the legislative
o 91st Amendment Act of 2003 - A member of assembly and shall not be less than 12.
LS/RS disqualified on the ground of defection o 91st Amendment Act of 2003 - A member of
shall also be disqualified to be appointed as a either House of state legislature disqualified on
minister. the ground of defection shall also be
disqualified to be appointed as a minister.

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o Term - The ministers shall hold office during the o Term - The ministers shall hold office during the
pleasure of the President. pleasure of the Governor.
o Collective Responsbility - The council of o Collective Responsibility -The council of
ministers shall be collectively responsible to the ministers shall be collectively responsible to the
Lok Sabha. state Legislative Assembly.
o Oath - The President shall administer the oaths o Oath -The Governor shall administer the oaths
of office and secrecy to a minister. of office and secrecy to a minister.
o Disqualification - A minister who is not a o Disqualification -A minister who is not a
member of the Parliament (either house) for member of the state legislature for any period
any period of six consecutive months shall cease of six consecutive months shall cease to be a
to be a minister. minister.
o The salaries and allowances of ministers shall o The salaries and allowances of ministers shall
be determined by the Parliament. be determined by the state legislature.
• Art 88 - Every minister has the right to speak and • Art 177 - Every minister has the right to speak and
take part in the proceedings of either House, any take part in the proceedings of the
joint sitting of the Houses and any Committee of Assembly/council and any Committee of the State
Parliament of which he is a member. But he can Legislature of which he is a member. But he can
vote only in the House of which he is a member. vote only in the House of which he is a member.

Appointment of ministers

• The PM is appointed by the President and other ministers are appointed by the President on the advice of
the PM. Similarly, The CM is appointed by the governor and other ministers are appointed by the governor
on the advice of the CM.
• A person who is not a member of either House of Parliament/state legislature can also be appointed as a
minister. But, within six months, he must become a member of either House of Parliament/state legislature,
otherwise, he ceases to be a minister.

Responsibility of ministers
Collective Responsibility
• The principle of collective responsibility is the fundamental principle underlying the working of parliamentary
system of government.
• Article 75 clearly states that the council of ministers is collectively responsible to the Lok Sabha. Whereas
Article 164 clearly states that the council of ministers is collectively responsible to the legislative assembly of
the state.
• They work as a team and swim or sink together. When the No Legal Responsbility
legislative assembly passes a no-confidence motion against the • In Britain, every order of the King for
council of ministers, all the ministers have to resign including any public act is countersigned by a
those ministers who are from the legislative council. minister. If the order is in violation
• Alternatively, the council of ministers can advise the of any law, the minister would be
President/governor to dissolve the LokSabha/legislative held responsible and would be
assembly on the ground that the House does not represent the liable in the court.
views of the electorate faithfully and call for fresh elections • There is no provision in the
• The principle of collective responsibility also mean that the Constitution for the system of legal
cabinet decisions bind all cabinet ministers (and other ministers) responsibility of a minister.
even if they deferred in the cabinet meeting. If any minister
disagrees with a cabinet decision and is not prepared to defend it, he must resign. For example, Dr BR Ambedkar
resigned because of his differences with his colleagues on the Hindu Code Bill in 1953.
Individual Responsibility
• Article 75 & Article 164 also contains the principle of individual responsibility. It states that the ministers hold
office during the pleasure of the president. However, the President/Governor removes a minister only on the
advice of the PM/CM.

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• In case of a difference of opinion or dissatisfaction with the performance of a minister, the PM/CM can ask
him to resign or advice the President to dismiss him.

Composition of council of ministers

• The Constitution does not specify the size of the centre/state council of ministers or the ranking of ministers.
They are determined by the PM/CM according to the exigencies of the time and requirements of the situation.
• The council of ministers consists of three categories of ministers - cabinet ministers, ministers of state, and
deputy ministers. The difference between them lies in their respective ranks, emoluments, and political
importance.

Categories of ministers
The cabinet ministers The ministers of state Deputy ministers
• The cabinet ministers head • The ministers of state can either • They are not given independent
the important ministries of be given independent charge of charge of departments. They
the central/state government departments or can be are attached to the cabinet
like home, defence, finance, attached to cabinet ministers. ministers and assist them in
external affairs and so forth. their administrative, political
and parliamentary duties.

• They are members of the • They are not members of the • They are not members of the
cabinet, attend its meetings cabinet and do not attend the cabinet and do not attend
and play an important role in cabinet meetings unless cabinet meetings.
deciding policies specially invited when
something related to their
departments are considered by
the cabinet.

Cabinet
• A smaller body called cabinet is the nucleus of the council of ministers. It consists of only the cabinet ministers.
It is the real centre of authority in the centre/state government.
• Role of Cabinet
o It is the highest decision-making authority in our politico- Benefits of Cabinet
administrative system. • It is easier to build consensus among
o It is the chief policy formulating body of the Central/state various stakeholders.
government. • More effective discussion and
o It is the supreme executive authority of the Central/state efficient time utilization.
government. • Less burden on public exchequer –
o It is chief coordinator of Central/state administration. Economic efficiency.
o It is an advisory body to the president/Governor and its • More rational division of work -
advice is binding on him. Large size Council of Ministers ties
o It is the chief crisis manager and thus deals with all up too many tongues and less
emergency situations. viewpoint is available.
o It deals with all major legislative and financial matters.
o It exercises control over higher appointments like
constitutional authorities and senior secretariat administrators.
o It deals with all foreign policies and foreign affairs (central Cabinet).

Difference between CoM & Cabinet

CoM Cabinet
It includes cabinet ministers, ministers of state, and It’s part of CoM and includes the cabinet ministers only
deputy minister.

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It is a wider body consisting of 60 to 70 ministers It is a smaller body consisting of 15 to 20 ministers.

It does not meet, as a body, to transact government It meets, as a body, frequently and usually once in a week to
business. It has no collective functions. deliberate and take decisions regarding the transaction of
government business
It is vested with all powers but in theory. It exercises, in practice, the powers of the council of
ministers
Its functions are determined by the cabinet It directs the council of ministers by taking policy decisions
which are binding on all minister
It implements the decisions taken by the cabinet. It supervises the implementation of its decisions by the
council of ministers
It is a constitutional body, dealt in detail by the It was inserted in Article 352 of the Constitution in 1978 by
Articles 74 and 75 of the Constitution the 44th Constitutional Amendment Act. Thus, it did not find
a place in the original text of the Constitution
It is collectively responsible to the Lower House of It enforces the collective responsibility of the council of
the Parliament. ministers to the Lower House of Parliament

Kitchen Cabinet
• It is informal body consists of the Prime Minister and two to four influential colleagues in whom he has faith
and with whom he can discuss every problem.
• It advises the prime minister on important political and administrative issues and assists him in making crucial
decisions.
• It is composed of not only cabinet ministers but also outsiders like friends and family members of the prime
minister.
Merits of Kitchen cabinet Demerits of Kitchen Cabinet
• Due to the small unit, a much more efficient • Reduces the authority and status of the cabinet as the
decision-making body than a large cabinet highest decision-making body
• Members can meet more often and deal with • Circumvents the legal process by allowing outside
business much more expeditiously persons to play an influential role
• Helps in maintaining secrecy in making • Could induce sense of mistrust among other members
decisions on important political issues. of cabinet

Cabinet Committees
• The cabinet works through various committees called cabinet committees. They are set up by the PM/CM
according to the exigencies of the time and requirements of the situation. Hence, their number, nomenclature
and composition vary from time to time.
• They not only sort out issues and formulate proposals for the consideration of the cabinet but also take
decisions. However, the cabinet can review their decisions.

Features of Cabinet Committees

• They are extra-constitutional i.e., not mentioned in the Constitution. The Rules of Business provide for their
establishment.
• They are of two types—standing and ad hoc. The former is of a permanent nature while the latter are of a
temporary nature.
• Their membership varies from three to eight. They usually include only Cabinet Ministers. However, the non-
cabinet Ministers are not debarred from their membership.
• They not only include the Ministers in charge of subjects covered by them but also include other senior
Ministers.

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• They are mostly headed by the PM/CM. Sometimes other Cabinet Ministers, particularly the Home Minister
or the Finance Minister, also acts as their chairman. But, in case the PM/CM is a member of a committee, he
invariably presides over it.

Advantages of Cabinet Committees

• They are an organisational device to reduce the enormous workload of the Cabinet.
• They also facilitate in-depth examination of policy
issues and effective coordination. Criticism of Cabinet Committees
• Committees facilitates efficient utilization of time and • Some of the time they are established on very
human resources. trivial issues.
• Saves the valuable time of cabinet. More effective • Junior ministers are rarely appointed and
deliberation due to smaller size. Meetings are not held regularly
• It checks arbitrary actions by ministers. They help in • Memberships depend more on political
safeguarding principle of collective responsibility. considerations.
• It helps in facilitation of utilization of ministerial • Involvement of PM in every CC is not good
expertise.

Recent Context

Government set up 2 new Cabinet Committees

• In 2019, the government has reconstituted six Cabinet committees and set up two more – Cabinet committee
on investment and growth and Cabinet committee on employment & skill development both headed by the
PM.

Cabinet committee Head Cabinet Committee Head

Cabinet Committee on Appointments PM Cabinet Committee on Accommodation Home Minister
Cabinet Committee on Economic Affairs PM Cabinet Committee on Parliamentary Home Minister
Affairs
Cabinet Committee on Political Affairs PM Cabinet Committee on Security PM

• The Cabinet Committee on Investment will “identify key projects required to be implemented on a time- bound
basis”, involving investments of Rs 1,000 crore or more, or any other critical projects, as may be specified by it,
with regard to infrastructure and manufacturing.
• The Cabinet Committee on Employment and Skill Development is supposed to provide “direction to all
policies, programmes, schemes and initiatives for skill development aimed at increasing the employability of
the workforce for effectively meeting the emerging requirements of the rapidly growing economy and mapping
the benefits of demographic dividend”.

GROUP OF MINISTERS AND EMPOWERED GROUP OF MINISTERS

• These are ad hoc bodies formed to give recommendations to the cabinet on certain emergent issues and critical
problem areas.
• Unlike the GoMs, however, the empowered groups had the power to make a decision on matters and issue
notifications.
• In the past two decades, the institution of GoMs has become a viable and effective instrument of coordination
among the ministries.
• Ministers heading the concerned ministries are inducted into the relevant GoMs and when the advice is
crystallized, they are disbanded.

Second ARC on GoMs

• The constitution of a large number of GoMs has resulted in many GoMs not being able to meet regularly to
complete their work thus leading to significant delays on many major issues.
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• More selective use of the institution of GoMs would perhaps lead to more effective coordination particularly if
they are empowered to arrive at a decision on behalf of the Cabinet with time limits that are prescribed for
completing the work entrusted to them.
• There is need to ensure that the existing coordination mechanism of GoMs function effectively and helps in
early resolution of issues. Selective, but effective use of GoMs with clear mandate and prescribed time limits
would be helpful.

Recent Developments
• Abolition of GoMs & EGoMs - At the time, in 2014, when the groups were dissolved, there were nine EGoMs
and 21 GoMs. When the Modi government came into power in 2014 all these GoMs & EGoMs were abolished.
• Informal GoMs - But soon the Government realised the importance of GoMs and they opt to set up informal
groups of ministers. Informal GoMs were constituted for Amendment to Juvenile Justice Act; Guidelines for
Internet governance; Amendment to Child Labour (Prohibition and Regulation) Act; Bureau of Indian Standards
(Amendment) Bill etc.
Recent Context
GoM on Onion Crises
• There was a Group of Ministers set up on the onion crisis in November 2019.
• It had recommended that India should make large scale imports of onions through the Minerals and Metals
Trading Corporation.

GoM to examine possible waiver of GST on COVID related relief material

• The finance ministry constituted a GoM to examine possible waivers of GST levies on essential COVID-relief
material, including vaccine.
• The terms of reference includes ascertaining the need for tax breaks on items ranging from COVID-19 treatment
drugs, testing kits, oxygen related equipments to PPE kits, N95 masks, sanitizers.

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MINISTRIES & DEPARTMENT OF GOVERNMENT

Introduction: The Constitution provides for a parliamentary form of government modelled on the British pattern.
The council of ministers headed by the prime minister is the real executive authority in our politico-administrative
system.
Constitutional provisions:

Article 74 Council of Ministers to aid and advise the President. This advice shall not be inquired in any court
of law.

Article 75 - Council of Ministers shall be collectively responsible to the Lok Sabha

- Total number of ministers = Maximum 15% of the total strength of LS. (91st Amendment Act of
2003)
- Individual responsibility of the minister to the president.

Article 77 The President shall make rules for convenient transactions of the business of the GoI.

Hierarchy of ministers in India:

• The council of ministers consists of three categories of ministers, namely, cabinet ministers, ministers of
state, and deputy ministers. The difference between them lies in their respective ranks, emoluments, and
political importance.
Cabinet Ministry:
• Cabinet ministers represent important ministries of the Central government like home, defense, finance,
external affairs, and so forth.
• They are members of the cabinet, attend its meetings and play an important role in deciding policies.
Thus, their responsibilities extend over the entire gamut of the Central government.
Other Ministries:
• These are ministries other than cabinet ministries. These include portfolios like youth affairs, MoDoNER, etc.
These are headed by the Minister of State.

PARLIAMENTARY SECRETARIES
Current events:
• Disqualification of 20 MLAs of Delhi who were appointed as parliamentary secretaries by the President
for holding Office of profit.
• June 2015, Calcutta HC quashed the appointment of 24 Parliamentary Secretaries in West Bengal dubbing
it unconstitutional.
He/she is a member of the parliament who assists a senior minister with his/her duties. They often hold the rank
of Minister of State and have the same entitlements and are assigned to a government department.
Arguments in favour of appointing Parliamentary secretaries:
• Article 75 and 164: The President/governor appoints and administers the oath of office and secrecy to
ministers. Parliamentary secretaries are not ministers as per Article 75 and 164 as they are not appointed
by the President/Governor and are not administered the oath of office and secrecy by him.
• Constitutional power: Legislature can pass a law to grant exemption to any office of profit holder. Many
states and Parliament have done this and SC in the UC Raman case has upheld this.
• Increased workload: They assist ministers to discharge function effectively despite the increased
workload.
• No independent charge: They are only attached to ministers to fulfill obligations and don't have any
independent charge.
Arguments against:

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• Against Separation of Powers: If a legislator becomes executive then he/she cannot functions
independently
• Violation of Constitutional spirit: By excluding it from the definition of ministers, the office of the
Parliamentary Secretary is misused to circumvent the 15% ceiling strength of the council of ministers.
(10% in the case of Delhi)
• Against public interest: They are not administered Oath of Secrecy. Yet they have access to information
that may threaten public interest and national security and breed corruption.
• Misuse of Article 102: This allows parliament to exclude offices from the provision of office of profit. The
exclusion of Parliamentary secretaries result in a drain of public money due to oversized cabinet, political
opportunism due to arbitrary use of amendments
• Political motive: They are misused to fulfill the political aspirations of MPs who couldn't get a Ministerial
position.
Conclusion:
The debate of Parliamentary secretaries is centered on the office of profit concern. Rather than each state
following a different provision, it is high time that the Supreme court shall make one judgment and the same shall
be applicable for all states and the central government.
Issues in news

PARLIAMENTARY COMMITTEES:
PYQs
• Why do you think the committees are considered to be useful for parliamentary work? Discuss, in this
context, the role of the Estimates Committee. (10M) (CSE2018)
• Discuss the role of the Public Accounts Committee in establishing accountability of the government to the
people. (10M) (CSE2017)

Current event: Suggestions of the Rajya Sabha Secretariat to extend the tenure of parliamentary committees from
1 year to two years in the backdrop of COVID-19. So that the panels get sufficient time to work on the subjects
selected by them.

About : It means a committee that is elected by the house or nominated by Speaker/chairman, works under and
submits reports to speaker/chairman, and has a secretariat provided by the Lok Sabha/ Rajya Sabha.

Parliamentar
y committees

Ad-Hoc/
Standing
select
Committees committee

24
Departmenta Committees Committees House- Select
Financial Committees
l related to Scrutinise for Day-to- Keeping committee
Committees to Inquire
standing and Control Day Business Committees on GST etc
Committees

Role of parliamentary committees

• Specialized jobs: Standing committee performs specialized jobs and ad-hoc committees are constituted to
perform specific tasks and cease to exist on its completion.
• In-depth scrutiny: Working beyond parliamentary sessions enables in-depth scrutiny of bills which MPs
can't do due to increased workload.
• Engaging stakeholders: During the review of subjects these committees seek feedback from NGOs, experts,
citizens, etc. e.g. Finance Committee Summoned the RBI governor on demonetization subject.

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• Accountability: This enables the legislature to hold the executive accountable through detailed scrutiny
and informed parliamentary debates on important topics like budgetary allocations to various
departments.
• Financial prudence: Review of budgetary allocations enable it to ensure economy and efficiency in public
expenditure.
• Resolving issues in Bills: Multi-layered pre-legislative scrutiny results in Significant issues in the Bill getting
addressed. E.g. Redressal of Significant Issues in the Prevention of Corruption Amendment Bill after
examination by two parliamentary committees.
• Forum for consensus-building: Anti-defection law does not apply to these committees. This enables
impartial functioning beyond party lines to build consensus on important issues.
• Developing expertise: Huge information reservoirs of these committees are available to MPs to enlighten
themselves and contribute ideas to strengthen the parliamentary system and improve governance.

Issues faced by committees:

• A sharp dip in the number of Bills referred: RTI Amendment Act (2019), UAPA Amendment Act (2019) were
passed without referring them to the Parliamentary committee.
• Absenteeism of Members: The attendance of about 50% since
2014-15 in committee meetings is a cause for concern.
• Short tenure: One year tenure of these committees is very little
time for specializations as well as finishing a detailed review of
complex topics. e.g. the IT panel could not complete deliberations
on “Safeguarding citizens’ rights and prevention of misuse of social/online news media platforms including
special emphasis on women security in the digital space”, for which it summoned Facebook recently.
• Lack of expertise: Committee members lack the technical expertise required for detailed analysis of topics
such as accounting and administrative principles.
• Non-binding recommendations: Only certain debates make reference to some reports and most of these
reports are not taken for discussion in the parliament session.
• The politicization of meetings: Members have started taking strict party lines in meetings on Issues that
are getting public attention.

Way forward:
NCRWC has recommended the following steps to improve the effectiveness of parliamentary committees:
• Increasing tenure: Recently Rajya Sabha Secretariat is considering a 2 years tenure for DRSC so that the
panels get enough time to work on the subjects selected by them.
• Institutional Research Support: This will allow committees to examine technical and complex policy issues
holistically.
• Adopt Best Practices: Practices like a concerned minister appearing before the committee to elaborate and
defend the policies of the government, Objective criteria for referring bills to a committee, etc shall be
adopted.
• Avoid overlapping functions: Responsibilities of financial oversight can be given to Departmental related
standing committees and doing away with existing finance committees.
• Periodic review: Objective criteria for a regular assessment of committee’s performance and making a
required course correction.

Conclusion:
Considering steadily declining sittings of Parliament from 100-150 (1950s) to 60-70 in 2019-20, strengthening the
committee system can go a long way in improving the quality of laws drafted and minimize potential
implementation challenges.

GROUP OF MINISTERS: MEDIA STRATEGY

Current event: A Group of Ministers (GoM) report on the government’s media strategy has come under scanner
as an example of the government's attitude of suppressing any criticism by the media.

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About GoMs:
These are ad hoc bodies formed to give recommendations to the cabinet on certain emergent issues and critical
problem areas. Ministers heading the concerned ministries are inducted into the relevant GoMs and when the
advice is crystallized they are disbanded.

Challenges with GoMs:

2nd ARC: Constitution of a large number of GoMs has resulted in many GoMs not being able to meet regularly to
complete their work thus leading to significant delays on many major issues.

2nd ARC recommended the following corrective measures in GoMs institution:

• GoMs operate as a single-window clearance on issues related to various ministries.
• More selective use of the GoMs would lead to more effective coordination.
• They should be empowered to decide on behalf of the Cabinet. Selective, but effective use of GoMs with a
clear mandate and prescribed time limits would be helpful.
• Need to ensure that the existing coordination mechanism of GoMs function effectively and helps in the
early resolution of issues.
Group of Ministers (GoM) Report on Media Strategy:
• Identifying and engaging journalists: Government supportive or neutral journalists who have lost jobs shall
be utilized to build government image. Also engaging with journalism schools to engage with future
journalists.
• Foreign Media engagement: Frequent interaction with foreign media to increase the government’s global
outreach and ensure that its perspective is correctly put in the international platforms.
• Communication with NRIs: To ensure that NRIs can raise their voice against negative narratives in foreign
countries.
• Highlighting Government’s Work:
o Mass circulation of positive stories: Distribution of government magazine New India Samachar,
tasking different ministries with different outreach goals.
o Countering negative stories using advertisements in regional languages to better connect with
local people.
• The utilization of Social Media: Engaging with social media platforms such as Twitter and Google to
increase outreach positively.
• Tracking anti-government narratives: Tracking 50 negative influencers & countering them with 50 positive
influencers who are pro-government in their approach.
Concerns with the above recommendations:
• Colonial attitude against any critique and inquiry by the press.
• Discouraging anti-government reporting through increased surveillance and targeting of writers and
journalists departing from the government’s narrative.
• Social instability: Suggestions like “strategy to neutralize the people who are writing against the
government without facts and set false narratives/spread fake news” can hamper social fabrics.
• Anti-constitutional: Recommendations violate Press freedom which is a fundamental right under article 19
of the constitution.
• International image: India’s deteriorating ranking on the global press freedom index raises the question of
the credibility of India’s long-cherished democratic values.
Conclusion:
Governments who have the responsibility of Countering facts manipulation and fake news to restore faith in the
media shall not resort to controlling the narrative. To ensure this government must support the plurality of views
in media supplemented with public education and media’s commitment to core media principles like truth and
accuracy, transparency, independence, fairness and impartiality, etc. is needed.

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PRESSURE GROUPS & FORMAL/ INFORMAL ASSOCIATIONS AND THEIR ROLE IN POLITY
Pressure groups also called as interest groups or vested groups are organized groups of people promoting their
common interest or defending their common interest. Generally, they intend to bring change in the public policy
by pressuring the government of the day.

BASIC CHARACTERISTICS OF PRESSURE GROUPS

• Based on certain interests: Each pressure group organizes itself based on certain interests and tries to
impose its views on the political structure.
o For example in the USA, the Republican party is often seen to be influenced by the industrial
pressure groups to ban imports and promote exports.
• Use of modern as well as traditional means: Pressure groups adopt modern methods of pressuring the
government like media trails, social polls, financing of political parties, etc. Yet they also use the
traditional means like exploitation of caste, union, ideology, etc.
• Increase pressure on resources: Resources are limited but needs are unlimited especially in developing
nations. Thus the presence of pressure groups tends to provide an unfair advantage to fewer groups than
others.
o For example, due to the long history of backward class movements in India, the demands of OBC
reservation were fulfilled earlier as compared to the similarly deserving poor upper caste groups
in the form of EWS (Economically Weaker Sections) quota.
• Inadequacies of political parties: Political parties especially in their mature stage cater to certain sections
based on the vote bank, thus creating a large void to take up issues of both dominant and deprived
sections. In India, the LGBTQ community is minimal in terms of vote bank thus easily ignored but pressure
groups in the form of Humsafar Trust and Naz foundation take up the issues and pressurize the
government.
• Pressure groups symbolize changing consciousness of the society: The consciousness of groups changes
with change in material conditions or changing politicization. Thus the new set of values is represented
by the pressure groups.
o For example, Mazdoor Kisan Shakti Sangathan of Rajasthan represented values like transparency
which led to the enactment of the RTI Act 2005.

TYPES OF PRESSURE GROUPS

There are different classifications of pressure groups but for convenience, we use the classification of Almond and
Powel. According to them, the pressure groups are classified as following,
• Institutional pressure groups: These are formal and consist of professionally employed persons. They are
part of government machinery and try to influence pressure via constitutional means. West Bengal Civil
Services Association is a prime example of it and it may include groups like political parties, legislatures,
police, and armed forces, etc.
• Associational pressure groups: These include the organizations that are formal and oriented towards an
interest. They include pressure groups like AITUC (All India Trade Union Congress) and the Bengal
Chamber of Commerce.
• Anomic pressure groups: These are the interest groups that have a spontaneous birth out of an anomic
condition, riot, or any dysfunctional event. There activities can be constitutional as well as
unconstitutional. For example Naxalite groups, Dal Khalsa, ULFA, etc.
• Non-associational pressure groups: These are generally based on kinship, region, ethnic, class, or
linguistic-oriented groups with less formal structure. For example Andhra Maha Sabha, All India Students
Federation, etc.

TECHNIQUES/METHODS OF PRESSURE GROUPS

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• Electioneering: Here an individual or group of people are placed in public offices who favor the interest or
pressure group. The person can hold a bureaucratic position or legislative position.
o For example, funding the election of a favored candidate.
• Lobbying: It includes persuading and forcing public offices for favorable policies and regulations.
o For example currently in India, alcohol and tobacco-based industrial groups are lobbying against
legalizing the use of cannabis despite its many useful applications.
• Development of narrative: Pressure groups develop a narrative or propaganda to influence the public and
substantially pressurize the government.
o For example industrial groups like FICCI, ASSOCHAM and NASCOM have built a perception that
trade union equals inefficiency, thus forcing the government to liberalize hire and fire policy and
phase out trade unionism.
• Petitioning: Pressure groups are a resort for legal battle on a certain issue. They move to courts, tribunals,
and arbitration bodies to enact their needs.
o For example, the Indian Lawyers Association fighting court battles since 2006 for women's entry
in Sabarimala and other religious places.

ROLE & IMPORTANCE OF PRESSURE GROUPS

• Interest articulation: Pressure groups bring the demands and needs of the people to the decision-makers.
For example, India against Corruption group in 2012 brought the issue of corruption of people to
lawmakers leading to the enactment of Lokpal.
• Act as an agent of political socialization: Pressure Groups educate the masses on issues and also tend to
change the status quo for the future.
o For example, Harijan Sevak Sangha was a pioneer in educating the masses during the temple entry
movement.
• Pressure groups and administration: Pressure Groups work in close coordination with administrators for
better implementation of the policy.
o For example, the Lawyers Association in Assam is helping people who have not found their name
in NRC (National Registry of Citizens) by working with the officers in a foreign tribunal.
• Improved governance: As Pressure Groups are important stakeholders in society the government consults
them for policy formulation or amendment. This ensures 4D (Debate-Discussion-Deliberation-Dissention).
o For example, the non-consultation over farm bills by the government from All India Kisan Sabha
and other groups has triggered a nationwide protest.
• Act as a catalyst of social change: Pressure Groups provide a safety valve outlet for collective grievance
and ensure social change.
o For example, “Akshara” is a Mumbai-based Pressure Group that is lobbying against sexist lyrics in
Bollywood movies; this has lit a spark in the industry where many singers have stepped back from
singing such songs.

SOME PRESSURE GROUPS IN INDIA

• Business Groups: Federation of Indian Chamber of Commerce and Industry (FICCI), Associated Chamber
of Commerce and Industry of India (ASSOCHAM).
• Trade Unions: All India Trade Union Congress (AITUC), Hind Mazdoor Sabha (HMS).
• Professional Groups: Bar Council of India (BCI), Indian Medical Association (IMA).
• Agrarian Groups: Bharatiya Kisan Union, All India Kisan Sabha.
• Students Group: Akhila Bharatiya Vidyarthi Parishad (ABVP), National Students Association of India.

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• Religious Groups: Vishwa Hindu Parishad (VHP), Jamaat-e-Islami.

BENEFITS ASSOCIATED WITH PRESSURE GROUPS

• Advocacy of democracy: Pressure groups act as the voice of the voiceless and express the views of
people to the government. This promotes “Democracy being the government of the people, by the
people, for the people” in a true sense.
• Promote legislations: These groups campaign aggressively and use their size and motivation to push
legislation.
o For example, SEWA (Self Employed Women’s Association) has influenced many bills
associated with women's safety and the right of women workers.
• Political awareness and monitoring of those in power: Various groups in the society disseminate
information from the public, but the pressure groups politicize the issue for better transparency.
o For example, Mazdoor Kisan Shakti Sangathan led the people’s movement which got the
government to bring about the law on the Right to Information.
• Fair representation: Multiple pressure groups advocate better and fair representation of the
minorities and vulnerable sections.
o For example, In Manipur groups like Just Peace and Meira Paibis trying to highlight genuine
concerns associated with AFSPA.

ISSUES OF PRESSURE GROUPS AND THEIR CRITICAL EVALUATION

• Pluralism and chaos:

o As there are multiple pressure groups the ideologies sometimes collide and an unconscious tug
of war prevails in the society. For example, FICCI’s push towards easy hire and fire policy and
trade union asking for promotion of unionism.
o Pressure groups are self-centric thus in the zeal to fulfill their ends they overshadow the greater
good. During the farm bill protest, the blockade at the Haryana-Delhi highway paralyzed almost
Delhi supplies.
• Increased socio-political crimes:
o Pressure groups seldom use unconstitutional means like bribery, corruption, horse-trading,
violence, etc.
o It also promotes crony capitalism where the haves controls the state policies. The liberalizing of
the Electrol bond in favor of corporate-government nexus symbolizes this unholy union.
o Promotes vote bank politics and the social fabric of the society weakens.
• Failure in organizational structure:
o They are semi-formal and failed to act as a secondary body to governments.
o No well-developed infrastructure and leaders are often found hopping into mainstream politics.
• Increased inequality: As the pressure groups associated with the majority and wealthy individuals often
succeed in persuading governments, it widens the inequality gap.
o For example, the promotion of direct buying food grains from farmers is viewed as a corporate
lobby that can widen the gap between the rich and petty bourgeoisie.
• Prevalence of anti-defection law: As the legislators are bound by party lines, their views are subdued
and so is the view of the pressure group they symbolize.

ISSUES IN NEWS

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REGULATION OF NGO’S IN INDIA

➢ What is FCRA: The Foreign Contribution Regulation Act regulates foreign donations and ensures that such
contributions do not adversely affect internal security. It was first enacted in 1976 and later amended in
2010. The FCRA is applicable to all associations, groups, and NGOs which intend to receive foreign
donations.
➢ Present context (Govt’s arguments for the new regulations):
• New regulation for NGOs and banks on foreign donations has been made by amending the 2010
act.
• Thirteen NGOs have been suspended accounting total of 49, 843 NGOs currently stand
suspended.
• Recent NIA investigation against Sikh organizations supporting pro-Khalistan movements is
found to route the money via NGOs.
• The government cracked on NGOs like Ford Foundation, Compassion International, and World
Movement for Democracy on money laundering.
➢ New changes adopted as per the notified regulations:
• Any denomination of money received in INR by foreign agencies even though operating within
the country should be reported within 48 hours.
• All the NGOs must open a bank account at SBI New Delhi Branch through which only the
donations can be channelized.
• All the NGOs are mandated for the Aadhaar identification of the directors and the trustees.
• The cap of using 50% of the contribution for administrative affairs has been reduced to a mere
20%.
• Bar on sub granting of funds to grass-root organizations and workers.
• The Standard Operating Procedure (SOP) recognized by FATF should be followed by all the
NGOs. Even Charter Accountants are asked to conduct both forensic audits and performance
audits.
➢ Impact of the new changes:
• COVID-related hurdles: NGO’s like Mercy Mission and Lifeline Foundation has complained over
issues of not being able to channelize 50,000 Euros donation from a foreign land and PIO and
NRI’s.
• Administrative issues: In India, only 22,000 NGOs are registered and of them, only 16% have a
bank account with SBI. Certain NGOs like Bombay Sarvodaya Friendship Center raised the issue
of not being able to raise funds despite complying with new regulations.
• Against K S Puttaswamy judgment: Gauhati High Court recently asked the need for Aadhaar
authentication despite the 2018 judgment making Aadhaar option to open bank accounts.
• Bipartisan attitude: The case of ADR (Association for Democratic Reforms) against both INC and
BJP, where both parties source major donation from Vedanta Group (UK based firm) still stand
unaddressed.
• Against the principle of natural justice: The new amendment assumes all NGOs receiving grants
were guilty unless proved otherwise.
➢ Way forward: NGO’s work at grass root level where the govt fails, govt of the day must stick with ancient
Indian ethos of Vasudeva kutumabhakam rather than witch-hunting for score settlement. Seamless
sharing of ideas and resources between the government and NGO should be the prime focus.

AMNESTY INTERNATIONAL HALTS IN INDIA

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➢ Amnesty International (AI): It is a London-based NGO found in 1961 that promotes and implements the
Universal Declaration of Human Rights 1948. It also researches grave abuse of human rights and demands
justice for those whose rights are violated.
➢ Context: The government froze all its accounts leading to all of its work coming to halt. This was the
culmination of events that started in 2016.
➢ Arguments by the Amnesty International:
• Red Tapesim: Constant harassment by the government and its agencies like Enforcement
Directorate (ED) for a rising voice against the establishment on issues like Delhi riots, Jammu and
Kashmir, Maoist activities, etc.
• Witch-hunting: AI claims to have been compiled to both national and international laws yet
government portrays lawful fundraising activities as money laundering.
• Stroking a climate of fear: By targeting human rights organizations and treating them as criminal
enterprises government is curbing dissent and creating a play-safe attitude among organizations.
➢ Arguments by the government:
• The step of freezing accounts is part of the scrutiny of twenty-odd other NGOs like Green Peace
and Compassion International.
• Human Rights cannot be used as an excuse for defying law of the land. The chanting of anti-
India slogans in its events in 2016 needs explanation to date.
• CBI inquiry suggests Amnesty remitting large chunk of money via four registered NGOs and
declaring them as FDI.
• Indian state is sovereign and does not allow any foreign entity to interfere in domestic politics.
• The three subsidiaries of Amnesty, i.e.- Amnesty India Pvt Ltd, Indians for Amnesty International
Trust, Amnesty International South Asia Foundation are not yet part of the FCRA regime.
➢ Way forward: Amnesty International is a Nobel Prize recipient body; tightening relation with the global
organization does not paint a good Indian picture on the global scale. Arbitrations should take place
rather than unilateral actions.

REGULATIONS FOR OTT (OVER-THE-TOP) PLATFORMS AND NEWS

➢ OTT Platforms: An Over –The- Top media service is any online content provider that offers streaming
media as a standalone product. For example, Netflix, Amazon Prime, and Hotstar.
➢ Why OTT are popular:
• Cost-effective: High-value content at low cost and Compatibility with multiple devices.
• New avenue: They act as new avenues for the movie release. For example, during a pandemic,
many movies like Dil Bechara and Wonder Women 1984 had a digital release.
• Original series and content: Opportunities for content creators to go to any extreme to tell the
story. Extended run time also helps in effective storytelling and character development. For
instance Scam 1992 was much praised over Big Bull despite a similar storyline.
• National integration: OTT has mainstreamed regional cinema and united Indian Film Industry
that was earlier divided with a linguistic barrier. For example movies like Gumnam (a Bengali
movie based on Subash Chandra Bose) were appreciated by the audience of all languages.
➢ Issues of OTT:
• They circumvent the traditional media’s guidelines and regulations.
• Sensitive content like cuss words, soft porn, and display of blood.
• Large runtime that prompts people to spend continuous watch on mobile devices impacting
vision.

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➢ Context:
• Govt notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code).
It applies to social media, OTT platforms, and Digital news outlets to ensure Soft Touch Oversight.
This was after the case on Sudarshan TV over harming sentiments of a community.
• Government and Twitter tussle over the new regulations. Internet Freedom Foundation has
called the move increased censorship by the state.
• Increased censorship by the government by chopping scenes from series like Tandav.
➢ Provisions notified:
• Classification:
o Social media intermediaries with less than fifty lakh reach or registered users.
o Social media intermediaries with more than fifty lakh registered users.
• New appointments:
o A three-tier structure has been suggested with the following posts,
▪ Chief Compliance Officer
▪ Nodal Contact Person
▪ Residence Grievance Officer
• A monthly compliance report needs to be published regarding details of complaints received and
action taken.
• For Digital News:
o Follow Press Council of India, Cable TV Networks (Regulations) Acts and norms.
o Formation of a self-regulatory body to ensure adherence to code of ethics and appeal
from this lies to Panel formed by Ministry of Information.
• For OTT platforms:
o Self-classification of content into U, U/A (7+), U/A (13+), U/A (16+), A.
o Provision for parental lock and age verification for adult content.
o Self-regulation provision where issues are addressed by Inter-ministerial Committee
headed by Retd Chief Justice of Supreme Court or High Court.
➢ Concern over the notified provisions:
• Passed without parliamentary scrutiny by executive order. The three-tier body has been given
censuring and incriminating powers.
• The government has equipped itself with overriding and emergency powers where it can take
down any content even without hearing.
• The new provisions defeat the intent of the IT Act 2000. Also, Cinematography Act Could have
been used to regulate OTT.
• Against the core values where the television runs on basics of PUSH factors where end-users
have no control on the type of content to view but in case of OTT end users can watch based on
their interest where PULL is the factor. Such stringent regulations narrow this gap.
• Supreme Courts' question of the absence of any punitive provisions also hints at further
restrictions in near future.
➢ Way forward: Internet usage has been growing in India, becoming a marketplace for ideas and an
opportunity for content creators to reach more people than ever before. It’s a new medium for
entertainment and education. In light of this, both the government and the industry should appreciate
the new space that the internet has given to free speech in India and, as a result of it, the need to adopt a
more self-regulatory and freedom-oriented regulatory approach and the recommendations of Shyam
Bengal Committee should also be considered.

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TELEVISION RATING IN INDIA

➢ What is Television Rating Points (TRP): TRP is the metric used by marketing and advertising agencies to
evaluate viewership. When anyone watches television for more than a minute he is considered to be a
viewer and accounted for TRP calculation.
➢ Context:
• Recently the Mumbai Police has claimed to expose a scam about manipulation of TRP’s by
some Indian news channels (Republic TV, Fakth Marathi, Box Cinema) by rigging the Broadcast
Audience Research Council devices.
• BARC has suspended TRP for the news genre for the next three months to devise a new
method or amend the existing methods.
➢ Methodology and Calculation:
• Bar-O-Meters are installed across 45,000 households to record the data. The selection of
households is based on annual establishment surveys and their further classification of
households on basis of ownership of consumer durables and education levels.
• To prevent rigging of data the BARC India opts for coincidental checks regularly based on
suspicious outliers habits.
➢ Significance of TRP:
• They influence programs produced for the viewers, as better ratings promote the creators and
poor ratings will discourage the program.
• The advertisers fund the channels and shows based on TRP. The advertising market is worth Rs
27,000 crore in television, TRP decides what share of pie does the channels and the shows get.
➢ Issues and concerns:
• Tampering of data: The poor household who have the Bar-O-Meters are lured and bribed to
run the program extensively and raise the TRP.
• Sample Size: The sample size is very small. For example, Mumbai has one of the largest
viewership in the nation yet only 2000 Bar-O-Meters are present.
• Dependency on advertisers: Around 70% of income comes from advertising and reaming 30% is
by subscription. This leads to the broadcast of content suited for advertisers. For example, the
debates on news channels during farm law protests were funded by MNC’s.
• Ethical issues: Spreading hate and disinformation on TV to gain attention and the rat race to the
bottom is not only a financial scam but also an ethical and moral scam. Such news and shows
lead to the shrinking of the intellectual horizon. For example, the ruccess during Sushant Singh
Rajput's death has set new lows for the media.
➢ Way forward: TRAI (Telecom Regulatory Authority of India) has upgraded to a new tariff regime where
users pay only channels they need. This step has made the TRP system completely outdated. To identify
the nerve BARC should devise new measures in line with YouTube or IMDB. Where likes, comments, and
rating given by the user shows the true response.

THREATS TO FREEDOM OF PRESS IN INDIA

➢ Context:
• World Press Freedom Day was celebrated recently on 3rd May with the theme “Information is a
public good” by UNESCO as per Windhoek Declaration 1991.
• As per the recent 2021 report of the “World Press Freedom Index” by Reporters Without
Borders, India has slipped by two places and landed at 142nd position among 180 nations.
➢ Issues and areas of concern:
• Excessive use of draconian laws: Laws like sedition, UAPA (Unlawful Activities Prevention Act)
are used extensively on the journalist to silence reporting against the regime as per
Commonwealth Human Rights Imitative. For example the arrest of a Kerala-based journalist
for reporting on the Hatras case.
• Media clampdowns: Media outlets are barred from critical reporting and asked for self-
censorship. This can be observed by the recent arrest of nine senior journalists for reporting
fatality during the 26th Jan riots. Social media posts are even blocked by executive orders.

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•
Hyper nationalist agendas: Expression of concern by global bodies and foreign countries are
treated as external interference. For example, Entire government machinery was diverted
towards an international singer (Rihana) and a child environmentalist (Greta Thunberg).
• Religious aspects: Politics of religion is a clear threat to freedom of speech and expression. The
arrest of a comedian (Munawar Faruqi) on the joke is an indication of it.
• Impact on creative freedom: In the infamous S. Rangarajan v Jagjivan Ram 1989 case courts
declined to embrace the doctrine of censorship. For example, Removing the scenes from the
Tandav web series depict restriction of liberty of expression.
• Role of courts: Many recent judgments by the courts also curb press freedom. For example,
“expression of dissent should be in designated places only” during farmer's protest,
asymmetry of application of law in the case against Editor in Chief of Republic TV (Arnab
Goswami), and courts discouraging litigations under Art 32.
➢ Way forward:
• Government should set up a committee to improve the ranking in the Freedom of Press Index.
Niti Ayog has recently by releasing guidelines to states and UT’s on the code of conduct with
media outlets.
• Self-regulation on hate speech and misinformation should be practiced by the reporters and
avoid sensationalization (Yellow Journalism).
• Crowdfunding should be the major source of income for the news outlets to keep the news free
from biases.

CONCLUSION:
• Thus, on the whole, in India so far the impact of pressure groups on politics has not been felt and is also
not going to be much deep-rooted unless things radically change to their advantage. It is, however, being
noticed that pressure groups are trying to get roots as in advanced western societies, though still, these
are in the initial stages in Asian countries. Issues like press freedom and NGO regulation are very sensitive
and need to be addressed with wisdom.

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REPRESENTATION OF PEOPLES’ ACT

Introduction
• The Representation of Peoples’ Act, 1950 was enacted by the provisional Parliament of India before the first
General elections in the country under Article 327 of the Constitution.
• It provides for allocation of seats and the delimitation of constituencies for the purpose of Lok Sabha and State
Legislature elections, the qualifications of voters, electoral rolls, filling up seats in Rajya Sabha by the
representatives of Union Territories.
• The Representation of Peoples’ Act, 1951 provide for the actual conduct of elections of the Houses of the
Parliament and to the House or Houses of the Legislature of each State.
Key features of the Act include:
o It regulates the actual conduct of elections and by-elections.
o It provides administrative machinery for conducting elections.
o It deals with the registration of political parties.
o It specifies the qualifications and disqualifications for membership of the Houses.
o It provides provisions to curb corrupt practices and other offences.
o It lays down the procedure for settling doubts and disputes arising out of elections.

Significance of the Act:

• Implementation of democracy: The Acts provides for implementation of the provisions of the Constitution and
ensures that the democracy materialises in the country and fills voids such as term of Rajya Sabha members etc.
• Ensuring equality: The provisions of one electoral roll for Lok Sabha and assembly elections, prohibiting
registration in more than one constituency ensures equality of citizens.
• Decriminalisation: The provisions regarding disqualification from membership of Parliament and State
legislature ensures decriminalisation of politics.
• Transparency: The provisions regarding declaration of assets and liabilities, right to information of electors etc.
ensures transparency regarding the candidates in the elections.
• Free and fair elections: The provisions regarding corrupt practices and electoral officers provides for
decriminalisation of politics.

Challenges:
• Ruling party advantage: The RPAs do not contain clear provisions and guidelines on reducing the advantage to
ruling party in terms of misuse of official machinery and electoral funding. E.g. BJP has received around 95% of
funding through electoral bonds.
• Stopping criminal elements: Even after provisions in RPAs around 43% of MPs in present Lok Sabha have
criminal cases pending against them.
• Social media: Social media has blurred the silence period of election campaigning and also enables micro-level
targeting of voters.
• Power to de-register parties: ECI does not have power to de-register political parties that do not contest
elections and are merely for receiving funds.
• Bureaucratisation of politics: ECI does not have its own official machinery and has to depend on the
government, which is not conducive for free and fair elections.

Let us now study some important aspects and provisions of this act in detail.

OFFICIAL MACHINERY UNDER THE ACT FOR CONDUCT OF ELECTION

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Context: Recently, five police officers were suspended in connection with electoral malpractices at four polling
stations in Assam during assembly elections.

The RPA, 1950 and RPA, 1951 provide following official machinery for conduct of elections:
• Chief Electoral Officer: Designated or nominated by ECI in each state in consultation with the State
government to supervise the preparation, revision and correction of all electoral rolls and conduct of
elections.
• District Election Officer: Designated or nominated by ECI for each district or area within the district in
consultation with the State government to coordinate and supervise preparation and revision of electoral
rolls and conduct of elections.
• Electoral Registration Officer: Designated or nominated by ECI in consultation with the State government
to prepare and revise the electoral rolls.
• Assistant Electoral Registration Officer: Appointed by ECI to assist electoral registration officers and
subjected to the control of the electoral registration officer.
• Returning officer: Designated or nominated by ECI for every constituency in consultation with the State
government to effectually conduct election in the manner provided by the Act and rules or orders.
• Assistant Returning officer: Appointed by ECI to assist returning officer and can perform all or any of
function of returning officer, except scrutiny of nominations.
• Observers: Nominated by ECI to watch the conduct of election in constituency or constituencies.
• Presiding officers: Appointed by district election officer for each polling station to keep the order at the
polling station and ensure that the polls are taken fairly.
• Polling officer: Appointed by district election officer for each polling station to assist the presiding officer.

Officers on deputation to Election Commission: The returning officer, assistant returning officer, presiding officer,
polling officer and any other officer and any police officer are deemed to be on deputation to Election Commission
from the date of notification for election to the date of declaration of results.

PROVISIONS REGARDING DISQUALIFICATIONS IN RPA, 1951

Previous year question on this topic

Ques. On what grounds a people's representative can be disqualified under the Representation of Peoples Act,
1951? Also mention the remedies available to such person against his disqualification. (250 words, 15 marks)
(CSE-2019)
Ques. “There is a need for simplification of procedure for disqualification of persons found guilty of corrupt
practices under the Representation of peoples Act” Comment. (Answer in 150 words) (CSE-2020)

The RPA, 1951 provides for following disqualifications for membership of Parliament and State Legislature:
1. Disqualification on conviction for certain offences: Section 8 provides that a person is disqualified for a period
of six years if he is convicted of:
• Promotion of enmity between different groups
• Offence of rape
• Promotion of untouchability
• Import and export of prohibited goods
• Membership of unlawful association
• Booth capturing
• Insult to National Flag or Constitution of India and prevention of singing of National Anthem
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The Supreme Court in Lily Thomas v. Union of India case, 2013 held the provision that disqualification of a
member of Parliament and State Legislature shall not take place until three months from the date of conviction,
as unconstitutional and provided for immediate disqualification on conviction.
2. If a person convicted of any offence and sentenced to imprisonment for two or more years is disqualified.
3. If a person is guilty of corrupt practices
4. If a person is dismissed from government service for corruption or disloyalty
5. If a person has any contract in the course of trade or business or supply of goods to government.
6. If a person is a managing agent, manager or secretary of any company or corporation (other than a cooperative
society), in which the Government has at least twenty-five percent share.
7. If a person has failed to lodge an account of his election expenses within the time.

Remedies available for disqualified person

• The disqualified person can approach the Election Commission for removal of disqualification under Section 11
of the Act (except disqualification on the ground of corrupt practices).
• If the disqualification has resulted due to an election petition filed in High Court, then the person can approach
Supreme Court for appeal under section 116A.

Disqualifications for voting:

A person is disqualified from voting at any election for a period of six years if he is convicted of:
• IPC, 1860: Offence of bribery and undue influence or personation at an election
• RPA, 1951: Offence of promoting enmity between classes in connection with the election; removal of ballot
papers from polling stations; fraudulently defacing or fraudulently destroying any nomination paper

Way forward:
• The recommendations of 244th report of Law Commission should be implemented, i.e. disqualification at
the stage of framing of charges along with other legal safeguards to curb criminalisation of politics.

REGISTRATION OF POLITICAL PARTIES

Registration of Political Parties with the Election Commission of India:
• The Election Commission lists political parties as
a) national party,
b) state party or
c) registered un-recognized party.
• The conditions for being listed as a national or a state party are specified under the Election Symbols
(Reservation and Allotment) Order, 1968.

What are the national and state parties?

For recognition as a national or state party, a political party has fulfilled any of the following conditions-
National Party State Party
6% valid votes in Lok Sabha or 6% valid votes in Legislative Assembly elections in state + 2
Legislative Assembly election in 4 or Assembly seats
more states + 4 Lok Sabha seats 6% valid votes in Lok Sabha elections in state + 1 Lok Sabha seat
3% or 3 Legislative Assembly seats, whichever is more
2% Lok Sabha seats from 3 states
1/25 Lok Sabha seats
8% valid votes in Lok Sabha or Legislative Assembly elections in a
State party in 4 states
state

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What are Registered unrecognised

REGISTERED UNRECOGNISED PARTIES INCREASED: ADR
parties?
Following political parties registered Recently, Association for Democratic Reforms (ADR) has presented a
with the Election Commission are report on several findings on registered unrecognised political parties.
considered Registered Key findings of the report:
Unrecognised Parties: • Number of registered political parties
• Newly registered parties; or
o There are 2,360 political parties registered with the Election
• Those parties which have not
Commission of India and 2,301 or 97.50% of them are
secured enough percentage of
unrecognised.
votes in Assembly or General
• Increased number
Elections to become a state
o The number of registered unrecognised parties increased two-fold
party; or
in the last 10 years, from 1,112 in 2010 to 2,301 in 2019.
• Those parties which have never
o The figure spiked disproportionately during the year of
contested in elections since
parliamentary election. Between 2018 and 2019, it increased by
being registered are considered
over 9.8%, while between 2013 and 2014, it increased by 18%.
unrecognised parties.
• Donation to these parties
o The contribution reports of only 78 (3.39%) of the total 2,301
Benefits to Recognised Political
Parties: registered unrecognised political parties are available in the public
• Exemptions from proposers: domain for 2018-19.
Candidates of recognised o In 2017-18, only 39 registered such parties had submitted
political parties do not require contribution reports before the due date and in 2018-19, only 38.
subscription from ten proposers
at the time of filing of nomination.
• Reserved symbols: Candidates of registered recognised political parties get reserved symbols.
• Adjournment of polls: On the death of a candidate of registered recognised political parties, the returning officer
adjourns the polls to a later date.
• Allocation of equitable share of time: On the basis of past performance, registered recognised political parties
get broadcast/telecast facilities over Akashvani/ Doordarshan during general elections.
• Travel expenses of star campaigners: The travel expenses of star campaigners are not accounted for in the
election expense accounts of candidates of their party.
• Free supply of copies of electoral rolls to the candidates of recognised political parties.

RIGHT TO KNOW
Context
• Recently, the Election Commission of India had revised norms for star campaigners for polls during the Covid-
19 pandemic. As per revised norms, a recognised political party could have only 30 star-campaigners and an
unrecognised (but registered) political party could have 15.
• Recently, the Law Ministry has increased the expenditure limit for a candidate in bigger states to Rs. 77 lakhs
for Lok Sabha polls and Rs. 30.8 lakh for assembly polls. In smaller states the limit is Rs. 59.4 lakh and Rs. 22
lakhs respectively.
About Right to know
Right to Information: A candidate has to furnish information about the following in his nomination paper,
whether—
a) he is accused of any offence punishable with imprisonment for two years or more, where charges are
framed by competent court;
b) he is convicted of any offence and sentenced to imprisonment for one year or more.

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Supreme Court Ruling on Right to Information of Electors

Case Supreme Court Ruling
Association for Candidate has to furnish information regarding any criminal antecedent, educational
Democratic Reforms v. qualification and assets.
Union of India, 2002
People’s Union for Civil • Voters have a fundamental right to know relevant qualifications of candidates for
Liberties v. Union of office, including information about their income and assets.
India, 2003 • Accordingly, section 33B of the RPA, 1951, which stated that candidates could not
be compelled to disclose any information about themselves other than their
criminal records, was held unconstitutional.
Resurgence India Case, Made it compulsory for Returning Officer to reject those nomination papers which
2013 are accompanied by incomplete/blank affidavit.
Krishnamurthy v. The SC held that disclosure of criminal antecedents (especially heinous crimes) of a
Sivakumar & Ors, 2015 candidate at the time of filing of nomination paper as mandated by law was a
categorically imperative
Lok Prahari v. Election The SC asked the Centre to amend the rules as well as the disclosure form filed by
Commission, 2018 candidates along with their nomination papers, to include source of their income, and
those of their spouses and dependents.

Declaration of Assets and Liabilities: Section 75A provides that every elected candidate for a House of Parliament
has to furnish following information to the Chairman/Speaker within ninety days from subscribing oath:
a) the movable and immovable property of which he, his spouse and his dependent children are jointly or severally
owners or beneficiaries;
b) his liabilities to any public financial institution, Central or State government.
The Chairman/Speaker can make rules in this regard and wilful contravention of the rules can be considered as a
breach of privilege.
Will compulsory declaration of assets tackle corruption?
Account of Election Expenses: Section 77 Yes, it will:
provides that every candidate has to keep a • Difficult to catch the act of bribing or receiving a bribe and
separate and correct account of all disproportionate assets mark the act of corruption.
expenditure in connection with election • It serves the purpose of prevention and aid to prosecution.
between date of nomination to date of • Poor performance in corruption perception index. (India’s
declaration of result. This account has to be
rank – 86th out of 180 countries)
submitted to the district election officer within
thirty days from the date of election of any
candidate. No, it will not:
• The expenditure incurred by star • Number of candidates with criminal record increasing,
campaigners of a political party on 43% MPs in present Lok Sabha have criminal charges.
account of travel by air or by any other • Presently no legal structure for verification of claims.
means is not considered expenditure • Political parties still fielding corrupt candidates.
by the candidate in this regard.

FORM 26

Context: Recently, the Law Ministry made it mandatory for election candidates to reveal their income-tax returns
of the last five years, as well as the details of their offshore assets. This was done by amending Form 26.

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Patna High Court, in 2016, annulled the Lok Sabha membership of Chhedi Paswan for not declaring a criminal case
pending against him. However, the SC later stayed HC order but suspended his voting right.
About Form 26:
• A candidate is required to file an affidavit called Form 26 along with the nomination papers, that furnishes
information on his assets, liabilities, educational qualifications, criminal antecedents (convictions and all
pending cases) and public dues.

What are the new changes?

• Reveal income tax return of self, spouse and dependents of last 5 years (earlier only one year).
• Details of offshore assets as well as same details of their spouse, members of the Hindu Undivided Family and
dependents (earlier not sought)

What if a candidate lies in an affidavit?

• On the allegation of suppression of information or false information, an election petition can be filed.
• Presently there is penalty for lying in affidavit is imprisonment up to six months or fine or both.

ELECTION PETITION
Recent context: West Bengal Chief Minister Mamata Banerjee has filed an election petition in the Calcutta High
Court challenging the Assembly election result of Nandigram constituency.

Provisions regarding election petition in RPA, 1951:

High Court to try election petitions
An election can be called in question only by an election petition and High Court have jurisdiction to try an election
petition. The trial of election petition is continued on day-to-day basis within six months. The appeal lies to the
Supreme Court within thirty days.

Decision of the High Court

The High Court can—
a) dismiss the election petition; or
b) declare the election of all or any of the elected candidates to be void; or
c) declare the election of all or any of the elected candidates to be void and the petitioner or any other
candidate to have been duly elected.

Grounds for declaring election to be void (Ground for filing election petition)
The High Court shall declare the election of elected candidate void, if—
a) an elected candidate was not qualified, or was disqualified; or
b) any corrupt practice has been committed by an elected candidate or his associates; or
c) any nomination has been improperly rejected; or
d) the result of the election was affected by—
i. the improper acceptance of any nomination, or
ii. any corrupt practice committed in the interests of the elected candidate by an agent other than his
election agent, or
iii. the improper reception, refusal or rejection of any vote; or
iv. any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made
under this Act.

Grounds for which a candidate other than the returned candidate may be declared to have been elected
If the High Court is of opinion—
a) that in fact the petitioner or such other candidate received a majority of the valid votes; or

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b) had there been no corrupt practice by the elected candidate, the petitioner or such other candidate would
have obtained a majority of the valid votes.

CORRUPT PRACTICES
Recent context: There has been allegation on Kerala BJP chief for threatening and bribing K Sundara for
withdrawing his nomination as a candidate in the Manjeswaram Assembly constituency in State Assembly elections.

Provisions regarding corrupt practices in RPA, 1951:

Section 123 of the Act defines corrupt practices:
• Bribery: any gift, offer or promise by a candidate or his agent to any person to stand or not to stand or to
withdraw or not to withdraw from being a candidate or to vote or refrain from voting.
• Undue influence: direct or indirect interference with the free exercise of any electoral right. It includes
threatening any election candidate or elector.
• Religious appeal: The appeal on the ground of his religion, race, caste, community or language or appeal to
religious symbols, national symbols, such as the national flag or the national emblem.
The Supreme Court in Abhiram Singh case, 2017 held that election is a secular exercise and an appeal for
votes during elections on the basis of religion, caste, race, community or language amount to a ‘corrupt
practice’.
• Promotion of enmity or hatred: The promotion of feelings of enmity or hatred between different classes of
the citizens of India on grounds of religion, race, caste, community, or language.
• The propagation of the practice or the commission of sati or its glorification.
• False publication: The publication of any false statement of fact in relation to the personal character or conduct
of any candidate.
• Use of any vehicle or vessel for the free conveyance of any elector (other than the candidate himself, the
members of his family or his agent) to or from any polling station.
• The incurring or authorizing of expenditure in contravention of ‘Account of election expenses and maximum
limit’ prescribed under Section 77 of RPA, 1951.
• Obtaining any assistance (other than the giving of vote) from gazetted officers, stipendiary judges and
magistrates, members of armed forces, excise officers, revenue officers etc.
• Booth capturing
In the 2019 general elections, a polling agent in Faridabad was arrested over video of ‘booth capture’.

ELECTORAL OFFENCES
Electoral Offences listed in RPA, 1951:
Chapter III of RPA, 1951 provides following electoral offences:
1. Promoting enmity between classes in connection with election on grounds of religion, race, caste,
community or language.
2. Providing false information, concealing information in his nomination paper or affidavit:
3. Holding public meetings during period of forty-eight hours ending with hour fixed for conclusion of poll
4. Disturbances at public meetings for the purpose of preventing the transaction of the business.
5. Publication and dissemination of result of exit polls, etc from beginning of election to half an hour after the
polls
6. Printing of pamphlets, posters, etc without the names and addresses of the printer and the publisher.
7. Failure to maintain secrecy of voting
8. Officers, etc., at elections not to act for candidates or to influence voting
9. Removal of ballot papers from polling station

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10. Offence of booth capturing

11. fraudulently defacing, destroying any nomination paper or removing any list, notice or other document
affixed by or under the authority of a returning officer etc.
12. Other offences:
a. Canvassing in or near polling station on the date of election
b. Disorderly conduct in or near polling stations on the date poll
c. Misconduct at the polling station
d. Failure to observe procedure for voting
e. Breaches of official duty in connection with election
f. Government servants acting as election agent, polling agent or counting agent
g. Going armed to or near a polling station
h. Not granting paid holiday to employees on the day of poll
i. Selling, giving or distributing liquor on polling day

Related issues in news

PAID NEWS
Recent context: Recently, the Chief Election Commissioner Sushil Chandra has proposed to include 'paid news' in
the list of electoral offences.

What is paid news?

Any news or analysis appearing in media (print & electronic) for a price in cash or kind as consideration. (Press
Council of India).

Negative impacts of paid news:

• Affects free and fair elections by spreading political agenda and giving edge to people with connections with
news channels.
• Affects peoples’ thinking and opinion: by not letting them that the news is in fact an advertisement and denies
them right to information.
• Affects independence of media: Which is the fourth pillar of democracy and brings the faith of people in media
down.
• Reflection of money power: the payment is mostly made in cash or kind and violates income tax and election
expenditure laws.

Implications of Paid news not being an electoral offence:

• Contestants who use paid news can only be hauled up for failing to include the expenses involved in their
campaign accounts.
• Does not require the candidate to distance himself/herself from paid news on relevant time and not post facto.

Way forward:
• According to the Department-Related Parliamentary Standing Committee on Information Technology:
o Subjecting the financial accounts of media houses, especially revenue sources for a suspected paid news.
o Establishing single regulatory authority for both print and electronic media.
• Formulating stringent guidelines for news media on poll coverage by Press Council of India.

Conclusion:
The issue of paid news poses a new challenge, especially in the digital age. Therefore, it is vital that the issue of paid
news is tackled to ensure elections are free and fair.

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VOTING RIGHTS TO NON-RESIDENT INDIANS THROUGH POSTAL BALLOT

Context: Recently, the Election Commission of India (ECI) has informed the Ministry of Law and Justice that it is
“technically and administratively ready” to extend the Electronically Transmitted Postal Ballot System (ETPBS) to
voters abroad (NRIs) for elections in Assam, West Bengal, Kerala, Tamil Nadu and Puducherry.
• However, the proposal was not implemented for the time being.
Background:
• A 12-member committee was set up after the 2014 Lok Sabha elections to study voting of NRIs through three
options — voting by post, voting at an Indian mission abroad and online voting— after demands were raised.
• In 2015, the panel finally recommended that NRIs should be given the “additional alternative options of e-postal
ballot and proxy voting”, apart from voting in person.

What is Electronically Transmitted Postal Ballot About Proxy voting:

System (ETPBS)? • Under proxy voting, a registered elector can
• ETPBS is flagship IT programme of Election
delegate his voting power to a representative.
Commission of India.
• The Law Ministry accepted the recommendation
• It is a type of Postal voting whereby Ballot Papers
of Election Commission on proxy voting.
are distributed electronically to voters and
• The Union Cabinet passed the proposal on proxy
returned by them in Post.
voting rights for NRIs in 2017.
• It is also known as e-postal ballots and these
• The government then brought a Bill amending the
registered people are known as Service Voters.
Representation of the People Act 1950.
• For the first time it is enabled through the
• The Bill was passed by Lok Sabha and was awaiting
dedicated portal for online registration of Service
Rajya Sabha’s approval when it lapsed with the
Voters.
dissolution of the 16th Lok Sabha.
• It is a fully secured system, having two security
• This proposal hasn’t been revived yet.
layers.
• Secrecy of voting is maintained through the use of
OTP and PIN.
• It has a unique QR Code in the portal which prevents duplication of casted ETPB.

Proposed process of voting through postal ballots:

Existing process for NRIs:

• Voting rights for NRIs were introduced only in 2011, through an amendment to the Representation of the People
Act 1950.
• An NRI can vote in the constituency located in his/her place of residence, as mentioned in the passport.
• He/she can only vote in person and will have to produce her passport in original at the polling station for
establishing identity.

Challenges:
• Identification of voters: Questions regarding the identity of voters can be raised as representatives of political
parties may not be present at the venue of voting.

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• Policing and security: The EC will have to Service Voters: Section 20 of RPA, 1950 provides for service voters
come up with ways to ensure how these that include:
venues can be policed and secured. a) a member of the armed forces of the Union; or
• Model Code of Conduct: Foreign b) a member of a force to which the provisions of the Army Act,
governments are not bound to maintain 1950, have been made applicable whether with or without
a silence period before polling, so it will modifications; or
have to be discussed how MCC is not c) a member of an armed police force of a State, who is serving
breached. outside that State; or
d) a person who is employed under the Government of India, in
Way forward: a post outside India.
• According to Ministry of External • The wife of any such person, residing with him is also entitled
Affairs, “huge logistical challenges” need to vote through postal ballot.
to be addressed and “a realistic • Ahead of the Jharkhand and Delhi elections in November
assessment of requirements” need to be 2019, use of postal ballots for voting during parliamentary
made before the proposal is and assembly elections were extended to Persons with
implemented. Disabilities (PwD) and electors over 80 years of age.
• Actual facilitation of voting, • in June 2020, the Law Ministry, on the recommendation of
identification of voters, and venues for ECI, had extended the postal ballot facility to electors over 65
voting in case the embassies and years (being most vulnerable to Covid-19), Covid-19 patients
consulates should be enough to and those suspected to have it. However, this facility was not
accommodate all the voters. provided due to logistical issues.

Way forward for complete topic- RPA

• Curbing paid news and opinion polls: This affects the informed decision of an elector and therefore should be
curbed with clear guidelines in this regard.
• Tackling funding issues: Efforts should be made towards creation of national electoral fund to ensure that the
funds are distributed transparently on the basis of performance in last election.
• Removing multiple enrolment by linking electoral roll with the Aadhar ecosystem.
• Curbing criminalisation of politics: The rising trend of criminalisation, hate speech should be curbed and ECI
along with civil society should take steps such as awareness campaign, increasing voter information etc.

Conclusion:
• Elections are foundation of any democracy and therefore, it is vital they remain free and fair along with
participation of every citizen of India. The issues that threaten the fairness of Indian elections should be
addressed so that Indian elections keep maintaining India a thriving democracy.

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CONSTITUTIONAL COMPARISON

INDIA AND USA

Attributes USA INDIA

Nature of the The United States Constitution is the world's India's Constitution is the world's longest
constitution shortest and first written constitution. The written constitution. It consists of 470 articles
United States Constitution is a very rigid in 25 parts, 12 schedules, and 5 appendices.
document with just seven articles and
twenty-seven amendments.
Nature of • The USA is an indestructible union of • India is an indestructible union of
federalism indestructible states. The American destructible states.
Constitution is a truly federal • India has only one Constitution, in which
constitution, meaning that the federal the Central government interferes with the
government and the states each have functions of state governments by, for
their own constitutions and do not example, appointing governors, reserving
interfere with each other's functions. state bills for the President's approval, and
• Symmetrical federalism – all states are imposing President's rule in the states.
given equal representation in the Senate. • Asymmetrical federalism: States have
• States have a stronghold on the legislative been given representation in Rajya Sabha
federation. There is no elaborate on the basis of their population.
mechanism given for residuary subjects. • The Indian Constitution's Seventh
Schedule divides legislative authority
between the national and state
governments. The legislature has residuary
rights.
Government • Presidential form of government, in which • India has adopted a Parliamentary form of
structure the people directly elect the executive government. The President of India is the
President. head of the Indian government's executive
• The President is powerful and not branch.
accountable to the House of Congress. • He is not accountable to the Parliament
The term of the American President is 4 and is indirectly elected by the
years and he can hold the office of the legislatures of the Centre and the states.
President for only two terms. President The Indian President holds the office for
enjoys Qualified veto. five years.
• He can be elected any number of
times. The President does not enjoy
Qualified veto.
• Unlike the US, the Indian Constitution does
not prescribe any time limit for signing the
bill by the President.
Impeachment • Treason, bribery, and high crimes of • In the Indian Constitution, there is a system
of the misdemeanour are the reasons. of impeachment for constitutional
President violations.

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Office of the • A Vice President may become a President • The office of the Indian Vice President is
Vice- because of a vacancy in the office of the modelled on the US office, with some
president President. differences.
• He is the Ex-officio chairperson of the • For example he can hold the office of
Senate and has a casting vote. president in case of a vacancy only till the
new president is not elected.

Citizenship • People in the United States have two • India, on the other hand, has a single
citizenships: one as a citizen of the United constitution and the principle of single
States and the other as a citizen of their citizenship for all of its people.
respective state.

Legislature It consists of two houses: • The house of representatives and Senate is

House of Representatives and the Senate. very much similar to the Lok Sabha and
A. House of Representatives: Rajya Sabha of India, respectively.
• One of the weakest lower house in the • In India the executive comes from the
world. legislature and falls under its ambit.
• It consists of 435 members • The Union Executive includes the
• Representation of people may differ in President. The true executive, however, is
number from different states the Prime Minister and the Council of
B. SENATE: The body is permanent Ministers, since the President must act
• The world's most powerful upper with the aid and advice of the Council of
house. Ministers.
• Ordinary bills, amendment bills, and
money bills all fall under its
jurisdiction.
• Senators serve six-year terms. Every
two years, one-third of the
members/Senators leave.
• The terms of the Legislature and the
Executive are both fixed and
independent of one another.
• A member of the Executive cannot be
a member of the Legislature.
Fundamental • In the United States, no one's life or • A person's life and liberty can be taken
rights liberty can be taken away without "due away in India according to the "procedure
process of law." established by law."
• Due process refers to the requirement • The phrase "procedure defined by statute"
that the substance and practise of the law gives the legislature broad discretionary
be just, equal, and equitable, as power to limit liberty.
determined by the judiciary.
• The legislative power to take away a
person's liberty is restricted, and the
judiciary scrutinises and evaluates it.
Checks and • The doctrine of separation of powers is • In India the executive and legislature
Balances enshrined in the US Constitution. tightly interwoven and the judiciary is
• Through judicial oversight of executive acting somewhat independently.
and legislative actions, the judiciary keeps
an eye on the other branches of
government.

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Emergency • The American Constitution does not use • An emergency may be declared in India if
the term "emergency," but it does state there is a war or armed rebellion. All
that the writ of Habeas Corpus may be fundamental rights, with the exception of
suspended in the event of rebellion and the right to life (Article 21), may be
invasion of public safety. suspended in an emergency.
Judiciary • Judges are appointed by the President and • India, on the other hand, employs a
confirmed by the Senate, and they are collegium method for appointing judges to
removed by the Congress and the the higher judiciary.
President by impeachment. President
controls their salaries and emoluments.
• Judges of the Supreme Court are
appointed without regard to any
qualifications.

Amendment of There are two ways to amend the • India's amendment process is simple and
the Constitution: flexible.
Constitution 1. Proposed by the Congress and ratified by • In India, only the Parliament has the
the States authority to recommend constitutional
• Amendment to be passed by 2/3rd amendments, and the states have no say
majority both the Houses in the matter.
• To be ratified by the State Legislatures • Although some of the Articles may be
of at least 3/4th of the States amended with a simple majority, others
2. Proposed by States and ratified by the require a special majority, and some
States Articles require ratification by more than
• 2/3rd of the States should pass a half of the States.
resolution to this effect
• They will communicate with the Congress.
The Congress will call the convention.
• In the convention, it has to be ratified by
3/4th of the States.

INDIA AND BRITAIN

Nature • There is no written constitution in the • Indian constitution is codified into various
United Kingdom. The British Constitution parts and schedules.
does not exist as a codified or formal text. • Indian Constitution, in contrast, is both
• The British Constitution is an example of flexible as well as rigid.
how things have evolved over time. There
was never a constituent assembly that
framed it.
• The British Constitution is said to be the
product of both wisdom and chance.
• The British Constitution is a flexible
constitution. It can be passed, amended
and repealed by a Simple Majority (50%
of the members present and voting) of
the Parliament, since no distinction is
made between a constitutional law and
an ordinary law.
Nature of • The British Constitution has a unitary Federal nature. Powers is shared by the
state character. national and the state governments.

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• All powers of the government are vested

in the British Parliament, which is a
sovereign body.
Sovereignty of • The British Parliament is the country's • Despite the fact that state legislatures
Parliament only legislative body with unrestricted exist, the Indian Parliament's legislative
legislative authority. It has the power to power approximately compares to that of
enact, amend, or repeal any statute. the British Parliament.
• The courts do not have the authority to • Judiciary effectively control over
rule on the legality of legislation passed parliament and complete mechanism of
by the British Parliament. separation of power exists in India.
Executive • Many of the King's rights and authority • Executive is similar except In India, there is
have been taken away from him. no individual legal responsibility.
Ministers who belong to the majority
party in Parliament and remain in office
as long as their party's trust in them is
maintained are the true functionaries.
• The executive has individual legal
responsibility.
Nature of • A constitutional monarchy which is not • President is the ceremonial head of the
head of the incompatible with democracy. state and acts according to the aid and
state • The King does not have any discretionary advice of the council of ministers.
authority. He/she is referred to as • President can be impeached if he or she
‘Golden Zero.' violates the Constitution.
• King enjoys absolute immunity; it’s said
that King can do no wrong
Judiciary • The rule of law in the United Kingdom is • The idea of 'Basic Structure' has given the
protected by the rule that judges can only judiciary a powerful instrument with which
be dismissed from office for cause, for to stifle any Executive or Legislative activity
serious misbehaviour and in accordance that it considers to be contrary to the
with a protocol that has been developed. Constitution's basic spirit.
• For removal It is necessary to obtain the • Other provisions like appointment and
approval of both Houses of Parliament. removal are very much similar to the UK's
model.
Legislature • The British Parliament is bicameral: the • Bicameral legislature with fixed seats in
House of Lords (whose power is not both houses.
fixed) and the House of Commons • House of lords is very much similar to
(whose strength is fixed) (strength fixed Rajyasabha and House of commons is
at 650 members). similar to the Loksabha.
• The House of Lords has the power to
recommend and pass amendments. Its
powers, however, are limited; if it does
not accept a piece of legislation, it can
only postpone its implementation for up
to a year.
Speaker • Once a Speaker, always a Speaker is the • No such provisions/convenstions in India.
rule in the United Kingdom. It denotes It is not necessary for the Speaker to
that a Speaker's local constituency is resign from his party.
uncontested.
• When a person is appointed Speaker, he
formally resigns from his political party.
Prime • It is a convention in Britain that the PM • PM can be a member of either House of
minister will always be a member of the House of Parliament.
Commons only.

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OnlyIAS Nothing Else PRAHAAR: Indian Polity

Shadow • Shadow cabinet members from the • No provision of shadow cabinet

cabinet opposition party hold a similar
portfolio as minister.

INDIA AND FRANCE

Attributes France India

Nature • It has a unitary form of government and a semi- • India is Parliamentary form of
presidential government. democracy with President as its
nominal head
Law making • The French Parliament lacks dominance law • With respect to law making on the
power making. Central list as per the seventh
• The legislature has a list of subjects on which it schedule where the president has
should pass legislation, while the President Ordinance making power only.
makes law on the rest of the issues.
Parliament • The French Parliament is bicameral, consisting • Rajya Sabha has Limited power as
of two houses: National Assembly and the compared to Lok Sabha.
Senate. • Only in the case of constitutional
• The French bicameralism is an unequal system amendment Rajya Sabha is at equal
since the National Assembly has much broader footing with Lok Sabha in India.
powers than those of the Senate.
The Senate cannot be dissolved.
Secularism • Follows the rigid principle of secularism. The • Indian secularism respects all
state does not support religious activities but religions equally and is the best
also does not interfere in private religious example of positive secularism.
practices.
• It prohibits any visible religious symbols in
public space. This model leaves no scope for the
idea of the state-supported religious reforms.
Amendment • Both the Houses of Parliament have to pass a • Blend of flexible and rigid. No
resolution by 3/5th majority. provisions like referendums etc.
• So rigid in nature The President may also choose
to refer to the amendment to people by
referendum.
President • The President is elected for a fixed term (5 • No such body in India president’s
years). The President shall be elected by an impeachment follows constitutional
absolute majority of votes polled (Second Ballot provisions and parliament is body to
system). do so.
• The High Court of Justice will enquire about the
impeachment causes of the president.
Prime • The French Prime Minister is an advisor to the • The Prime Minister is the real head
minister President (concept of cohabitation). of the government.
• Between the two positions, there is a division of
functions rather than a division of power.
• The French President is in charge of foreign
affairs and domestic issues.
• The PM, on the other hand, is in charge of the
company's day-to-day operations.
• Local government and domestic matters

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OnlyIAS Nothing Else PRAHAAR: Indian Polity

Judiciary • The High Council of Justice nominates the • The higher judiciary employs a
judges. The President and members of the collegium method for appointing
judiciary are in charge of this body. judges to the higher judiciary.
• The President is also referred to as the • Oath is administered by the
"Guardian of the Judiciary." president and impeachment process
completes under oversight of the
Parliament.

INDIA AND CHINA

Attribute China India

Nature • It is neither too rigid nor too flexible, and it • Indian Constitution is a blend of various
closely resembles the former Soviet Union's constitutions of the world and Catering
constitution. the unique need of India with unique
• The People's Republic of China is a Socialist provisions.
State established in the name of People's • India is a republic and democratic
Democratic Dictatorship, in which the country with multi-party democracy
Communist Party serves as a leader to and people are counter of power.
direct the people.
Unitary/Federal • A strong unitary state. There is a strong • Under Constitution Amendment Act 73
central government, but regional and 74 power is delegated to local
governments as distinct bodies have not bodies for effective policy formulation
been established by the Constitution. at grass root level.
• The original constitution provided
Federal structure with strong Union
and separation of power between
states and union governments.
Nature of • One Party System. Communist • Multiparty democracy with a strong
politics Party regarded as the sole source of election commission.
political authority for all practical purposes.
Preamble • Under the constitutional framework, the • It states the nature of Indian
traditional theory of Democratic Centralism democracy with its ideal and aim along
has also been given due consideration. with the source of power and the
• The Preamble expressly acknowledges nature of the constitution.
Taiwan as an integral part of China.
Legislature • The legislative branch is represented by the • Legislature is bicameral and various
National People's Congress (NPC). With committees exist and formed from
over 3000 members, it is a unicameral time to time whose work is to
legislature. complement the work of Legislature
• The actual work of the NPC is handled by a and executive but there is no provision
smaller body known as the Standing of such a strong Central body alike
Committee of the NPC, which has about standing committee of china.
150 members.
Executive • The State Council is China's Cabinet or • The real executive is the Council of
Executive. Ministers headed by the Prime
• It is led by the Premier, four Vice Premiers, Minister.
and members of the State Council. • It is accountable to the lower house of
the Parliament
President • Elected by the Congress for a period of five • President is the nominal head of the
years and regarded as head of the state. executive elected for five years and can
• The President and Vice-President had a be elected for any number of times.
two-term limit until 2018.
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OnlyIAS Nothing Else PRAHAAR: Indian Polity

• In March 2018, the National People's

Congress passed a constitutional
amendment repealing presidential term
limits, enabling the incumbent president
and vice president to serve indefinitely.
Fundamental • All citizens of the People's Republic of China • Six fundamental rights are provided
Rights and over the age of 18 have the legal right to under the constitution(Part 3) and
Duties vote and stand for election, along with along with DPSP(Part 4) and
rights such as equal pay for equal work etc. fundamental duties(Part 4A) it gives
wholeness to the idea of democracy
Judiciary • China has a devoted judiciary, that is, one • The Judiciary is integrated and
that is dedicated to the task of Socialism. hierarchy starting from district level to
The Supreme People's Court is the highest Supreme Court, in one thread.
organ. China also has a Court of • The laws are codified under CrPC and
Procuratorates, which deals with official IPC, further constitution provides
corruption cases. power of Judicial review under article
• Chinese law has never been systematically 13 32 (Supreme court) and 226 (high
codified. Conventions, rather than rules, courts). The judiciary is independent of
have kept the Chinese judicial system the Executive and legislature.
together.

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