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Constitution || Why and How

What & Why do we need a Constitution?

 It is a body of fundamental principles according to which a state is

constituted or governed.

 We need a constitution to provide a set of basic rules that allow for minimal
coordination amongst members of a society which are legally enforceable.

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

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


 It decides who gets to decide what the laws will be.


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 In the Indian Constitution, it is specified that in most instances, Parliament

gets to decide laws and policies, and that Parliament itself be organized in a
particular manner.


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

1. Constitution expresses the fundamental identity of a people.

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

Mode of Promulgation :

This refers to how a constitution comes into being.

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

In many Countries constitutions remain defunct why?

 Crafted by military leaders

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

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

Created in the aftermath of popular national movements.

Indian Constitution overview:

1. Formally created by a Constituent Assembly between December 1946

and November 1949
2. Drew upon a long history of the nationalist movement that had a
remarkable ability to take along different sections of Indian society
together
3. Drew enormous legitimacy from the fact that it was drawn up by people
who enjoyed :
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 Immense public credibility

 Who had the capacity to negotiate and command the respect of a wide
cross-section of society,
 who were able to convince the people that the constitution was not an
instrument for the aggrandizement of their personal power

Provision of the Constitution:

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

 Allowed permanent majorities to oppress minority groups within society
 Systematically privileged some members at the expense of others, or that
systematically entrenched the power of small groups in society, would cease to
command allegiance
 The more a constitution preserves the freedom and equality of all its
members, the more likely it is to succeed.

Balanced Institutional Design:

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

monopoly of power.

 For E.g. The Indian Constitution horizontally fragments power across

different institutions like the Legislature, Executive and the Judiciary and
even independent statutory bodies like the Election Commission.

 This ensures that even if one institution wants to subvert the

Constitution, others can check its transgressions.
 An intelligent system of checks and balances has facilitated the success of
the Indian Constitution.
 A constitution must strike the right balance between certain values, norms
and procedures as authoritative, and at the same time allow enough
flexibility in its operations to adapt to changing needs and circumstances.
 Too rigid a constitution is likely to break under the weight of change; a
constitution that is, on the other hand, too flexible, will give no security,
predictability or identity to a people.

How was the Indian Constitution made ?

 Constitution was made by the Constituent Assembly which had been elected
for undivided India.
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 First sitting on 9 December 1946 and re-assembled as Constituent Assembly

for divided India on 14 August 1947.
 Members were elected by indirect election by the members of the
Provisional Legislative Assemblies that had been established in 1935
 The Constituent Assembly was composed roughly along the lines suggested
by the plan proposed by the committee of the British cabinet, known as the
Cabinet Mission.

According to Cabinet Mission Plan:

 Each Province and each Princely State or group of States were allotted seats
proportional to their respective population roughly in the ratio of
1:10,00,000.
 The seats in each Province were distributed among the three main
communities, Muslims, Sikhs and General, in proportion to their respective
populations.
 Members of each community in the Provisional Legislative Assembly elected
their own representatives by the method of proportional representation with
single transferable vote.
 The method of selection in the case of representatives of Princely States was
to be determined by consultation

Procedures

 The Constituent Assembly had eight major Committees on different subjects.

Usually, Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, Maulana Azad or
Ambedkar chaired these Committees.
 Each Committee usually drafted particular provisions of the Constitution
which were then subjected to debate by the entire Assembly
 Some provisions were subject to the vote
 An Assembly as diverse as the Constituent Assembly of India could not have
functioned if there was no background consensus on the main principles the
Constitution should enshrine


Objective Resolutions:

 It defined the aims of the Assembly

 Moved by Nehru in 1946
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 This resolution encapsulated the aspirations and values behind the Constitution.
 Based on this resolution, our Constitution gave institutional expression to
these fundamental commitments: equality, liberty, democracy, sovereignty and a
cosmopolitan identity.

Main points of the Objectives Resolution:

India is an independent, sovereign, republic;

India shall be a Union of erstwhile British Indian territories, Indian States, and
other parts outside British India and Indian States as are willing to be a part of
the Union;
Territories forming the Union shall be autonomous units and exercise all powers
and functions of the Government and administration, except those assigned to or
vested in the Union;
All powers and authority of sovereign and independent India and its
constitution shall flow from the people;
All people of India shall be guaranteed and secured social, economic and
political justice; equality of status and opportunities and equality before law; and
fundamental freedoms - of speech, expression, belief, faith, worship, vocation,
association and action - subject to law and public morality;
The minorities, backward and tribal areas, depressed and other backward classes
shall be provided adequate safeguards;
The territorial integrity of the Republic and its sovereign rights on land, sea and
air shall be maintained according to justice and law of civilized nations;
The land would make full and willing contribution to the promotion of
world peace and welfare of mankind.

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

 Adoption of the parliamentary form and the federal arrangement, which

would distribute governmental powers between the legislature and the
executive on the one hand and between the States and the central
government on the other hand

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 Constitution as a living document

ARE CONSTITUTIONS STATIC?

 The Soviet Union had four constitutions in its life of 74 years. In 1991, the rule of the
Communist Party of Soviet Union came to an end and soon the Soviet federation
disintegrated. After this political upheaval, the newly formed Russian federation adopted a
new constitution in 1993.
 The Constitution of India was adopted on 26 November 1949. Its implementation formally
started from 26 January 1950. More than fifty-five years after that, the same constitution
continues to function as the framework within which the government of our country
operates.

Lot of questions will come in our mind— For instance:

1. Is our Constitution so good that it needs no change?

2. Were our Constitution makers so far-sighted and wise that they had foreseen all the changes that
would take place in the future?

The answer to the above questions is

 Yes, we have inherited a very robust Constitution
 The basic framework of the Constitution is very much suited to our country.
 The Constitution makers were very farsighted and provided for many solutions for future
situations.

3. We know that our constitution provides the solution for many problems but can it provide for all
eventualities?
4. Then how does the same Constitution continue to serve the country?

The answer to this question is:

 Our Constitution accepts the necessity of modifications according to changing needs of the
society.
 In the actual working of the Constitution, there has been enough flexibility of
interpretations. Both political practice and judicial rulings have shown maturity and
flexibility in implementing the Constitution.
 The above factors have made our Constitution a living document rather than a closed and
static rulebook.

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 Challenging Issue of Constitution & Solutions:
 The provisions of the constitution would naturally reflect efforts to tackle the problems that
the society is facing at the time of making of the constitution and it must be a document
that provides the framework of the government for the future as well
 The constitution has to be able to respond to the challenges that may arise in the future;
will always have something that is contemporary and something that has a more durable
importance
 A constitution is not a frozen and unalterable document and is a framework for the
democratic governance of the society.

Thus the Indian Constitution is a combination of both the approaches mentioned above:

 That the constitution is a sacred document and that it is an instrument that may require
changes from time to time or we can say that;
 Our Constitution is not a static document, it is not the final word about everything; it is not
unalterable.

HOW TO AMEND THE CONSTITUTION?

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

Balancing approach of our Constitution:

 The Constitution must be amended if so required. But it must be protected from

unnecessary and frequent changes. In other words, the Constitution is to be ‘flexible’ and at
the same time ‘rigid’.
 Flexible means open to changes and rigid means resistant to changes; can be very easily
changed or modified is often called flexible.
 In the case of constitutions, which are very difficult to amend, they are described as rigid.

The Indian Constitution combines both these characteristics.

What happens if there are faults or mistake in our Constitution?

Whenever such mistakes would come to light, the Constitution needs to be easily amended and
should be able to get rid of these mistakes. Then there were some provisions in the Constitution
that were of temporary nature and it was decided that these could be altered later on once the new
Parliament was elected. But at the same time, the Constitution was framed by considering a federal

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polity and therefore, the rights and powers of the States could not be changed without the consent
of the States.

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

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

These details show how rigid and complicated the amending process could have been.

 Only elected representatives of the people are empowered to consider and take final
decisions on the question of amendments.
 Thus, sovereignty of elected representatives (parliamentary sovereignty) is the basis of the
amendment procedure.

Special Majority:
Amendment to the Constitution requires two different kinds of special majorities:
 In the first place, those voting in favor of the amendment bill should constitute at least half
of the total strength of that House.
 Secondly, the supporters of the amendment bill must also constitute two-thirds of those
who actually take part in voting.

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  Both Houses of the Parliament must pass the amendment bill separately in this same
manner (there is no provision for a joint session). For every amendment bill, this special
majority is required.
 The basic principle behind the amending procedure is that it should be based on broad
support among the political parties and parliamentarians.

Ratification by States:

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

 When an amendment aims to modify an article related to distribution of powers between
the States and the central government, or articles related to representation, it is necessary
that the States must be consulted and that they give their consent.
 The Constitution has ensured this by providing that legislatures of half the States have to
pass the amendment bill before the amendment comes into effect.
 Apart from the provisions related to federal structure, provisions about fundamental rights
are also protected in this way.
 The Constitution of India can be amended through large-scale consensus and limited
participation of the States.

WHY HAVE THERE BEEN SO MANY AMENDMENTS?

There is always a criticism about the number of amendments. It is said that there have been far too
many amendments to the Constitution of India. On the face of it, the fact that ninety-three
amendments took place in fifty-five years does seem to be somewhat odd. Amendments are not
only due to political considerations.

Barring the first decade after the commencement of the Constitution, every decade has witnessed a
steady stream of amendments. This means that irrespective of the nature of politics and the party
in power, amendments were required to be made from time to time.

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

 The anti-defection amendment (52nd amendment), this period saw a series of amendments
in spite of the political turbulence.
 Apart from the anti-defection amendments (52nd and 91st) these amendments include the
amendment bringing down the minimum age for voting from 21 to 18 years, the 73rd and
the 74th amendments, etc.
 In this same period, there were some amendments clarifying and expanding the scope of
reservations in jobs and admissions.

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  After 1992-93, an overall consensus emerged in the country about these measures and
therefore, amendments regarding these measures were passed without much difficulty
(77th, 81st, and 82nd amendments).

Controversial Amendments

 In particular, the 38th, 39th and 42nd amendments have been the most controversial
amendments so far.
 These three amendments were made in the background of internal emergency declared in
the country from June 1975.
 They sought to make basic changes in many crucial parts of the Constitution.

42nd Amendment: An Overview

 An attempt to override the ruling of the Supreme Court given in the Kesavananda case.
 Even the duration of the Lok Sabha was extended from five to six years.
 They were included in the Constitution by this amendment act and also ended up putting
restrictions on the review powers of the Judiciary.
 This amendment made changes to the Preamble, to the seventh schedule of the
Constitution and to 53 articles of the Constitution.

BASIC STRUCTURE AND EVOLUTION OF THE CONSTITUTION

Most famous case: Kesavananda Bharati

 It has set specific limits to the Parliament‘s power to amend the Constitution.
 It says that no amendment can violate the basic structure of the Constitution;
 It allows the Parliament to amend any and all parts of the Constitution (within this
limitation); and
 It places the Judiciary as the final authority in deciding if an amendment violates basic
structure and what constitutes the basic structure.

The theory of basic structure-

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

 It has emerged from judicial interpretation.
 The Judiciary and its interpretation have practically amended the Constitution without a
formal amendment.

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 Examples of how judicial interpretation changed our understanding of the Constitution:
 Reservations in jobs and educational institutions cannot exceed fifty per cent of the total
seats.
 Reservations for other backward classes, the Supreme Court introduced the idea of creamy
layer and ruled that persons belonging to this category were not entitled to benefits under
reservations
 The Judiciary has contributed to an informal amendment by interpreting various provisions
concerning right to education, right to life and liberty and the right to form and manage
minority educational institutions.

Parliamentary Democracy:

In a parliamentary democracy, the Parliament represents the people and therefore, it is expected to
have an upper hand over both Executive and Judiciary. At the same time, there is the text of the
Constitution and it has given powers to other organs of the government. Therefore, the supremacy
of the Parliament has to operate within this framework.

Democracy is not only about votes and people‘s representation; also about the principle of rule of
law, about developing institutions and working through these institutions.
 Directive Principles of State Policy

The chapter on Directive Principles lists mainly three things:

1. The goals and objectives that we as a society should adopt

2. Certain rights that individuals should enjoy apart from the Fundamental Rights
3. Certain policies that the government should adopt

Relation between Fundamental Rights and Directive Principles of State Policy:

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

Right to Property

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

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 Election and Representation

Elections (Most visible symbol of the democratic process)

Dynamics of Representation:

 All citizens cannot take direct part in making every decision and therefore, representatives
are elected by the people. (Method followed-Elections)
 Rule by the people usually means rule by people’s representatives
 Constitution lays down some basic rules about elections —
o Eligibility of the Voter
o Eligibility of the Contester
o Supervision of Elections
o Method of Election
o Counting of Votes

Can elections take place in non-democratic countries?

 Yes; to present themselves as democratic (In Qatar)

Rules of the Election Game

A. First past the Post System/Plurality System

Step 1: The entire country is divided into constituencies
Step 2: Each constituency elects one representative
Step 3: The candidate who secures the highest number of votes in that constituency is
declared elected.
Winner: Whoever has more votes than all other candidates is declared elected— the
winning candidate need not secure a majority of the votes.

India—
 Extremely simple to understand: No specialised knowledge required about politics and
elections

Presentation of a clear choice:

 Voters have to simply endorse a candidate or a party while voting. The FPTP system offers
voters a choice not simply between parties but specific candidates.

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  In other electoral systems, especially PR systems, voters are often asked to choose a party
and the representatives are elected on the basis of party lists.
 As a result, there is no one representative who represents and is responsible for one
locality.
 In constituency based system like the FPTP, the voters know who their own representative
is and can hold him or her accountable.

Stable Government in power: Gives the largest party or coalition some extra bonus seats, more
than their share of votes would allow. Thus this system makes it possible for parliamentary
government to function smoothly and effectively by facilitating the formation of a stable
government.

Coming together of Unity: Encourages voters from different social groups to come together to win
an election in a locality.

Discourages caste/religion based voting

Rise of Coalition: A two-party system ensures even two major competitors coming together for
power and power is often shared by these two parties alternately. However, one must note that
post-independence there existed a one party dominance and several smaller parties.

B. Proportional Representation

Step 1: Counting of Votes

Step 2: Each party is allotted the share of seats in the parliament in proportion to its share of votes
Step 3: Each party fills its quota of seats by picking those many of its nominees from a preference
list that has been declared before the elections

Note:
 Voters exercise their preference for a party and not a candidate
 A party gets the same proportion of seats as its proportion of votes
Variations—
 Entire country is treated as one constituency and seats are allocated to each party according
to its share of votes in the national election
 The country is divided into several multi-member constituencies

India— Election of President, Vice President, and for the election to the Rajya Sabha and Vidhan
Parishads

Rajya Sabha Elections (PR)—

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  Every State has a specific quota of seats in the Rajya Sabha.
 The members are elected by the respective State legislative assemblies

Legislature of Israel: Knesset— Proportional Representation

Reservation of Constituencies

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

Constitution:

 Lok Sabha + State Legislative Assemblies for the Scheduled Castes and Scheduled Tribes
 Provision was made initially for a period of 10 years and as a result of successive
constitutional amendments, has been extended up to 2010

Decides which constituency is to be reserved: Delimitation Commission

 Appointed by the President of India

 Works in collaboration with the Election Commission of India

Purpose: Drawing up the boundaries of constituencies all over the country

Steps Involved:

1. A quota of constituencies to be reserved in each State is fixed depending on the

proportion of SC or ST in that State.
2. After drawing the boundaries, the Delimitation Commission looks at the composition of
population in each constituency. Those constituencies that have the highest proportion of
Scheduled Tribe population are reserved for ST.
3. In the case of Scheduled Castes, the Delimitation Commission looks at two things:

 It picks constituencies that have higher proportion of Scheduled Caste population but it also
spreads these constituencies in different regions of the State. This is done because the
Scheduled Caste population is generally spread evenly throughout the country.
 These reserved constituencies can be rotated each time the Delimitation exercise is
undertaken.

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Does the Constitution make similar reservation for other disadvantaged groups: No

Why—

 In India, the candidate who secures the highest votes in a particular constituency is declared
elected → smaller social groups disadvantaged
 History of caste based discrimination: the dominant social groups and castes can win
everywhere and the oppressed social groups may continue to remain unrepresented.
 Need to provide a way to ensure fair and just representation to the oppressed social groups

Characteristics of Elections

Free & Fair elections: Impartial and transparent election system; must allow the aspirations of the
voter to find legitimate expression through the electoral results

Universal franchise:
 All adult citizens of the country must be eligible to vote in the elections— consistent with
the principle of equality and non-discrimination
 Age: Till 1989, an adult Indian meant an Indian citizen above the age of 21. An amendment
to the Constitution in 1989, reduced the eligibility age to 18.

Right to contest: All citizens have the right to stand for election and become the representative of
the people (Age & legal qualifications applied in some cases—e.g. A person who has undergone
imprisonment for two or more years for some offence is disqualified from contesting elections)

Independent Election Commission (EC): Article 324 of the Indian Constitution provides for an
independent Election Commission
 Article 324: (1) The superintendence, direction and control of the preparation of the
electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of
every State and of elections to the offices of President and Vice- President held under this
Constitution shall be vested in the EC
 Chief Electoral Officer in every state: To assist the Election Commission of India

Details—

Composition- can either be a single member or a multi-member body—ensures greater power and
greater accountability

Presiding Officer: Chief Election Commissioner (CEC) presides over the Election Commission

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

Appointment: Appointed by the President of India on the advice of the Council of Ministers

Tenure: Constitution ensures the security of the tenure of the CEC and Election Commissioners—
are appointed for a six year term or continue till the age of 65, whichever is earlier

Removal:
CEC can be removed before the expiry of the term, by the President if both Houses of Parliament
make such a recommendation with a special majority. This is done to ensure that a ruling party
cannot remove a CEC who refuses to favour it in elections.
The Election Commissioners can be removed by the President of India.

Functions of the EC—

 Supervises the preparation of up-to-date voters’ list— ensures that the voters’ list is free of
errors
 Determines the timing of elections and prepares the election schedule— election schedule
includes
o Notification of elections,
o Date from which nominations can be filed,
o Last date for filing nominations,
o Last date of scrutiny,
o Last date of withdrawal,
o Date of polling
o Date of counting
o Declaration of results
To ensure a free and fair poll—

 Can postpone or cancel the election in the entire country or a specific State or constituency
on the grounds that the atmosphere is vitiated and therefore, a free and fair election may
not be possible.
 Implements a model code of conduct for parties and candidates
 Can order a re-poll in a specific constituency
 Can also order a recount of votes when it feels that the counting process has not been fully
fair and just
 Accords recognition to political parties and allots symbols to each of them

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Administrative Machinery: Conducts the elections with the help of the existing administrative
machinery
 Once the election process has begun, the commission has control over the administration as
far as election related work is concerned.
 During the election process, the administrative officers of the State and central
governments are assigned election related duty and in this respect, the Election Commission
has full control over them.
 The EC can transfer the officers, or stop their transfers; it can take action against them for
failing to act in a non-partisan manner
 EXECUTIVE

WHAT IS AN EXECUTIVE?

The organ of government that primarily looks after the function of implementation and
administration is called the executive

Principal functions of the Executive:

 Executive is the branch of government responsible for the implementation of laws and
policies adopted by the legislature and are often involved in framing of policy.

 Some countries have Presidents (US, India), while others have Chancellors (Germany).

 The executive branch is not just about presidents, prime ministers and ministers-it also
extends to the administrative machinery (civil servants).

 While the heads of government and their ministers, saddled with the overall responsibility
of government policy, are together known as the political executive, those responsible for
day to day administration are called the permanent executive

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In a Presidential system:
 The president is the Head of state as well as head of government.
 Office of president is very powerful, both in theory and practice.
 Example - United States, Brazil and most nations in Latin America.

Semi-Presidential Executive:
 Under the system of Executive Presidency, people directly elect the President.
 It may happen that both the President and the Prime Minister belong to the same political
party or to different political parties.
 France, Russia, Sri Lanka

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 Parliamentary System:
 The prime minister is the head of government.
 Most parliamentary systems have a President or a Monarch who is the nominal Head of
state.
 In such a system, the role of president or monarch is primarily ceremonial and prime
minister along with the cabinet wields effective power.
 Germany, Italy, Japan, United Kingdom as well as Portugal.

PARLIAMENTARY EXECUTIVE IN INDIA

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

Why India adopted Parliamentary Form?

 Indian Constitution wanted to ensure that the government would be sensitive to public
expectations and would be responsible and accountable.
 The presidential executive puts much emphasis on the president as the chief executive and
as source of all executive power. There is always the danger of personality cult in
presidential executive.
 Executive will be answerable to, and controlled by the legislature or people‘s
representatives.

What is Parliamentary Form of System?

 President who is the formal Head of the state of India and the Prime Minister and the
Council of Ministers, which run the government at the national level.
 At the State level, the executive comprises the Governor and the Chief Minister and Council
of Ministers.

Power and position of President

Article 52: There shall be a President of India.

Article 53: Executive power of the Union – The executive power of the Union shall be vested in the
President and shall be exercised by him either directly or through officers subordinate to him in
accordance with this Constitution.

Article 74 (1): There shall be a Council of Ministers with the Prime Minister at the head to aid and
advise the President who shall in the exercise of his functions, act in accordance with such advice.

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Discretionary Powers of the President:
 Constitutionally, the President has a right to be informed all the important matters and
deliberations of the Council of Ministers.
 The Prime Minister is obliged to furnish all the information that the President may call for.
 The President often writes to the Prime Minister and expresses his views on matters
confronting the country.

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

 He/she can send back the advice given by the Council of Ministers and ask the Council to
reconsider the decision. In doing this, the President acts on his/her own discretion.
 He/she has veto power by which he can withhold or refuse to give assent to Bills (other
than Money Bill) passed by the Parliament.
 When after an election, no leader has a clear majority in the Lok Sabha, the President has
to decide whom to appoint as the Prime Minister. In such a situation, the President has to
use his own discretion in judging who really may have the support of the majority or who
can actually form and run the government

Can President just keep the bill pending with him?

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

The Vice President of India:

Article 63: The Vice-President of India —There shall be a Vice-President of India.

Elected for: 5 years

Election method: Similar to that of the President; the only difference is that members of State
legislatures are not part of the Electoral College.

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Functions:

 Acts as the ex- officio Chairman of the Rajya Sabha and takes over the office of the
President when there is a vacancy by reasons of death, resignation, removal by
impeachment or otherwise.
 Acts as the President only until a new President is elected.

Removal of Vice-President: May be removed from his office by a resolution of the Rajya Sabha
passed by a majority and agreed to by the Lok Sabha.

PRIME MINISTER AND COUNCIL OF MINISTERS

Article 74: Council of Ministers to aid and advise President — There shall be a Council of Ministers
with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his
functions, act in accordance with such advice.

Article 75(1): The Prime Minister shall be appointed by the President and the other Ministers shall
be appointed by the President on the advice of the Prime Minister. The Prime Minister becomes
the most important functionary of the government in our country.

Prime Minister

 In the parliamentary form of executive, it is essential that the Prime Minister has the
support of the majority in the Lok Sabha. This support by the majority also makes the
Prime Minister very powerful.
 He/she decides who will be the ministers in the Council of Ministers.
 He/she allocates ranks and portfolios to the ministers.
 Depending upon the seniority and political importance, the ministers are given the ranks of
cabinet minister, minister of State or deputy minister.

All ministers have to be MP:

 The Prime Minister and all the ministers have to be members of the Parliament.
 If someone becomes a minister or Prime Minister without being an MP, such a person has
to get elected to the Parliament within six months.

Size of the Council of Ministers:

An amendment was made in 2003 (91st CAA), that the Council of Ministers shall not exceed 15
percent of total number of members of the House of People (or Assembly, in the case of the
States).

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Collective responsibility and dissolution of the Council of Ministers:

 Most important feature of parliamentary executive is that the executive is routinely under
the control and supervision of the legislature.
 Council of Ministers is collectively responsible to the Lok Sabha. This provision means that
a Ministry which loses confidence of the Lok Sabha is obliged to resign.
 The principle indicates that the ministry is an executive committee of the Parliament and it
collectively governs on behalf of the Parliament.
 Collective responsibility is based on the principle of the solidarity of the cabinet. It implies
that a vote of no confidence even against a single minister leads to the resignation of the
entire Council of Ministers.
 It also indicates that if a minister does not agree with a policy or decision of the cabinet, he
or she must either accept the decision or resign. It is binding on all ministers to pursue or
agree to a policy for which there is collective responsibility.
 The death or resignation of the Prime Minister automatically brings about the dissolution
of the Council of Ministers but the demise, dismissal or resignation of a minister only
creates a ministerial vacancy.

Role of the Prime Minister:

 The Prime Minister acts as a link between the Council of Ministers on the one hand and
the President as well as the Parliament on the other.
 The Prime Minister is involved in all crucial decisions of the government and decides on the
policies of the government.

Thus, the power wielded by the Prime Minister flows from various sources:
 Control over the Council of Ministers,
 Leadership of the Lok Sabha,
 Command over the bureaucratic machine,
 Access to media,
 Projection of personalities during elections,
 Projection as national leader during international summitry as well as foreign visits

At the State level:

 Similar parliamentary executive exists, though with some variations.

 The most important variation is that there is a Governor of the State appointed by the
President (on the advice of the Central Government).
 Though the Chief Minister, like the Prime Minister is the leader of the majority party in the
Assembly, the Governor has more discretionary powers.

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  However, the main principles of parliamentary system operate at the State level too

PERMANENT EXECUTIVE: BUREAUCRACY

Who implements the decisions of the ministers?

 The Executive organ of the government includes the Prime Minister, the ministers and a
large organization called the bureaucracy or the administrative machinery.
 Trained and skilled officers who work as permanent employees of the government are
assigned the task of assisting the ministers in formulating policies and implementing these
policies.

In a democracy:

 The elected representatives and the ministers are in charge of government and the
administration is under their control and supervision.
 The legislature also exercises control over the administration.
 The administrative officers cannot act in violation of the policies adopted by the legislature.
 It is the responsibility of the ministers to retain political control over the administration.

The Indian bureaucracy:

 It consists of the All-India services, State services, employees of the local governments, and
technical and managerial staff running public sector undertakings.
 The Union Public Service Commission has been entrusted with the task of conducting the
process of recruitment of the civil servants for the government of India.
 Similar public service commissions are provided for the States also.
 Members of the Public Service Commissions are appointed for a fixed term.
 Their removal or suspension is subject to a thorough enquiry made by a judge of the
Supreme Court.
 The bureaucracy is an instrument through which welfare policies of the government must
reach the people.

Concerns:
 Most often, bureaucracy is so powerful that people are afraid of approaching a government
officer.
 Most of the people believe that bureaucracy is insensitive to the demands and expectations
of the ordinary citizen.

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 Too much political interference turns the bureaucracy into an instrument in the hands of
the politician.
 Though the Constitution has created independent machinery for recruitment, many people
think that there is no provision for protecting the civil servants from political interference in
the performance of their duties.
 Enough provisions are not there to ensure the accountability of the bureaucracy to the
citizen.
 There is an expectation that measures like the ‘Right to Information’ may make the
bureaucracy a little more responsive and accountable.
 FEDERALISM

India emerged as an independent nation-state in 1947 after a painful partition and has remained
united over six decades of its independent existence—

Contributing factors to this achievement:

 Adopting a federal constitution

 Nature of the federal system
 Practice of federalism

What is Federalism—

 An institutional mechanism to accommodate two sets of polities—one at the regional level

and the other at the national level
 Two sets of identities and loyalties—people belong to the region as well as the nation
 Details of this dual system of government are generally spelt out in a written constitution,
which is considered to be supreme and which is also the source of the power of both sets of
government (List of Subjects: Union, State, Concurrent & Residuary)
 Independent judiciary to settle disputes between the centre and the State –legal matters
about the division of power

In India

Principle: Government would be based on the principles of unity and cooperation between the
centre and the States and separate powers to the States (while recognising diversity, the
Constitution emphasised unity)

Article 1:
(1) India, that is Bharat, shall be a Union of States.
(2) The States and the territories thereof shall be as specified in the First Schedule

Term ‘Federation’: Not mentioned in the Constitution

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Division of Powers

 For the entire nation: Union government (Central government)

 One for each unit or State: State government
 Status & Power: Mentioned & specified + clearly identified area of activity
 Dispute: about which powers come under the control of the union and which under the
States, this can be resolved by the Judiciary on the basis of the constitutional provisions.
 The Constitution clearly demarcates subjects, which are under the exclusive domain of the
Union and those under the States.
 Economic and financial powers are centralised in the hands of the central government by
the Constitution

Strong Central Government

India: A country of continental dimensions with immense diversities and social problems

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Need to create a strong centre:

 To stem disintegration and bring about social and political change

 The socio-economic problems of the country needed to be handled by a strong central
government in cooperation with the States

Provisions that create a strong central government:

Existence of a State including its territorial integrity is in the hands of Parliament

 The Parliament is empowered to ‘form a new State by separation of territory from any State
or by uniting two or more States.
 Can also alter the boundary of any State or even its name.

Powerful emergency provisions

 Can turn our federal polity into a highly centralised system once emergency is declared
 During an emergency, power becomes lawfully centralised.
 Parliament also assumes the power to make laws on subjects within the jurisdiction of the
States.

Central government has very effective financial powers and responsibilities

 Items generating revenue are under the control of the central government. Thus, the
central government has many revenue sources and the States are mostly dependent on the
grants and financial assistance from the centre.
 Usage of its discretion to give grants and loans to States—this distribution of economic
resources is considered lopsided and has led to charges of discrimination against States
ruled by an opposition party.

Governor

 Can recommend dismissal of the State government and the dissolution of the Assembly
 Has the power to reserve a bill passed by the State legislature, for the assent of the
President—gives the central government an opportunity to delay the State legislation and
also to examine such bills and veto them completely.

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Move ratified by the Rajya Sabha

 Allows central government to legislate on matters from the State list

 Executive powers of the centre are superior to the executive powers of the States
 Article 257 (1): The executive power of every State shall be so exercised as not to impede or
prejudice the exercise of the executive power of the Union, and the executive power of the
Union shall extend to the giving of such directions to a State as may appear to the
Government of India to be necessary for that purpose.

Integrated administrative system

 The all-India services are common to the entire territory of India and officers chosen for
these services serve in the administration of the States. Thus, an IAS officer who becomes
the collector or an IPS officer who serves as the Commissioner of Police, are under the
control of the central government.
 States cannot take disciplinary action nor can they remove these officers from service.

Articles 33 and 34

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

Conflicts: Between Centre & State

Point of Contention: the Constitution recognises the separate identity of the regions and yet gives
more powers to the centre

1 Phase of Federalism— A peaceful one

st

 In the 1950s and early 1960s the foundation of our federalism was laid under Jawaharlal
Nehru→ a period of Congress dominance over the centre as well as the States
 Except on the issue of formation of new States, the relations between the centre and the
States remained quite normal during this period.
 The States were hopeful that they would be making progress with the help of the grants-in-
aid from the centre.

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In the middle of the 1960s— Decline of Congress dominance

A large number of States opposition parties came to power→ resulted in demands for greater
powers and greater autonomy to the States

Since the 1990s— End of Congress dominance→ entered an era of coali on poli cs

 In both Centre & States

 Resulted in a greater say for the States, a respect for diversity and the beginning of a more
mature federalism

Demand for Autonomy ranges from—

 Division of powers should be changed in favour of the States and more powers and
important powers be assigned to the States
 States should have independent sources of revenue and greater control over the resources
(financial autonomy)
 States resent the control of the centre over the administrative machinery
 Cultural and linguistic issue: the opposition to the domination of Hindi (in Tamil Nadu) or
demand for advancing the Punjabi language and culture

Role of Governors and President’s Rule

Governor: Not an elected office holder; is appointed by the central government and therefore,
actions of the Governor are often viewed as interference by the Central government in the
functioning of the State government.

Especially when: Two different parties are in power at the centre and the State

The Sarkaria Commission: To examine the issues relating to centre-State relations

Appointments of Governors should be strictly non-partisan

Article 356:
 Provides for President’s rule in any State
 When: ‘a situation has arisen in which the Government of the State cannot be carried on in
accordance with the provisions of this Constitution.’ It results in the takeover of the State
government by the Union government.
 Conditions: The President’s proclamation has to be ratified by Parliament. President’s rule
can be extended till three years.

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The Governor has the power to recommend the dismissal of the State government and suspension or
dissolution of State assembly→ many conflicts; in some cases, State governments were dismissed
even when they had a majority in the legislature or without testing their majority

Demands for New States

With a pan-Indian national unity; the national movement also generated distinct unity around a
common language, region and culture—States would be created on the basis of common cultural
and linguistic identity.

1954: States Reorganisation Commission was set up and it recommended the creation of linguistic
States, at least for the major linguistic groups

1956: Reorganisation of some States took place. This saw the beginning of the creation of linguistic
States and the process is still continuing. Gujarat and Maharashtra were created in

1960: Punjab and Haryana were separated from each other in 1966

1990s: Some of the larger States were further divided both to meet the demands for a separate
State as well as to meet the need for greater administrative efficiency.

Inter-state Conflicts

Disputes: Have political implications and therefore they can best be resolved only through
negotiations and mutual understanding.

Border dispute: States have certain claims over territories belonging to neighbouring States.
Though language is the basis of defining boundaries of the States, often border areas would have
populations speaking more than one language. So, it is not easy to resolve this dispute merely on
the basis of linguistic majority.

Sharing of rivers: Rivers are a major resource and therefore, disputes over river waters test the
patience and cooperative spirit of the States

The curious case of Differential Treatment to some selected States

Due to: their peculiar social and historical circumstances

States: NE States + Himachal Pradesh + Andhra Pradesh + Goa + Gujarat + Maharashtra + Sikkim +
J&K

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NE States: a sizeable indigenous tribal population with a distinct history and culture, which they
wish to retain (Art 371)

Jammu and Kashmir (Art. 370)

 Concurrence of the State is required for making any laws in matters mentioned in the Union
and Concurrent lists.
 Central government has only limited powers and other powers listed in the Union List and
Concurrent List can be used only with the consent of the State government
 Has a separate constitution and a flag
 The union government cannot impose a financial emergency in the State
 The Directive Principles do not apply in J&K
 Amendments to the Indian Constitution (under Art. 368) can only apply in concurrence with
the government of J&K.

Limitation:

 There is a constitutional provision that allows the President, with the concurrence of the
State government, to specify which parts of the Union List shall apply to the State.
 The Parliament’s power to make laws on subjects in the Union List is fully accepted.
 No emergency due to internal disturbances can be declared in J&K without the concurrence
of the State

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 JUDICIARY

Need of an Independent Judiciary

Owing to the important role it has been envisaged with—

 To be able to settle all the arising disputes by an independent body in accordance with the
principle of rule of law
 To protect rule of law and ensure supremacy of law
 Safeguard rights of the individual
 Ensures that democracy does not give way to individual or group dictatorship

Independence of Judiciary:

 Counter the ineffectiveness, if any— other organs of the government like the executive and
legislature must not restrain the functioning of the judiciary in such a way that it is unable to
do justice
 No interference— other organs of the government should not interfere or dictate the
decision of the judiciary
 Freedom— judges must be able to perform their functions without fear or favour

Independence of the judiciary does not imply arbitrariness or absence of accountability. It is a part of
the democratic political structure and therefore, is accountable to—

 The Constitution,
 The democratic traditions
 The people of the country

Enabling Independence of Judiciary

o No involvement of the legislature in the process of appointment of judges
o Qualifications specified—no criteria of the kind of political opinion a person holds
o Security of Tenure:
Provided with a fixed tenure; hold office till they reach the age of retirement
Removal: Only in exceptional cases— difficult procedure
o Not financially dependent on either the executive or legislature; salaries and allowances of
the judges are not subjected to the approval of the legislature
o The actions and decisions of the judges are immune from personal criticisms.

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 o Power to penalise those who are found guilty of contempt of court
o Parliament cannot discuss the conduct of the judges except when the proceeding to remove
a judge is being carried out

Appointment of Judges

Chief Justice of India (CJI): No hard & fast rule but the senior-most judge (not compulsorily)

Other Judges of the Supreme Court and the High Court: Appointed by the President after
‘consulting’ the CJI

Principle of collegiality in making recommendations for appointments: the Supreme Court has
suggested that the Chief Justice should recommend names of persons to be appointed in
consultation with four senior-most judges of the Court

Current Situation: Judicial Appointments

CJI: charged the centre of attempting to bring the judiciary to a grinding halt by not appointing High
Court judges

Union Finance Minister: Judiciary creating problems in working of executive

After the SC judgment in NJAC act, the government approached the SC to send them the
prospective names of candidates and it will process it and will not create any hurdle till the MoP is
finalised. Now, the government is sitting on names of appointments, it is blocking the
recommendation of transfers.

Veto power wanted by government is the main contention between executive and judiciary. MoP is
also not finalised because of other reasons like Secretariat that government wants to be set up by
SC, a committee to screen all candidates and dispute over who will have authority to man the
committee.

Previous judgements had allowed the Chief Ministers to have a say in judicial appointments, though
there were no such mention in constitution. The present government wants to continue with it, but
now SC is not in favour of it.

Removal of Judges

 Can be removed only on the ground of proven misbehaviour or incapacity

 A motion containing the charges against the judge must be approved by special majority in
both Houses of the Parliament

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  Unless there is a general consensus among Members of the Parliament, a judge cannot be
removed

Note:
 Executive— Crucial role in making appointments
 Legislature— Powers of removal

Single Integrated Judicial System:

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Types of Jurisdictions
Original Jurisdiction

Cases:
 Can be directly considered by the Supreme Court without going to the lower courts
 Cases involving federal relations→ SC becomes an umpire in all disputes regarding federal
matters (legal disputes between the Union and the States, or between States)

Called original jurisdiction: The Supreme Court alone has the power to deal with such cases.
High Courts or the lower courts: Do not have any say

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Supreme Court—
 Settles disputes
 Interprets the powers of Union and State government as laid down in the Constitution

Writ Jurisdiction

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

Purpose of writs: Court is empowered to give orders to the executive to act or not to act in a
particular way

Appellate Jurisdiction

Highest court of appeal: Supreme Court

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

Instances when an appeal can be made:

 High Court certifies that the case is fit for appeal— involving a serious matter of
interpretation of law or Constitution
 In criminal cases, if the lower court has sentenced a person to death then an appeal can be
made to the High Court or Supreme Court.

SC: Holds the powers to decide whether to admit appeals even when appeal is not allowed by the
High Court

Appellate jurisdiction—
 Supreme Court will reconsider the case and the legal issues involved in it. If the Court thinks
that the law or the Constitution has a different meaning from what the lower courts
understood, then the Supreme Court will change the ruling and along with that also give
new interpretation of the provision involved.
 High Courts have appellate jurisdiction over the decisions given by courts below them

Advisory Jurisdiction

The President of India can refer any matter that is of public importance or that which involves
interpretation of Constitution to Supreme Court for advice.

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  Supreme Court is not bound to give advice on such matters
 The President is not bound to accept such an advice.

Utility of the advisory powers of the Supreme Court—

 Allows the government to seek legal opinion on a matter of importance before taking
action on it thus preventing unnecessary litigations later
 In the light of the advice of the Supreme Court, the government can make suitable changes
in its action or legislations

Judicial Activism

Chief instrument: Public Interest Litigation (PIL) or Social Action Litigation (SAL)

Normal course of law: An individual can approach the courts only if he/she has been personally
aggrieved—a person whose rights have been violated, or who is involved in a dispute

1979:
 Court decided to hear a case where the case was filed not by the aggrieved persons but by
others on their behalf; involving a consideration of an issue of public interest
 SC: Took up the case about rights of prisoners—opened the gates for large number of cases
where public spirited citizens and voluntary organisations sought judicial intervention for
protection of existing rights, betterment of life conditions of the poor, protection of the
environment, and many other issues in the interest of the public
 Began considering many cases merely on the basis of newspaper reports and postal
complaints received by the court

Impact on the political system:

Positives—
 Democratised the judicial system by giving not just to individuals but also groups access to
the courts
 Forced executive accountability
 Made an attempt to make the electoral system much more free and fair
 Asked candidates contesting elections to file affidavits indicating their assets and income
along with educational qualifications so that the people could elect their representatives
based on accurate knowledge.

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 Negatives of Pro-active Judiciary—
 Has overburdened the courts
 Has blurred the line of distinction between the executive and legislature on the one hand
and the judiciary on the other— involvement of court in resolving questions which belong to
the executive is leading to the creation of strains on the democratic principle of balance of
powers.

“Judicial activism should not lead to the dilution of separation of powers which is the Constitutional
scheme. Each organ of our democracy must function within its own sphere and must not take over
what is assigned to the others,” Mr. Pranab Mukherjee (President of India)

Supreme Court remedies the violation of rights

1. Can restore fundamental rights by issuing writs of Habeas Corpus; mandamus etc.

Article 32: SC
Article 226: HC

2. Supreme Court can declare the concerned law as unconstitutional and therefore non-operational
(Article 13)

Supreme Court—
 Protector of fundamental rights of the citizen
 Interpreter of Constitution
 Establishes the process of Judicial Review—

o Power of the Supreme Court (or High Courts) to examine the constitutionality of any law if
the Court arrives at the conclusion that the law is inconsistent with the provisions of the
Constitution, such a law is declared as unconstitutional and inapplicable
o The term judicial review is nowhere mentioned in the Constitution— However, the fact that India
has a written constitution and the Supreme Court can strike down a law that goes against
fundamental rights, implicitly gives the Supreme Court the power of judicial review
o Power to review legislations on the ground that they violate fundamental rights or on the ground
that they violate the federal distribution of powers.
o Extends to the laws passed by State legislatures
o Powers of the President and Governor were brought under the purview of the courts

How Judiciary exhibits its power to interpret the Constitution

1973: Kesavananda Bharati case

1. The Court ruled that there is a basic structure of the Constitution and nobody—not even the
Parliament (through amendment)—can violate the basic structure

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2. Right to property (the disputed issue) was not part of basic structure and therefore could be
suitably abridged
3. Court reserved to itself the right to decide whether various matters are part of the basic structure
of the Constitution

*Rule of Law: all individuals — rich and poor, men or women, forward or backward castes — are
subjected to the same law
 LEGISLATURE

WHY DO WE NEED A PARLIAMENT?

 Legislature is not merely a law making body and lawmaking is but one of the functions of
the legislature→ centre of all democra c poli cal process.
 It is packed with action, walkouts, protests, demonstration, unanimity, concern and co-
operation.
 Helps people in holding the representatives accountable→the very basis of representa ve
democracy
 Therefore, Parliament is recognized as one of the most democratic and open forum of
debate— the most representative of all organs of government; vested with the power to
choose and dismiss the government

WHY DO WE NEED TWO HOUSES OF PARLIAMENT?

The term “Parliament” refers to the national legislature & the legislature of the States is described
as State legislature.

Parliament in India has two houses; when there are two houses of the legislature, it is called a
bicameral legislature.

 Council of States or the Rajya Sabha

 House of the People or the Lok Sabha

The Constitution has given the States the option of establishing either a unicameral or bicameral
legislature. At present (2015) only Seven States have a bicameral legislature.

States having a bicameral legislature:

1. Andhra Pradesh
2. Telangana
3. Bihar
4. Jammu and Kashmir
5. Karnataka

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6. Maharashtra
7. Uttar Pradesh

Advantages of Bicameral Legislature:

 Countries with large size and much diversity usually prefer to have two houses of the
national legislature to give representation to all sections in the society and to give
representation to all geographical regions or parts of the country.
 A bicameral legislature makes it possible to have every decision reconsidered. Every
decision taken by one house goes to the other house for its decision.
 This means that every bill and policy would be discussed twice. This ensures a double
check on every matter.
 Even if one house takes a decision in haste, that decision will come for discussion in the
other house and reconsideration will be possible

RAJYA SABHA:

Represents the States of India

 An indirectly elected body.

 Residents of the State elect members to State Legislative Assembly.
 The elected members of State Legislative Assembly in turn elect the members of Rajya
Sabha.

Principles of representation:

 Equal representation to all the parts of the country irrespective of their size or population
called as symmetrical representation.
 Parts of the country may be given representation according to their population means that
regions or parts having larger population would have more representatives in the second
chamber than regions having less population.
 States with larger population get more representatives than what States with smaller
population get.

Members of Rajya Sabha:

 Members are elected for a term of six years.

 Can get re-elected.
 All members of the Rajya Sabha do not complete their terms at the same time.

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  Every two years, one third members of the Rajya Sabha complete their term and elections
are held for those one third seats only.
 The Rajya Sabha is never fully dissolved and hence, called the permanent House of the
Parliament.
 Rajya Sabha also has twelve nominated members. The President nominates these members.

LOK SABHA

 The Lok Sabha and the State Legislative Assemblies are directly elected by the people.
 For the purpose of election, the entire country (State, in case of State Legislative Assembly)
is divided into territorial constituencies of roughly equal population.
 One representative is elected from each constituency through universal adult suffrage
where the value of vote of every individual would be equal to another.
 At present there are 543 constituencies.

Functions of the Parliament:

Apart from law making, the Parliament is engaged in many other functions.

Legislative functions:

 The Parliament enacts legislations for the country. (chief law-making body)
 The Parliament often merely approves legislations.
 The actual task of drafting the bill is performed by the bureaucracy under the supervision of
the minister concerned.
 The substance and even the timing of the bill are decided by the Cabinet. No major bill is
introduced in the Parliament without the approval of the Cabinet.
 Members other than ministers can also introduce bills but these have no chance of being
passed without the support of the government.

Control of Executive and ensuring its accountability: Parliament ensures that the executive does
not overstep its authority and remains responsible to the people who have elected them.

Financial Function:
 In a democracy, legislature controls taxation and the way in which money is used by the
government.
 If the Government of India proposes to introduce any new tax, it has to get the approval of
the Lok Sabha.

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  The financial powers of the Parliament involve grant of resources to the government to
implement its programmes.
 The government has to give an account to the legislature about the money it has spent and
resources that it wishes to raise
 The legislature also ensures that the government does not misspend or overspend. This is
done through the budget and annual financial statements.

Representation: Parliament represents the divergent views of members from different regional,
social, economic, religious groups of different parts of the country.

Debating Function:

 The Parliament is the highest forum of debate in the country; no limitation on its power of
discussion.
 Members are free to speak on any matter without fear. This makes it possible for the
Parliament to analyze any or every issue that faces the nation.
 These discussions constitute the heart of democratic decision making.

Constituent Function:

 The Parliament has the power of discussing and enacting changes to the Constitution.
 The constituent powers of both the houses are similar.
 All constitutional amendments have to be approved by a special majority of both Houses.

Electoral functions: The Parliament also performs some electoral functions— elects the President
and Vice President of India.

Judicial functions: The judicial functions of the Parliament include considering the proposals for
removal of President, Vice-President and Judges of High Courts and Supreme Court.

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Special Powers of Rajya Sabha

 The Rajya Sabha is an institutional mechanism to provide representation to the States.

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

HOW DOES THE PARLIAMENT MAKE LAWS?

 A bill is a draft of the proposed law. There can be different types of bills.
 When a non-minister proposes a bill, it is called private member‘s Bill.
 A bill proposed by a minister is described as Government Bill.

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LEGISLATIVE PROCEDURE IN PARLIAMENT

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

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Bills introduced in the Parliament are of two kinds: Public bills and Private bills (also known as
government bills and private members’ bills respectively). Though both are governed by the same
general procedure and pass through the same stages in the House, they differ in various respects as
shown in Table below:

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The bills introduced in the Parliament can also be classified into four categories:

 Ordinary bills, which are concerned with any matter other than financial subjects.
 Money bills, which are concerned with the financial matters like taxation, public
expenditure, etc.
 Financial bills, which are also concerned with financial matters (but are different from
money bills).
 Constitution amendment bills, which are concerned with the amendment of the provisions
of the Constitution.

The Constitution has laid down separate procedures for the enactment of all the four types of bills.

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

1. First Reading
2. Second Reading

Stage of General Discussion, Committee Stage, Consideration Stage

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3. Third Reading
4. Bill in the Second House

In the second House also, the bill passes through all the three stages, that is, first reading, second
reading and third reading. There are four alternatives before this House:
a. It may pass the bill as sent by the first house (i.e., without amendments);
b. It may pass the bill with amendments and return it to the first House for reconsideration;
c. It may reject the bill altogether; and
d. It may not take any action and thus keep the bills pending

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

5. Assent of the President

Every bill after being passed by both Houses of Parliament either singly or at a joint sitting, is
presented to the president for his assent. There are three alternatives before the president:
a. He may give his assent to the bill; or
b. He may withhold his assent to the bill; or
c. He may return the bill for reconsideration of the Houses.


 If the president gives his assent to the bill, the bill becomes an act and is placed on the
Statute Book. If the President withholds his assent to the bill, it ends and does not become
an act.
 If the President returns the bill for reconsideration and if it is passed by both the Houses
again with or without amendments and presented to the President for his assent, the
president must give his assent to the bill. Thus, the President enjoys only a ― suspensive
veto.

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Money Bills

Article 110 of the Constitution deals with the definition of money bills. It states that a bill is deemed
to be a money bill if it contains ‘only’ provisions dealing with all or any of the following matters:
1. The imposition, abolition, remission, alteration or regulation of any tax;
2. The regulation of the borrowing of money by the Union government;
3. The custody of the Consolidated Fund of India or the contingency fund of India, the payment of
moneys into or the withdrawal of money from any such fund;
4. The appropriation of money out of the Consolidated Fund of India;
5. Declaration of any expenditure charged on the Consolidated Fund of India or increasing the
amount of any such expenditure;
6. The receipt of money on account of the Consolidated Fund of India or the public account of India
or the custody or issue of such money, or the audit of the accounts of the Union or of a state; or
7. Any matter incidental to any of the matters specified above.

However, a bill is not to be deemed to be a money bill by reason only that it provides for:
1. The imposition of fines or other pecuniary penalties, or
2. The demand or payment of fees for licenses or fees for services rendered; or
3. The imposition, abolition, remission, alteration or regulation of any tax by any local authority or
body for local purposes.

 If any question arises whether a bill is a money bill or not, the decision of the Speaker of
the Lok Sabha is final. His decision in this regard cannot be questioned in any court of law or
in the either House of Parliament or even the president.
 When a money bill is transmitted to the Rajya Sabha for recommendation and presented to
the president for assent, the Speaker endorses it as a money bill
 A money bill can only be introduced in the Lok Sabha and that too on the recommendation
of the president. Every such bill is considered to be a government bill and can be introduced
only by a minister.
 The Rajya Sabha has restricted powers with regard to a money bill. It cannot reject or
amend a money bill. It can only make the recommendations. It must return the bill to the
Lok Sabha within 14 days, wither with or without recommendations. The Lok Sabha can
either accept or reject all or any of the recommendations of the Rajya Sabha.
 If the Rajya Sabha does not return the bill to the Lok Sabha within 14 days, the bill is
deemed to have been passed by both the Houses in the form originally passed by the Lok
Sabha. Thus, the Lok Sabha has more powers than Rajya Sabha with regard to a money bill.

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  On the other hand, both the Houses have equal powers with regard to an ordinary bill.
 Finally, when a money bill is presented to the president, he may either give his assent to the
bill or withhold his assent to the bill but cannot return the bill for reconsideration of the
Houses. Normally, the president gives his assent to a money bill as it is introduced in the
Parliament with his prior permission

Financial Bills

Financial bills are those bills that deal with fiscal matters, that is, revenue or expenditure. However,
the Constitution uses the term “financial bill” in a technical sense.

Financial bills are of three kinds:

1. Money bills—Article 110
2. Financial bills (I)—Article 117 (1)
3. Financial bills (II)—Article 117 (3)

 Money bills are simply a species of financial bills. Hence, all money bills are financial bills but
all financial bills are not money bills.
 Only those financial bills are money bills which contain exclusively those matters which are
mentioned in Article 110 of the Constitution.
 These are also certified by the Speaker of Lok Sabha as money bills. The financial bills (I) and
(II), on the other hand, have been dealt with in Article 117 of the Constitution.
Financial Bills (I)

 Contains not only any or all the matters mentioned in Article 110, but also other matters of
general legislation.
 A bill that contains a borrowing clause, but does not exclusively deal with borrowing. In two
respects, a financial bill (I) is similar to a money bill—

(a) Both of them can be introduced only in the Lok Sabha and not in the Rajya Sabha, and (b) Both
of them can be introduced only on the recommendation of the president.

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

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Financial Bills (II)

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

Joint Sitting of Two Houses

 Joint sitting is an extra-ordinary machinery provided by the Constitution to resolve a

deadlock between the two Houses over the passage of a bill.
 A deadlock is deemed to have taken place under any one of the following three situations
after a bill has been passed by one House and transmitted to the other House:
1. if the bill is rejected by the other House;
2. if the Houses have finally disagreed as to the amendments to be made in the bill; or
3. if more than six months have elapsed from the date of the receipt of the bill by the other House
without the bill being passed by it.

 In the above three situations, the president can summon both the Houses to meet in a joint
sitting for the purpose of deliberating and voting on the bill. It must be noted here that the
provision of joint sitting is applicable to ordinary bills or financial bills only and not to
money bills or Constitutional amendment bills.
 In the case of a money bill, the Lok Sabha has overriding powers, while a Constitutional
amendment bill must be passed by each House separately.
 In reckoning the period of six months, no account can be taken of any period during which
the other House (to which the bill has been sent) is prorogued or adjourned for more than
four consecutive days.
 If the bill (under dispute) has already lapsed due to the dissolution of the Lok Sabha, no joint
sitting can be summoned.
 But, the joint sitting can be held if the Lok Sabha is dissolved after the President has notified
his intention to summon such a sitting (as the bill does not lapse in this case). After the
President notifies his intention to summon a joint sitting of the two Houses, none of the
Houses can proceed further with the bill.

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  The Speaker of Lok Sabha presides over a joint sitting of the two Houses and the Deputy
Speaker, in his absence.
 If the Deputy Speaker is also absent from a joint sitting, the Deputy Chairman of Rajya Sabha
presides.
 If he is also absent, such other person as may be determined by the members present at the
joint sitting, presides over the meeting. It is clear that the Chairman of Rajya Sabha does not
preside over a joint sitting as he is not a member of either House of Parliament.

The Constitution has specified that at a joint sitting, new amendments to the bill cannot be
proposed except in two cases:

 Those amendments that have caused final disagreement between the Houses; and
 Those amendments that might have become necessary due to the delay in the passage of
the bill.

Instruments of Parliamentary Control

The legislature in parliamentary system ensures executive accountability at various stages: policy
making, implementation of law or policy and during and post- implementation stage. The legislature
does this through the use of a variety of devices:
1. Deliberation and discussion
2. Approval or Refusal of laws
3. Financial control
4. No confidence motion

1. Deliberation and discussion:

 During the law-making process, members of the legislature get an opportunity to deliberate
on the policy direction of the executive and the ways in which policies are implemented.
 Apart from deliberating on bills, control may also be exercised during the general
discussions in the House.

Question Hour, which is held every day during the sessions of Parliament, where Ministers have to
respond to searching questions raised by the members;

Zero Hour where members are free to raise any matter that they think is important (though the
ministers are not bound to reply),

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Half-an – hour discussion on matters of public importance, adjournment motion etc. are some
instruments of exercising control

 Perhaps the question hour is the most effective method of keeping vigil on the executive
and the administrative agencies of the government.
 Members of Parliament have shown great interest in question hour and maximum
attendance is recorded during this time.
 Most of the questions aim at eliciting information from the government on issues of public
interest such as, price rise, availability of food grains, atrocities on weaker sections of the
society, riots, black-marketing etc. This gives the members an opportunity to criticize the
government, and represent the problems of their constituencies.
 The discussions during the question hour are so heated that it is not uncommon to see
members raise their voice, walk to the well of the house or walk out in protest to make their
point. This results in considerable loss of legislative time.
 At the same time, we must remember that many of these actions are political techniques to
gain concessions from government and in the process force executive accountability.

2. Approval and ratification of laws:

 Parliamentary control is also exercised through its power of ratification. A bill can become a
law only with the approval of the Parliament.
 A government that has the support of a disciplined majority may not find it difficult to get
the approval of the Legislature. Such approvals however, cannot be taken for granted.
 They are the products of intense bargaining and negotiations amongst the members of
ruling party or coalition of parties and even government and opposition

If the government has majority in Lok Sabha but not in the Rajya Sabha, as has happened
during the Janata Party rule in 1977 and N.D.A rule in 2000, the government will be forced
to make substantial concessions to gain the approval of both the Houses. Many bills, such as
the Lok Pal Bill have failed enactment, Prevention of Terrorism bill (2002) was rejected by
the Rajya Sabha

3. Financial control:
 As mentioned earlier, financial resources to implement the programmes of the government
are granted through the budget.
 Preparation and presentation of budget for the approval of the legislature is constitutional
obligation of the government. This obligation allows the legislature to exercise control over
the purse strings of the government.

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  The legislature may refuse to grant resources to the government. This seldom happens
because the government ordinarily enjoys support of the majority in the parliamentary
system.
 Nevertheless, before granting money the Lok Sabha can discuss the reasons for which the
government requires money. It can enquire into cases of misuse of funds on the basis of the
report of the Comptroller and Auditor General and Public Accounts committees.
 But the legislative control is not only aimed at financial propriety. The legislature is
concerned about the policies of the government that are reflected in the budget. Through
financial control, the legislature controls the policy of the government.

4. No Confidence Motion:

The most powerful weapon that enables the Parliament to ensure executive accountability is the
no-confidence motion. As long as the government has the support of its party or coalition of parties
that have a majority in the Lok Sabha, the power of the House to dismiss the government is fictional
rather than real.

However, after 1989, several governments have been forced to resign due to lack of confidence of
the house. Each of these governments lost the confidence of the Lok Sabha because they failed to
retain the support of their coalition partners. Thus, the Parliament can effectively control the
executive and ensure a more responsive government.

It is however important for this purpose, that there is adequate time at the disposal of the House,
the members are interested in discussion and participate effectively and there is willingness to
compromise amongst the government and the opposition. In the last two decades, there has been a
gradual decline in sessions of the Lok Sabha and State Legislative Assemblies and time spent on
debates. Moreover, the Houses of the Parliament have been plagued by absence of quorum,
boycott of sessions by members of opposition which deprive the house the power to control the
executive through discussion.

HOW DOES THE PARLIAMENT REGULATE ITSELF?

 It is through debates that the parliament performs all its vital functions.
 Such discussions must be meaningful and orderly so that the functions of the Parliament are
carried out smoothly and its dignity is intact.

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  The presiding officer of the legislature is the final authority in matters of regulating the
business of the legislature→ Speaker in case of Lok Sabha and Chairman i.e. Vice-President
in case of Rajya Sabha.

Anti-Defection Law:

Most of the members of the legislatures are elected on the ticket of some political party. What
would happen if they decide to leave the party after getting elected? For many years after
independence, this issue was unresolved.

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


 An amendment to the Constitution was made (52nd Amendment Act) in 1985. This is known
as anti-defection amendment.
 It has also been subsequently modified by the 91st amendment.
 The presiding officer of the House is the authority who takes final decisions on all such
cases.

Defection: If a member remains absent in the House when asked by the party leadership to remain
present or votes against the instructions of the party or voluntarily leaves the membership of the
party, it is deemed as defection.
 The Tenth Schedule of the Indian Constitution validates the Anti-Defection Law, mentioning
conditions for disqualification of MPs.

Intention:
 To curb political defections and rein in the issue of horse-trading
 To bring stability in the structures of political parties and strengthen parliamentary practice
by banning floor-crossing
 Promote party discipline

Anti-democratic fallouts brought into notice:

 Muzzled Free Expression: since the law makes it mandatory on the parliamentarian to vote
along party lines or face eviction
 Curtailed the parliamentarian’s discretion to vote, effectively suppressing intra-party
debate
 Dissent Not Allowed: presence of party whips has been stifling dissent and gradually
decreased the quality of the debates on various policy issues.

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 Issue of Accountability: moratorium on allowing MPs to change parties reduces the
accountability of the government to the Parliament and the People
 LOCAL GOVERNMENTS

Local government:

 Government at the village and district level

 Government closest to the common people; that involve the day-to-day life and problems of
ordinary citizens
 Of the belief that local knowledge and local interest are essential ingredients for democratic
decision making, and are necessary for efficient and people-friendly administration
 Convenient for the people to approach the local government for solving their problems both
quickly and with minimum cost
 Strong and vibrant local governments ensure both active participation and purposeful
accountability

1993: Constitutional status was accorded to local government institutions

Tracing the existence of local government in India—

Post 1882: Lord Rippon, the Viceroy of India at that time, took the initiative in creating these the
local boards.

Government of India Act 1919: Village panchayats were established in a number of provinces and
the trend continued after the Government of India Act of 1935.

Mahatma Gandhi: Had strongly pleaded for decentralisation of economic and political power as
strengthening village panchayats was a means of effective decentralisation (DPSP)

Idea of Independence: National movement was concerned about the enormous concentration of
powers in the hands of the Governor General sitting at Delhi. Therefore, for our leaders,
independence meant an assurance that there will be decentralisation of decision making, executive
and administrative powers.

Constitution: Handed over to the State Govt. + DPSP (non-justiciable and advisory in its nature)

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Do you think panchayats received adequate importance in the Constitution?

Partition: The turmoil resulted in a strong unitary inclination in the Constitution

Dr. B.R. Ambedkar: The faction and caste-ridden nature of rural society would defeat the noble
purpose of local government at the rural level

Local Government in present times

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

Community Development Programme in 1952: To promote people’s participation in local

development in a range of activities—

 A three-tier Panchayati Raj system of local government was recommended for the rural
areas
 Some States (like Gujarat, Maharashtra) adopted the system of elected local bodies around
1960 and some were either not capable to go ahead with it or some did not deem it to be
necessary.

Post 1987: A thorough review of the functioning of local government institutions was initiated

1989: P. K. Thungon Committee

 Recommended constitutional recognition for the local government bodies
 A constitutional amendment to provide for periodic elections to local government
institutions
 Enlistment of appropriate functions to them, along with funds

73rd and 74th Constitutional Amendments

73rd Amendment: About rural local governments (which are also known as Panchayati Raj
Institutions or PRIs)
Levels—

Base: Gram Panchayat; covers a village or group of villages

Intermediary level: Mandal (also referred to as Block or Taluka); need not be constituted in smaller
States
Apex level: Zilla Panchayat covering the entire rural area of the District

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Mandatory creation of the Gram Sabha:
 comprise of all the adult members registered as voters in the Panchayat area
 Role and functions: decided by State legislation

o Elected directly by the people

o Term of each Panchayat body is five years
o If the State government dissolves the Panchayat before the end of its five year term, fresh
elections must be held within six months of such dissolution

Reservations—
 Women: One third of the positions in all panchayat institutions (Gen + SC + ST + OBC)
 Scheduled Castes and Scheduled Tribes: for at all the three levels, in proportion to their
population.
 Backward castes (OBCs): if necessary
 Positions: apply also to the positions of Chairpersons or ‘Adhyakshas‘ at all the three levels.

Transfer of Subjects

 Twenty-nine subjects, which were earlier in the State list of subjects, are identified and
listed in the Eleventh Schedule of the Constitution. These subjects are to be transferred to
the Panchayati Raj institutions
 Subjects: linked to development and welfare functions at the local level
 Actual transfer of these functions depends upon the State legislation. Each State decides
how many of these twenty-nine subjects would be transferred to the local bodies.

State Election Commissioners: responsible for conducting elections to the Panchayati Raj
institutions

State Finance Commission: To review the distribution of revenues between the State and local
governments on the one hand and between rural and urban local governments on the other

74th amendment: Made the provisions relating to urban local government (Nagarpalikas)

The Census of India defines an urban area as having:

(i) a minimum population of 5000;

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(ii) at least 75 per cent of male working population engaged in non-agricultural occupations
(iii) a density of population of at least 400 persons per sq. km

2001 census: Nearly 28% of India’s population lives in urban areas.

All the provisions of the 73rd amendment relating to direct elections, reservations, transfer of
subjects, State Election Commission and State Finance Commission are incorporated in the 74th
amendment also and thus apply to Nagarpalikas.

The Constitution mandated the transfer of a list of functions from the State government to the
urban local bodies→ Eleventh Schedule of the Constitution

Earlier: Local government was a ‘State subject‘—States are free to make their own laws on this
subject

Post amendment of the Constitution: States had to change their laws about local bodies in order to
bring these in conformity with the amended Constitution and were given one year’s time for
making necessary changes in their respective State laws in the light of these amendments
 Philosophy of the Constitution

Constitution: A document based on a certain moral vision

Individual freedom

Emergence of Constitution: product of continuous intellectual and political activity of well over a
century

 Freedom of expression
 Freedom from arbitrary arrest
 Freedom of conscience

Social Justice

Liberalism exhibited by the Indian Constitution— Provision for reservations for Scheduled Castes
and Scheduled Tribes in the Constitution (mere granting of the right to equality was not enough to
overcome age-old injustices suffered by these groups or to give real meaning to their right to vote.
Special constitutional measures were required to advance their interests)

Indian liberalism has two streams

 Rammohan Roy: emphasised on individual rights, particularly the rights of women

 K.C. Sen, Justice Ranade and Swami Vivekananda: introduced the spirit of social justice
within orthodox Hinduism. For Vivekananda, such a reordering of Hindu society could not
have been possible without liberal principles

Respect for diversity and minority rights

 Encourages equal respect between communities— difficult to foster in the country
 Tend to have hierarchical relationships with one another (as in the case of caste)
 When these communities do see each other as equals, they also tend to become rivals (as in
the case of religious communities).

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India is a land of multiple cultural communities and is important to ensure that no one community
systematically dominates others→ made it mandatory for our Cons tu on to recognize community
based rights.
 Right of religious communities to establish and run their own educational institutions (may
receive money from the government)

Secularism
Though the term ‘secular’ was not initially mentioned, the Indian Constitution has always been
secular.

Rights of Religious Groups

 Recognized that intercommunity equality was as necessary as equality between
individuals—grants rights to all religious communities such as the right to establish and
maintain their educational institutions.
 Freedom of religion in India means the freedom of religion of both individuals and
communities

State’s Power of Intervention

No mutual exclusion—religiously sanctioned customs such as untouchability deprived individuals of

the most basic dignity and self-respect. Such customs were so deeply rooted and pervasive that
without active state intervention, there was no hope of their dissolution. Therefore, state has to
interfere in the affairs of religion and such intervention was not always negative

Could also help religious communities by giving aid to educational institutions run by them-may
help or hinder religious communities depending on which mode of action promotes values such as
freedom and equality
 Separation between religion and state did not mean their mutual exclusion but rather
principled distance- allowing the state to be distant from all religions so that it can intervene
or abstain from interference, depending upon which of these two would better promote
liberty, equality and social justice.

Against the background of inter-communal strife, the Constitution thus, upholds its commitment to
group rights (the right to the expression of cultural particularity).

Universal franchise

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Indian nationalism has always conceived of a political order based on the will of every single
member of society. The idea of universal franchise lay securely within the heart of nationalism.
 Right to take part in the affairs of the country and be admitted to public office
 Motilal Nehru Report (1928) reaffirms this conception of citizenship, reiterating that every
person of either sex who has attained the age of twenty-one is entitled to vote for the
House of Representatives or Parliament.

Thus universal franchise was always considered as the most important and legitimate instrument by
which the will of the nation was to be properly expressed.

Federalism

Concept of asymmetric federalism—

 Accession of Jammu and Kashmir to the Indian union was based on a commitment to
safeguard its autonomy under Article 370 of the Constitution. This is the only State that is
governed by its own constitution.
 Under Article 371A, the privilege of special status was also accorded to the North-Eastern
State of Nagaland. This Article not only confers validity on preexisting laws within Nagaland,
but also protects local identity through restrictions on immigration.
 Democratic and linguistic federalism of India has managed to combine claims to unity with
claims to cultural recognition. A fairly robust political arena exists that allows for the play of
multiple identities that complement one another.

National identity

Constitution constantly reinforces a common national identity

 Reason behind the rejection of the Separate electorates: Not because they fostered
difference between religious communities as such or because they endangered a simple
notion of national unity but because they endangered a healthy national life.
 Sought to evolve true fraternity—to evolve ‘one community’

Procedural Achievements of the Constitution

 Indian Constitution reflects a faith in political deliberation: even when groups and interests
were not adequately represented in the Constituent Assembly, the debates in the Assembly
amply show that the makers of the Constitution wanted to be as inclusive in their approach
as possible→ indicates the willingness of people to modify their exis ng preferences, or to
justify outcomes by reference not to self-interest but to reasons and a willingness to
recognize creative value in difference and disagreement

 Reflects a spirit of compromise and accommodation (positive note)

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  Decisions on the most important issues must be arrived at consensually rather than by
majority vote

Criticisms of the Indian Constitution

1. Unwieldy: details, practices and statements are included in one single document and this
has made that document very vast
2. Unrepresentative: Members of the Constituent Assembly were chosen by a restricted
franchise, not by universal suffrage but if we are to look closely— a vast range of issues and
opinions were mentioned, members raised matters not only based on their individual social
concerns but based on the perceived interests and concerns of various social sections as
well.
3. Is alien to our conditions: It is true that the Indian Constitution is modern and partly
western yet, it was never a blind borrowing but an innovative borrowing (selective
adaptation).
 Many Indians have not only adopted modern ways of thinking, but have made these their
own (Rammohan Roy)
 Emergence of a hybrid culture due to creative adaptation with the character of a different,
alternative modernity

Limitations of Constitution

 Has a centralized idea of national unity

 Appears to have glossed over some important issues of gender justice, particularly within
the family
 It is not clear why in a poor developing country, certain basic socio-economic rights were
relegated to the section on Directive Principles rather than made an integral feature of our
fundamental rights

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 Rights in the Indian Constitution

 Constitution sets limits on the powers of the government and ensures a democratic system in
which all persons enjoy certain rights through Fundamental Rights

Bill of Rights:

• A list of rights mentioned and protected by the constitution is called the "bill of rights"
• A democracy must ensure that individuals have certain rights and that the government
will always recognize these rights.
• Bill of rights prohibits government from acting against the rights of the individuals and
ensures a remedy in case there is violation of these rights.

Fundamental Rights in the Indian Constitution:

• Motilal Nehru committee had demanded a bill of rights as far back as in 1928.
• The Constitution listed the rights that would be specially protected and called them
'fundamental rights'.

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 • These rights are so important that the Constitution has separately listed them and
made special provisions for their protection.
• The Constitution itself ensures that they are not violated by the government.

Ordinary Rights and Fundamental Rights:

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

• The Constitution clarifies that the government can implement special schemes and
measures for improving the conditions of certain sections of society: children, women,
and the socially and educationally backward classes.

• In fact Article 16(4) of the constitution explicitly clarifies that a policy like reservation
will not be seen as a violation of right to equality. If you see the spirit of the
Constitution, this is required for the fulfillment of the right to equality of opportunity.

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 • Right to freedom of speech and expression is subject to restrictions such as public
order, peace and morality etc.
• Freedom to assemble too is to be exercised peacefully and without arms.
• The government may impose restrictions in certain areas declaring the assembly of five
or more persons as unlawful.

Preventive detention:

• Ordinarily, a person would be arrested after he or she has reportedly committed some
offence (exceptions exists)
• But sometimes a person can be arrested simply out of an apprehension that he or she is
likely to engage in unlawful activity and imprisoned for some time. This is known as
preventive detention.
• It means that if the government feels that a person can be a threat to law and order or
to the peace and security of the nation, it can detain or arrest that person. This
preventive detention can be extended only for three months.

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Rights of accused

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

Freedom of faith and worship :

• Feedom of religion also includes the freedom of conscience

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

Certain Limitations:

The government can impose restrictions on the practice of freedom of religion in order to
protect public order, morality and health —
• It is not an unlimited right
• The government can interfere in religious matters for rooting out certain social evils.
• The Constitution does not allow forcible conversions.
• It only gives us the right to spread information about our religion and thus attract
others to it.

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Cultural and Educational Rights:

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

Right to Constitutional Remedies:

Dr. Ambedkar considered the right to constitutional remedies as "heart and soul of the constitution".

Why Dr. Ambedkar considered the right to constitutional remedies as "heart and soul of the
constitution"?
• Because this right gives a citizen the right to approach a High Court or the Supreme
Court to get any of the fundamental rights restored in case of their violation.
• The Supreme Court and the High Courts can issue orders and give directives to the
government for the enforcement of rights.

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Writs issued by the court
The courts can issue various special orders known as writs.

• Habeas corpus: Means the court orders that the arrested person should be presented
before it. It can also order to set free an arrested person if the manner or grounds of
arrest are not lawful or satisfactory.

• Mandamus: Issued when the court finds that a particular office holder is not doing legal
duty and thereby is infringing on the right of an individual.

• Prohibition: Issued by a higher court (High Court or Supreme Court) when a lower court
has considered a case going beyond its jurisdiction.
• Quo Warranto: If the court finds that a person is holding office but is not entitled to
hold that office, it issues the writ of quo-warranto and restricts that person from acting
as an office holder.
• Certiorari: Under this writ, the court orders a lower court or another authority to
transfer a matter pending before it to the higher authority or court.

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