CHAPTER 1 Constitution: Why and How?

I. Mode of Promulgation: What it Means and Why it Matters

• Definition: The "mode of promulgation" refers to how a constitution comes into
being. It considers who crafted the constitution and the extent of their authority.
• Impact on Effectiveness: Constitutions often remain "defunct" if crafted by
unpopular military leaders or figures who lack the ability to gain public support.
Conversely, successful constitutions, such as those of India, South Africa, and the
United States, were generally created in the aftermath of popular national
movements. The authority of the people who enact the constitution helps
determine its prospects for success.
II. Crafting of the Indian Constitution by the Constituent Assembly (1946-1949)
The Indian Constitution's mode of promulgation through its Constituent Assembly
was a key factor in its authority and effectiveness.
A. Formation and Timeline
• Formal Creation: The Indian Constitution was formally created by a Constituent
Assembly.
• First Sitting: The Assembly held its first sitting on 9 December 1946.
• Reassembly Post-Partition: It reassembled as the Constituent Assembly for divided
India on 14 August 1947.
• Adoption: The Constitution was adopted on 26 November 1949.
• Enforcement: It came into force on 26 January 1950.
• Duration: The Assembly met for one hundred and sixty-six days, spread over two
years and eleven months.
B. Membership and Representation
• Election Method: Members were chosen by indirect election by the Provincial
Legislative Assemblies, which had been established under the Government of India
Act, 1935.
• Cabinet Mission Plan: The Assembly's composition largely followed the plan
proposed by the British Cabinet Mission.
◦ Seat Allotment: Seats were allotted proportionally to population, roughly in
the ratio of 1:10,00,000.
◦ Provinces & Princely States: Provinces (under British rule) were to elect 292
members, while Princely States were allotted a minimum of 93 seats.
◦ Community Distribution: Within each Province, seats were distributed among
three main communities – Muslims, Sikhs, and General – in proportion to their
populations.
◦ Election Process: Representatives of each community in the Provincial Legislative
Assembly elected their own members using proportional representation with a
single transferable vote.
◦ Princely States' Representatives: The method for selecting representatives from
Princely States was determined by consultation.
• Impact of Partition:
◦ After the Partition (June 1947), members from territories falling under Pakistan
ceased to be part of the Assembly.
◦ The Assembly's strength was reduced to 299 members.
◦ 284 members were present on 24 January 1950 to sign the Constitution.
 ◦ The Constitution was framed against the backdrop of the horrendous violence of
Partition and committed to a new conception of citizenship where religious identity
had no bearing on rights.
• Inclusivity & Diversity:
◦ Despite not being elected by universal suffrage, there was a serious attempt to
make the Assembly a representative body.
◦ Members from all religions were given representation.
◦ It included twenty-eight members from the Scheduled Castes.
◦ The Congress party dominated the Assembly, holding about 82 per cent of the
seats after Partition, but it was a diverse party that managed to accommodate
"almost all shades of opinion within it".
C. Sources of Authority and Legitimacy (Reflecting the Mode of Promulgation)
• Public Credibility: The Constitution drew immense legitimacy from the fact that it
was drafted by people who enjoyed immense public credibility. These leaders had
the capacity to negotiate and command respect from a wide cross-section of society.
• National Consensus: The framers were able to convince people that the
Constitution was not for personal gain, and the final document reflected the broad
national consensus at the time.
• Popular Support (without Referendum): Although the Indian Constitution
was never subjected to a referendum, it carried enormous public authority because
it had the consensus and backing of popular leaders. The people effectively
adopted it as their own by abiding by its provisions.
• Inheritance from Nationalist Movement:
◦ The Constitution drew upon a long history of the nationalist movement.
◦ The Constituent Assembly gave concrete shape to principles inherited from the
long struggle for freedom.
◦ The nationalist movement had debated for decades the fundamental questions
about the shape of government, values, and overcoming inequalities, and the
Constitution incorporated the answers forged in these debates.
◦ The Objectives Resolution, moved by Nehru in 1946, effectively summarised
these principles, encapsulating the aspirations and values behind the Constitution.
This resolution inspired the substantive provisions of the Constitution, expressing
commitments to equality, liberty, democracy, sovereignty, and a cosmopolitan
identity.
D. Deliberative Procedures
• Deliberation for the Whole Nation: The authority of the Assembly stemmed from
the procedures adopted and the values members brought to deliberations. Members
deliberated with the interests of the whole nation in mind, not just their own.
• Sophisticated Discussions: Almost every issue fundamental to a modern state was
discussed with great sophistication.
• Public Reason: The Assembly engaged in "public reason," placing great emphasis
on discussion and reasoned argument. Members gave principled reasons for their
positions, moving beyond narrow self-interest.
• Scrutiny and Debate: The voluminous debates show that each clause of the
Constitution was subjected to scrutiny and debate, demonstrating "public reason at
its best".
• Universal Suffrage: Only one provision, the introduction of universal suffrage, was
passed with virtually no debate, testifying to the Assembly's democratic
commitment.
• Committees and Consensus:
◦ The Assembly had eight major Committees on different subjects, often chaired
by prominent leaders like Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, or B.R.
Ambedkar.
◦ Despite disagreements among these leaders, they worked together.
◦ Committees drafted provisions that were then debated by the full Assembly,
with attempts made to reach a consensus to ensure provisions were not detrimental
to any particular interests.
• Responsiveness and Transparency: Every argument, query, or concern was
responded to with great care and in writing. The Assembly's sessions were open to
the press and the public alike.
E. Adaptation and Borrowing
• Learning from Others: The framers did not hesitate to learn from the experiments
and experiences of other countries.
• Not "Slavish Imitation": This was not "slavish imitation". Each borrowed provision
had to be defended on grounds of its suitability to Indian problems and aspirations.
• Dr. Ambedkar's View: As Dr. B.R. Ambedkar noted, new constitutions primarily
involve variations to "remove faults and to accommodate it to the needs of the
country".
• Examples of Borrowed Provisions:
◦ British Constitution: First Past the Post, Parliamentary Form of Government, Rule
of Law, Institution of the Speaker and her/his role, Law-making procedure.
◦ United States Constitution: Charter of Fundamental Rights, Power of Judicial
Review and independence of the judiciary.
◦ Irish Constitution: Directive Principles of State Policy.
◦ French Constitution: Principles of Liberty, Equality and Fraternity.
◦ Canadian Constitution: A quasi-federal form of government (federal system with
a strong central government), The idea of Residual Powers.
The wisdom and foresight of the Constitution makers, evident in their careful
deliberation, broad representation, and judicious adaptation, resulted in a document
that not only survived but became a "living reality" and an exemplar for other
constitutions, such as South Africa's.
Rights in the Indian Constitution.
I. Introduction: The Importance and Concept of Rights
• A constitution is not solely about governmental structure; it also sets limits on
government powers and ensures a democratic system where all individuals enjoy
certain rights.
• Fundamental Rights are listed in Part Three of the Indian Constitution, alongside
limitations on these rights.
• Over the past six decades, the scope of rights has expanded.
• Importance of Rights:
◦ Cases like the Asian Games construction workers, who were paid less than
minimum wage (a violation of the Right against Exploitation), demonstrate the need
for rights.
◦ Machal Lalung's case, where he spent 54 years in custody without a trial,
highlights the practical importance of the right to 'life and liberty', which implies
a right to fair and speedy trial.
◦ These examples underscore the importance of both having rights and their
actual implementation.
• Bill of Rights:
◦ Many democratic countries list citizens' rights in their constitution, creating a 'bill
of rights'.
◦ A bill of rights prohibits government from acting against individual
rights and ensures a remedy for violations.
◦ A constitution protects individual rights from threats by other persons or private
organisations (requiring government protection) and also from potential violation
by organs of the government (legislature, executive, bureaucracy, judiciary).
• South African Bill of Rights: Inaugurated in 1996, it is a "cornerstone of
democracy" in South Africa, forbidding extensive discrimination and granting a wide
range of rights, enforced by a special constitutional court. It includes rights like
dignity, privacy, fair labour practices, healthy environment, adequate housing, health
care, food, water, social security, children's rights, education, and cultural, religious,
linguistic community rights, and right to information.
II. Fundamental Rights in the Indian Constitution
• Historical Context: Indian freedom movement leaders recognised the importance
of rights, with the Motilal Nehru committee demanding a bill of rights in 1928.
• Definition of 'Fundamental': These rights are specially listed and protected by the
Constitution itself, making them so important that the government cannot violate
them.
• Distinction from Ordinary Legal Rights:
◦ Ordinary legal rights are protected and enforced by ordinary law and can be
changed by the legislature through normal law-making.
◦ Fundamental Rights are guaranteed by the Constitution and can only be changed
by amending the Constitution itself.
◦ No organ of the government can act in a manner that violates them.
• Role of Judiciary: The judiciary has the power and responsibility to protect
fundamental rights from government violations; executive and legislative actions
can be declared illegal if they violate or unreasonably restrict these rights.
• Limitations: Fundamental rights are not absolute or unlimited; the government
can impose reasonable restrictions on their exercise.
III. Specific Fundamental Rights
The Indian Constitution lists six categories of Fundamental Rights:
A. Right to Equality
• Provisions:
◦ Equality before law and equal protection of laws.
◦ Prohibition of discrimination on grounds of religion, race, caste, sex, or place of
birth.
◦ Equal access to public places like shops, hotels, wells, tanks, bathing ghats, roads,
etc..
◦ Equality of opportunity in public employment.
◦ Abolition of Untouchability.
◦ Abolition of titles (except military or academic).
• Objective: Strives to make India a true democracy by ensuring equality of dignity
and status among all citizens.
• Equality of Opportunity:
◦ The Preamble mentions "equality of status and equality of opportunity".
◦ The Constitution clarifies that the government can implement special schemes
and measures for improving conditions of certain sections like children, women, and
socially/educationally backward classes.
◦ Reservations in jobs and admissions are explicitly allowed under Article
16(4) and are not considered a violation of the right to equality, rather they are seen
as fulfilling its spirit.
B. Right to Freedom
• Concept: Essential to democracy, liberty means freedom of thought, expression,
and action but is not absolute; freedoms are defined to ensure individuals enjoy
them without threatening others' freedom or endangering law and order.
• Right to Life and Personal Liberty (Article 21):
◦ No citizen can be denied life or personal liberty except by procedure laid down
by law.
◦ Protections upon arrest: Must be told grounds, right to a lawyer of choice,
mandatory presentation to a magistrate within 24 hours (magistrate decides
justification).
◦ Expanded Scope: Supreme Court judgments have expanded this right to
include right to live with human dignity, free from exploitation, right to shelter,
and livelihood.
• Preventive Detention:
◦ Allows arrest and imprisonment based on apprehension of unlawful activity,
without the usual trial procedure.
◦ Can be extended for up to three months before review by an advisory board.
◦ Often misused by government, creating tension with the right to life and
personal liberty, hence requiring greater safeguards.
• Other Freedoms (Subject to Restrictions):
◦ Freedom of speech and expression (subject to public order, peace, morality).
◦ To assemble peacefully and without arms (government can impose restrictions
in certain areas, potentially misusing this power against genuine protests).
 ◦ To form associations/unions.
◦ To move freely throughout the territory of India.
◦ To reside and settle in any part of India.
◦ To practise any profession, or to carry on any occupation, trade or business.
• Rights of the Accused: Ensures fair trial by providing three protections:
◦ No person punished for the same offence more than once.
◦ No law shall declare any action illegal from a backdate (no retrospective
punishment).
◦ No person shall be asked to give evidence against himself or herself (right
against self-incrimination).
C. Right against Exploitation
• Provisions:
◦ Prohibition of traffic in human beings and forced labour (begar or forced labour
without payment).
◦ Prohibition of buying and selling of human beings and using them as slaves.
◦ Prohibition of employment of children below 14 years in dangerous jobs like
factories and mines.
• Impact: With child labour made illegal and the right to education becoming
fundamental, this right has gained more meaning.
D. Right to Freedom of Religion
• Concept: Everyone enjoys the right to follow the religion of their choice; a hallmark
of democracy.
• Freedom of Faith and Worship:
◦ Includes freedom of conscience (choose any religion or none).
◦ Includes freedom to profess, follow, and propagate any religion.
◦ Subject to limitations: Government can impose restrictions to protect public
order, morality, and health.
◦ Government can interfere to root out social evils (e.g., banning sati, bigamy,
human sacrifice).
◦ Propagation includes persuading people to convert, but forcible conversions are
not allowed. It grants the right to spread information to attract others to a religion.
• Equality of All Religions (Secularism):
◦ Government must extend equal treatment to different religions, not favouring
any particular one.
◦ India has no official religion.
◦ No discrimination based on religion in public employment.
◦ State-run institutions will not preach or give religious education, nor favour
persons of any religion.
◦ These provisions sustain and nurture secularism.
E. Cultural and Educational Rights
• Protection of Minorities: Constitution protects the right of minorities to maintain
their culture, recognising India's diversity as a strength.
• Definition of Minorities: Groups with common language or religion that are
outnumbered in a particular area or country.
• Rights of Minorities:
◦ Have the right to conserve and develop their own culture, language, and script.
 ◦ Can set up their own educational institutions to preserve and develop their
culture.
◦ Government will not discriminate against minority educational institutions when
granting aid.
F. Right to Constitutional Remedies
• Significance: Considered the 'heart and soul of the constitution' by Dr. Ambedkar,
as it ensures that fundamental rights can be realised and defended.
• Mechanism: Gives citizens the right to approach a High Court or the Supreme
Court to get any fundamental right restored in case of violation.
• Judicial Powers: The Supreme Court and High Courts can issue orders and
directives (writs) to the government for rights enforcement.
• Types of Writs:
◦ Habeas Corpus: Court orders an arrested person to be presented before it; can
order release if arrest is unlawful.
◦ Mandamus: Issued when an office holder fails to perform a legal duty, infringing
on an individual's right.
◦ Prohibition: Issued by a higher court to stop a lower court from considering a
case beyond its jurisdiction.
◦ Quo Warranto: Restricts a person from holding an office if they are not legally
entitled to it.
◦ Certiorari: Court orders a lower court or authority to transfer a pending matter
to a higher court or authority.
IV. Other Mechanisms for Rights Protection
• Beyond the judiciary, other bodies protect rights:
◦ National Commission on Minorities.
◦ National Commission on Women.
◦ National Commission on Scheduled Castes.
◦ National Human Rights Commission (NHRC).
• National Human Rights Commission (NHRC):
◦ Established in 1993, to act as a watchdog against rights violations.
◦ Composition: Former Chief Justice of Supreme Court, former Supreme Court
judge, former High Court Chief Justice, and two members with human rights
knowledge/experience.
◦ Functions: Inquiry into human rights violations (own initiative or petition), jail
visits to study inmate conditions, promoting research.
◦ Limitations: Does not have power of prosecution; can only make
recommendations to government or courts.
V. Directive Principles of State Policy (DPSP)
• Purpose: Guidelines for the government to achieve equality and well-being for all
citizens, addressing challenges faced by independent India.
• Nature: These guidelines are not legally enforceable (non-justiciable); courts
cannot instruct the government to implement them.
• Authority: Framers believed their moral force and public expectation would
ensure governments take them seriously.
• Content: List mainly three things:
◦ Goals and objectives for society (e.g., welfare, justice, raising living standards,
equitable resource distribution, international peace).
 ◦ Certain rights individuals should enjoy apart from Fundamental Rights (e.g.,
adequate livelihood, equal pay, right against economic exploitation, right to work,
early childhood care).
◦ Certain policies the government should adopt (e.g., uniform civil code,
prohibition of liquor, promotion of cottage industries, prevention of cattle slaughter,
promotion of village panchayats).
• Implementation: Governments have tried to implement DPSP through measures
like zamindari abolition, bank nationalisation, minimum wage laws, promotion of
small industries, reservations, right to education, Panchayati Raj, employment
guarantee programmes, and mid-day meal schemes.
VI. Fundamental Duties of Citizens
• Introduced in 1976 by the 42nd Amendment.
• Ten duties enumerated, such as abiding by the Constitution, defending the
country, promoting harmony, and protecting the environment.
• Not enforceable by the Constitution.
• The enjoyment of Fundamental Rights is not dependent or conditional upon the
fulfilment of these duties.
VII. Relationship between Fundamental Rights and Directive Principles
• Complementary Nature: Fundamental Rights restrain the government from doing
certain things, while Directive Principles exhort the government to do certain things.
Rights protect individuals, while DPSP ensure the well-being of society.
• Potential Conflict: Implementing DPSP can sometimes conflict with Fundamental
Rights.
◦ Example: Laws to abolish the zamindari system were opposed for violating the
right to property.
• Right to Property:
◦ Originally a fundamental right to 'acquire, possess and maintain' property,
though it could be taken away for public welfare.
◦ Government made laws limiting this right, leading to conflict between the
executive (prioritising DPSP) and judiciary (prioritising FRs).
◦ In 1973, the Supreme Court ruled in the Kesavananda Bharati case that the right
to property was not part of the 'basic structure' of the Constitution, allowing
Parliament to abridge it by amendment.
◦ In 1978, the 44th Amendment removed the right to property from the list of
Fundamental Rights, converting it into a simple legal right under Article 300 A.
• Basic Structure Doctrine: The Kesavananda Bharati case established
that Parliament cannot make an amendment that violates the 'basic features' of
the Constitution.
VIII. Conclusion
• The Indian Constitution reflects a long tradition of rights, sharpened during the
nationalist movement, incorporating ideas of freedom and equality.
• Since 1950, the judiciary has been a crucial protector of rights, expanding their
scope through interpretations.
• Rights enforce limitations on government functioning and ensure democratic
governance.
Chapter 3: Election and Representation
1. Introduction to Elections and Representation
• Elections, like games, require rules and an impartial umpire to ensure fairness and
consistency in outcomes.
• These fundamental decisions about election rules and machinery are enshrined in
the constitution of a democratic country, not left to any government.
• This chapter focuses on the constitutional provisions, the importance of the chosen
election method, and the implications of impartial election machinery. It also
discusses suggestions for constitutional amendments regarding elections.
2. Elections and Democracy
• Necessity of Representation: In large democracies, all citizens cannot directly
participate in every decision, making the election of representatives essential.
Elections are a visible symbol of the democratic process.
• Direct vs. Indirect Democracy:
◦ Direct Democracy: Citizens directly participate in day-to-day decision-making and
government (e.g., ancient Greek city-states, gram sabhas at local level). This is
impractical for millions of people.
◦ Indirect Democracy: Rule by people's representatives, who are chosen through
elections. Citizens' role in major decisions and administration is limited and indirect.
The method of choosing these representatives is therefore crucial.
• Democratic vs. Non-Democratic Elections: Not all elections are democratic; non-
democratic rulers hold elections to appear democratic, ensuring their rule is not
threatened.
• Constitutional Framework: A democratic constitution lays down basic rules for
elections, addressing:
◦ Who is eligible to vote and contest.
◦ Who supervises elections.
◦ How voters choose representatives.
◦ How votes are counted and representatives elected.
• These provisions aim to ensure free and fair elections and fair representation.
3. Election Systems: First Past the Post (FPTP) vs. Proportional Representation (PR)
• Different election systems exist, and the rules significantly influence election
outcomes, potentially favouring different parties or communities.
3.1 First Past the Post (FPTP) System
• Characteristics:
◦ The country is divided into small geographical units called constituencies (e.g.,
543 for Lok Sabha).
◦ Each constituency elects one representative.
◦ The candidate who secures the highest number of votes in a constituency is
declared elected.
◦ The winning candidate need not secure a majority (50% + 1) of the votes; they
just need more votes than any other candidate.
◦ Also known as the Plurality System.
• Example (1984 Lok Sabha Elections): The Congress party won over 80% of the
seats (415 out of 543) with only 48% of the total votes. Conversely, the BJP received
7.4% of votes but secured less than 1% of seats. This highlights how votes for losing
candidates can be "wasted".
• Examples: UK, India.
3.2 Proportional Representation (PR) System
• Characteristics:
◦ Each party is allotted a share of seats in the parliament in direct proportion to its
share of votes.
◦ Parties fill their quota of seats from a declared preference list of nominees.
◦ The winning candidate usually gets a majority of votes.
• Variations:
◦ Entire country as one constituency: Seats are allocated based on national vote
share (e.g., Israel, Netherlands).
◦ Multi-member constituencies: Country divided into several multi-member
constituencies, with parties preparing candidate lists. Seats are distributed based on
party votes in that constituency (e.g., Argentina, Portugal).
◦ Voters typically vote for a party, not a candidate. Representatives from a single
constituency can belong to different parties.
• Israel Example: The Knesset elections allot seats proportionally to party votes
(requiring a minimum of 3.25% votes). This allows smaller parties representation and
often leads to multi-party coalition governments.
• PR in India (Limited Scale): Adopted for indirect elections such as the President,
Vice President, Rajya Sabha, and Vidhan Parishads.
◦ Single Transferable Vote (STV) system is used for Rajya Sabha elections.
▪ MLAs are the voters.
▪ Voters rank candidates by preference.
▪ A candidate needs a minimum quota of votes to win, calculated as: (Total
votes polled / (Total number of candidates to be elected + 1)) + 1.
▪ Votes are counted based on first preferences; if the quota isn't met, the
lowest-scoring candidate is eliminated, and their votes are transferred based on
second preferences until the required number of candidates are elected.
3.3 Why India Adopted the FPTP System
• Simplicity: It is extremely simple for common voters to understand, requiring no
specialised political knowledge.
• Clear Choice and Accountability: Voters choose between specific candidates, not
just parties, allowing them to know and hold their representative accountable for
their locality.
• Stable Government: Constitution makers believed PR might not produce clear
majorities, leading to unstable parliamentary governments. FPTP typically
provides bonus seats to the largest party or coalition, facilitating stable government
formation.
• Discourages Fragmentation: In a diverse country like India, FPTP encourages
different social groups to come together to win, rather than forming separate
community-based parties, which might happen under PR.
• Experience Confirmation: The FPTP system has proven simple, familiar, helped
larger parties achieve majorities, and discouraged parties based solely on a single
caste or community. While FPTP often leads to a two-party system, India has seen
one-party dominance post-independence, and since 1989, multi-party coalitions
have emerged, allowing smaller parties to compete.
4. Reservation of Constituencies
• Addressing Disadvantage: The FPTP system can disadvantage smaller social groups,
particularly in a caste-based society like India, potentially leaving them
unrepresented.
• Rejection of Separate Electorates: The British government's system of 'separate
electorates' (only voters from a specific community could elect its representative)
was rejected by the Constituent Assembly due to fears it would harm national unity
and progress.
• Adoption of Reserved Constituencies: This system ensures that all voters in a
constituency can vote, but only candidates from a specifically reserved community
or social section can contest.
• Specific Reservations: The Constitution reserves seats in the Lok Sabha and State
Legislative Assemblies for Scheduled Castes (SC) and Scheduled Tribes (ST).
◦ Initially for 10 years, this provision has been extended through successive
constitutional amendments up to 2030.
◦ The number of reserved seats is proportional to their share in India's population.
◦ As of January 26, 2019, 84 seats are reserved for SCs and 47 for STs out of 543
elected Lok Sabha seats.
• Delimitation Commission: An independent body appointed by the President of
India in collaboration with the Election Commission of India, responsible for:
◦ Drawing up the boundaries of constituencies across the country.
◦ Fixing the quota of reserved constituencies in each state based on the proportion
of SC or ST population.
◦ For STs: Reserving constituencies with the highest proportion of ST population.
◦ For SCs: Reserving constituencies with a higher proportion of SC population, but
also spreading them across different regions of the state, as SC populations are
more evenly distributed.
◦ Reserved constituencies can be rotated with each delimitation exercise.
• Reservation for Women: While originally not provided for other groups, there has
been a strong demand for reserving one-third of seats for women in the Lok Sabha
and State Assemblies. This has already been implemented for rural and urban local
bodies and has been provided through the Nari Shakti Vandan Adhiniyam
(Women's Reservation Act, 2023) for Lok Sabha and Vidhan Sabhas.
5. Free and Fair Elections
• Ensuring an impartial and transparent election system is crucial for democracy to
be effective.
• Universal Adult Franchise and Right to Contest:
◦ Universal Adult Franchise: Guarantees the right to vote to all adult citizens.
India's framers enshrined this from the start. The voting age was reduced from 21 to
18 in 1989. This aligns with equality and non-discrimination, showing faith in all
adults' judgment.
◦ Right to Contest Elections: All citizens can stand for election. There are minimum
age requirements (e.g., 25 for Lok Sabha/Assembly) and disqualifications (e.g.,
imprisonment for two or more years for an offence), but no restrictions based on
income, education, class, or gender.
6. Independent Election Commission (EC)
• Key to Free and Fair Elections: The most important measure in India to ensure a
free and fair electoral process is the creation of an independent Election Commission.
• Constitutional Mandate: Article 324 of the Indian Constitution vests the
"superintendence, direction and control of the electoral roll and the conduct of
elections" for Parliament, State Legislatures, President, and Vice-President in the
Election Commission. The Supreme Court has affirmed this interpretation.
• Structure and Composition:
◦ Can be a single-member or multi-member body. It was multi-member briefly in
1989, reverted to single-member, and has been multi-member since 1993.
◦ A multi-member commission is now generally preferred for shared power and
greater accountability.
◦ The Chief Election Commissioner (CEC) presides but holds equal powers with
other Election Commissioners; decisions are collective.
◦ There is a Chief Electoral Officer in every state to assist the EC. (Note: EC
is not responsible for local body elections; State Election Commissioners handle
these independently).
• Appointment and Tenure:
◦ CEC and Election Commissioners are appointed by the President of India on the
advice of the Council of Ministers. Concerns about potential partisan appointments
have led to suggestions for involving the Leader of Opposition and Chief Justice of
India in the appointment process.
◦ Security of Tenure: Appointed for a six-year term or until age 65, whichever is
earlier.
◦ Removal of CEC: The CEC can only be removed by the President if both Houses
of Parliament recommend it with a special majority (two-thirds majority of those
present and voting, AND a simple majority of the total membership of the House).
This protects the CEC from political pressure.
◦ Removal of Election Commissioners: Can be removed by the President of India.
• Wide Range of Functions:
◦ Supervises the preparation of accurate voters' lists.
◦ Determines the timing of elections and prepares the election
schedule (nominations, scrutiny, withdrawal, polling, counting, results).
◦ Has the power to make decisions to ensure free and fair polls.
◦ Can postpone or cancel elections (nationally, in a state, or constituency) if the
atmosphere is vitiated.
◦ Implements a model code of conduct for parties and candidates.
◦ Can order re-polls or recounts of votes.
◦ Accords recognition to political parties and allots election symbols.
• Control over Administration:
◦ The EC has limited staff but conducts elections using the existing administrative
machinery.
◦ During the election process, the EC has full control over state and central
government administrative officers assigned to election duty; it can transfer officers,
stop transfers, or take action against non-partisan behaviour.
• Increased Independence: The Election Commission of India has evolved into a
highly independent authority, effectively using its existing constitutional powers to
ensure fairness and protect the sanctity of the electoral process. It has successfully
handled challenging situations, demonstrating its assertiveness.
7. Electoral Reforms
• No election system is perfect; democratic societies continuously seek to improve
the fairness of elections.
• Suggestions for reform have emerged from various bodies based on India's 72
years of experience.
• Key Suggestions for Electoral Reform:
◦ Shifting from FPTP to a variant of the PR system to ensure proportional seat
allocation.
◦ Implementing a special provision to ensure at least one-third women are
elected to parliament and assemblies.
◦ Introducing stricter controls on money in electoral politics, including
government funding of election expenses.
◦ Barring candidates with criminal cases from contesting elections, even if appeals
are pending.
◦ Imposing a complete ban on the use of caste and religious appeals in campaigns.
◦ Enacting a law to regulate the functioning of political parties to ensure
transparency and democracy.
• Limitations: There is no universal consensus on these suggestions, and laws alone
have limits. True free and fair elections require all involved parties to abide by the
spirit of democratic competition.
• Beyond Legal Reforms: Voter vigilance and the active role of political institutions
and voluntary organizations as watchdogs are also crucial for ensuring elections
reflect democratic aspirations.
8. Conclusion
• India's election system has proven successful, allowing voters to freely choose
representatives and peacefully change governments at state and national levels.
• Voters consistently show keen interest and participation, with a rising number of
candidates and parties.
• The system has been accommodative and inclusive, leading to a gradual change in
the social composition of representatives, although women's representation still
needs improvement.
• Despite attempts at malpractices, election outcomes rarely reflect widespread
rigging.
• Elections have become an integral part of India's democratic life; the regularity and
periodicity of elections have earned India fame as a great democratic experiment.
• This success validates the fundamental decisions made by the Constitution makers,
increasing voter confidence and the legitimacy of the Election Commission.
Executive
• Definition and Role:
◦ The executive is one of the three organs of government, alongside the
legislature and judiciary.
◦ It is primarily responsible for the implementation of laws and policies adopted
by the legislature and is often involved in policy framing.
◦ The term "executive" refers to a body of persons that oversees the
implementation of rules and regulations in practice.
◦ It maintains law and order and looks after the welfare of the people.
• Administration and Management:
◦ In any organisation, some office holder takes and implements decisions, an
activity called administration or management.
◦ This requires a body at the top for policy decisions, supervision, and
coordination of routine administrative functions.
• Types of Executive:
◦ Political Executive: Heads of government and their ministers, responsible for
overall government policy.
◦ Permanent Executive: Those responsible for day-to-day administration, i.e., civil
servants.
• Interdependence (Parliamentary System):
◦ In a parliamentary system, the executive and legislature are interdependent.
◦ The legislature controls the executive, and in turn, is controlled by the executive.
◦ The Constitution ensures these organs work in coordination and maintain
balance.
Different Types of Executive Systems
• Variations Across Countries: Executive systems vary widely, with different powers
and functions for presidents, prime ministers, monarchs, and chancellors across
countries like the USA, UK, India, France, Japan, Italy, Russia, and Germany.
• Presidential System:
◦ The President is both the Head of State and Head of Government.
◦ The office of the president is very powerful in theory and practice.
◦ Examples: USA, Brazil, most Latin American nations.
◦ Constitutional makers of India avoided this due to the danger of a "personality
cult".
• Parliamentary System:
◦ The Prime Minister is the head of government.
◦ Most have a President or monarch who is the nominal/ceremonial Head of State.
◦ The Prime Minister and Cabinet wield effective power.
◦ Examples: Germany, Italy, Japan, United Kingdom, Portugal.
• Semi-Presidential System:
◦ Features both a President and a Prime Minister.
◦ Unlike the parliamentary system, the President may possess significant day-to-
day powers.
◦ It's possible for the President and Prime Minister to belong to different parties.
◦ Examples: France, Russia, Sri Lanka.
• Semi-Presidential Executive in Sri Lanka (Specific Example):
 ◦ Introduced in 1978 via constitutional amendment.
◦ People directly elect the President.
◦ The President is the elected Head of State, Commander-in-Chief of Armed
Forces, and Head of Government.
◦ The President chooses the Prime Minister from the majority party in Parliament.
◦ The President has the power to remove the Prime Minister or ministers.
◦ Elected for a six-year term, the President can only be removed by a resolution in
Parliament passed by at least two-thirds of total members.
Parliamentary Executive in India
• Adoption of Parliamentary System:
◦ India adopted the parliamentary system due to prior experience under Acts of
1919 and 1935, which showed the executive could be effectively controlled by
people's representatives.
◦ The aim was to ensure a government sensitive to public expectations,
responsible, and accountable, avoiding the "personality cult" risk of a presidential
executive.
◦ Mechanisms in this system ensure the executive is answerable to and controlled
by the legislature.
◦ Adopted for both national and State levels.
• Composition at National Level:
◦ President: Formal Head of the State of India.
◦ Prime Minister and Council of Ministers: Run the government at the national
level.
• Composition at State Level:
◦ Governor: Appointed by the President.
◦ Chief Minister and Council of Ministers.
President of India
• Constitutional Position:
◦ The executive power of the Union is formally vested in the President.
◦ In reality, the President exercises these powers through the Council of Ministers
headed by the Prime Minister.
◦ The President is the formal head of the government and has wide-ranging
executive, legislative, judicial, and emergency powers, but these are used on the
advice of the Council of Ministers.
◦ Described as having "authority and dignity," a "great figurehead," but neither
reigning nor governing in a real executive sense.
• Election and Term:
◦ Elected for a period of five years.
◦ Indirect election: Elected by elected MLAs and MPs, not ordinary citizens.
◦ Election is by proportional representation with single transferable vote.
• Removal (Impeachment):
◦ Can be removed only by Parliament through impeachment.
◦ Requires a special majority.
◦ The only ground for impeachment is violation of the Constitution.
• Relationship with Council of Ministers (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 act in accordance with such advice.
 ◦ This advice is binding on the President.
◦ The President may require the Council of Ministers to reconsider such advice,
but must act in accordance with the advice tendered after reconsideration.
• Discretionary Powers of the President:
◦ Right to be Informed: Constitutionally has the right to be informed of all
important matters and deliberations of the Council of Ministers; the PM must furnish
requested information. The President can express views to the Prime Minister.
◦ Reconsidering Advice: Can send back advice from the Council of Ministers for
reconsideration if flaws, legal lacunae, or national interest concerns are perceived.
While the reconsidered advice is binding, this request carries weight.
◦ Veto Power (Pocket Veto):
▪ Can withhold or refuse assent to Bills (except Money Bills) passed by
Parliament.
▪ Can send a bill back for reconsideration.
▪ This power is limited as the President must give assent if Parliament passes
the same bill again.
▪ Crucially, there is no time limit for the President to send a bill back, allowing
the President to keep a bill pending indefinitely, known as a 'pocket veto'. Example:
President Gyani Zail Singh's handling of the Indian Post Office (Amendment) Bill in
1986.
◦ Appointing Prime Minister in a Hung Parliament:
▪ Arises out of political circumstances when no single leader or alliance has a
clear majority after an election.
▪ The President uses discretion to judge who can actually form and run the
government or who has majority support.
▪ This role increased significantly after 1989 due to coalition governments.
Example: President Narayanan's procedure in 1998, asking Vajpayee to furnish
support documents and secure a vote of confidence.
• Why a President in a Parliamentary System?:
◦ Provides a Head of State with a fixed term, who can symbolically represent the
entire country.
◦ Empowered to appoint the Prime Minister, especially when no party has a clear
majority.
◦ Acts as a stable head when the Council of Ministers may be removed due to loss
of majority support.
Vice President of India
• Election and Term:
◦ Elected for five years.
◦ Election method similar to the President, but members of State legislatures are
not part of the electoral college.
• Removal:
◦ Can be removed by a resolution of the Rajya Sabha passed by a majority and
agreed to by the Lok Sabha.
• Roles:
◦ Acts as the ex-officio Chairman of the Rajya Sabha.
◦ Takes over the office of the President when there is a vacancy due to death,
resignation, removal, or otherwise.
 ◦ Acts as President only until a new President is elected. Example: B. D. Jatti acted
as President after Fakhruddin Ali Ahmed's death.
Prime Minister and Council of Ministers
• Prime Minister's Importance:
◦ The Council of Ministers cannot exist without the Prime Minister.
◦ As head of the Council of Ministers, the Prime Minister is the most important
functionary of the government in India.
◦ The PM "leads" the Council of Ministers.
◦ The Council comes into existence only after the PM takes the oath of office.
◦ Death or resignation of the Prime Minister automatically dissolves the Council of
Ministers.
• Appointment and Formation:
◦ The President formally appoints the Prime Minister.
◦ The leader with the support of the majority in the Lok Sabha is normally
appointed as Prime Minister.
◦ In coalition governments, a leader acceptable to most partners becomes PM.
◦ The Prime Minister decides who will be ministers in the Council of Ministers.
◦ The PM allocates ranks and portfolios (Cabinet minister, Minister of State,
Deputy minister).
◦ Ministers and the Prime Minister must be members of Parliament; if not, they
must get elected within six months.
• Size of the Council of Ministers:
◦ The 91st Amendment Act (2003) restricted the Council of Ministers to not
exceed 15 percent of the total number of members of the House of the People (or
Assembly in States).
◦ This was to prevent large councils and using ministerial positions to secure
support in fragmented parliaments.
• Collective Responsibility:
◦ The Council of Ministers is collectively responsible to the Lok Sabha.
◦ A ministry that loses confidence of the Lok Sabha must resign.
◦ This means the ministry acts as an executive committee of Parliament, governing
on its behalf.
◦ A vote of no-confidence against even a single minister leads to the resignation of
the entire Council.
◦ Ministers must either accept a cabinet policy/decision or resign, as collective
responsibility requires pursuing/agreeing to the policy.
• Prime Minister's Powers and Role:
◦ "Linchpin of Government": Acts as a link between the Council of Ministers and
the President/Parliament.
◦ Constitutional Obligation: To communicate all decisions of the Council of
Ministers and legislative proposals to the President.
◦ Involved in all crucial government decisions and policy-making.
◦ Power flows from: control over Council of Ministers, leadership of Lok Sabha,
command over bureaucracy, media access, personality projection during elections,
and national/international leadership.
◦ Influence of Political Conditions: The PM's power depends on prevailing political
conditions.
 ▪ Strong when a single party has majority.
▪ Erodes in coalition governments: Requires more consultation, restricts PM's
prerogatives in choosing ministers/portfolios, and policies are formed through
negotiation and compromise among allies.

Legislature
1. Introduction to Legislature
• Definition and Role: Legislatures are bodies elected by the people that work on
their behalf. They are crucial for maintaining democratic government.
• Beyond Law-Making: The legislature is not merely a law-making body; it is
the centre of all democratic political processes. It is a vibrant arena of action,
including walkouts, protests, demonstrations, unanimity, concern, and cooperation,
all serving vital purposes.
• Necessity for Democracy: A genuine democracy is inconceivable without a
representative, efficient, and effective legislature. It also helps people hold their
representatives accountable, which is the very basis of representative democracy.
• Relationship with Executive: While in many democracies, including India,
legislatures are losing their central place to the executive (Cabinet initiates policies
and sets the agenda), even strong cabinets must retain a majority in the legislature.
A strong leader must face and answer to the satisfaction of Parliament.
• Democratic Potential: Parliament is recognised as one of the most democratic and
open forums of debate. Due to its composition, it is the most representative of all
government organs. It is vested with the power to choose and dismiss the
government.
2. Structure: Bicameral Legislature
• Definition: When there are two houses of the legislature, it is called a bicameral
legislature.
• National vs. State: The term 'Parliament' refers to the national legislature, while
'State legislature' describes the legislatures of the States.
• Indian Parliament: The Indian Parliament has two houses:
1. The Council of States or Rajya Sabha.
2. The House of the People or Lok Sabha.
• State Legislatures: The Constitution gives States the option of having either a
unicameral or bicameral legislature. Currently, only six States have bicameral
legislatures: Andhra Pradesh, Bihar, Karnataka, Maharashtra, Telangana, and Uttar
Pradesh.
• Reasons for Bicameralism:
◦ Representation of Diversity: Countries with large size and significant diversity
often prefer two houses to represent all sections of society and geographical regions.
◦ Reconsideration and Double Check: A bicameral legislature ensures every
decision is reconsidered, as it must pass through both houses. This provides a double
check on every matter, preventing hasty decisions.
3. Rajya Sabha (Council of States)
• Representation:
 ◦ Represents the States of India.
◦ It is an indirectly elected body.
◦ Members are elected by the elected members of the State Legislative Assemblies.
• Representation Principles:
◦ The Constitution prevents symmetrical representation (equal representation for
all states, like in the USA's Senate) to avoid discrepancies where populous states
have the same representation as small ones.
◦ Instead, representation is based on population, with more populous states
having more representatives. For example, Uttar Pradesh sends 31 members, while
Sikkim has one seat.
◦ The number of members from each State is fixed by the Fourth Schedule of the
Constitution.
• Term and Permanency:
◦ Members are elected for a six-year term and can be re-elected.
◦ One-third of its members complete their term every two years, and elections
are held for those seats.
◦ It is never fully dissolved, earning it the name "permanent House of the
Parliament".
◦ Advantage: Even if the Lok Sabha is dissolved, the Rajya Sabha can still meet and
conduct urgent business.
• Nominated Members:
◦ Apart from elected members, the President nominates twelve members.
◦ These nominees are chosen from persons distinguished in literature, science, art,
and social service.
• Special Powers of Rajya Sabha:
◦ As an institutional mechanism representing States, any matter affecting States
must be referred to it for consent.
◦ It can give the Union Parliament the power to make laws on matters included in
the State List in the national interest.
◦ It alone can initiate the procedure for the removal of the Vice President.
◦ Note: Experience shows members often represent their parties more than their
States.
• Powers Compared to Lok Sabha:
◦ Considers and approves non-money bills and suggests amendments to money
bills (but cannot reject money bills).
◦ Approves constitutional amendments.
◦ Exercises control over the executive through questions, motions, and resolutions.
◦ Participates in the election and removal of the President, Vice President, and
Judges of the Supreme and High Courts.
◦ In spheres like passing non-money bills, constitutional amendments, impeaching
the President, and removing the Vice President, the powers of Lok Sabha and Rajya
Sabha are co-equal.
4. Lok Sabha (House of the People)
• Representation:
◦ Directly elected by the people.
◦ The country is divided into territorial constituencies of roughly equal population.
 ◦ One representative is elected from each constituency through universal adult
suffrage, ensuring equal value for every individual's vote.
◦ Currently, there are 543 constituencies; this number has not changed since the
1971 census.
• Term and Dissolution:
◦ Elected for a maximum period of five years.
◦ Can be dissolved earlier if no party or coalition can form a government, or if the
Prime Minister advises the President to hold fresh elections.
• Powers of the Lok Sabha:
◦ Makes laws on matters in the Union List and Concurrent List. Can introduce and
enact money and non-money bills.
◦ Exclusive Financial Powers: Approves proposals for taxation, budgets, and
annual financial statements. The Rajya Sabha cannot initiate, reject, or amend
money bills, though it can suggest changes. If Rajya Sabha takes no action on a
money bill within 14 days, it is deemed passed.
◦ Controls the executive by asking questions, supplementary questions,
resolutions, motions, and most importantly, through no-confidence motions. The
Council of Ministers is responsible to the Lok Sabha, not the Rajya Sabha.
◦ Amends the Constitution.
◦ Approves the Proclamation of emergency.
◦ Elects the President and Vice President and removes Judges of the Supreme
Court and High Court.
◦ Establishes committees and commissions and considers their reports.
• Reason for Greater Control over Executive/Finance: As representatives directly
elected by the people, the Lok Sabha is given crucial powers, especially regarding
removing a government and controlling finances, aligning with the principle that the
people are the final authority in a democracy.
5. Functions of Parliament (General)
• Legislative Function: Enacts legislations for the country. The actual drafting is often
done by bureaucracy under ministerial supervision, and the Cabinet decides the
substance and timing of bills. No major bill is introduced without Cabinet approval.
• Control of Executive and Accountability: Ensures the executive does not overstep
its authority and remains responsible to the elected people. This is perhaps the most
vital function.
• Financial Function: Controls taxation and how the government uses money. New
taxes require Lok Sabha approval. Parliament grants resources to the government
and ensures it accounts for expenditure, preventing misspending or overspending
through the budget and financial statements.
• Representation: Represents the divergent views of members from various regional,
social, economic, and religious groups across the country.
• Debating Function: The highest forum of debate in the country with no limitation
on discussion. Members can speak freely, allowing for analysis of national issues.
These discussions are at the heart of democratic decision-making.
• Constituent Function: Has the power to discuss and enact changes to the
Constitution. Both houses have similar constituent powers, requiring a special
majority for constitutional amendments.
• Electoral Functions: Elects the President and Vice President of India.
• Judicial Functions: Considers proposals for the removal of the President, Vice-
President, and Judges of High Courts and Supreme Court.
6. Law-Making Procedure
• Basic Function: The primary function of any legislature is to make laws.
• Procedure: A definite, often technical and tedious, procedure is followed, some
parts enshrined in the Constitution, others evolved through conventions.
• Political Context: Law-making is a political process. Debates often precede a bill's
introduction, driven by political parties, interest groups, media, and citizens' forums.
Practical considerations like resources, potential support/opposition, and electoral
impact are weighed by the Cabinet. In coalition politics, bills must be acceptable to
all partners.
• Types of Bills:
◦ Private Member’s Bill: Proposed by a non-minister.
◦ Government Bill: Proposed by a minister.
◦ Money Bill: Can only be introduced in the Lok Sabha.
◦ Non-Money Bill: Can be introduced in either House.
• Stages of a Bill (Non-Money Bill Example):
1. Preparation/Drafting: Concerned ministry prepares the draft after Cabinet
approval of policy.
2. Introduction: Introduced in either Lok Sabha or Rajya Sabha by a member (often
a minister).
3. Committee Stage: A large part of the discussion occurs in committees, which
are referred to as "miniature legislatures".
4. House Discussion & Voting: Committee recommendations are sent to the
House for detailed discussion and voting.
5. Passage in First House: If passed by one House, it is sent to the other House.
6. Passage in Second House: The bill goes through the same procedure in the
second House.
7. Resolving Disagreement (Joint Session): If there is disagreement between the
two Houses on a non-money bill, a Joint Session of Parliament may be called.
Historically, decisions in joint sessions have always favoured the Lok Sabha.
8. President's Assent: Once passed by both Houses, it is sent to the President for
assent, which enacts it into law. The President can approve or send it back for
reconsideration.
7. Parliamentary Control over the Executive
• Importance: In a parliamentary democracy, the executive is drawn from the
majority party/coalition in the Lok Sabha. Without parliamentary vigilance, this could
lead to "Cabinet dictatorship".
• Parliamentary Privilege: Members have power and freedom to work effectively
and fearlessly, with no action taken against a member for anything said in the
legislature. The presiding officer has final say on breach of privilege.
• Instruments of Control: Legislature ensures executive accountability at policy-
making, implementation, and post-implementation stages.
◦ Deliberation and Discussion:
▪ Question Hour: Held daily during sessions, ministers must respond to
members' questions, often on public interest issues (e.g., price rise, atrocities, black-
marketing). It is a highly effective method for executive vigilance and accountability.
 ▪ Zero Hour: Members can raise any important matter, though ministers are not
bound to reply.
▪ Half-an-hour Discussion: On matters of public importance.
▪ Adjournment Motion:.
◦ Approval and Ratification of Laws: A bill needs Parliament's approval to become
law. While a disciplined majority often ensures approval, these are products of
intense bargaining. If the government lacks a majority in the Rajya Sabha, it may be
forced to make substantial concessions (e.g., Janata Party in 1977, NDA in 2000).
Some bills (e.g., Lok Pal Bill, POTA 2002) have failed enactment or were rejected by
Rajya Sabha.
◦ Financial Control:
▪ The budget's preparation and presentation are a constitutional obligation,
giving the legislature control over government finances.
▪ The Lok Sabha discusses reasons for government expenditure and can inquire
into fund misuse based on reports from the Comptroller and Auditor General and
Public Accounts Committees.
▪ Financial control also allows the legislature to control government policy.
◦ No Confidence Motion: The most powerful weapon for executive accountability.
If the government loses the support of its majority in the Lok Sabha, it is forced to
resign. Since 1989, several governments have fallen due to losing confidence, often
due to coalition partners withdrawing support.
• Challenges to Effective Control: Decline in session time, absence of quorum, and
boycotts by opposition members can hinder the Parliament's ability to control the
executive through discussion.
8. Parliamentary Committees
• Purpose: Appointed for various legislative purposes, they play a vital role due to
Parliament's limited session time and the need for in-depth study of issues.
• Functions:
◦ In-depth study of bills.
◦ Studying demands for grants from ministries.
◦ Looking into departmental expenditure.
◦ Investigating corruption cases.
◦ Supervising departmental work, budgets, and bills related to departments.
• Types:
◦ Standing Committees: Since 1983, India has developed a system of over twenty
departmentally related standing committees.
◦ Joint Parliamentary Committees (JPCs): Set up for specific bills or to investigate
financial irregularities. Members are selected from both Houses.
• Impact: The committee system has reduced the burden on Parliament. Many
important bills are referred to committees, and Parliament often approves their
work with few alterations. Legally, Parliament must approve bills and budgets, but it
rarely rejects committee suggestions.
9. Parliament's Self-Regulation
• Orderly Conduct: Discussions must be meaningful and orderly to ensure smooth
functioning and dignity.
• Presiding Officer: The presiding officer of the legislature is the final authority in
regulating its business.
• Anti-Defection Law:
◦ Context: Addresses the issue of legislators changing parties after being elected.
◦ Amendment: Introduced by the 52nd amendment act in 1985 and subsequently
modified by the 91st amendment.
◦ Purpose: Restrict a legislator elected on one party's ticket from 'defecting' to
another party.
◦ Definition of Defection: A member defects if they remain absent when asked by
party leadership, vote against party instructions, or voluntarily leave the party.
◦ Consequences: A member proved to have defected loses their membership of
the House and is disqualified from holding any political office (e.g., ministership).
◦ Authority: The presiding officer of the House takes final decisions on defection
cases.
◦ Impact: While not entirely curbing defections, it has given additional powers to
party leadership and presiding officers over members.
10. Conclusion
• Representative Nature: The Parliament, with its diverse membership from various
social backgrounds, is the most representative organ of government. This diversity
makes legislatures more representative and potentially more responsive to people's
expectations.
• Democratic Potential: In a parliamentary democracy, the legislature, representing
the wishes of the people, holds a high position of power and responsibility,
embodying the democratic potential of the Parliament.
• Challenges: Despite its importance, challenges exist, such as the impression of
wasted time and money due to bitter fights, and the actual decline in time spent on
debates and discussions.

Permanent Executive: Bureaucracy

• Composition and Role:
◦ The executive organ includes the Prime Minister, ministers, and a large
organisation called bureaucracy or administrative machinery (civil service).
◦ Comprises trained and skilled permanent employees who assist ministers in
formulating and implementing policies.
• Accountability and Neutrality:
◦ In a democracy, administration is under the control and supervision of elected
representatives and ministers.
◦ Bureaucracy is expected to be politically neutral, not taking political positions on
policy matters.
◦ It must faithfully and efficiently participate in drafting and implementing policies,
even if a new government changes policies.
• Recruitment and Structure:
◦ India has a professional administrative machinery, made politically accountable.
◦ Consists of All-India services, State services, local government employees, and
public sector staff.
◦ Union Public Service Commission (UPSC): Entrusted with recruiting civil servants
for the Government of India, based on merit.
◦ State Public Service Commissions: Provided for States.
 ◦ Members of Public Service Commissions are appointed for fixed terms and have
protection against arbitrary removal.
• Representation:
◦ The Constitution ensures all sections, including weaker sections, have
opportunities in public bureaucracy.
◦ Reservations are provided for Scheduled Castes, Scheduled Tribes, women,
Other Backward Classes (OBC), and Economically Weaker Sections (EWS) to ensure
representativeness.
• Control and Challenges:
◦ All-India Services (IAS/IPS): Appointed by the central government but assigned
to States, working under State government supervision. Crucially, only the central
government can take disciplinary action against them. This strengthens central
government control over State administration.
◦ Challenges: Bureaucracy can be perceived as powerful, insensitive to citizens'
demands, and feared by people.
◦ Political Interference: Too much political interference can turn bureaucracy into
a political instrument.
◦ Accountability: Concerns exist about protecting civil servants from political
interference and ensuring bureaucracy's accountability to citizens.
◦ Measures like the Right to Information (RTI) are expected to make bureaucracy
more responsive and accountable.
Conclusion
• The modern executive is a very powerful institution, necessitating
strong democratic control.
• The choice of a parliamentary executive, along with periodic elections,
constitutional limits, and democratic politics, ensures the executive remains under
supervision and control and cannot become unresponsive.

Judiciary
• Role: Courts are often seen as arbitrators in disputes, but the judiciary also
performs important political functions as a key organ of government.
• Power: The Supreme Court of India is considered one of the most powerful courts
globally.
• Historical Impact: Since 1950, the judiciary has been crucial in interpreting and
protecting the Constitution.
• Key Learning Objectives: Understanding judicial independence, the role of the
Indian judiciary in protecting rights and interpreting the Constitution, and its
relationship with Parliament.
II. Independence of the Judiciary
• Necessity: An independent body is needed to settle disputes between individuals,
groups, or individuals/groups and the government, in accordance with the rule of
law.
• Rule of Law: Implies all individuals are subject to the same law, regardless of status.
• Principal Role: Protect rule of law, ensure supremacy of law, safeguard individual
rights, settle disputes, and prevent democracy from succumbing to dictatorship.
• Definition of Independence:
◦ Other government organs (executive, legislature) must not restrain judicial
functioning or interfere with judicial decisions.
◦ Judges must perform functions without fear or favour.
• Not Arbitrary: Independence does not mean arbitrariness or absence of
accountability; the judiciary is accountable to the Constitution, democratic traditions,
and the people.
• Ensuring Independence: The Indian Constitution ensures independence through
several measures:
◦ Appointment of Judges: Legislature is not involved, aiming to prevent party
politics. Persons appointed must have legal experience/knowledge, not political
opinions or loyalty.
◦ Fixed Tenure: Judges hold office until retirement age, removed only in
exceptional cases, providing security of tenure to ensure fearless functioning.
◦ Difficult Removal Procedure: The Constitution prescribes a very difficult
procedure for removal of judges, designed to provide security of office.
◦ Financial Independence: Judiciary is not financially dependent on the executive
or legislature; judges' salaries and allowances are not subject to legislative approval.
◦ Immunity from Criticism: Actions and decisions of judges are immune from
personal criticisms.
◦ Contempt of Court: Judiciary has the power to penalise those guilty of contempt
of court, seen as protection from unfair criticism. The Supreme Court itself decides
such cases.
◦ Parliamentary Discussion: Parliament cannot discuss the conduct of judges,
except during removal proceedings, ensuring independence in adjudication.
III. Appointment of Judges
• Political Controversy: Appointment of judges has always been part of the political
process and is not free from political controversy.
• Impact of Judges: The political philosophy and views of judges affect constitutional
interpretation and the fate of legislation.
• Influencing Bodies: Council of Ministers, Governors, Chief Ministers, and the Chief
Justice of India (CJI) all influence the appointment process.
• CJI Appointment:
◦ Conventionally, the senior-most judge of the Supreme Court was appointed CJI.
◦ This convention was broken twice: in 1973 (A. N. Ray superseding three senior
judges) and 1975 (Justice M.H. Beg superseding Justice H.R. Khanna).
• Other Judges (SC & HC): Appointed by the President after 'consulting' the CJI.
• Evolution of Consultation:
◦ Initially (1982-1998), the Supreme Court viewed the CJI's role as purely
consultative.
◦ Later, it held that the CJI's opinion must be followed by the President.
◦ Collegiality (Current Practice): The Supreme Court developed a novel procedure
where the CJI recommends names in consultation with four senior-most judges. The
decision of this group of senior judges carries greater weight.
• Dual Role: Both the Supreme Court and the Council of Ministers play important
roles in judicial appointments.
IV. Removal of Judges
• Difficulty: Extremely difficult to remove judges of the Supreme Court and High
Courts.
• Grounds: Only on grounds of proven misbehaviour or incapacity.
• Procedure: A motion with charges against the judge must be approved by a special
majority in both Houses of Parliament. Special majority refers to two-thirds of
members present and voting, and a majority of the total strength of the House.
• Security: This difficult procedure provides security of office.
• Balance of Power: While the executive plays a crucial role in appointments, the
legislature holds removal powers, ensuring balance of power and judicial
independence.
• Past Instance: Only one case of Supreme Court judge removal came before
Parliament (Justice V. Ramaswami in 1991).
◦ Accused of misappropriating funds as Chief Justice of Punjab and Haryana High
Court.
◦ Inquiry commission found him "guilty of wilful and gross misuses of office... and
moral turpitude".
◦ The removal motion got the required two-thirds majority of members present
and voting, but failed because the Congress party abstained, preventing it from
securing support from one-half of the total strength of the House.
V. Structure of the Judiciary
• Integrated System: India has a single integrated judicial system, unlike federal
countries with separate state courts.
• Pyramidal Structure:
◦ Supreme Court of India (at the top).
◦ High Courts (below the Supreme Court).
◦ District and Subordinate Courts (at the lowest level).
• Hierarchy: Lower courts function under the direct superintendence of higher
courts.
VI. Jurisdiction of the Supreme Court
The Supreme Court, though powerful, functions within constitutional limitations
defining its powers.
• Original Jurisdiction:
◦ Cases directly considered by the Supreme Court, bypassing lower courts.
◦ Purpose: Settles disputes between the Union and States, and among States.
◦ Role: Establishes the Supreme Court as an umpire in federal disputes.
◦ Exclusivity: Only the Supreme Court has the power to deal with such cases; High
Courts and lower courts cannot.
◦ Function: Not only settles disputes but also interprets the powers of Union and
State governments as laid down in the Constitution.
• Writ Jurisdiction:
◦ Any individual whose fundamental right has been violated can directly approach
the Supreme Court for remedy.
◦ Orders: The Court can issue special orders in the form of writs (Habeas Corpus,
Mandamus, Prohibition, Certiorari, and Quo warranto).
 ◦ Scope: High Courts also have writ-issuing power, giving individuals a choice of
which court to approach.
◦ Effect: Orders the executive to act or not to act in a particular way.
• Appellate Jurisdiction:
◦ Highest court of appeal.
◦ Appeals: A person can appeal against High Court decisions if the High Court
certifies the case as fit for appeal (involving serious interpretation of law or
Constitution).
◦ Criminal Cases: Appeals can be made to the High Court or Supreme Court if a
lower court sentences a person to death.
◦ Supreme Court's Discretion: The Supreme Court can admit appeals even when
the High Court has not allowed them.
◦ Reconsideration: Appellate jurisdiction means the Supreme Court reconsiders
the case and legal issues, and can change lower court rulings if it finds a different
meaning of law or Constitution, providing new interpretations.
◦ High Courts: Also have appellate jurisdiction over courts below them.
• Advisory Jurisdiction:
◦ The President of India can refer matters of public importance or constitutional
interpretation to the Supreme Court for advice.
◦ Optional: The Supreme Court is not bound to give advice, and the President is
not bound to accept it.
◦ Utility: Allows the government to seek legal opinion before acting (preventing
litigation) and to make suitable changes in actions or legislations based on advice.
• Special Powers: Can grant special leave to appeal from any judgment or matter
passed by any court in India.
VII. Unified Nature and Powers of Supreme Court (Constitutional Articles)
• Binding Decisions (Article 141): Decisions of the Supreme Court are binding on all
other courts within India.
• Enforceable Orders: Orders passed by it are enforceable throughout the country.
• Review Power (Article 137): The Supreme Court is not bound by its own decisions
and can review any judgment or order made by it. This allows for correction of
mistakes.
• Aid by Authorities (Article 144): All civil and judicial authorities in India must act in
aid of the Supreme Court.
VIII. Judicial Activism and Public Interest Litigation (PIL)
• Revolutionary: These terms are seen to have revolutionised the judiciary, making it
more people-friendly.
• Public Interest Litigation (PIL) / Social Action Litigation (SAL): The chief instrument
of judicial activism.
• Emergence of PIL:
◦ Before 1979, individuals could approach courts only if personally aggrieved.
◦ Around 1979, the Court began hearing cases filed by others on behalf of
aggrieved persons, as these involved public interest.
◦ The Supreme Court also took up cases on prisoner rights, opening doors for
public-spirited citizens and voluntary organisations to seek intervention for rights
protection, improving life conditions of the poor, and environmental protection.
 ◦ The judiciary started considering cases based on newspaper reports and postal
complaints.
• Early PILs:
◦ Hussainara Khatoon vs. Bihar (1979): Advocate filed petition regarding
'undertrials' (prisoners held longer than their potential sentence).
◦ Sunil Batra vs. Delhi Administration (1980): Prisoner's scribbled note about
torture was converted into a petition by a judge.
• Expansion of Rights:
◦ Courts expanded the idea of rights to include clean air, unpolluted water, and
decent living for the entire society.
◦ PILs allowed judiciary to consider rights of those who cannot easily approach
courts, such as the needy and deprived, allowing public-spirited citizens,
organisations, and lawyers to file petitions on their behalf.
◦ Justice Bhagwati in Bandhua Mukti Morcha vs. Union of India, 1984, highlighted
the need for a different judicial approach for the poor, as traditional adversarial
procedures would hinder enforcement of their fundamental rights.
• Impact of Judicial Activism:
◦ Democratised the judicial system: Provided access to courts for individuals and
groups.
◦ Forced executive accountability.
◦ Improved electoral system: Courts mandated candidates to file affidavits
disclosing assets, income, and educational qualifications for informed public choice.
• Negative Side / Criticisms:
◦ Overburdened courts.
◦ Blurred lines between the executive, legislature, and judiciary, as courts became
involved in matters typically belonging to the executive (e.g., reducing pollution,
investigating corruption, electoral reform).
◦ Strains on democratic principles: Raises concerns about the delicate balance
among government organs and respect for each other's jurisdiction.
IX. Judiciary and Rights
• Protector of Rights: The judiciary is entrusted with protecting individual rights.
• Two Constitutional Remedies:
◦ Issuing Writs: Supreme Court can restore fundamental rights by issuing writs
(Habeas Corpus, Mandamus, etc.) under Article 32. High Courts also have this power
under Article 226.
◦ Judicial Review: Supreme Court can declare a concerned law unconstitutional
and therefore non-operational under Article 13.
• Judicial Review:
◦ Most Important Power: The power of the Supreme Court (or High Courts) to
examine the constitutionality of any law.
◦ Effect: If a law is inconsistent with the Constitution, it is declared
unconstitutional and inapplicable.
◦ Implicit Power: The term "judicial review" is not explicitly in the Constitution, but
it is implicitly granted by India's written constitution and the Supreme Court's power
to strike down laws violating fundamental rights.
◦ Scope:
▪ Reviews legislations violating fundamental rights.
 ▪ Reviews legislations inconsistent with federal distribution of powers.
▪ Extends to laws passed by State legislatures.
• Enhanced Power: Writ powers and judicial review make the judiciary very
powerful, enabling it to interpret the Constitution and laws, protect the Constitution,
and safeguard citizens' rights.
• PIL's Contribution: The practice of entertaining PILs has further added to the
judiciary's power in protecting rights.
• Real Impact on Disadvantaged: PIL and judicial activism made it possible for courts
to address violations of rights like the right against exploitation (forced labour, child
employment in hazardous jobs), considering cases such as blinding of jail inmates,
inhuman working conditions, and sexual exploitation of children, making rights
meaningful for the poor and disadvantaged.
• Global Recognition: Public interest litigation is becoming more accepted globally;
South Africa's constitution has incorporated it as a fundamental right.
X. Judiciary and Parliament
• Principle: The Indian Constitution is based on a delicate principle of limited
separation of powers and checks and balances.
◦ Parliament: Supreme in law-making and amending the Constitution.
◦ Executive: Supreme in implementing laws.
◦ Judiciary: Supreme in settling disputes and deciding constitutionality of laws.
• Recurrent Conflict: Despite clear divisions, conflicts between Parliament and
judiciary, and executive and judiciary, have been common.
• Historical Conflict (1967-1973) - Right to Property:
◦ Parliament wanted to restrict the right to property for land reforms.
◦ Court held that Parliament could not restrict or abridge fundamental rights, even
through constitutional amendments.
◦ Issues at the centre of controversy: scope of right to private property,
Parliament's power to curtail/abridge/abrogate fundamental rights, Parliament's
power to amend the Constitution, and making laws that abridge fundamental rights
while enforcing directive principles.
◦ Other conflicts included laws on preventive detention, reservations, and
acquisition of private property.
• Kesavananda Bharati Case (1973):
◦ Landmark Decision: Ruled that there is a basic structure of the Constitution that
cannot be violated by Parliament, even through amendment.
◦ Right to Property: Declared not part of the basic structure, allowing it to be
suitably abridged. (Right to property was removed from the list of fundamental
rights in 1979).
◦ Judicial Power: The Court reserved to itself the right to decide what constitutes
the basic structure. This is a prime example of the judiciary interpreting the
Constitution.
• Current Contentions:
◦ Judicial Intervention in Legislature: Can the judiciary intervene in and regulate
the functioning of legislatures, particularly concerning parliamentary privileges or
disciplinary actions against members?.
◦ Discussion of Judges' Conduct: The Constitution prohibits discussing judges'
conduct in Parliament, except during removal proceedings. Instances of
Parliament/State legislatures criticising judiciary, and judiciary criticising/instructing
legislatures, lead to conflict, as legislatures see this as violating parliamentary
sovereignty.
• Delicate Balance: These issues highlight the delicate balance between government
organs and the importance of mutual respect for authority in a democracy.
XI. Conclusion
• Increased Prestige: Despite tensions, the judiciary's prestige has grown, leading to
greater public expectations.
• Powerful Institution: The Indian judiciary is a very powerful institution, known for
its independence.
• Protector of Rights: Through various decisions, it has interpreted the Constitution
and protected citizens' rights.
• Democratic Balance: Democracy relies on the delicate balance of power between
the judiciary and Parliament, with both institutions functioning within constitutional
limits.

Federalism
• Definition and Evolution: Federalism is an institutional mechanism to
accommodate two sets of polities—one at the regional level and the other at the
national level. It is not a set of fixed principles but has evolved differently across
various historical situations and countries, such as American, German, or Indian
federalism.
• Key Characteristics:
◦ Dual Governments: Two levels of government (regional and national),
each autonomous in its own sphere.
◦ Dual Identities/Loyalties: People hold identities and loyalties to both their region
and the nation (e.g., Gujaratis/Jharkhandis and Indians).
◦ Distinct Powers and Responsibilities: Each level of government has separate
powers and responsibilities and its own system of government.
◦ Written and Supreme Constitution: Details of this dual system are generally
outlined in a written constitution, which is considered supreme and is the source of
power for both governments.
◦ Division of Subjects: Subjects concerning the nation (e.g., defence, currency) are
the responsibility of the union/central government, while regional/local matters are
for the state/regional government.
◦ Independent Judiciary: An independent judiciary settles disputes between the
central government and states on legal matters concerning the division of power,
preventing conflicts.
◦ Culture of Trust: The actual working of a federation is influenced by politics,
culture, ideology, and history. A culture of trust, cooperation, mutual respect, and
restraint helps it function smoothly. Political parties also play a role. Dominance by a
single unit, state, linguistic group, or ideology can lead to resentment, demands for
secession, or civil wars.
Examples of Federal Systems and their Challenges
• USSR: Broke up due to excessive centralisation, concentration of power, and
domination of Russia over other regions with distinct languages and cultures.
• Other Countries: Czechoslovakia, Yugoslavia, and Pakistan also faced division.
Canada came close to a breakup between its English and French-speaking regions.
• West Indies Federation: Formed in 1958 with a weak central government and
independent economies for each unit. Political competition led to its formal
dissolution in 1962. Later, in 1973, independent islands established joint authorities
(common legislature, supreme court, currency, common market, common executive)
as the Caribbean Community.
• Nigeria: Despite a federal arrangement, it failed to achieve unity due to lack of
trust between regions and communities. Major ethnic groups (Yoruba, Ibo, Hausa-
Fulani) controlled different regions, and their attempts to spread influence led to
fears and conflicts, culminating in a military regime. Though democracy was restored
in 1999, religious differences and conflicts over oil revenue persist, with local ethnic
communities resisting centralised control.
Federalism in India
• Historical Context:
◦ India emerged as a united nation-state in 1947 after partition, an achievement
considering its immense diversities.
◦ At independence, British provinces and princely states merged into the Indian
union. States' boundaries and names have been reorganised many times over
seventy years (e.g., Mysore to Karnataka, Madras to Tamil Nadu).
◦ Leaders of the national movement recognised the need to divide powers due to
India's vast size, regional, and linguistic diversity. They believed people of different
regions should govern themselves.
◦ The Constituent Assembly, after the decision to partition India, framed a
government based on unity and cooperation between the centre and states, with
separate powers for states.
• Constitutional Provisions:
◦ "Union of States": The Indian Constitution does not use the word "federation";
Article 1 describes India as a "Union of States".
◦ Division of Powers:
▪ The Constitution created two governments: Union Government (central) and
State Government, each with constitutional status and clearly identified areas of
activity.
▪ Judiciary resolves disputes over powers between the Union and States based
on constitutional provisions.
▪ Three Lists:
• Union List: Subjects of national importance (e.g., Defence, Atomic Energy,
Foreign Affairs, Banking, Railways, Currency & Coinage). Union Legislature alone
makes laws.
• State List: Subjects of regional/local importance (e.g., Agriculture, Police,
Prison, Local Government, Public Health, Land, Liquor, Trade and Commerce).
Normally, State Legislature alone makes laws.
 • Concurrent List: Subjects where both Union and State Legislatures can make
laws (e.g., Education, Transfer of Property, Forests, Trade Unions, Adulteration,
Adoption and Succession).
• Residuary Powers: Matters not mentioned in any list (e.g., Cyber Laws) fall
under the exclusive power of the Union Legislature.
◦ Financial Centralisation: The Constitution centralises economic and financial
powers with the central government. States have immense responsibilities but
"meagre revenue sources".
Federalism with a Strong Central Government
• Rationale: The Constitution's framers believed a strong central government was
necessary to accommodate diversities, stem disintegration, bring social and political
change, integrate over 500 princely states, and address socio-economic problems
like poverty, illiteracy, and inequality through planning and coordination.
• Provisions Contributing to a Strong Centre:
◦ Parliament's Power over States' Existence: Parliament can form new states,
alter their boundaries, or change their names, though it provides safeguards for
securing the concerned state legislature's view.
◦ Emergency Provisions: During an emergency, the federal polity can become
a highly centralised system. Parliament assumes power to make laws on subjects
typically within state jurisdiction.
◦ Financial Dominance: The central government controls major revenue-
generating items, making states largely dependent on central grants and financial
assistance. Centralised economic decision-making through planning (e.g., Planning
Commission) and discretionary grants can lead to charges of discrimination.
◦ Governor's Role: The Governor, appointed by the central government,
can recommend dismissal of a state government and dissolution of the Assembly.
They can also reserve state bills for the President's assent, allowing the central
government to delay or veto legislation.
◦ Central Legislature on State Matters: The central government can legislate on
State List matters if ratified by the Rajya Sabha.
◦ Superior Executive Powers: The Constitution states that the executive powers of
the centre are superior to those of the states, and the Union government can give
directions to state governments (Article 257(1)).
◦ Integrated Administrative System: All-India services (e.g., IAS, IPS) officers serve
in states but are controlled by the central government, which handles their
disciplinary actions or removal.
◦ Martial Law Provisions: Articles 33 and 34 authorise Parliament to protect
persons in service during martial law (e.g., Armed Forces Special Powers Act), further
strengthening the Union government.
Conflicts in India's Federal System
• Centre-State Relations: States frequently demand greater powers and autonomy,
leading to tensions and conflicts. Legal disputes are resolved by the judiciary, while
political demands require negotiation.
◦ Evolution of Centre-State Relations:
▪ 1950s-early 1960s: Characterised by Congress dominance at both centre and
states, relations were largely normal, with states relying on central grants for
development.
 ▪ Mid-1960s: Decline of Congress dominance led to opposition parties coming to
power in many states, prompting demands for greater powers and autonomy due to
perceived central interference.
▪ 1990s onwards: End of Congress dominance and rise of coalition politics led to
greater say for states, increased respect for diversity, and a more mature federalism.
◦ Demands for Autonomy: These vary but include:
▪ Changing Division of Powers: States demanding more and more important
powers.
▪ Financial Autonomy: Independent revenue sources and greater control over
resources.
▪ Administrative Powers: States resent central control over their administrative
machinery.
▪ Cultural and Linguistic Issues: Opposition to Hindi domination (e.g., Tamil
Nadu), demands for promoting regional languages and cultures (e.g., Punjabi), and
concerns about the dominance of Hindi-speaking areas.
• Role of Governors and President's Rule:
◦ Governor's Controversy: The Governor is an appointed, not elected, official by
the central government, leading to their actions often being seen as central
interference, especially when different parties rule. The Sarkaria Commission (1983)
recommended non-partisan appointments.
◦ President's Rule (Article 356): This highly controversial provision allows the
Union government to take over a state government if it cannot function
constitutionally. The Governor recommends dismissal/dissolution, and the
President's proclamation needs parliamentary ratification, extending up to three
years. It has been used to dismiss state governments even with a majority or without
testing it, leading to conflicts. The Supreme Court can examine its constitutional
validity. Its use increased significantly after 1967 when non-Congress governments
came to power in states.
• Demands for New States:
◦ Stemmed from the national movement's decision to create states based
on common cultural and linguistic identity.
◦ The States Reorganisation Commission (1953) recommended linguistic states,
leading to the creation of states like Gujarat and Maharashtra (1960), Punjab and
Haryana (1966), and various North Eastern states.
◦ More recently, larger states like Madhya Pradesh, Uttar Pradesh, and Bihar were
divided (e.g., Chhattisgarh, Uttarakhand, Jharkhand in 2000), and Andhra Pradesh
was divided to form Telangana (2014) to meet demands for statehood and
administrative efficiency. Struggles for statehood continue (e.g., Vidarbha).
• Interstate Conflicts:
◦ Beyond Centre-State issues, disputes between states are common. While the
judiciary can arbitrate legal disputes, these conflicts have political implications
requiring negotiation and mutual understanding.
◦ Border Disputes: Claims over territories, often complicated by multi-lingual
border populations. Examples include the dispute between Maharashtra and
Karnataka over Belgaum, Manipur and Nagaland, and Punjab and Haryana over
border areas and the shared capital, Chandigarh.
 ◦ River Water Disputes: More serious, as they relate to drinking water and
agriculture. Major examples include the Kaveri water dispute between Tamil Nadu
and Karnataka, and the Narmada river dispute involving Gujarat, Madhya Pradesh,
and Maharashtra. These disputes test the cooperative spirit of states despite the
existence of river water tribunals.
Special Provisions
• Differential Treatment: India's federal arrangement features differential treatment
for many states.
• Asymmetrical Representation: Rajya Sabha provides asymmetrical representation
based on state size and population, ensuring minimum representation for smaller
states and more for larger ones.
• Specific Special Provisions: Due to peculiar social and historical circumstances,
some states have special provisions.
◦ North Eastern States: Most special provisions pertain to states like Assam,
Nagaland, Arunachal Pradesh, and Mizoram, largely due to their sizable indigenous
tribal populations with distinct history and culture. However, these provisions
haven't always prevented alienation and insurgency.
◦ Other States: Special provisions also exist for hilly states like Himachal Pradesh
and others such as Andhra Pradesh, Goa, Gujarat, Maharashtra, Sikkim, and
Telangana.
• Jammu and Kashmir (Historical Article 370):
◦ J&K was a large princely state that acceded to India in October 1947 following an
invasion from Pakistan.
◦ It was granted much greater autonomy under Article 370. The concurrence of
the State was required for making laws on matters in the Union and Concurrent lists,
giving it limited central power without consent.
◦ J&K had a separate constitution and flag, though Parliament's power on the
Union List was largely accepted through presidential orders.
◦ Key differences included no emergency due to internal disturbances without
state concurrence, no financial emergency, and Directive Principles not applying.
Amendments to the Indian Constitution required J&K's concurrence.
◦ Current Status: As of October 31, 2019, the special status under Article 370 no
longer exists. The Jammu and Kashmir Reorganisation Act 2019 bifurcated the state
into two Union Territories: Jammu and Kashmir, and Ladakh.
Conclusion
• Federalism is like a rainbow, where separate colours form a harmonious pattern,
continuously maintaining a difficult balance between the centre and states.
• Beyond legal and institutional formulas, its smooth functioning requires a culture
of mutual trust, toleration, and cooperation from the people and the political
process.
• Indian federalism celebrates both unity and diversity. Forcing unity by
streamlining differences can lead to social strife and alienation, ultimately destroying
unity. A responsive polity sensitive to diversities and autonomy demands is crucial
for a cooperative federation.
Local Government.
• In a democracy, an elected government is necessary not only at the central and
State levels but also at the local level to manage local affairs.
• Local government refers to government at the village and district level, operating
closest to common people and addressing their day-to-day lives and problems.
• It is believed that local knowledge and local interest are vital for democratic
decision-making and for efficient, people-friendly administration.
• The advantage of local government is its proximity to the people, allowing for
quick and low-cost problem-solving.
• Strong and vibrant local governments promote both active participation and
purposeful accountability.
• Tasks that can be performed locally should be entrusted to local people and their
representatives, as common people are more familiar and concerned with local
government actions impacting their daily lives.
• Strengthening local government is seen as strengthening democratic processes.
Growth of Local Government in India
• Ancient Period: Self-governing village communities, known as 'sabhas' (village
assemblies), are believed to have existed in India from early times, evolving into
'Panchayats' (assemblies of five persons).
• Modern Times (British Era):
◦ Elected local government bodies were established after 1882, initiated by Lord
Rippon, the then Viceroy of India, and were called local boards.
◦ The Indian National Congress advocated for more effective local bodies due to
slow progress.
◦ Village panchayats were established in many provinces following
the Government of India Act 1919 and continued after the Government of India Act
of 1935.
• During Freedom Movement:
◦ Mahatma Gandhi strongly advocated for the decentralisation of economic and
political power, believing that strengthening village panchayats was a means of
effective decentralisation.
◦ He saw panchayats as instruments of decentralisation and participatory
democracy, essential for successful development initiatives.
◦ Gandhi envisioned every village as a republic, self-sustained and capable of
managing its affairs, with independence beginning at the bottom.
Initial Constitutional Provisions and Challenges
• When the Constitution was drafted, local government was assigned to the States.
• It was included in the Directive Principles of State Policy as an advisory provision,
which was non-justiciable.
• Local government, including panchayats, did not receive adequate importance in
the original Constitution for several reasons:
◦ The turmoil of Partition led to a strong unitary inclination in the Constitution.
◦ Jawaharlal Nehru viewed extreme localism as a threat to national unity and
integration.
 ◦ Dr. B.R. Ambedkar and others in the Constituent Assembly were concerned that
the faction and caste-ridden nature of rural society would undermine the purpose
of local government.
◦ Despite these concerns, many members acknowledged the importance of
people's participation and desired Village Panchayats as the basis of democracy.
Pre-73rd and 74th Amendment Efforts
• Before the major constitutional amendments, efforts were made to develop local
government bodies, such as the Community Development Programme in 1952,
aimed at promoting people's participation in local development.
• A three-tier Panchayati Raj system was recommended for rural areas, with some
States like Gujarat and Maharashtra adopting elected local bodies around 1960.
• However, these bodies often lacked sufficient powers and functions for local
development and were heavily dependent on State and central governments for
financial assistance.
• Many States did not establish elected local bodies, dissolved existing ones, or had
indirect elections, and elections were frequently postponed.
73rd and 74th Amendments (1992-1993)
• Introduced in 1989 and passed in 1992, these amendments aimed to strengthen
local governments and bring uniformity in their structure and
functioning nationwide.
• They came into force in 1993.
• As local government is a 'State subject', States were given one year to amend their
laws to conform with the new constitutional provisions.
73rd Amendment (Rural Local Governments - Panchayati Raj Institutions or PRIs)
• Three-Tier Structure:
◦ Gram Panchayat: At the base, covering a village or group of villages.
◦ Mandal/Block/Taluka Panchayat: Intermediary level (optional for smaller States).
◦ Zilla Panchayat: At the apex, covering the entire rural area of a District.
• Gram Sabha: Mandatory creation, comprising all adult members registered as
voters in the Panchayat area; its role and functions are decided by State legislation.
• Elections:
◦ All three levels are directly elected by the people.
◦ Term of each Panchayat body is five years.
◦ If dissolved prematurely, fresh elections must be held within six months. This
ensures the continuity of elected bodies.
• Reservations:
◦ One-third of positions in all Panchayat institutions are reserved for women.
◦ Reservations for Scheduled Castes (SC) and Scheduled Tribes (ST) are provided
at all three levels, proportional to their population.
◦ States may also provide reservations for Other Backward Classes (OBCs) if
deemed necessary.
◦ These reservations apply to ordinary members and to the positions of
Chairpersons ('Adhyakshas') at all three levels.
◦ Women's reservation is also applicable within the seats reserved for SC, ST, and
OBCs.
• Transfer of Subjects:
 ◦ Twenty-nine subjects from the State list are identified and listed in the Eleventh
Schedule of the Constitution.
◦ These subjects are linked to development and welfare functions at the local
level.
◦ The actual transfer of these functions depends on State legislation, as each
State decides how many of these subjects to devolve. Examples include agriculture,
minor irrigation, rural housing, drinking water, education, health, and poverty
alleviation programmes.
• Special Provisions for Adivasi Areas:
◦ The 73rd Amendment provisions were initially not applicable to Adivasi areas.
◦ In 1996, a separate act was passed to extend the Panchayat system to these
areas, protecting the rights of Adivasi communities to manage common resources
according to their traditional customs.
◦ This act gives more powers to Gram Sabhas in these areas, requiring elected
village panchayats to get their consent in many matters, consistent with the spirit of
diversity and decentralisation.
• State Election Commissioners:
◦ Each State government must appoint a State Election Commissioner, responsible
for conducting elections to Panchayati Raj institutions.
◦ This office is autonomous, similar to the Election Commissioner of India, but
operates independently and is not under the control of the Election Commission of
India.
• State Finance Commission:
◦ Each State government must appoint a State Finance Commission once every
five years.
◦ This Commission examines the financial position of local governments and
reviews the distribution of revenues between the State and local governments, and
between rural and urban local governments.
◦ This innovation aims to ensure that allocation of funds is not a political matter.
74th Amendment (Urban Local Governments - Nagarpalikas)
• Deals with urban local bodies or Nagarpalikas.
• Definition of an Urban Area (Census of India criteria):
◦ Minimum population of 5,000.
◦ At least 75% of male working population engaged in non-agricultural occupations.
◦ Density of population of at least 400 persons per sq. km.
• The 74th Amendment largely repeats the provisions of the 73rd Amendment but
applies them to urban areas.
• It incorporates provisions for direct elections, reservations, transfer of subjects,
State Election Commission, and State Finance Commission for Nagarpalikas.
• The Constitution also mandated the transfer of functions from State governments
to urban local bodies, listed in the Twelfth Schedule.
Implementation and Impact of the Amendments
• All States have now passed legislation to implement the amendments.
• Many States have held at least two to three rounds of elections to local bodies
since 1994.
• There are over 600 Zilla Panchayats, about 6,000 Block/Intermediary Panchayats,
and 2,40,000 Gram Panchayats in rural India.
• In urban India, there are over 100 City Corporations, 1400 Town Municipalities,
and over 2000 Nagar Panchayats.
• More than 32 lakh members are elected to these bodies every five years,
significantly increasing the number of elected representatives in the country
(compared to less than 5000 in State Assemblies and Parliament combined).
• Impact on Women:
◦ At least 13 lakh women are elected members in local bodies.
◦ A significant number of women occupy positions of Sarpanch and
Adhyaksha (e.g., 200 women Adhyakshas in Zilla Panchayats, 2000 in Block
Panchayats, 80,000 Gram Sarpanchas, over 30 Mayors, 500 Town Municipality
Adhyakshas, and nearly 650 Nagar Panchayats headed by women).
◦ Women have gained more power, confidence, and a greater understanding of
politics, bringing new perspectives and sensitivity to discussions.
◦ While some instances of women being proxies for male family members existed,
such cases are becoming fewer.
• Impact on Social Profile:
◦ Reservations for SC and ST, along with State provisions for OBCs, have led to a
significant number of elected members from these communities (e.g., about 6.6 lakh
SC/ST members).
◦ This has significantly altered the social profile of local bodies, making them
more representative of the social reality.
◦ This can lead to tensions and struggles for power, as dominant social groups
may resist giving up their control, but such conflict is seen as part of making
democracy more meaningful.
Challenges and Limitations
• Limited Autonomy and Transfer of Subjects:
◦ Despite 29 subjects being assigned to local governments, many States have not
transferred most of these subjects to local bodies, limiting their effective
functioning.
◦ This makes the exercise of electing representatives somewhat symbolic, as local
people often do not enjoy much power in choosing welfare programmes or
allocating resources.
• Financial Dependence:
◦ Local bodies have very little funds of their own and are heavily dependent on
State and central governments for financial support.
◦ They raise only 0.24% of total revenues but account for 4% of total government
expenditure, making them reliant on grants. This dependency erodes their capacity
to operate effectively.
• Gap between Theory and Practice: The laws are progressive, but their genuine
implementation is crucial, and a significant gap exists between legal provisions and
their practice.
Conclusion
• Local governments often still function as agencies implementing welfare and
development schemes of central and State governments.
• True decentralisation of power requires that people in villages and urban localities
have the power to decide their own policies and programmes.
• The 73rd and 74th Amendments are an important step towards democratisation,
but the true test of democracy lies in the practice of these provisions.
International Comparison (Bolivia)
• Bolivia is cited as a successful example of democratic decentralisation.
• Its 1994 Popular Participation Law decentralised power, allowing for popular
election of mayors, dividing the country into municipalities, and establishing a
system of automatic fiscal transfers.
• Bolivian municipalities are responsible for building and maintaining local health
and education facilities.
• 20% of nationwide tax collections are distributed to municipalities on a per
capita basis, forming the bulk of their operating budget, despite their ability to levy
local taxes.