1.

INDIAN CONSTITUTION: HISTORICAL

UNDERPINNINGS, EVOLUTION, FEATURES,
AMENDMENTS, SIGNIFICANT PROVISIONS AND
BASIC STRUCTURE

Functions of a constitution-

1. Expression of ideology: of a nation state

2. Expression of basic law: it presents basic laws which can be modi ed through the
process of amendment
3. Organisational framework- for the government. Eg. relationship between executive
and judiciary
4. Levels of government: explains di erent levels of organs of government. Eg.
federation, unitary government
5. Provisions for amendment

Constitutionalism-

Constitutionalism implies that the exercise of political power shall be bound by limitations,
checks, controls and rules. The concept of Constitutionalism incorporates the principles
of ‘limited government’ and ‘rule of law’

According to K C Wheare and W G Andrews, Constitutionalism implies:

• Division of powers
• Acceptance of plurality of interests in society
• No authoritative or dictatorial leadership
• Minimum constraints on individual freedom

Constitutionalism in India- amalgamation of following conditions-

Written Constitution, • Responsible Government, • Parliamentary Democracy, • Rule of

Law, • Fundamental Rights, • Separation of Powers and Checks and Balances, • Flexibility
of Constitution and its Basic Structure, • A Federal Form of Government, • Independent
Judiciary and Judicial Review etc

In IR Coehlo v. State of Tamil Nadu, the Court held that Constitutionalism is a legal
principle that requires control over the exercise of governmental power to ensure that the
democratic principles on which the government is formed shall not be destroyed.

Historical underpinnings-

GOI act, 1935

On the basis of white paper for three round table conferences-

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1. Establishment of All India federation, consisting of provinces and princely states as
units.
2. Divided powers between centre and units in terms of three lists, federal, provincial
and concurrent list.
3. Abolished dyarchy at provincial level, replacing by provincial autonomy and
established dyarchy at the centre
4. Bicameralism introduced in 6 out of 11 provinces
5. Further extended communal representation by giving separate electorates to
depressed classes

Analysis of the act:

1. Federation scheme was a non starter

2. Though dyarchy was introduced in the centre, powers of elected or nominated
members were limited
3. Legislative powers of central and provincial legislatures were subject to various
limitations, eg. veto of viceroy, veto of crown, power to promulgate ordinances.

Evolution -

1. Evolution prior to adoption of the constitution -

A. Constituent assembly-

Demanded by congress resolution in 1936

The Constituent Assembly, when it met for the rst time on December 9, 1946 was not a
sovereign body. It had to follow the prescribed procedure set up by the Cabinet Mission
of the British Parliament.

Composition- partially elected and partially nominated body. The members were elected
indirectly by people in the provincial assemblies, who in turn had been elected on the
basis of a limited franchise

Working of constituent assembly-

Objective resolution- by JL Nehru

1. All powers of independent sovereign India, shall be derived from it’s people.
2. People shall be guaranteed justice and secured social, economical and political
equality.
3. Adequate safeguards will be provided for minorities.
4. Government shall maintain integrity of the territory of the republic of India and it’s
sovereign rights on land, sea and air based laws based on laws of civilised nations of
the world.
5. India shall make contribution to promotion of world peace and welfare of mankind.

It later became the preamble.

Criticism of constitutional assembly-

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 1. Not a representative body- members weren’t directly elected
2. Not a sovereign body- based on proposals of British government.
3. Domination of congress members.
4. Lawyer politician domination

2. Evolution as an ongoing process -

Constitution is a living document- because

1. Open to constant changes: through amendments eg. 42nd amendment adding

secularism and socialism as a part
2. Open to interpretation by court: this allows the constitution
Increasingly relevant to the time and tenor of contemporary reality
Re ect need and aspirations of people
Eg. Recognition of right to education as Article 21A

Salient features of constitution -

1. Lengthiest written constitution

Why?
1. Framers borrows provisions from various constitutions
2. Making provisions speci c to India
3. Provisions for elaborate centre state relations
4. Constitution for both centre and state
2. Blend of rigidity and exibility
3. Democratic republic: ie sovereignty rests with the people of India
4. Parliamentary form of government
5. Mix of federal and unitary features
Federal features - two sets of government, distribution of powers between centre
and states, written constitution, independent judiciary
Unitary - single citizenship, all India services, integrated judiciary, emergency
provisions, role of governor
In S R Bommai case (1994), SC laid down that Constitution is federal and characterised
federalism as its ‘basic feature’.
6. Fundamental rights
7. DPSPs
8. Fundamental duties
9. Secular state
10. Independent, impartial and integrated judiciary
11. Single citizenship
12. Emergency powers: National Emergency (Article352); Emergency in a State (Article
356) and Financial Emergency (Article 360)
13. Separation of powers
14. Three tiers of government

Amendments-

Provisions- Three types

1. Simple majority: outside the scope of art.368

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Eg.Formation of new states and alteration of areas, boundaries or names of existing
states, Creation or abolition of legislative councils in the states.
2. Special majority of parliament- under art. 368
A majority of the ‘total membership’ of each house; and
A majority of two-third of the members of each House present and voting.

Eg. Fundamental rights, DPSPs

3. By Special Majority of the Parliament and consent of States

Criticism of the procedure -

1. No body for amending constitution as compared to US.

2. States cannot initiate constitutional amendment.
3. No time frame for state legislature rati cation or rejection.
4. No provision for resolving deadlock between two houses over constitutional
amendment bill
5. Procedure is too sketchy, leaving space for judicial interventions
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 2. SEPARATION OF POWERS BETWEEN VARIOUS
ORGANS

Separation of powers, refers to the division of government responsibilities into distinct

branches to limit any one branch from exercising the core functions of another.

Montesquieu’s work on this philosophy is considered one the greatest works on political
theory.

Traditional approach-

Montesquieu's three branches of government represent three distinct sources of legal

authority. In advocating tripartite government, Montesquieu urged that governmental
institutions conform to this natural division between the functions of creating law,
enforcing law, and adjudicating disputes arising under the law.

He also recognised that only through a system of checks can this separation be
maintained.

He favoured an absolute check upon legislature through executive veto. However, under
this theory, legislature enjoys no commensurate check over executive, it merely maintains
the right to force the' executive to disgorge information on the manner in which its laws
are executed.

Modern approach-

Mixed government or weak separation of powers-

Mixed government’ as a concept insists that the primary functions of the state should be
allocated clearly and that there should be checks to ensure that no institution encroaches
signi cantly upon the function of the other.

Separation of powers in other countries

1. US - rigid separation of powers.

Constitution provides a list of prohibited activities of congress. Executive power in
president. No limits on executive branch has been placed. Supreme Court holds the
power of judicial review, checks and balances - eg. power of legislature to alter
composition of courts

a. Law making power of legislature is checked by the president through veto

b. Congress may refuse to give concurrence to a treaty that president has concluded
c. President may nullify a conviction
d. Judiciary has the power to declare an act of congress as invalid

2. Separation of powers in England- weak separation of powers

a. Executive forms a subset of legislature

b. PM sits either in House of Lords or in House of Commons
c. Parliamentary sovereignty followed
d. Until 2005, Lord chancellor fused legislature, executive and judiciary.
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 After 2005, this was separated.

In India -

Our model follows a contemporary approach in constitutionalising the doctrine of

separation of powers.

1. Implied division of powers - While the Indian Constitution recognizes legislative,

executive and judicial bodies, neither does it expressly vest di erent kinds of power in
di erent organs of the state, nor does it provide for exclusivity in the nature of
functions
2. Supremacy of constitution
3. No real separation of powers: executive part of legislature
4. Functional overlap: between three organs. Eg. Judiciary performing quasi legislative or
executive functions. Eg. Vishakha guidelines

Constitutional position-

Article 50 lays down that State shall take steps to separate the judiciary from the
executive. This is for the purpose of ensuring the independence of judiciary.

Article 122 and 212 provides validity of proceedings in Parliament and the State
Legislatures cannot be called into question in any court.

Judicial conduct of a judge cannot be discussed in legislatures. (article 121 and 211)

President and governor enjoy immunity from civil and criminal liability.

Some examples of functional overlap-

Overlap between legislature and judiciary-

1. Legislature exercises judicial powers in some cases. Eg. Impeachment of president,

breach of privilege
2. Disqualifying it’s members and impeachment of judges - judicial powers of legislature
3. Legislature can impose punishment for exceeding freedom of speech in parliament.
4. Judiciary also acts as legislature while making laws regulating its conduct and and
rules for disposal of cases.

Overlap between executive and legislature

1. Ordinance making power of president- legislative function of executive

2. Members of ministry are members of legislature
3. Council of minsters ( executive) are members of legislature.
4. Delegated legislation- law making powers of execute

Overlap between executive and judiciary-

1. Tribunals and quasi judicial bodies - part of executive also discharging judicial
functions
2. Appointment to courts - by executive
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 Further, the Constitution of India expressly provides for a system of checks and balances
in order to prevent the arbitrary or capricious use of power.

Judicial pronouncements-

1. re Delhi laws case, 1951

It was for the rst time observed by the Supreme Court that except where the
Constitution has vested power in a body, the principle that one organ should not perform
functions which essentially belong to others is followed in India.

2. Keshavananda Bharati case -

Separation of powers forms the basic structure of constitution.

3. Indira Gandhi v. Raj Narain, 1995

It was observed: “That in the Indian Constitution, there is separation of powers in a broad
sense only. A rigid separation of powers as under the American Constitution or under the
Australian Constitution does not apply to India.

Checks and balances -

It is a system that allows each branch of a government to amend or veto acts of another
branch so as to prevent any one branch from exerting too much power.

Why?

To prevent abusive concentration of power.

Examples-

1. Checks on judiciary- Judges are appointed by executive. Judges are removed by

legislature.
2. Checks on executive- executive is responsible to parliament in its day to day
functioning.
3. Checks by judiciary on legislature and executive - judicial review

Judicial review -

Refers to power of judiciary to interpret the constitution and to declare any such law or
order of legislature null and void, if they are in con ict with constitution of India.

Signi cance -

1. Maintain supremacy of constitution

2. Check misuse of power by legislature
3. Protect rights and maintains federal balance
4. Strengthen judiciary
5. Ful l constitutional duties of Supreme Court

Criticism-

1. Un democratic - as it decides the fate of law passed by legislature elected by people

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2. Lack of clarity - constitution does not describe the term
3. Reactionary- courts often adopt a legalistic approach. It can thus reject progressive
laws
4. Tends to make parliament less responsible- parliament can decide to check the
constitutional validity of the law passed by it.
5. Reversal in its own judgements- The judgment in the Golaknath case reversed the
earlier judgments and the judgment in the Keshwananda Bharati case reversed the
judgment in the Golaknath case.

India relies heavily upon the doctrine in order to regulate, check and control the exercise
of power by the three organs of government. Whether it is in theory or in practical usage,
the Doctrine of Separation of Powers is essential for the e ective functioning of a
democracy like India.

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 DISPUTE REDRESSAL MECHANISMS AND
INSTITUTIONS

Alternate dispute redressal mechanisms-

Includes Arbitration, conciliation, mediation, Lok adalat ad interventions of family court,

plea bargaining etc.

Rationale for ADR-

1. Speedy and expeditious resolution of disputes

2. Cost e ective
3. Reducing burden on public nances- due to huge backlog in courts
4. Amicable settlement for the people involved
5. Con dentiality- Matters of business or family interest, which is meant to be discussed
in a discretionary manner, can be kept private helping in conserving delicate human
relationships.
6. Harmonious resolution of disputes

Various types-

1. Mediation

Mediation involves an unbiased and impartial third party mediator. The mediator tries to
help the parties to reach a mutually agreeable settlement to the con ict.

- agreement will not be imposed by mediator but will be determined by parties

themselves.
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 The Commercial Courts Amendment Act of 2018 has provided great impetus to
mediation. It entails that where a suit does not contemplate urgent interim relief, the
plainti has to undergo pre-institution mediation. The Commercial Courts Amendment Act
2018 introduces the “Commercial Courts (Pre-institution Mediation and Settlement) Rules,
2018”. These rules lay down the procedure for mediation which must be followed.

2. Arbitration

Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to

one or more arbitrators who make a binding decision on the dispute.

Arbitration and conciliation (Amendment) Act, 2019 aims to make India a hub of
institutional arbitration for both domestic and international arbitration.

3. Conciliation

This is a process by which resolution of disputes is achieved by compromise or voluntary

agreement. In contrast to arbitration, the conciliator does not render a binding award. The
parties are free to accept or reject the recommendations of the conciliator.

Conciliators resolve disputes by providing technical assistance, improving communication

between parties etc.
Conciliator is not bound by rules of procedure and evidence.

Statutory recognition by arbitration and conciliation Act,2019.

4. Negotiation

Negotiation is self counselling between the parties to resolve their dispute. Negotiation is
a process that has no xed rules but follows a predictable pattern. It is the simplest
means for redressal of disputes.
In this mode the parties begin their talk without interference of any third person. The aim
of negotiation is the settlement of disputes by exchange of views and issues concerning
the parties.

Does not have statutory recognition in India.

Shortcomings of ADRs
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1. Wastage of time and money if the case is not resolved
2. Possibility of bias- if a neutral person in ADR gets a good deal of repeat business from
the same situation.
3. Compromising con dentiality- con dentiality proves to be a double edged weapon,
given that
It may be di cult for parties to use the award in later proceedings.
In many cases it is necessary to disclose the details of proceedings to third parties,
compromising con dentiality.
4. Limited judicial review: often arbitral ward is nal and binding.
5. Lack of power to establish legal precedents- The remedies established, or a orded to
the parties in dispute, in ADR, cannot be binding on future cases,
Lack of awareness and unfamiliarity with the procedure

Way forward -

1. Spreading awareness especially among weaker sections

2. Mediation should be popularised as a profession and reforms should be undertaken
to establish standards, quality control.
3. Expanding the role of ADR in pre litigation stages.

High level committee on institutionalisation of Arbitration-

Under Justice BN Srikrishna

Suggestions -

1. Setting up an Autonomous Body, styled the Arbitration Promotion Council of India

(APCI), having representatives from all stakeholders for grading arbitral institutions in
India.
2. The APCI may recognise professional institutes providing for accreditation of
arbitrators.
3. The APCI may also hold training workshops and interact with law rms and law
schools to train advocates with interest in arbitration.
4. Creation of a specialist Arbitration Bench to deal with such Commercial disputes, in
the domain of the Courts.
5. The Committee are also of the opinion that the National Litigation Policy (NLP) must
promote arbitration in Government Contracts.

Some informal dispute resolution mechanism-

1. Nyaya Panchayats

Nyaya Panchayats are the judicial components of the panchayat system, which forms the
lowest rung of our judiciary.

Rationale - Democratic decentralization; Easy, speedy and Inexpensive access to justice;

Revival of traditional village community life; Combination of judicial system and local self
government; and Reduction in pressure on Civil Courts.

Sarpanch as the head

Appointments based on nomination and election.
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 Addresses minor o ences such as theft, simple hurt etc.
Simple and informal procedure. ( CPC, CrPC and Indian evidence act apply)

Advantages -

1. Inexpensive and expeditious

2. Relief to ordinary courts
3. Justice at door steps of rural folks
4. Protection to local customs and traditions.

Disadvantages

1. Faction ridden institutions manned by laymen.

2. Justice on the basis of caste, community and political considerations.
3. Panchs are corrupt and partial.
4. Ignorance of law, arbitrary decisions

2. Gram Nyayalays
The Gram Nyayalaya Act, 2008 aims to improve access to justice in rural India. Gram
Nyayalaya is established for every Panchayat or a group of contiguous Panchayats at
intermediate level in a district.

~ presided by a Nyayadhikari ( equivalent to rst class magistrate)

~ jurisdiction over a speci c area speci ed by state government
~ Can function as mobile court
~ Both criminal and civil jurisdiction

Bene ts -

1. Participatory and decentralised judicial process

2. Statutory alternative to informal/ traditional panchayats
3. Improves physical access to courts
4. Time binding ( mandate of time bound redressal)
5. Proceedings in o cial language of state, making it more accessible

Issues -

1. Overlapping jurisdiction ~ with alternatives such as family courts

2. Shortage of Human Resources
3. Slow pace of utilisation of funds- due to lack of proposals from states to set up gram
nyayalayas.
4. Functioning - held only once or twice a month.
5. Lack of awareness
6. Low case disposal rate

Way forward -

1. Training of Gram Adhikari- including local language training

2. Building infra
3. Could be made a compulsory service for newly recruited judicial o cers
4. Jurisdiction may be rede ned to address ambiguities
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 3 family courts -

The Family Courts Act, 1984 provides for establishment of Family Courts by the State
Governments in consultation with the High Courts with a view to promote conciliation and
secure speedy settlement of disputes relating to marriage and family a airs and for
matters connected therewith.
~ exclusively deal with family matters
~ inexpensive remedy
~ exible and informal atmosphere in proceedings

Issues

1. Lack of continuity- counsellors changed every few months. Aggrieved person has to
adjust to new personnel
2. People do not take them seriously due to restricted jurisdiction
3. Gender inequality- it was provided that majority of judges should be women. This has
not been complied with.
4. Di erent high courts have laid down di erent rules of procedure.

Online dispute redressal -

ODR is the resolution of disputes, particularly small- and medium-value cases, using
digital technology and techniques of alternate dispute resolution (ADR), such as
negotiation, mediation, and arbitration.

Bene ts -

1. Reduction in pendency of cases in courts

2. Focus on complex issues by courts
3. Ease of doing business : enhancing the enforceability of contracts
4. Consumer satisfaction: best option for addressing the grievances of consumers
5. Environmental bene t: reducing pen and paper work

Concerns :

1. Infra issues- high speed internet, latest audio and video equipment
2. Suited to only certain type of disputed- such as breach of contract
3. Di culty in enforcement of online awards: orders are subject to appeals
4. Issues related to privacy and data security

Way forward-

1. Professional bodies: for training of personnel

2. Industry: must internalise dispute containment and dispute avoidance, perhaps by
introducing contractual clauses, which mandate the requirement of going to mediation
or negotiation before accessing any legal remedies.
3. Government - can identify disputes suitable for ODR - eg. disputed arising out of
motor vehicles act, cheque bouncing and insurance claims
4. Judiciary - can refer pending before the courts to ODR platforms for dispute
resolution.
5. Government to issue guidelines on minimal standards of fairness and data protection
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6. Government to provide su cient funds and expertise

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ISSUES AND CHALLENGES PERTAINING TO THE
FEDERAL STRUCTURE, DEVOLUTION OF POWERS

Concept of federalism-

Federalism is a system of polity in which power is divided between Union and its
constituent units i.e. states. In this system, the Central Government usually oversees the
issues that are of importance for the entire country, whereas the government at the lower
level looks after issues of local concern.

Union state legislative relations -

Parliament can legislate in state matter ( state list) under some speci c circumstances) -

1. In the national interest ( art. 249) - if Rajya Sabha passes a resolution to this e ect by
2/3rd majority.
2. By agreement between states - ( art. 252) - When two or more State Legislatures pass
a resolution, requesting the Parliament to legislate upon a subject in the State List.
3. To implement international treaties and obligations (art. 253)
4. Under proclamation of National Emergency (art.352) - During national emergency, the
Parliament can legislate upon any subject in the State List. Such a law becomes
inoperative on expiration of six months after the emergency has ceased to operate.
5. Under presidents rule ( art. 352)

Other provisions that provide for centre’s control over state legislation-

1. Governor can reserve certain type of bills passed by state legislators for president (art.
200)
2. Governor can reserve money and nancial bills for president during nancial
emergency ( art.360)
3. Bills on certain matters can only be introduced with the prior approval of president

Administrative relations -

1. Directives by the Union to the State governments: Article 256 mentions that the
executive power of every state shall be so exercised as to ensure compliance with
laws made by Parliament
2. Delegation of union functions to the states- Article 258(1) the President may, with the
consent of the State government, entrust (either conditionally or unconditionally) to
that government any of the executive functions of the Centre.
Under Art 258A, the State can also, with the consent of the Union government,
confer administrative functions to the Union.
3. All India services- responsible for administration of a airs, both at centre and states
4. Inter state council: article 263 provides for set up of inter state council for inquiring
into and advising upon disputes, which may have arisen between states.
5. Inter state river disputes - article 262- adjudication of inter state river dispute and
exclusion of supreme court’s jurisdiction from such dispute.

Miscellaneous issues-
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 1. Special category status to states

Idea was introduced in 1969 by 5th nance commission.

Today 11 states including 7 NE states enjoy this status.

As per the Gadgil formula “special status” is to be given to certain states because of
certain intrinsic factors which have contributed to their backwardness historically. Some
of these factors include:
(i) Hilly and di cult terrain;
(ii) Low population density or sizeable share of tribal population;
(iii) Strategic location along borders with neighbouring countries;
(iv) Economic and infrastructural backwardness; and
(v) Non-viable nature of state nances

Bene ts enjoyed

1. A major portion of the normal central assistance (NCA) (56.25%) is distributed to 11

special category states and the remaining (43.75%) among 18 General Category States.
2. Only special category states receive special plan assistance (SPA) and special central
Assistance grants.
3. The assistance for Externally Aided Projects (EAPs) ows to SCS states as 90% in
grant and 10% in loan whereas for General Category States, it ows as loans.
4. The state share in centrally sponsored schemes (CSS) is usually lower for Special
Category States as compared to general category states.
5. Special category states get a signi cant excise duty concession and other tax breaks
that attract industries to locate manufacturing units within their territory.

Issues with the status (why it should not be given)

1. After 14th FC, relevance of of SCS has come down due to increased devolution (32%
to 42% )
2. Since the end of planning commission, allocations to SCS have been drastically
reduced and status has remained more of symbol of political mileage.
3. Status having SCS does not any perceptible improvements in industrialisation.
4. It would lead to intensi cation of similar demands form other states.

Way forward -

One Sh could be abolition of SCS and introduction of least developed states category, as
recommended by Raghuram Rajan committee (2013). This would help I better
understanding the needs of individual states.

2. Centrally sponsored schemes

In the areas requiring national e ort, it is imperative for the Centre to make interventions.
Government of India tries to do this through various programmes and polices including
the CSS.

The CSS have remained a major bone of contention between the Union and State
Governments owing to following reasons:
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 1. Inability to provide matching funds: The number of States, particularly the North-East
States, Bihar and Jharkhand have often represented that they have limitation of
resources and are not able to provide State’s share to enable them to access the
required funds under CSS.
2. Lack of exibility: especially in India with its di erent geographical regions, varied
requirements of states and di erent levels of infra development.
3. Di erent accounting procedures: accounting procedure is di erent for every state,
reducing the e cacy of central monitoring and accounting system.

Steps taken-

1. Direct transfers to state implementation agencies done away with and funds now
being routed through consolidated fund of state.
2. Number reduced from 66 to 28.
3. Increased choice has been given to states to select the optional schemes they want
to select.
4. Flexi-funds in each CSS raised from 10% to 25% and 30% for UTs of overall
allocation.
5. Approval of schemes is being made co terminus with nance commission cycle.

3. NITI Ayog

NITI Aayog (National Institution for Transforming India – Aayog) has been constituted to
actualise the important goal of cooperative federalism and to enable good governance in
India.

More relevance than planning commission -

1. Better representation to states

2. Taking steps towards competitive federalism.
Performance based rankings of states
Identify best practices in di erent states in various sectors
3. Establishment of Development monitoring and evaluation o ce- used to establish
accountability at highest political levels.

Issues -
1. focuses mostly on policy recommendations which must also on implementation
challenges.
2. Also many states are still skipping the meeting and demanding special nancial
package which dilutes the feeling of co-operative federalism.
3. Resorted to uncritical praise of central government
4. No powers in granting discretionary funds
5. Merely an advisory body

Way forward -

1. steps need to be taken to either convert the Finance Commission into a permanent
body that can oversee scal transfer mechanisms rather than just give a tax sharing
formula every ve years or give a funding role to the NITI ayog.
2. Niti aayog should receive signi cant resources to promote accelerated growth in
states. (1-2% of GDP)
3. Independence from central government
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 Local governance

In an ancient period, village acted as the basic unit of administration with ‘Gramini’ as an
important village functionary.
In medieval period, despite the centralisation of powers, village communities continued to
exist.

Colonial period -

1. Regulation of 1816- Conferred judicial authority of village panchayats in few

provinces.
2. Mayo’s resolution, 1870- gave impetus to development of local institutions.
3. Resolution on local self government, 1882- intended to build local self government
institutions on the foundations of local government of ancient India
4. Morley Minto Reforms, 1909- enlargement of the election process in the Local Self
Government structure in India.
5. Montagu Chelmsford reforms- responsibility of the local government was given to
ministers and the ministers

Mahatma Gandhi and Panchayati Raj

Mahatma Gandhi wrote in his book - India of my dreams- ‘Independence must begin at
the bottom. Thus, every village will be a republic or panchayat having full powers. It
follows, therefore, that every village has to be self sustained and capable of managing its
a airs even to the extent of defending itself against the whole world.’

He put forward the idea of ‘Gram swarajya’.

Constitutionalisation-
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 73rd amendment act of 1992 gave constitutional status to the panchayats and added part
IX in the constitution. It also added 11th schedule to constitution that contains 29
functional items of panchayats.

Main features-

* 3 tier Panchayati Raj for all states having population of over 20 lakh.
* Regular elections in 5 years
* Reservation of seats for SCs, STs and Women
* Appointment of State nance commission to make recommendations about nancial
powers of panchayats

Role of Panchayati raj-

1. Political consciousness: by enabling large number of people to acquire leadership at

local level
2. Strengthening democratic institutions and processes- experience gained by new
generation of leadership of democratic management has raised the quality of
legislative debates
3. Planning and development - Panchayati raj institutions have contributed substantially
as units of planning and development, especially in the states of MH, Karnataka and
WB.
4. Giving voice to local demands- connecting link between parliament and state
legislature on one hand and local bodies on the other hand
5. Executive institution- certain civic functions such as rural sanitation, public health and
street lighting have been carried out by PRIs.
6. Breaking hierarchies- between castes and arriving at a common understanding.

Challenges -

1. Minimum scal decentralisation

2. Lack of adequate responsibilities to levy and collect taxes, fees and duties or tolls.
3. State nance commission- recommendations have been accepted either partially or
implemented half heartedly.
4. Powers to state election commissioners vary from state to state.
5. Gram Sabhas have not been empowered and strengthened to ensure public
participation and transparency.
6. Constitution does not stipulate any size for panchayats, in terms of population or area.
7. In most cases, panchayats do not have the powers to recruit their own sta .

2nd ARC recommendations for rural governance-

1. Gram panchayats should be of an appropriate size, which would make them viable
units of self governance and enable e ective popular participation.
2. Panchayats should have the power to recruit personnel and to regulate their service
conditions.
3. The provisions in some State Acts regarding approval of the budget of a Panchayat by
the higher tier or any other State authority should be abolished.
4. State governments should not have the power to suspend or rescind any resolution
passed by the PRIs or take action against elected representatives of PRIs.
Powers to investigate and recommend actions should be given to local
ombudsman, who will send his report to governor.
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5. State must undertake comprehensive activity mapping with regards to all matters in
11th schedule.
6. Broadening and deepening of the revenue base of local governments.
Majority of funds devolved should be of untied nature.
For infra needs, PRIs should be allowed to borrow from banks and nancial
institutions. Role of state governments should be to x the limits of borrowing.

Urban local bodies -

Historical background

The formation of Madras Municipal Corporation in 1687 -> resolution on local self
government by Lord Ripon, 1882 -> 1953, UP government’s decision to set up municipal
corporation in 5 big towns ( KAVAL towns) -> National commission on urbanisation, 1985
-> 74th CAA 1992

Main features- 74th CAA

The Act stipulated three levels of municipal bodies to be set up in the country:

1. nagar panchayat (town council)‘ for transitional areas

2. municipal council for a smaller urban area
3. municipal corporation for larger urban area

* 5 years term
* State election commission for election and SFC for devolution of nances
* Reservation for SCs and STs in proportion of their population.
* 1/3rd reservation to women

Impact of Act on Urban Governance-

1. Recognition of ULBs as 3rd tier of governance: enabling their independent right to

exist
2. Wider political representation- through reservation for SCs and STs
3. Gender empowerment
4. Independent municipal elections- conducted by SEC
5. Introduction of ward committees- taking local administration as close to people as
people

Challenges -

1. Use of discretionary power by states- states have used the discretionary part of the
act to favour local political considerations
2. Political patronage - at ward level, the act became a means of providing refuge to
party functionaries or those who were unable to win elections.
3. Status of mayor- act is silent on the status of mayor, enabling wide variation in manner
of election of mayors.
4. Lack of devolution of power
5. Financial powers- recommendations of SFCs are largely ignored
6. Passage of GST- has made the nancial position even more precarious by subsuming
certain taxes
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2nd ARC recommendations on urban governance

1. Mayor- the functions of chairing the council and exercising authority in urban
governance should be combined in mayor.
Chairperson should be directly elected by popular mandate.
2. Administration of taxes
Manner of determination of taxes should be made transparent and objective
Independent chief executive to monitor the collection of taxes
3. Financial requirements -
Limits of borrowings of various municipal bodies must be enhanced
Should be encouraged to borrow without government guarantees
4. Land banks available with municipalities should be leveraged for generation of
resources
5. Introduction of citizen’s charter to provision of services
6. Suspension of resolution passed by municipal government by state government only
in case of recommendation by local ombudsman
 JUDICIARY- HIGH COURT, SUBORDINATE COURTS,
ISSUES, JUDICIAL REFORMS AND JUDICIAL ACTIVISM

High courts

Article 214 to 231 of the constitution deal with the organisation, independence,
jurisdiction, powers and other issues related to high court.

Transfer of judges -

Article 222 of constitution makes provision for the transfer of judge( including CJ) from
one high court to another.

In third judges case (1998), SC opined that in case of transfer of judges, CJI should
consult in addition to collegium of four senior most judges of Supreme Court, the Chief
Justices of two High Courts (one from which the judge is being transferred and other
receiving him).

Subordinate courts-

Articles 233 to 237 in Part VI of the Constitution makes following provisions to regulate
the organisation of subordinate courts and ensures their independence from the
executive.

Gram Nyayalayas Act, 2008

The act is aimed at providing speedy and inexpensive justice to people in rural areas at
their doorsteps by establishing a village court at the grassroot level.

Structure- gram nyayalaya is court of judicial magistrate of the rst class and its presiding
o cer is appointed by state government in consultation with the high court.
Gram Nyayalayas are established for every panchayat at intermediate level.

Jurisdiction- gram nyayalaya is a mobile court having both civil and criminal jurisdiction.

Appeal in criminal against gram nyayalaya shall be made before sessions court, which
shall be heard and disposed of within a period of six months.
In civil cases appeal lies to district court.

Issues with gram nyayalaya-

1. Lack of infrastructure: This hinders their ability to function e ectively and delays the
resolution of cases.
2. Limited jurisdiction: The Gram Nyayalayas have limited jurisdiction and can only hear
cases involving monetary claims up to a maximum of INR 10,000, limiting their ability
to solve more complex cases.
3. Lack of trained personnel: there is a shortage of trained sta such as judges and
clerks, resulting in delays and lack of transparency.
4. Limited awareness- among the rural population.
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infra

Way forward -

1. Improving infra
2. Expanding jurisdiction
3. Training personnel
4. Awareness campaigns
5. Adequate funding

Lok Adalats -

One of the ADR mechanism. Given statutory status under legal services authorities act,
1987.

Presided by sitting or retired judicial o cer as chairman with two other members usually a
lawyer and a social worker.

No fees. Binding order with no appeal.

Levels of Lok adalat

1. State Authority level: constituted by State legal services authority

2. High court level
3. District level
4. Taluka level

Signi cance -

1. Provide an informal and relatively inexpensive means of resolving disputes

2. Can deal with a wide range of civil and criminal cases
3. Can serve as an alternative to the traditional legal system, particularly in rural areas
with limited access to formal legal proceedings
4. Can help to reduce the burden on the formal legal system by resolving disputes outside
of the courtroom
5. Can be an e ective means of resolving disputes and promoting reconciliation between
parties

Issues with lok adalats in India:

1. Lack of legal expertise among members

2. Lack of representation for vulnerable or disadvantaged parties
3. Potential for corruption and collusion among members
4. Decisions may not be legally enforceable
5. Limited ability to address complex or high-stakes cases

Way forward:

1. Increase legal expertise of lok adalat members through training and professional
development programs
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 2. Improve representation of vulnerable or disadvantaged parties through legal aid and
support
3. Implement strict ethical guidelines and codes of conduct to reduce corruption and
collusion
4. Increase transparency and accountability through the use of records and
documentation
5. Expand the scope and jurisdiction of lok adalats to include more complex and high-
stakes cases

All India Judicial Service

The proposal for an All-India Judicial Service (AIJS) in lines of All-India Services was
proposed as early as 1950. The First Law Commission of India (LCI) in its 14th Report on
Reforms on the Judicial Administration, recommended an AIJS in the interests of
e ciency of the judiciary. In its 77th Report the LCI once again said the AIJS needed
serious consideration.

Why-

1. Focuses on quality of judges rather than quantity

2. Appropriate way to recruit best talent required
3. Talents from bar do not join the service owing to lack of career progression prospects
4. the measure of uniformity in the standards for selection will improve the quality of
personnel in di erent High Courts, as one-third of the judges come there on
promotion from the subordinate courts.
5. the objective of inducting an outside element in High Court benches can be achieved
in better way as a member of an all India judicial service will have no mental block
about interstate transfers.

Why not -

1. Issue of di erences in laws across states.

2. Di erence in local languages and dialects.
3. Low pay is a big issue. Despite an e ort by the Supreme Court to ensure uniformity in
pay scales across States in the All India Judges’ Association case, it is still very low.
4. Fewer avenues for growth, promotion and limited avenues for career advancement.
5. Increased competition: it will be di cult from less privileged background to enter the
profession.
6. Legal education would be commercialized and aid coachings.
7. Independence of judiciary - currently judges of subordinate courts are appointed in
consultation with high courts. Once implemented, some other body will have a control
in appointments.

Hence, it is argued that without addressing these identi able lacunae, any new reform will
not make a di erence. A career judicial service will make the judiciary more accountable,
more professional, and arguably, also more equitable. This can have far-reaching impact
on the quality of justice and on people’s access to justice as well.

Judicial Activism and Overreach-

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 Judicial activism is the positive role played by the judiciary owing to the factor like near
collapse of responsible government, legislative vacuum due to coalition governments and
public con dence in the judiciary.
Eg. Vishakha Guidelines

Judicial Activism when overtly exercised results in usurping the powers of the Executive
or the Legislature, which are the other two important organs of governance and is called
as Judicial overreach.

Positives-

1. Upholds constitutional morality- eg. Naz foundation case which used the the concept
of constitutional morality to strike down section 377.
2. Executive lacks Political gumption: Justice Chandrachud view in the Sabarimala
judgment, he held that women should be allowed entry in the Sabarimala temple
against popularly held religious beliefs.
3. To protect fundamental rights: Triple Talaq in 2017 was banned as being ultra vires to
fundamental rights of Muslim women.
4. Most trusted institution: A People’s Survey of India report noted that Indians had 80%
trust in the Supreme court. Though not an elected body, the apex court is signi cant
to uphold rule of law

Demerits

1. Unelected Body- being an unelected body, judicial restraint is more apt for such an
institution rather than dictation legislation. Ex: Ban on liquor sale on highways led to
backlash as well as spurious means to overcome the dictum
2. Lack of expertise: Judiciary lacks both time and resources to enact legislation and
can lead to practical di culties. Eg. Ban on BS-IV vehicles from April 2020 which had
to be extended many times
3. Against Constitution’s Mandate: Judicial Review is a basic structure of the
Constitution; however enacting legislation is not.
4. Unaccountable: Politicians remain “accountable” to the people in at least some sense,
because they depend upon them in order to continue in o ce after ve years.
5. Judicial adventurism - Subhash Kashinath Mahajan v. State of Maharashtra (2018)
court amended the SC/ ST act, 1989 by annulling section 18.

Way forward -

1. Fine line between judiciary activism and overreach must be maintained.

2. Judiciary is not meant to rule the nation by legislating and executing through its
judgements.
3. Purely political questions and policy matters not involving core legal issue should
remain outside the domain of judiciary.
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 SUPREME COURT

Regulating act of 1773 established the Supreme Court of India at Calcutta.

Federal court of India was established by GOI act,1935. Supreme Court succeeded the
federal court of India.

Principles of Natural justice-

There are three rules that govern the principle of natural justice
a) No man should be punished without being heard.
b) No man shall be judge of his own case.
c) An authority shall at bona- de (in good faith) without any bias.

In Maneka Gandhi vs GOI, 1978 case Supreme Court held that principles of natural
justice are inherently found under art. 21 and legislature is bound by due process of the
law.

Article 124 to 147 deal with the Supreme Court.

Seat of Supreme Court

Constitution declares Delhi as seat of Supreme Court, however it authorises the CJI to
appoint other place or places as seat of SC with approval of president.

Demand of regional bench of Supreme Court

Over the period of time, various expert committees have observed the need of regional
benches of Supreme Court.
Law commission had recommended four regional benches of Supreme Court at Delhi,
Chennai, Kolkata and Mumbai.

Need for regional benches

1. Constitutional obligation- to ensure equal opportunity to justice ( Art. 39A)

2. High pendency of cases - more than 65000 cases pending in Supreme Court
3. Litigation as a measure of well being - an empirical study found direct correlation
between civil case ling and economic prosperity. However back log of cases has
discouraged civil case ling in recent times
4. Higher accessibility

Issues -

1. Dilute the authority of SC: however there are di erent benches of high courts which
has not diluted authority of HC.
2. A ect integrity of judiciary system: the setting up of regional benches may lead to
dilution of integrated infra with supreme on top and high courts at states level.
3. The decision might simply add another layer of adjudication with addressing the
issues of pendency.
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Way forward -

With the rising arrears of cases and practical di culties being faced by poor litigants, it is
about time that the idea of setting up regional benches be explored seriously. Setting up
regional benches of the Supreme Court dealing with appeals and a constitutional bench
in Delhi is the best way forward.

National court of appeal

The National Court Appeal with regional benches in Chennai, Mumbai and Kolkata will be
meant to act as nal court of justice in dealing with appeals from the decisions of the
High Courts and tribunals within their region in civil, criminal, labour and revenue matters.

Supreme Court as early as in 1986 recommended establishment of National court of

appeal.

Arguments for this in favour and against would be similar to discussed above.

Comparison of Indian and American Supreme Court

Appointment of judges: Collegium System

The Supreme Court created the Collegium system where a committee of the Chief Justice
of India, four senior judges of the Supreme Court take decisions related to appointments
and transfer of judges in the Supreme Court.

Three judges case-

1. First judges case, 1981- Recommendations made by CJI to president for

appointments can be refused for cogent reasons, thereby giving greater share to the
executive.
2. 2nd Judges case, 1993- CJI need to consult two senior most judges of SC over
judicial appointments. Recommendations are binding on executive.
3. 3rd judges case, 1998- CJI should consult 4 senior most judges of SC for
appointments.
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 Issues with collegium system-

1. View of constituent assembly- it had rejected proposal to vest the Chief Justice with
veto power over appointments.
2. Violation of constitution- Collegium is a clear violation of Article 74 of the Constitution
of India which demand President to act on the aid and advice of the Council of
Ministers.
3. Un democratic : since it is non transparent and closed in nature, there exists no
system of checks and balances
4. Disturbing balance of power: between executive and judiciary
5. Uncle judges syndrome- Law commission in its 230th report said that nepotism,
corruption and personal patronage is prevalent in the functioning of the collegium
system
6. Meir vs Seniority: there have been numerous cases where people with better
quali cations and better track records have been sidelined due to seniority rules

National Judicial Appointments commission

The government had established National Judicial Appointment Commission by way of

99th Constitutional Amendment.

Composed of three senior judges, three eminent outsiders and law minister.

Supreme courts verdict -

1. Struck down amendment and concluded that NJAC did not provide an adequate
representation to judicial component in the composition
2. Provisions in the amendment are insu cient to preserve the primacy of democracy.
3. Impingement upon separation of powers as well as independence of judiciary.

After striking down of the judgement, Memorandum of procedure was formulated for
appointment of judges.

Memorandum Of procedure -

The government drafted a Memorandum of Procedure in 2016 to set a fresh set of

guidelines for making appointments to the higher judiciary. However, there is lack of
agreement between government and judiciary as of now.

CJ of HC consults two of the senior most judges and refers the name to CM-> CM
forwards the names to the governor-> governor sends the name to Union law minster->
union minister forward s the name to collegium system->collegium sends back
recommendations to union minster-> recommendation placed before president->
appointment

Signi cance-

1. Seeks to introduce performance appraisal as a standard for appointments of judges

2. Proposes that prime criteria should be seniority for appointment of judges
3. States that upto 3 judges in SC Need to be appointed from Bar
4. Recommendation of CJI for his successor should be sought a month prior to
retirement
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 5. Notice for vacancies of judges should be put on the websites of the high courts

SC collegium system proceedings in public

Supreme Court collegium decided that it would upload its decisions on the appointment
and transfer of judges of the Supreme court and High Courts on the Supreme Court’s
website.

Rationale for the decision-

1. Moral obligation- especially after striking down NJAC

2. Right to information
3. Leading to Openness in procedure: especially under the allegations of corruption and
nepotism
4. Right to know: strengthens the fundamental right of freedom of speech

Criticism

1. Limited transparency: decision should be made public ideally when high courts make
recommendations, not after the whole process is completed
2. Lack of criteria - Eligibility criteria to judge the performance and suitability must be
formulated objectively and must be made public.
3. Personal and professional reputation: Rejection of candidatures on the ground of
“unsuitability” may dent their professional and personal reputations

What should be done-

1. System to ensure judicial primacy but not exclusivity

2. Criteria for appointment- Eligibility criteria to judge the performance and suitability
must be formulated objectively and must be made public. The reasons for
appointment or non- appointment can be only understood well in the context of such
a criterion.
3. Early nalisation of MoP

Removal of judges -

Stated in article 124(4).

By president On the grounds of misbehaviour and incapacity
Procedure is guided by Judges Enquiry act, 1968.

Issues in removal-

1. Lack of enforcement- act has only been invoked three times since 1950.
2. Lack of clarity- law does not de ne what misbehaviour is
3. Lack of transparency: constitution are silent on whether a judge facing the act should
recuse from judicial and administrative work till he is cleared of charges.
4. Cumbersome process
5. Involves political considerations- only parliament can take cognisance of a case, no
space for a citizen.

Way forward
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 1. Bringing Judicial standards and accountability bill: to establish a set of legally
enforceable standards to uphold the integrity of superior judiciary
2. Appointments- ensuring that only the judges of high caliber and integrity are
appointed to higher courts
3. Greater internal regulation: National judicial oversight committee should be created
which should develop its own procedures to investigate complaints

Issues faced by Judiciary

1, Judicial pendency and delay-

As of May 2022, over 4.7 crore cases are pending in courts across di erent levels of the
judiciary. Of them, 87.4% are pending in subordinate courts, 12.4% in High Courts, while
nearly 1,82,000 cases have been pending for over 30 years.

Reasons -

1. Shortage of judges- India has around 17 judges per million, whereas US has 151 and
China has 170
2. Impasse over appointments- between executive and judiciary
3. Huge workload - at an average of 70 hearings per day, average time could be as little
as 2 minutes
4. Government the biggest litigant - approx 46% of all cases
5. Increasing use of special leave petition
6. Frequent adjournments
7. Judges vacation- SC works for an average of 188 days a year, in comparison to 225
days of work mentioned in the rules.
8. Low budgetary allocation leading to poor Infra - only about 0.09% of GDP on judicial
infra
9. Ine cient investigation: lack of scienti c evidences
10. Increasing legal literacy: people becoming aware of their rights

Impacts of Judicial pendency

1. Denial of timely justice: Justice delayed is justice denied

2. Erodes social infra - weak judiciary has negative impact social development leading to
poverty, poor public infra etc
3. Overcrowding of the prisons
4. A ects economy of the country - it was estimated that judicial delays cost India
around 1.5% of its Gross Domestic Product annually.
5. Violation of fundamental right- article 21
6. Quality of judgement su ers- due to less time spent on cases

Steps taken

1. LIMBS- portal to track various court cases of government departments and ministries
2. Time bound hearing: SC has issued guideline for the same
3. Interoperable Criminal Justice system: integration of data for better judgements
4. Virtual courts

What should be done

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 1. Improving infra
2. Addressing vacancies- 120th law commission suggested strength xation formula
3. Annual targets and action plans: must be xed
4. Setting standards for judicial recruitment exams: to improve quality of judges
5. Concept of evening courts : where the services of retired judges is taken along with
young law graduates to train the young incumbents as well as reduce the pendency
6. Strict regulation of adjournments: and imposition of penalty for seeking it on imsy
grounds
7. Use of IT solutions: for tracking and monitoring of cases
8. Use of ADR
9. Police reforms : for improvements in investigation system
10. Law commission recommendations-
1. Cases of similar nature should be clubbed together and disposed on priority basis
2. Vacations should be curtailed by at least 10 to 15 days.
3. Lawyers must curtail prolix and repetitive arguments
4. Judgements must be free from ambiguity to reduce further litigation

The fundamental requirement of a good judicial administration is accessibility,

a ordability and speedy justice, which will not be realized until and unless the
justice delivery system is made within the reach of the individual in a time bound
manner and within a reasonable cost. Therefore, continuous formative assessment
is the key to strengthen and reinforce the justice delivery system in India.

2. Live-streaming of SC proceedings

Recently, the Supreme Court (SC) decided to live stream its proceedings in crucial
Constitution Bench cases

The SC held that the right to justice under Article 21 of the Constitution would be
meaningful only if the public gets access to the proceedings and to witness proceedings
live.

Arguments in favour -

1. Concept of open courts: is inherent in Indian legal system

2. To promote transparency: live streaming already allowed LS and RS since 2004.
3. Lack of physical infra- only a handful people can be accommodated
4. Digitisation
5. Public interest issues - should be available for all to watch which helps to build the
right perception
6. Right to information

Arguments against:

1. Unwanted public gaze : making judges subject to popular public opinion

2. Case of RS and LS - cannot be equated with judiciary as the livestream of legislature
ensures accountability, which is not the case with judiciary
3. Individual judge more likely to become subject of public debate
4. Greater likelihood of lawyers aspiring to publicise themselves

Way forward
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1. Only a speci ed cases of public importance should be allowed
2. Discretion of court to allow permission should be based on
Unanimous Consent of parties
Sensitivity of matter
3. Provide for transcribing facilities and audio visual record of proceedings for those who
were unable to witness the hearings

3. Judicial Accountability

The Constitution of India gives the role of its guardian and protector to the Judiciary of
India. However, there have been many areas and instances, where the actions of judiciary
itself have been questioned on being contrary to this and hence the issue of
accountability of the judiciary has sprung up.

Areas where judicial accountability has been found lacking -

1. Appointment and removal of judges: collegium system represents a unique case

where democratically elected executive and parliament has no say in appointing
judges
2. Conduct of judges- where judges have indulged in corruption (eg. Ramaswami Case,
Justice Soumitra Sen)
3. Opacity in operations of judiciary: ‘In house mechanism of investigation complaints’
4. Information asymmetry- outside of RTI
5. Contempt of court- judiciary has been alleged to silence the rightful critics also.
6. Judicial overreach

Implications

1. Erodes public trust in Judges and Judicial system

2. Impact independence of judiciary: when there is lack of accountability to match it.
3. Against the principles of Natural Justice: no one should be a judge in his own case
4. Mockery of democracy and rule of law: particularly because of continuance as judge
for long after indisciplined behavior.
5. Against freedom of expression: contempt of court

Steps taken:

1. Contempt of court (amendment) bill, 2003 introduced

2. Unanimous passing of the National Judicial Appointments Commission Act
3. Draft Memorandum of Procedure, 2016

Measures which can be taken

1. comprehensive Code of Conduct for Judges should be put in place

2. Amending Contempt of court-
Cases of contempt should be tried by an independent commission
The Act should be amended to remove words, ‘scandalizing the court or lowering
the authority of the court’
3. Two level Judicial discipline model - rst level as disciplinary system that can ne or
suspend judges, second system for removal of judges
4. Increasing transparency: live streaming of proceedings
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 5. Independent judicial lokpal: to take up complaints and initiate action against judges
should be set up
6. Appointment- ensuring that only judges of high caliber and integrity are appointed to
higher courts
7. Greater internal regulation: National Judicial Oversight Committee should be created
by the Parliament which shall develop its own procedures to scrutinize the complaints
and investigation.

4. Courts reluctance to come under RTI-

Arguments in support

1. Lack of stringent in house accountability and transparency mechanisms

2. Transparency in appointments of judges: may decrease nepotism
3. RTI can place yardstick among judiciary for timely disposure of justice.
4. It will increase accountability of judiciary as judges can be held accountable for their
decisions.
5. Will increase the faith of people in judiciary

Arguments against

1. Collegium discussion includes government intelligence reports of invasive nature

2. Credibility and reputation of judges is hugely important and slightest issue with it can
be debilitating and prevent judges from doing their job
3. May compromise secrecy and security involved in certain cases
4. May lead to politicisation of judiciary
5. May create extra burden on judiciary

Way forward:

Judiciary can be brought within the ambit of RTI with following limitations

1. Cases where disclosed information can in uence judge’s verdict.

2. Con dential information to maintain unity and integrity of nation.
3. If the information does not deal with issue of a public importance

5, Frequent use of Article 142

Article 142 states that “the Supreme Court in the exercise of its jurisdiction may pass
such decree or make such order as is necessary for doing complete justice in any cause
or matter pending before it.

Cause of concern-

1. Unlimited power- there should be self restraint in using it so that orders does not
amount to judicial overreach
2. Unconstitutional- against he doctrine of separation of powers
3. Uncertainty about discretion - judges sit in thirteen divisions of two or three to decide
the cases and each bench is independent of the other.

Way forward -
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 1. Cases under art 142 should be referred to a constitution bench of atleast 5 judges
2. In cases where the court invokes Article 142, the government must bring out a white
paper to study the bene cial as well as the negative e ects of the judgment after a
period of six months or so from its date.
3. SC should follow its principle that recourse to art 142 is inappropriate wherever a
statutory remedy is available

6. Contempt of court

Emerges from Article 129 and 142(2) of constitution

Contempt of court consists of words spoken or written which tend to bring the
administration of Justice into contempt, to prejudice the fair trial of any cause or matter
which is the subject of Civil or Criminal proceeding or in any way to obstruct the cause of
Justice.

The Judiciary was provided with this power under Contempt of Court Act, 1971 which
de nes contempt powers of judiciary.

Rationale behind contempt of court

1. So that judges do not come under any kind of pressure: from media or general public
opinion
2. Prevent scandalisation or lowering of authority of court
3. Prevent interference with the due course of judicial proceedings
4. Strengthen courts image as legal authority
5. Enforce its judgements

Arguments against

1. e ect of muzzling free speech guaranteed under Article 19(1)(a)

2. Actions such as disobedience of an order or direction of court were already
punishable factions ( argument of Pandit Thakur Das Bhargava in constituent
assembly)
3. in England, whose laws of contempt we have adopted, there hasn’t been a single
conviction for scandalizing the court in more than eight decades.
4. Restrictions on speech against courts could result in judicial abuse of powers

Law commission’s stand

1. No changes required to 1971 statute

2. Several safeguards are already present. Eg. Act contains provisions which lays down
cases that do not amount to contempt
3. Commission further noted that the Act had withstood judicial scrutiny, and therefore,
there was no reason to amend it.
4. Amending the de nition could lead to ambiguity, as superior courts can give multiple
interpretations of what amounts to contempt
5. Power to punish for contempt does not originate from statute but from constitution
itself

The Contempt powers should be used in such a way as not to violate Right to Freedom of
Speech while also ensuring independence of the Judges.
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 In addition to that, the Contempt of Court Act, 1971 must be suitably amended or
repealed on the lines of United Kingdom and United States where such a law does not
exist.

7. Master of the roster

In the Indian context, it usually refers to the administrative power of the Chief Justice of
India and the Chief Justices of the High Courts to allocate the matters that their brother
and sister judges shall be hearing, respectively.

Concerns -

1. Concentration of immense power in a single person

2. Allegations of corruption - By giving power of deciding the case, it violates the basic
principle of law i.e. that no one should be a judge in his own case.
3. Just and fair roster should be the one that is divided among judges according to their
experience and expertise in those subjects
4. Politically sensitive matters should be before 5 senior judges of SC

Arguments against such concerns

1. seniority in terms of appointment has no bearing on which cases a judge should hear
2. CJI is only rst among equals as a judge but a Sui generis in other powers
Entrust end of such authority is necessary got safeguarding the SC as safeguard of
liberty
3. CJI has made the system public and portfolios are now being published on website

Way forward

- judges need to trust each other

- The CJI must also ensure that the allotments of cases to the benches are in an
independent and an impartial manner.
- He should not brush aside any reasonable suggestions in this regard from his
colleagues

8. Judges and Post-Retirement Positions

Arguments in favour-

1. No legal/ constitutional bar- restriction only on appointments in judiciary itself

2. Indian constitution not a case of strict separation of power:
Legislature and judiciary can work together for nation building
3. Legal knowledge- valuable experience and insights cannot be wasted after retirement
4. Add value to legislature - Eminent judges can contribute towards more nuanced law
making in the country

Arguments against-

1. Separation of powers and judicial independence: creates the perception of bias

2. Con ict of interest - as government is the biggest litigant
3. Compromises independence of judiciary: opens judiciary to criticism from opposition
who use it to cast aspersions on court
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 4. It sends out the message that if a judge gives ruling in favour of the executive, he/she
will be rewarded.
5. Integrity of judges: The judges are expected to work without fear or favour and remain
above political divides or a liation in their career.
6. Erodes people’s trust

Way forward -

1. Mandatory cooling o period- to minimise the chances of judgements getting

in uenced by post retirement jobs
2. Increase age of retirement - In US No Supreme Court judge retires lifelong. Done to
prevent con ict of interest
3. Enact a law- to make appointments of competent retired judges to tribunals and
judicial bodies.
4. Amending the constitution: by incorporating a provision similar to Articles 148 (barring
CAG from post retirement job)

Online justice delivery-

Supreme Court invoked its power under Article 142 of the Constitution to validate all
proceedings through video- conferencing.

How can it help-

1. High pendency- Online judicial services can provide additional aid to clear this
backlog and reduce the time and cost involved.
2. Enhanced e ciency of courts: Standard system generated formats of routine
judgments and orders, particularly in civil cases, can be used by courts for quick
delivery of judgments.
3. Tackling infrastructural constraints: virtual hearing can save signi cant court costs in
terms of building terms of building, sta , infra etc.
4. Availability of judicial data- leading to e cient policy making
5. Improved transparency and accountability in judicial system - by allowing audio visual
recordings of court proceedings
6. Promoting ease of doing business: through online resolution of contractual disputes.

Challenges -

1. Lack of investment in court and IT infra- require new age technologies, high speed
internet connection etc.
2. Lack of tech know how: among the court o cials
3. Low awareness among the advocates and litigants
4. Digital divide in access to justice
5. Interdepartmental challenge: due to lack of coordination, communication and
interoperability of softwares between departments
6. Cyber security threats

Reforms undertaken-

1. Integrated case management system (ICMIS): for digital ling, checking listing dates,
case status etc.
2. National judicial data grid: web portal providing data on lending cases
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3. E committee of Supreme Court: to assist CJI in formulating National policy on
computerisation of Indian Judiciary
4. Legal information management and brie ng system (LIMBS) : web portal for
monitoring of cases involving GOI
5. Interoperable criminal justice system (ICJS)

Way forward

1. Development of supporting infra at every level, eg. facilities for e ling and video
conferencing
2. Making rules for use of electronic evidence
3. Design and impart regular training courses: for judges, court sta , and paralegals for
using online systems
4. Creating a user friendly e court mechanism and awareness generation
5. Clear rules on data privacy
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 CONSTITUTIONAL BODIES

1. Election commission-

Under art 324 of Indian constitution.

Composition and appointment-

Can consist of one Chief Election Commissioner and such number of other Election
Commissioners as the President may x from time to time.
Hold o ce for a term of 6 years or until the age of 65 years.

Independence of election -

1. Security of tenure - CEC can be removed through the same procedure as for judge of
Supreme Court.
2. Service conditions cannot be varied after appointment
3. Another EC cannot be removed from o ce without his permission

Powers and functions

1. Administrative powers
1. To determine the territorial areas of electoral constituency on the basis of
delimitation commission act
2. To prepare and revise electoral rolls
3. To notify dates and schedules of elections
4. To appoint o cers for enquiring into disputes regarding electoral arrangements
5. To determine code of conduct
6. To request president or governor for relinquishing sta necessary for conducting
elections
7. To work for voter education
2. Advisory and quasi judicial powers
1. Advisory jurisdiction in matters of post election disquali cation of sitting members
of parliament
2. The cases of persons found guilty of election o ences also referred to election
commission
3. Power to disqualify a candidate, in case he has failed to lodge an account of his
election expenses
4. Court for settling disputes related to granting of recognition to political parties and
allotment of election symbols to them.
5. advises the President on whether elections can be held in a state under the
President’s rule

Instrumental role of commission can be judged from:

1. EPIC issued in 1993 to prevent electoral fraud

2. Electronic voting machines to improve reliability and e ciency
3. Declaration of assets and criminal cases against candidates
4. Computerised electoral rolls
5. Enforcement of code of conduct
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Issues

1. Appointment issues
1. No prescribed quali cation
2. Appointments liable to politicisation: as appointment done unilaterally by
government
2. Security of tenure : The Constitution has not speci ed the term of the members of the
Election Commission.
3. Post retirement appointments: not barred
4. Financial autonomy: budget not charged on Consolidated fund

Way forward

1. Constitutional protection to three election commissioners

2. Institutionalising the convention where the senior most EC should be automatically
elevated as CEC in order to instil a feeling of security in the minds of the ECs
3. Reducing the ECI’s dependence on DoPT, Law Ministry and Home Ministry. Should
have an independent secretariat for itself
4. Expenditures must be charged on consolidated fund of India

2. Union public service commission

UPSC is the central recruiting agency in India. It is an independent constitutional body

whose powers and functions have been elaborately de ned in Articles 315 to 323 of the
Constitution.

Limitations -

1. only a central recruiting agency and it is not concerned with the classi cation of
services, pay and service conditions, cadre management, training, reservation etc.
2. President can also exclude certain posts, services and matters from the purview of
UPSC.
3. The role of UPSC is not only limited, but also recommendations made by it are only of
advisory nature and hence not binding on the government.

Recommendations

1. UPSC should try to go beyond the recruitment role to evolving answers to issues
relating to civil services and their role in a rapidly changing society. It should serve as
a think tank on personnel issues.
2. Services are often out of touch with new developments technology and knowledge.
UPSC should liaison with such research institutions to conduct regular specially
designed courses for administration.
3. The increase in work of the commission has been manifold. There is a need of
decentralisation to e ectively align with this increase in workload.
4. UPSC so far has worked with remarkable competence, impartiality and integrity.
However a new world based on openness, accountability and delivery has emerged.
UPSC needs to be in sync with these changes.

3. Finance commission -
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 Article 280 of the Constitution provides for the Finance Commission. It is constituted by
the President of India every fth year or at such earlier time, as he considers necessary.

Composition-

Consists of a chairman and four other members to be appointed by the President. They
hold o ce for such period as speci ed by the President and are also eligible for
reappointment.

Functions- make recommendations regarding

1. Distribution of net proceeds of taxed to be shared between centre and the states
2. Principle that should govern the grant in aids (art. 275)
3. Measures needed to augment the consolidated fund of state
4. Any other matter referred by president

Finance commission on scal federalism

It has a crucial role in following areas

1. Ensuring cooperative nancial relations between centre and states

2. Level the equality among states- bridging horizontal imbalances by giving more to
backward states
3. Bridging the vertical imbalances through adequate devolution
4. Promote state scal autonomy and e ciency
5. Various reforms for infra and good governance

14th and 15th FC recommendations

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4. National commission of SCs

National commission for SCs is established by Article 338 of the Constitution.

National Commission for SCs consists of a chairperson, a vice-chairperson and three
other members. They are appointed by the President and their conditions of service and
tenure of o ce are also determined by the President.

Functions -

1. To investigate matters relating to the constitutional and legal safeguards for SCs
2. Enquire into speci c complaints regarding deprivation of rights of SCs
3. To advice on Socio economic development of SCs
4. To report president regarding working of safeguards
5. To make recommendations for e ective implementation of safeguards

Issues

1. Non binding recommendations

2. Less sensitive- priorities of the Commission are visibly lopsided in favour of the elite of
these communities.
3. Litigation- the requirement to follow the prevailing rules and procedures in matters of
criminal investigation retards the e ectiveness of commission by rendering it
vulnerable to litigations.
4. Delays- Moreover, there is a perception that the Commission tends to con rm the
government’s position on most cases.
5. Irregularity- annual reports are often prepared in two or three years and they are
frequently not discussed in parliament.
6. Proliferation: in many policy sectors, proliferation of institutions has created confusion
in the roles and powers of commission.

Measures needed -

1. Strengthening the legal and judicial protection of Dalits under the Scheduled Castes
and Tribes (Prevention of Atrocities) Act: commission can also facilitate online
reporting and tracking of crime.
2. Capacity building and sensitisation of institutions: capacity building of lawyers, judges
and policeman.
3. Ensuring e ective implementation of existing government policies
4. Incentivise good social work- Innovation, e ectiveness, and positive impact of the
work done by a department or a body can be rewarded by the Commission.
5. Better engagement with civil society
6. Behavioural nudge- commission can organise debates, deliberations and awareness
campaigns around the existing discriminatory practices
7. Facilitate empowerment and entrepreneurship: among the youth.
8. Preparing for future challenges by facilitating inter-disciplinary research

5. National commission for STs

Article 338-A of the constitution provides for the commission. Composition and powers
similar to that of NCSCs.
Sewerage commission for STs came into existence in 2004.
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6. National commission for backward classes -

Constituted under Art. 338-B of the constitution of India under the 102nd Amendment
act, 2018.

7. Special o cer for linguistic minorities-

7th constitutional amendment of 1956 inserted a new art 350-B in the constitution.

The Commissioner takes up all the matters pertaining to the grievances arising out of the
non- implementation of the Constitutional and Nationally Agreed Scheme of Safeguards
provided to linguistic minorities and recommends remedial actions to be taken.

8. Comptroller and Auditor General of India

The Constitution, under Article 148, provides for an independent o ce of Comptroller and
Auditor General (CAG) of India. He is the head of Indian Audit and Accounts department.

Financial accountability and CAG

1. The CAG submits three audit reports to the President, namely, audit report on
appropriation accounts, audit report on nance accounts and audit report on public
undertakings.
2. Public Accounts Committee examines the annual audit reports of the CAG, which are
laid before the Parliament by the President. In the ful lment of its functions, the
committee is assisted by the CAG. In fact, the CAG acts as a guide, friend and
philosopher of the committee.

Independence of o ce of CAG

1. CAG can be removed by the President only in accordance with the procedure
mentioned in the Constitution. Thus, he does not hold his o ce till the pleasure of the
President, though he is appointed by him.
2. He is not eligible for further o ce, either under the Government of India or of any state,
after he ceases to hold his o ce.
3. His salary and other service conditions though determined by the Parliament cannot be
varied to his disadvantage after appointment.
4. His administrative powers and the conditions of service of persons serving in the Indian
Audit and Accounts Department are prescribed by the president after consultation with
the CAG.
5. The administrative expenses of the o ce of the CAG, including all salaries, allowances
and pensions of persons serving in that o ce are charged upon the Consolidated Fund of
India. Thus, they are not subject to the vote of Parliament.

Functions of CAG

1. Audits all transactions of Central and state governments.

2. Audits the accounts of any other authority when requested by president or governor.
3. Submits his audit reports to the president, who shall in turn place them before
parliament.
4. Ascertains net proceeds of any tax
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 5. Acts as a guide, friend and philosopher of public accounts committee of parliament

Limitations of CAG

1. Its report is post-facto i.e. after the expenditure is incurred and has only prospective
value in improving systems and procedures.
2. Secret service expenditure is outside the purview of the CAG and he cannot call for
particulars of expenditure incurred by the executive agencies, but has to accept a
certi cate from the competent administrative authority that the expenditure has been so
incurred.
3. Since the legislation, the government has increased its participation with the private
sector through the PPT and BOT models. However the rules have not undergone a
signi cant change and CAG does not have the power to audit PPP (Public Private
Partnership) investments.
4. There is no provision for auditing of funds that are given to an NGO and elected local
bodies. Today when NGOs have become a conduit for a multitude of government
schemes.
5. CAG presently does not have the full authority to audit the PRIs and ULBs. In most
states, the examiners functioning under the Finance Department audit the accounts of
local bodies.
6. DRDAs (District Rural Development Authority) today are managing large sums of money
for rural development yet they also are outside the purview of CAG audits.

Issues in appointment-

1. The selection process for the CAG is entirely internal to the Government machinery
with opaque selection procedure. Thus there is lack of clarity on the criteria, the de nition
of eld of choice, the procedures for selection, etc.
2. Since 1966, only one IAAS o cer has been chosen while all other postings went to
senior civil servants. This has had a demoralising e ect on the IAAS cadre. The eld of
choice should be wide to include IAAS, IAS, and other experts from outside Government.
3. The appointment of former secretaries as CAG may compromise the independence of
this institution because of apparent con ict of interest.
4. There is a need to frame a transparent selection procedure based on de nite criteria
and constitute a broad-based non-partisan selection committee. There needs to be an
institutionalised process of selection for the post of CAG, a selection committee as seen
in the appointment of CVC (involving PM, Leader of Opposition and Home Minister) and
the Chairman of the NHRC may be considered.

Expanding role of CAG

1. Newer infrastructure under PPP (HAM), Air India turnaround plans, DISCOMS audits,
etc., lead to increase in jurisdiction of CAG.
2. Jurisdiction expansion over private bodies which use public resources after 2014
judgement for telecom companies and BCCI after Lodha Committee recommendations.
3. Conducting of performance audits of schemes/policies and questioning of Govt.
regarding usage of public money in 2G, coal allocation, NRHM implementation, crop
insurance, etc.
4. Environmental audits regarding climate change, ood control, etc.
5. Economic audits regarding GST, demonetisation fallouts, etc also add to the burden.
6. International auditing of UN HQ.

Challenges associated with expanding powers

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 1. Appointment process recently is not neutral and transparent which may leave room for
collusion
2. May create frequent strife with political class, which may act detrimental.
3. Overburdening of already pressurised CAG workforce may a ect quality of audits.
4. Lack of sectoral experts inside CAG to study multiple links in varied areas like
environment, sports and economy.
5. To garner cooperation from newer constitutional agencies like GST council, and
revenue authorities regarding e ective data- sharing (else may lead to exaggerated audit
gures).
6. Executive slackness and high litigation rates in India may lead to ignorance of many
recommendation (Power DISCOMS).

Can policy go into policy decisions-

Examples include past CAG reports on coal blocks, Delhi airport PPP which made
government uncomfortable with audit ndings.
Members of the ruling party raised questions about the CAG’s jurisdiction and whether he
is exceeding his mandate.

1. CAG is an essential instrument for enforcing the accountability mechanism as his

reports are placed in parliament under art 150.
2. The word audit has not been described in the constitution, and we have so far been
going according to the existing traditions in national an international domain.
3. Thus it is within the mandate of CAG to comment on policy where:
- nancial implications of a policy were not gone into detail before the decision was
made
- Assessment of nancial implications was wrong
- Numbers were correct but reasoning behind the decision was questionable
4. Further CAG is bound by oath to uphold the constitution, thus is bound to comment
on policy matters that are unconstitutional.

Consequences of making CAG accountable to parliament

1. According to the Constitution, the CAG is meant to be autonomous. With constant

threat to its autonomy, reports of the CAG may not remain impartial and lose credibility.
The legislature must not undermine the constitution to establish its supremacy.
2. Political interference in the functioning of the CAG may increase, resulting in erosion of
its autonomy.
3. Recent proactive interventions of the CAG which brought out a series of scams and
corruptions to the light made immense faith in the public and they view it as a proper
unbiased check on the executive. This trust should not be eroded.
4. It may also trigger a debate on making other constitutional bodies like EC, UPSC etc.,
accountable to the parliament.

9. Attorney General of India

The Constitution (Article 76) has provided for the o ce of Attorney General, as the highest
law o cer in the country. The Attorney General is appointed by the President of India. He
must be the person who is quali ed to be a judge of Supreme Court.

Duties
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 1. To give advice to the Government of India upon such legal matters, which are referred
to him by the President.
2. To perform such other duties of legal character that are assigned to him by the
President.
3. discharge the functions conferred on him by the Constitution or any other law.

He appears on behalf of the Government of India in all cases in the Supreme Court and
high court (When required by GOI) in which the Government of India is concerned.

10. Advocate General of State

Constitution provides for a law o cer in the State under Article 165. The Advocate
General is appointed by the Governor. He must be a person who is quali ed to be
appointed a judge of a High Court.

11. Interstate council

Article 263 of the Indian Constitution says that, it shall be lawful for the President to
establish an Inter State Council (ISC) for inquiring, discussing and advising upon:

1. Disputes between states

2. Subject matters in which states or centre and states have common interest
3. Subject for better coordination of policy

Signi cance -

1. Constitutional backing- unlike other platforms for cooperation like NITI aayog.
2. Cooperative federalism- provides platform to discuss concerns especially when
di erent political parties are heading the Centre and various states
3. Decentralised decision making: for policies which need interaction between various
levels of government
4. Make government more accountable
5. A safety valve- The council helps to bridge the trust de cit between the centre and the
states. If not always a problem solver, it at least acted as a safety valve.
6. Lack of other avenues: as other avenues such as zonal councils are too restrictive in
terms of geographical scope.

Issues

1. It is seen as a mere talk shop. Thus, it needs to show that it can follow up.
2. Its recommendations are not binding on the government.
3. does not meet regularly as recently Inter-State Council met after a gap of 12 years.

Way forward

1. It should provide greater opportunities to civil society institutions

2. Secretariat may be shifted from union home ministry to Rajya Sabha secretariat so
that it would be under the direction of neutral federal functionary
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3. Should be strengthened as a forum for not just administrative but also political and
legislative give and take between centre and states. eg. consultation before legislating
on concurrent list
4. Punchhi commission recommended -
1. Inter state council must meet at least thrice a year an agenda evolved after proper
consultation with States.
2. It should have experts in its organisation set up drawn from various elds other
than All India Services
3. After ISC is made into a vibrant body, government may consider transferring
functions of National Development council to ISC.

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REGULATORY AUTHORITIES IN INDIA

Need for regulations-

1. Prevention of market failures- Market failure is a condition in which the market

mechanism fails to allocate resources e ciently to maximise social welfare.
2. To check anti competitive practices
3. To promote public interest
Eg. Support pricing - MSP
Public distribution system
Free distribution- piped water and free power to agriculture

Issues related to regulation in India

1. Administrative Incoherence- unlike other Nations, India does not have an overarching
administrative law statute in India leading to incoherence in laws and regulations.
Eg. is widely witnessed in the case of Competition Commission of India and sector
regulators like SEBI, TRAI and CERC.
2. Structural weaknesses: vacant positions in key places. CPCB might have about 20%
of its posts vacant.
3. Design of regulatory bodies: con icts of interest ie government is both owner and
regulator. Eg. PSB
4. Outdated legal framework- technical advancements have ward a proportional
overhaul of the laws.
5. Not aligned to global standards- case in point being Indian Aviation Industry where
norms do not meet the global standards of ICAO.

Important regulatory bodies

1. RBI

Under Reserve Bank of India Act, 1934.

The primary objectives of RBI are to supervise and undertake initiatives for the nancial
sector consisting of commercial banks, nancial institutions and non-banking nancial
companies (NBFCs).

Some tussle between RBI and Government has been seen in the past

1. Section 7 of RBI act- act authorises government to direct central bank as it may, in
the public interest. RBI opinion is that it breaches the autonomy of Central bank.
2. RBI reserves- RBI keeps large reserves of cash in its money jar, which the government
is looking to take for its developmental programme. While the government views them
as sitting idle, RBI on the other hand considers the reserves for black swan events.
3. Dividends to the government- While RBI gives some of the pro t to central bank,
government wants more in public interest.
4. Handling of weak public sector banks: di erences over RBI’s handling of weak PSBs
under PCA and ways to resolve bad loans in power sector.
5. PCA framework- The government wants the RBI to exempt power companies and
NBFCs under the prompt corrective action.
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 6. Easing loan to small medium enterprises- The government has asked the central
bank, reportedly using the privilege provided under Section 7 of the RBI Act, to ease
its hold on the reserves for providing liquidity to the market.
It has also sought for some constraints on banks for loans to small and medium
enterprises or SMEs to be removed.

2. SEBI-

The Securities and Exchange Board of India (SEBi) is a statutory regulatory body
established by the Government of India through the SEBI Act, 1992 to regulate the
securities market in India and protect the interests of investors in securities.

Functions-

1. It checks price manipulation

2. It bans Insider trading
3. It prohibits unfair and fraudulent trade practices
4. It promotes fair code of conduct in the security market

Appraisal of SEBI’s work-

1. In recent past, successful cases of grievances have increased, however according to

survey most of investors were not satis ed with result.
2. Not able to do much about ‘Fly by night’ or ‘Sign Board’ companies
3. Too busy in forming rules leading to cumbersome framework, leaving scope for
discretion
4. Fails to punish those who caused abnormal uctuations in the market.
5. Autonomy has been compromised and functions more or less as a branch of union
nance ministry
6. Despite the statutory provisions, SEBI hasn’t made much headway with enforcement

Achievements

1. Dematerialisation of shares- preventing the issue of fake share certi cation, enabling
online transactions
2. Faster settlement process- from T+5 in 2001 to T+2 in 2003
3. Stronger regulations- To bring e ciency in the working of the secondary market SEBI
has made speci c rules for intermediaries in secondary market.
4. Fostering mutual funds- MF Industry has grown from ₹ 6.30 trillion as on June 30,
2010 to ₹25.49 trillion as on June 30, 2020 more than 4 fold increase in a span of 10
years.
5. Internet trading: SEBI has allowed internet trading under Order Routing System (ORS)
through registered stock brokers on behalf of clients.
6. Circuit – Breaker System: According to this system, if market volatility in a stock
crosses a certain limit, the trading in this stock is stopped for a few days so that
speculators may not take undue advantage.

Way ahead-

1. Investor protection and market integrity: more work can be done on the di cult task
of prevention of ow of con dential information, which is evidenced by price
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 movements around earnings, other corporate announcements and front-running of
block transactions.
2. Independence and accountability: It might be best if the regulators reported twice a
year to a Parliamentary committee like Humphrey-Hawkins in the US and in return
they got full independence to do their job.
3. Development of markets: While India boasts a world-class equity market, it’s bond
market has not kept up. This needs special attention by the regulator.

IRDA (Insurance regulatory and development authority)

Insurance Regulatory and Development Authority (IRDA) is an autonomous apex statutory

body, which regulates and develops the insurance industry in India.

It regulates -
a. Life insurance companies
b. General insurance companies
c. Re insurance companies

4. Competition commission of India -

Competition Commission of Indiais a body of the Government of Indiaresponsible for

enforcing the Competition Act, 2002 throughout India and to prevent activities that have
an adverse e ect on competition in India.

Interaction between policy makers and regulators -

1. Role of regulator is to achieve pre determined policy objectives and maintain

competitive conditions in the market.
Policy makers on the other hand provide long term objectives and vision to the
development of a country.
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 2. However, while in theory they might have di erent roles, they share common
responsibilities- ensuring orderly and sustained growth of the sector, attracting private
investment and enhancing customer protection.
3. Given the role of regulator is to achieve policy objectives, regular interaction between
them is necessary.
At the same time, it is necessary to ensure that regulators domain in not
encroached by government, and this calls for distinction between policy and
regulation.
4. India lacks an overarching body that specify roles of regulators. This results in
regulators working as extension of ministry, impinging upon its independence.
5. Example include a case when department of telecommunications announced certain
proposals to restructure tari regime, TRAI objected to these proposals.
6. The manner of consultations between the RBI and the Ministry of Finance is a good
model. he RBI holds consultations with the latter on a regular basis, at formal and
informal levels, without compromising its autonomy.

Participation of stakeholders in regulatory processes

Need

1. For the orderly growth of a sector, a regular consultation among the industry, the
government, the regulators and other stakeholders such as consumers is essential.
2. A mechanism for periodic meetings involving these can help the regulator understand
stakeholder problems and concerns.
3. Such forums also enable the regulator to explain the rationale of various regulatory
decisions.
4. In India, regulatory reforms, which have accompanied economic reforms, have been
marked by lack of consumer participation.
5. Consumers, being largely unorganised, have been largely bypassed by the reform
process which has been in uenced by a strong business lobby.
6. In addition to lack of proper consultation, there is lack of coordination between
regulators and government departments, responsible for formulating and
implementing investment related policies.

Way forward for participation of stakeholders

1. Clear information may empower stakeholders and can inform the decision-making
process. However, such information should be taken into account by the regulator
while making decisions.
2. This can be ensured through accurate documentation of consultations and recourse
to e ective legal action against the regulator to redress bad decisions.

Regulatory coherence in India

A robust overarching regulatory philosophy/framework is needed for coordinated

development of the economy and its constituent sectors However, Political constraints
and government preferences seem to have dominated the reform agenda.

Regulatory coherence may be improved by

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 1. Establishment of sector speci c apex bodies at the centre complemented by
economy wide competition authority in each state.
2. Appellate tribunal for appeal against sector regulators need to be established.
3. Interface between regulators and competition commission needs to be formalised in
legal terms so that there is no con ict between them.
4. Multi stakeholder participation should be the way forward.

Fiscal Sector Legislative Reforms Commission (FSLRC) Recommendations on regulators

1. Comments with regards to accountability

1. Avoid con icting objectives: the problem is heightened when there are con icts of
interest. Hence it is desirable to structure regulatory bodies with clarity of purpose.
2. Well structured rule making process: for every proposed regulation there should
be:
1. Compact statement of the objectives and reasons of subordinate legislation
2. Description of market outcome, which is an ine cient one
3. Demonstration that solving this failure is within powers of regulator
4. Demonstration that proposed intervention would address the identi ed market
failure
3. The rule of law:
1. Law should be known before an action takes place
2. Laws should be applied uniformly across similar situations
4. Reporting - once the objectives have been identi ed, it is meaningful to ask for
annual report, to analyse the extent to which these objectives have been realised.

Recommendations of 2nd ARC

1. Regulation only when necessary: though India has often been argued as over
regulated, many of the regulations are not implemented in right earnest due to-
1. Sheer number of regulations
2. Outdated regulations
3. Tendency to over regulate: legislation becomes end in itself
4. Complex procedural formalities
2. Regulation to be e ective
In order to ensure that regulatory measures do not degenerate into corrupt
practices- it is necessary to have supervision. This supervision should primarily be
carried out internally and should be supplemented by periodic assessment by an
independent agency.
3. Self regulation is best form of regulation -
In tax departments, shift from departmental assessment to self assessment has
been observed.
This principle of voluntary compliance can be extended to other elds like building
bye-laws, public health regulations etc.
4. Regulatory procedures to be simple, transparent and citizen friendly
Can be simpli ed using IT, promoting transparency, reducing discretion and
e ective supervision.
5. Involving citizen groups, professional organisations in regulation activity

ARC recommendations about the working of independent regulators

1. Setting up of a regulator should be preceded by detailed review to decide whether the

regulator is necessary and would be better placed to deliver the policy objectives
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 2. In addition to statutory framework, each ministry should evolve a ‘Management
statement’ outlining the objectives and roles of each regulator and guidelines
governing their interaction with government.
3. uniformity in the terms of appointment, tenure and removal of various regulatory
authorities
4. The tenure of the Chairman and Board Members could also be made uniform,
preferably three years or 65 years of age, whichever is earlier.
5. Legal provisions regarding removal of Board Members should be made uniform, while
at the same time ensuring su cient safeguards against arbitrary removal.
6. Parliamentary oversight of regulators should be ensured through the respective
Departmentally Related Standing Parliamentary Committees.
7. There is need to achieve greater uniformity in the structure of Regulators.

Single Super-Regulator vs. Multiple Regulators

Arguments in favour of single regulator

1. Fragmented supervision may raise concerns about the ability of nancial sector to
form an overall risk assessment of the institution on a consolidated basis.
2. As the lines of demarcation between products and institutions have blurred, di erent
regulators could set di erent regulations for the same activity for di erent players.
3. The uni ed approach allows for the development of regulatory arrangements that are
more exible.
4. Uni ed supervision could generate economies of scale as a larger organization
permits ner specialization of labor and a more intensive utilization of inputs.
5. nal argument in favor of uni cation is that it improves the accountability of regulation.
Under a system of multiple regulatory agencies, it may be more di cult to hold
regulators to account for their performance

Arguments against Uni ed Regulation

1. Given the diversity of objectives – ranging from guarding against systemic risk to
protecting the individual consumer from fraud – it is possible that a single regulator
might not have a clear focus on the objectives and rationale of regulation
2. A single uni ed regulator may also su er from some diseconomies of scale. One
source of ine ciency could arise because a uni ed agency is e ectively a regulatory
monopoly, which may give rise to the type of ine ciencies usually associated with
monopolies.
3. Some critics argue that the synergy gains from uni cation will not be very large, i.e.
economies of scope are likely to be much less signi cant than economies of scale.
The cultures, focus, and skills of the various supervisors vary markedly.
4. opening the issue for discussion will set in place a chain of events that will lead to the
creation of a uni ed agency, whether or not it is appropriate to create.
5. creation of a uni ed agency will generally require new legislation, but this creates the
possibility that the process will be exploited by special interests.

Way forward( for all)

1. Empowering all regulators to make and enforce regulations, issue licenses and
impose punitive measures and set performance standards and determine tari s.
2. Ensuring independence of regulatory bodies
3. Fixing the tenure of members: The government is considering stipulation of a uniform
tenure of four years for members of all regulatory bodies.
4. Reducing the overlap of jurisdiction between the CCI and regulators;
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5. Introducing multi-sector regulators: The government is contemplating the
establishment of multi-sector regulators for (i) communications; (ii) transport; and (iii)
electricity, fuels and gas. This would eliminate proliferation of regulatory commissions,
help build capacity and expertise, promote consistency of approach and save on
costs.
6. Constituting appellate tribunals on the lines of telecom and electricity appellate
tribunals.
Quasi Judicial Bodies

quasi-judicial body is an organization or individual on which powers resembling a court of

law have been conferred. Such a body can adjudicate and decide upon a situation and
impose penalty upon the guilty or regulate the conduct of an individual or entity.

Quasi judicial bodies vs judicial bodies

1. Judicial decisions are bound by the precedent in common law, whereas quasi judicial
decisions usually are not bound.
2. In the absence of precedent in common law, judicial decisions may create new law,
whereas quasi-judicial decisions must be based on conclusions of existing law.
3. Quasi-judicial bodies need not follow strict judicial rules of evidence and procedure.
4. Quasi-judicial bodies must hold formal hearings only if mandated to do so under their
governing laws or regulations.
5. Quasi-judicial bodies, unlike courts, may be a party in a matter and issue a decision
thereon at the same time.

Tribunals

The 42nd Amendment Act of 1976 added a new Part XIV-A to the Constitution. This part
is entitled as ‘Tribunals’ and consists of only two Articles—Article 323 A dealing with
administrative tribunals and Article 323 B dealing with tribunals for other matters.

Need -

1. Overburdened judiciary
2. Complexity of laws: requiring more technical knowledge about technical sectors
3. Ordinary judiciary has become dilatory and costly
4. Conventional judiciary su ering from procedural rigidity, which delays the justice.

Central administrative tribunal (CAT)

Set up in 1985. Principal bench at Delhi and additional benches in di erent states.

Jurisdiction- original jurisdiction in relation to recruitment and all service matters of public
matters of public servant covered by it.
Its jurisdiction extends to the All-India services, the Central civil services, civil posts under
the Centre and civilian employees of defence services.

Composition - Consists of chairman and members. At present, sanctioned strength is one

chairman and 65 members.

Appeal against orders

Originally, appeals against the orders of the CAT could be made only in the Supreme
Court and not in the high courts.
However, in the Chandra Kumar case (1997), the Supreme Court declared this restriction
on the jurisdiction of the high courts as unconstitutional holding that judicial review is the
basic part of the constitution.
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 And now it is not possible for an aggrieved public servant to approach the Supreme Court
directly against an order of the CAT, without rst going to the concerned high court.

State administrative tribunals

The Administrative Tribunals Act of 1985 empowers the Central government to establish
the State Administrative Tribunals (SATs) on speci c request of the concerned state
governments.

Issues faced by tribunals

1. Lack of independence- Ministries, which are often litigants in the matters sub-judice in
the tribunals are the ones that handle sta , nance and administration of tribunal as
well.
2. Jurisdiction of the high courts- the jurisdiction of high courts in Chandra Kumar case
has diluted the original intent behind the formation of tribunals ie speedy justice.
3. Administrative concerns- non-uniformity in appointment process, quali cation of
members, age of retirement, resources and infrastructure of di erent tribunals working
under di erent ministries
4. Pendency and vacancy

National tribunals commission-

74th report of parliamentary standing committee, endorsing the view of law commission,
recommended the creation of National tribunal commission, to regulate issues such as
overseeing selection process, setting eligibility criteria and meeting infrastructural and
nancial requirements.

It can help in- ( Arguments in favour)

1. Maintenance of independence from executive, since such a body will be established

through a law of parliament
2. Remedy the issue of non uniformity in administration of tribunals as well as service
conditions of tribunal members
3. Regularising the system of appointment to tribunals by establishing an Indian
Tribunals Service

One has to be cautious about-

1. adhering to the standards set by judiciary regarding its composition to maintain its
independence
2. impartial non-partisan appointment to the NTC board
3. doing away with the system of re-appointment of the tribunal members
4. ensuring enough political will to reform tribunal system

National green tribunal -

NGT was established under the National Green Tribunal Act, 2010 for e ective and
expeditious disposal of cases relating to environmental protection.

Comprises of chairperson, judicial members, and expert members. They shall hold o ce
for a term of ve years.
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 Strengths -

1. Has emerged as a critical player in environmental regulation passing strict orders on

issues ranging from pollution to deforestation to waste management.
2. o ers a path for the evolution of environmental jurisprudence by setting up an
alternative dispute resolution mechanism.
3. It helps reduce the burden of litigation in the higher courts on environmental matters.
4. less formal, less expensive, and a faster way of resolving environment related
disputes.
5. It plays a crucial role in curbing environment-damaging activities.

Challenges -

1. Two important acts - Wildlife (Protection) Act, 1972 and Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 have been kept
out of NGT’s jurisdiction.
2. The NGT decisions are being challenged in various High Courts under Article 226
(power of High Courts to issue certain writs) with many asserting the superiority of a
High Court over the NGT, claiming ‘High Court is a constitutional body while NGT is a
statutory body.
3. Decisions of NGT have also been criticised and challenged due to their repercussions
on economic growth and development.
4. The absence of a formula based mechanism in determining the compensation has
also brought criticism to the tribunal.
5. The lack of human and nancial resources has led to high pendency of cases - which
undermines NGT’s very objective of disposal of appeals within 6 months.

Important judgements

1. In 2012, POSCO a South-Korean steelmaker company signed a MoU with the Odisha
government to set up steel project. NGT suspended order and this was considered a
radical step in favour of the local communities and forests.
2. In 2012 Almitra H. Patel vs. Union of India case, NGT gave judgment of complete
prohibition on open burning of waste on lands, including land lls – regarded as the
single biggest landmark case dealing with the issue of solid waste management in
India.
3. In 2013 in Uttarakhand oods case, the Alaknanda Hydro Power Co. Ltd. was ordered
to compensate to the petitioner – here, the NGT directly relied on the principle of
‘polluter pays’.
4. In 2015, the NGT ordered that all diesel vehicles over 10 years old will not be
permitted to ply in Delhi-NCR.
5. In 2017, the Art of Living Festival on Yamuna Food Plain was declared violating the
environmental norms, the NGT panel imposed a penalty of Rs. 5 Crore.

There is need for more autonomy and widen NGT’s scope for e ective protection of
environment in balance with human developmental activities.

National Human Rights Commission (NHRC)

Protection of Human Rights Act, 1993 (which came into force in 1994) provides for setting
up NHRC at Centre as well as one Commission each at State level.
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 Strengths -

1. The selection procedure of the members of NHRC is the main factor of its strength. It
involves members of the ruling party as well as from opposition party.
2. Financial autonomy though limited has provided NHRC independence of Central
Government. The Commission is free to make its own budget and spend it according
to its own planning.
3. power to conduct suo-moto inquiry into the complaints of Human Rights violations.
4. Easy accessibility to the Commission has made it one of the most popular
organizations. Anyone can approach NHRC through telephone, letter, application,
mobile phone and the Internet.
5. worked immensely to create awareness among public on Human Rights issues
through seminars, workshops, lectures, literature, NGOs’ participation, universities’
collaborations, etc.
6. extended its sphere from time to time. Support for right to information, health care
issues, disables’ rights, HIV/AIDS patients’ rights etc. are some of the issues where
NHRC has worked successfully.

Weaknesses or limitations

1. NHRC does not have any mechanism of investigation. In majority cases, it asks the
concerned Central and State Governments to investigate the cases of the violation of
Human Rights
2. It has been termed as ‘India’s teasing illusion’ by Soli Sorabjee (former Attorney-
General of India) due to its incapacity to render any practical relief to the aggrieved
party.
3. NHRC can only make recommendations, without the power to enforce decisions.
4. Many times NHRC is viewed as post-retirement destinations for judges and
bureaucrats with political a liation moreover, inadequacy of funds also hamper its
working.
5. A large number of grievances go unaddressed because NHRC cannot investigate the
complaint registered after one year of incident.
6. National Human Rights Commission powers related to violations of human rights by
the armed forces have been largely restricted.

Way forward

1. need for complete revamping of NHRC to make it more e ective and truly a watchdog
of human right violations in the country.
2. NHRC e cacy can be enhanced by government if commission decisions are made
enforceable.
3. NHRC needs to develop an independent cadre of sta with appropriate experience.
4. Many laws in India are very old and archaic in nature by amending which government
can bring more transparency in regulations.

Central Bureau of Investigation (CBI)

CBI was established by the resolution of MoHA on recommendation on Santhanam

Committee on prevention of corruption (1962-64).
It is not an statutory body, derives power from Delhi Special police establishment
act,1946.
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 Types of crimes investigated- anti corruption crimes, economic crimes, special crimes
( on the requests of state governments or on order of SC or HC).

Challenges faced

1. Political interference- SC has called it a ‘caged parrot’ due to excessive political

interference
2. Delayed investigations- accused of enormous delays in concluding investigations -
For example, the inertia in its probe against the high dignitaries in Jain hawala diaries
case [of the 1990s].
3. Loss of credibility- agency has been criticised for its mismanagement of several cases
involving prominent politicians and mishandling of several sensitive cases like Bofors
scandal, Hawala scandal, Sant Singh Chatwal case, Bhopal gas tragedy, 2008 Noida
double murder case(Aarushi Talwar).
4. Lack of accountability- exempted form RTI
5. Shortage of personnel
6. Limited powers- powers and jurisdiction of CBI are subject to consent of state
governments.

Way forward
1. Delinking the CBI from the administrative control of the government
2. Proving statutory stunts through legislation equivalent to CAG and EC
3. Recommendations from Departmentally related standing committee
1. Strengthening human resources by increasing strength of CBI,
2. Better investments in infrastructural facilities
3. Increased nancial resource and administrative empowerment with accountability,
4. Give more Powers (related to Union, State and Concurrent list of the 7th schedule
of Indian constitution), to the CBI.

Lokpal

The Lokpal and Lokayukta Act, 2013 was enacted after the Indian anti-corruption
movement of 2011. It established lokpal for centre and Lokayukta for states.

Lokpal will consist of a chairperson and a maximum of eight members, of which 50%
shall be judicial members and 50% shall be from SC/ST/OBCs, minorities and women.

It is responsible for inquiry into allegations of corruption against certain public

functionaries.

Issues

1. Requirement of government approval- The Act does not vest power of prior sanction
with Lokpal for enquiry and investigation of government o cials.
2. Timeframe limitation: act envisages that lokpal shall not inquire into any complaint
made after 7 years from the date on which o ence has been committed.
3. No suo motu power
4. Constitution of Lokayukta - while the act mandates the establishment of Lokayukta in
every state, there has been uneven progress in this regard.
5. Power and jurisdiction of Lokayukta in states- since states are free to determine
powers of Lokayukta, they have formed weak Lokayuktas.
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COMPARISON OF THE INDIAN CONSTITUTIONAL
SCHEME WITH THAT OF OTHER COUNTRIES

1. British constitution

Features -
1. Unwritten
2. Evolutionary- constitution was never formed by constituent assembly. has an
unbroken continuity of development over a period of more than a thousand years.
While Indian constitution is written, it too is open for evolution through
constitutional amendments.
3. Flexibility - can be passed, amended and repealed by a Simple Majority (50% of the
members present and voting) of the Parliament, since no distinction is made between
a constitutional law and an ordinary law.
4. Unitary vs federal features- unitary character as opposed to a federal one. All powers
of the government are vested in the British Parliament, which is a sovereign body.
executive is responsible to parliament.
5. Parliamentary executive- this is one similarity between British and Indian constitution.
King, who is sovereign, has been deprived of all his powers and authority. The real
functionaries are Ministers, who belong to the majority party in the Parliament and
remain in o ce as long as they retain its con dence.
6. Sovereignty of parliament
7. Role of conventions- convention are known as unwritten maxims of the constitution.
A necessary corollary to the unwritten character of the British constitution is that
conventions play a very vital role in the British political system. For example, while
the Queen has the prerogative to refuse assent to a measure passed by the British
Parliament, but by convention, she doesn’t do so and the same has become a
principle of the constitution itself.
8. Rule of law
9. Independent judiciary - rule of law is safeguarded by the provision that judges can
only be removed form o ce for serious misbehaviour and after the consent of both
the Houses of Parliament.

Organs of the state

1. Executive- known as crown.

Consists of - king, prime minister, CoM, Permanent executive, civil servants and Privy
council.

Nature of Monarchy

British has a constitutional monarchy as head of the state, the king, has ceremonial
powers. Powers are wielded by CoM.

its lack of real power, the monarchy still has several important roles to play in
contemporary Britain. These include: Representing UK at home and abroad, uniting
people despite their di erences, maintaining continuity of British traditions.

British Prime Minister and the Council of Ministers

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 Cabinet form of government. Power lies in CoM.
Moreover, the Cabinet is the ultimate body of law making in the Parliamentary system. It
is formed out of the party/group, which enjoys majority in the House.

Prime minister- head of the cabinet.

He/She is the connecting link between the King and the Cabinet as well as the King and
the Parliament.
The life of the House depends on the PM as he/she may advice the dissolution of the
House.
PM is rst among equals with respect to his position among CoM.

While Indian PM can be from upper or lower chamber, British PM will always be a
member of lower house.

Privy council
It has been one of the advisory bodies to the king. has lost relevance because of the
emergence of the Cabinet in the recent times.

Permanent Civil Servants

Generalist bureaucracy, which are recruited through competitive exams.

2. Legislature

Supremacy of constitution is present.

House of Lords (Second chamber)

- has hereditary members. has the largest number of Life Peers, Church/Religious peers
(Ecclesiastical Peers) and Law Lords.
- One of the weakest upper houses in the world. Since the passage of the Act of 1919
and 1949, the House of Lords has lost all real legislative powers. It is simply a delaying
chamber now. It can delay an ordinary bill for a maximum period of one year and
money bill for a maximum period of one month.
It is a weak chamber as compared to Rajya Sabha.

Comparison with senate-

- Senate is called as the strongest Upper House. It enjoys equal power with the House of
Representative in the context of an Ordinary Bill, a Constitutional Bill and even in
passage of a Money Bill. It is customary to introduce Money Bill in the Lower House.
- The Senate also enjoys some special powers not available to the House of
Representatives. For example, rati cation of international treaties, rati cation of higher
appointments.

House of Commons -

- Lower chamber but one with most authority.

- Prime minister is the head of government and part of lower chamber. Cabinet ministers
comprise mainly members of lower house however Members of the House of Lords
have served as Cabinet ministers.
- Prime minister is not the leader of House of Commons. Leader, a member of
government, is chief spokesperson for the majority party on matters of internal
cooperation.
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 - Speaker- convention that Once a speaker, always a speaker. means that a Speaker’s
constituency is unchallenged. Once a person is appointed as a Speaker he/she gives
formal resignation from his/her political parties. He/She has a casting vote and ultimate
disciplinary powers with respect to the conduct of the House and MPs.

3. Judiciary

Lacks the intrinsic power to strike down an act of parliament, owing to doctrine of
parliamentary supremacy.
However this does imply subordination of judiciary to the executive.

Courts have the power

Of interpreting the precise meaning of a statute.
Of reviewing the actions of ministers and other public o cials by applying the
doctrine of ultra vires (beyond powers).
Of applying the concept of natural justice to the actions of ministers and others.

Comparison between India and British Judiciary

Similarities-

1. Actions of executives can be declared ultra vires.

2. The judiciary is considered the highest interpreter of the Constitution.
3. O late, a spurge in judicial activism is seen in both Indian and British Judiciary.

Di erences -
1. Parliamentary supremacy in British hence no basic structure.
2. British system based on common law system. Common Law System implies that law
is developed by the judges through their decisions, orders, or judgments. India
incorporates common law along with statutory and regulatory laws.

American constitution-

Shortest constitution in the world. Very rigid, has had 27 amendments so far. Dual ship in
constitution, one for America as a whole whole another for each state.

Nature of the constitution

Truly federal in nature.

Indian federalism vs American federalism

American federalism Indian federalism

1, both centre and state are completely Interdependence of centre and states. Centre plays
independent the role of big brother.

2. Centrifugal federalism Centripetal federalism

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American federalism Indian federalism

3. Symmetric federalism: all states have equal Asymmetric federalism:

representation in senate 1. Unequal representation in RS
2. Article 370 and 371 provide special provisions
for certain states

4. Legislative federation: States have dominance in Executive federation: states are important at the
law making. executive level only.

5. Indestructible union of indestructible states 5. indestructible union of destructible states

6. Constitution provides a role to states in ratifying 6. No such provision

international treaties

American constitution has a presidential form of government, where president is not

accountable to house of the congress.

President

Only natural born citizen can become one.

Election- through electoral college

Electoral college- Strength of Electoral College = Total members in House of
Representatives + Senate + 3 members from Washington D.C. = 435 + 100 + 3 =
538
Winning candidates require absolute majority.
Election of electors- voters vote for electoral college. Each state has the responsibility to
conduct these elections.

Functions of the president

Executive
Appointments
Representation of the country
Preparation of budget
Legislative
No presence in legislature
Cannot dissolve legislature
He can send messages to legislature
Veto power- quali ed veto present. Has to take action on the bill in 10 days. May return
the bill but if congress passes the same law with 2/3 majority, the law is enacted.

* Indian president has on the other hand suspensive veto, ie can send the bill once but if
passed again then she has to sign.
* However, there is no time limit for president to sign the bill. Hence pocket veto more
powerful than American president.

Retirement and impeachment

- The terms of President and Vice President shall end at noon on the 20th day of
January.
- Naturally, the question is how this time schedule is maintained. In case of President’s
death, resignation, or impeachment, the Vice President shall become the President for
the remaining period.
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 - Impeachment- for Treason, Bribery, High Crimes of Misdemeanor. no impeachment for
violation of constitution (as in India)
- Process
1. Charges will be levered against president in House of Representatives.
2. It has to be passed by 2/3 majority.
3. Senate will investigate the case.
4. If convicted, removed when 2/3 members pass a resolution.

Vice president

Election - Since the elections take place simultaneously, the process of elections is also
the same.

Functions
1. ex o cio chairperson of senate and has a casting vote
2. Aka his super uous highness

US Legislature
Consists of two houses - House of Representatives and The senate

House of Representatives
Weakest lower house
System of direct elections
Consists of 435 members
Senate
Permanent body
Strongest upper house in the world
Equal powers in ordinary bills, amendment bills and money bills.

Committee system
Strongest committee system in the world.
Bill is introduced and directly referred to the committee, even before rst reading. (Unlike
in India)
A bill in USA may get killed at the Committee stage itself. This is known as Pigeon Holing
the bill.

Doctrine of separation of powers

The US Constitution strictly adheres to the doctrine of Separation of Power proposed by
Locke and Montesquieu. Separation of Power is complete in US.
- All three branches separate
- No member of the executive is the member of legislature
- The Houses of Congress enact the law; the President executes the law; and the
Supreme Court interprets the law.
Checks and balances-
- Judiciary checks on other branches of the government, by judicial review of the
executive as well as legislative acts.
- How Congress checks the President or powers of the President?
Rati cation of international treaties
Impeachment of president
No taxation without representation
- How President checks the Congress?
Veto power
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 - President and Congress applying checks on Judiciary
Judges appointed by the President and rati ed by the Senate
Removal of judges: removed through impeachment by the Congress and approved
by the President
Salaries and emoluments controlled by the President

Fundamental rights
US has incorporated Bill of rights, similar to fundamental rights in India. Some additional
rights like freedom of press, right to keep arms are present in US.

In US grand jury (common people are selected by the government randomly) plays a part
in deciding the guilt of the accused persons.

US constitution follows due process of law, India on the other hand follows procedure
established by law.

9th amendment mentions that mere enumeration of certain rights in the Constitution shall
not be interpreted to deny the other rights retained by the American people. In spite of the
statutory rights in the Constitution people enjoy other rights, which are given by nature.
Indian constitution does not have such article.

A person accused of crimes enjoys certain explicit rights under 6th amendment: speedy
trial, notice of accusation, compulsory process of obtaining witness in his favour.
In India these are not explicitly mentioned, but provided by SC by interpretation of Art21.

Distribution of legislative power

in the case of US, where no elaborative mechanism is provided. Few expressly mentioned
subjects are with the federal and rest of the matters with State governments.

Judiciary
- No quali cations for appointment of judges
- President has the nal say in appointments
- The Judicial Committee of Senate plays a very signi cant role in evaluating the
credentials of the proposed judges of the Supreme Court.
- Appointments of judges takes place in a transparent manner, where questions are put,
face to face interaction of committee and judge takes place.
- No xed tenure

Amendment of the Constitution

Two ways
1. Proposed by the Congress and rati ed by the States
2. Proposed by States and rati ed by the States

Chinese constitution

Socialist country. The Chinese Constitution accepts the leadership of the Communist
Party of China (CPC).

Salient features of constitution

1. Preamble - on the ideals of Marx, Lenin and Mao.
Dictatorship of proletariat is replaced with people’s democratic dictatorship.
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 Recognises Taiwan as integral part of China.
2. Nature of constitution- a nity with Soviet Union. Neither too rigid nor too exible.
3. Unitary system - In China, a strong central government exists while regional
governments, as distinct entities, have not been created under the Constitution.

In order to encourage people’s participation in policy-making, decentralization has been

introduced in the governmental a airs. The central government has delegated much
authority and powers to the regional and local administrative units.

4. Democratic Centralism- elective principle has been introduced at all levels not only
within government institutions but also within party organisation.

5. One party system- The Communist Party enjoys almost dictatorial powers within the
constitutional framework and has been regarded as the sole source of political authority
for all practical purposes.
Party organization runs parallel to that of the governmental institutions. Party elite hold all
top-notch positions in the government.

6. Legislature
- National People’s congress comprises the legislative branch.
- Unicameral legislature with more than 3000 members.
- It has been declared as an organ through which the people exercise state power.
- The real work of NPC is done by a smaller body known as Standing Committee of
NPC, consisting around 150 members.
- NPC is supreme body empowered to make laws, alter or repeal old laws.
- The Constitution can be amended with the support of two-thirds majority of the
members of the Congress, whereas ordinary laws are enacted by a simple majority. It
is to be noted, that the acts of the Congress cannot be challenged in the Supreme
Court.
- Under the Constitution, it also elects the President and Vice President of the
Republic and appoints Premier of the State Council on the recommendation of the
President.
- also exercises the power to appoint or remove the President of the Supreme Court
and Chief Procurator of the Supreme Procurate.

Standing committee of NPC : e ective and active body which exercises real powers.
1. Summons congress.
2. Supervises the functioning of the state council.
3. has the authority to alter or repeal any inappropriate decision of the o cial
departments, autonomous regions, provinces
4. is actually the repository of real powers during the interval in which the Congress is
out of session.

7. Executive council

A. State council- cabinet or executive of China. Headed by Premier, four vice premiers
and state councillors. All members elected by congress and accountable to it.
B. Premier- Head of the administration
C. President- head of the state. Elected by congress. Earlier presidency was largely a
ceremonial o ce, however since 1993, as a matter of convention, the presidency has
been held simultaneously by General Secretary of Communist Party of China and also
the president will be automatically head of the military.
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 President has the power to promulgate laws, select and dismiss premiers as well as
ministers of the state council.
The President must be a Chinese citizen with full electoral rights who has reached the age
of 45.

8. Judiciary
Committed judiciary. Committed to the goal of secularism. Highest organ is supreme
people’s court.
Chinese law has never been codi ed in a systemic form. The Chinese judicial system has
been held together more by conventions, rather than by laws.

9. Rights
Chinese constitution prescribes fundamental rights for its citizens. Include right to vote,
right to contest elections, right to secrecy of correspondence, freedom of speech, and
freedom to join associations.

10. Duties
The Chinese constitution explicitly prescribes certain duties of the citizens, which are
justiciable. It is the rst and foremost duty of the citizens to cooperate with the Socialist
leadership in every respect, abide by the Constitution and all other state laws.

11. Communist Party of China

Came into being in 1921.
Follows Marx and Lenin ideology.

Party organisation-
operates on the principle of Democratic Centralism.
Accordingly all o ce bearers of the Party are elected. Primary unit of the Party
elects District Congress while District Congress elects the deputies of the
Congress of the upper level.
It is obligatory on the lower ranked party members to abide by the decisions of
higher ranked party leadership.
Politburo
Most powerful body in decision making process.
Has standing committee of 7 members, which exercises all the powers when
politburo is not in session.
National congress of communist party
No xed size on members. 1000s in number. Holds pivotal position in policy
making of the party.
Central committee- The Central Executive Committee, comprising limited membership,
exercises the power of the Congress when the latter is not in session.

French constitution

It has a unitary form of government and nature of the government is called as semi
Presidential type.
The French Parliament does not have supremacy even in law making. There is a list for
which the legislature can make laws, whereas rest of the matters are taken care of by the
President (i.e. he makes the laws).
Only democratic constitution with supremacy of executive.
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1. President

Most powerful in the French system.

Privileges of the O ce of the President of US, i.e. security of tenure and being the head of
the Government as well as head of the State is combined with the privileges of the O ce
of the British P.M. i.e. power to dissolve the Assembly (which the American President
doesn’t enjoy).

- France has PM as well as president. However PM is assistant to the president.

- PM is appointed by the president.
- PM can choose it’s cabinet colleagues, and they can be a part of legislature.
- Lower house cam pass censure motion against PM.

President is selected for 5 years.

Election
- they follow second ballot system.( i.e. absolute majority of the total votes polled
is needed).
- President shall be elected by absolute majority of votes polled. If in the rst round no
person gets absolute majority, then top two candidates remain and rest are
eliminated. In the second round one person is able to get a majority.
Removal
- can be impeached on the same ground as US president.
- Article 67 of the Constitution suggests that both the Houses should pass identical
motion.
- After this, the President’s case will be dealt with by a special body called the High
Court of Justice.
Emergency powers
Article 16 of the Constitution gives the real emergency powers to the President. In
this situation he assumes unlimited powers and it is like democratic dictatorship or
democratic coup-detat.

2. The legislature
Subordinate to the executive in the French system.
Article 37 mentions that the Parliament can make laws only on the matters enumerated in
the Constitution. On all other matters, the government can make laws by simple order or
decree.

Two Houses: National Assembly and the Senate

1. National Assembly- much broader powers than of the senate.
- it alone can hold the government accountable by refusing to grant it ‘con dence’
or by passing a censure motion.
- In the case of disagreement with the Senate, the Government can decide to grant
the National Assembly “the nal say” in the legislative procedure.
- The tabling for the rst reading of nance bill and social security nancing bill must
be before National Assembly and time limits granted for examination are more for
National Assembly.
2. The senate
- cannot be dissolved
- President of senate is appointed president of French Republic if latter is prevented
from doing so, or falls I’ll or resigns.
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 3. Organic law - An organic or fundamental law is one that forms the foundation of a
government or organisation.
The French Constitution has certain laws mentioned as organic laws. Laws made by the
Parliament and the orders of the Executive must con rm to the Organic laws. So these
laws have to be reviewed by a body known as the Constitutional Council.

4. Secularism- Follows rigid principle of secularism ie principle of strict separation of

church and state, freedom of conscience and freedom to exercise any faith.

5. Amendment- rigid process

- Both the Houses of Parliament have to pass a resolution by 3/5th majority.
- The President may also choose to refer the amendment to people by referendum.

Germany’s constitution

1. Chancellor’s Democracy
- The Chancellor has a clear-cut superiority over other Ministers.
- Chancellor has a privilege to determine the broad policy and other ministers are
expected to act as per these guidelines.
2. Cabinet principle
- comes into existence only when there is a dispute among di erent departments. In
such a situation decision is taken collectively.
3. Constructive Vote of No-Con dence
- The motion of no-con dence against the Chancellor is permitted only when those
bringing the notion can prove that they are in a position to form an alternative
government.
4. Parliament: Germany has two houses: The Bundestag and The Bundesrat
1. The Bundestag - Lower house. Members elected for 4 year term. Method of
election is mixed member proportional representation (MMPR).
Manner of elections- Half of the members of the Bundestag are elected
directly from 299 constituencies using the rst-past-the post method of
election. The other half – another 299 - are elected from the list of
the parties on the basis of each Land (the 16 regions that make up
Germany).
2. The Bundesrat- upper house. the composition of the Bundesrat looks similar to
other upper houses in federal states such as the US Congress, since the
Bundestag is a body representing all the German Lander (or regional states). But
two di erences-
1. Members are not elected (neither by popular vote nor by the State
Parliaments). They are members of state cabinets, which appoints them and
can remove them at any time.
2. The States are not represented by an equal number of delegates, since the
population of the respective state is a major factor in the allocation of votes
(rather than delegates) to each particular Land.

Constitution of Japan

1. Parliamentary system of government

2. Has constitutional monarchy-
King is more like a rubber stamp, while PM is the head of the cabinet.
3. Election of PM
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 - PM is elected by both the Houses of Japanese Parliament (called Diet).
- The two houses of diet are: House of Representatives and house of councillors
- If no agreement is reached upon between the two houses on a candidate for PM,
then the matter is taken care of by a Joint Committee of both the houses. The
Committee gets 10 days to arrive upon a decision.
4. Article 9 of the constitution renounces the policy of war for the settlement of
international disputes. However, it can keep forces for self-defence.

Constitution of Canada

1. Constitutional monarchy: The Constitution Act, 1867 states that executive

government and authority in Canada is vested in the Canadian Monarchy. The British
Queen is the formal head of the state.
This authority is exercised by PM and his cabinet.
2. Parliamentary form of government: two houses ie house of common and senate
- House of Commons- lower chamber is the house of common. Consists of 308
members.
Manner of election- elected by rst pass the post system in each of the
country's electoral districts, which are colloquially known as ridings.
Powers- As in the British political model, the House of Commons is much
the more powerful of the two chambers. Although all legislation has to be
approved by both chambers, in practice the will of the elected House
usually prevails over that of the appointed Senate.
- The senate: consists of 105 members, appointed by governor general on the advice
of PM. Seats are assigned on regional basis.
3. Federalism- The Constitution also provides for a federal system in Canada, meaning
there are two key levels of government: the federal (or national) government and the
provincial (or regional) governments. Canada is a federation with a strong Centre, wherein
residuary powers lie with the Centre.
4. Judiciary- The Supreme Court is the highest court and nal authority on civil, criminal
and constitutional matters.
Judges are appointed by Governor general on the advice of PM and minister of justice.
They serve till the age of 75.

Constitution of Australia
Australian federation is modeled on the US federation. For example, residuary powers are
with the states, Governors of the states are elected by the people and formally appointed
by the British Queen.

1. Form of government- Although, Australia is an independent nation, Queen Elizabeth II

of Great Britain is also formally the Queen of Australia. She appoints a governor
general to represent, but he functions with aid and advice of ministers.
2. Nature of constitution - written constitution. Residuary powers assigned to states.
The High Court of Australia arbitrates on disputes between the Commonwealth
and the states. Many of the court’s decisions have expanded the constitutional
powers and responsibilities of the federal government.
3. Parliament - Two chambers House of Representatives and the senate.
- The government is formed in the House of Representatives by the party able to
command a majority in that chamber.
- Minority parties hold the balance of power in senate, which serves a chamber of
review for decisions of the government.
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 4. Nature of elections - A national general election must be held within three years of the
rst meeting of a new federal Parliament. The average life of Parliaments is about two-
and-a-half years.

5. Relations between levels of government

- State parliaments are subject to the national Constitution as well as their state
constitutions.
- Two levels cooperate in many areas where states are formally responsible, such as
education, transport, health and law enforcement.
- The Council of Australian Governments (COAG) is a forum to initiate, develop and
implement national policy reforms requiring cooperative action between the three
levels of government: national, state or territory, and local.
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 MINISTRIES AND DEPARTMENTS OF THE GOVERNMENT

Existing organisational structure

Exercising powers vested by virtue of Article 77, the President has made the “The
Government of India (Allocation of Business) Rules”.
The Allocation of Business Rules, thus, forms the basis of the structure of Government of
India by specifying the Departments among whom the functional division of work of
Government of India has been done.

Structure within the departments

A department is responsible for formulation of policies of the government in relation to

business allocated to it and also for the execution and review of those policies.
For the e cient disposal of business allotted to it, a department is divided into wings,
divisions, branches and sections.

Attached or subordinate o ces

Each department may have one or two attached or subordinate o ces.

Attached o ces are generally responsible for providing executive direction required in the
implementation of the policies laid down by the department to which they are attached.

Subordinate o ces generally function as eld establishments or as agencies responsible

for the detailed execution of the policies of government. They function under the direction
of attached o ces.

Empowered group of ministers

Both EGoM as well as the GoM get appointed under the Government of India’s
Transaction of Business Rules 1961.
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EGoM is a group of ministers is a group of ministers, who after being appointed by the
cabinet, a cabinet committee or prime minister investigate and report on such matters as
may be speci ed, and are also authorised to take decisions in such matters.

Group of Ministers (GoM) not the other hand are empowered to take decisions.

the Prime Minister on 31 May 2014 decided to abolish all the existing nine Empowered
Group of Ministers (EGoMs) and twenty-one Groups of Ministers (GoMs). The rationale
behind this move is to expedite the process of decision making and bring in greater
accountability in the system.

Alternative mechanisms-
Alternative Mechanisms’ are instruments usually appointed by the Cabinet, a Cabinet
Committee or the Prime Minister for deliberating over or investigating and reporting on
such matters as may be speci ed by the appointing authority.

They also have the power to take decision on behalf of cabinet.

Rationale of setting up alternative mechanisms

1. Improved coordination: among di erent ministries
2. Faster decision making
3. Reduced workload: if the union cabinet
4. Due diligence: by following due diligence at each step and necessary safeguards
5. Lower litigation: To reduce litigation and pendency of cases with the judiciary, by
following due process at each step.

Strengths and weaknesses of existing structure

Strengths
1. Time tested system - the structure has ensured stability during normal as well as crisis
times. It has also experimented with several innovative structures.
2. Stability: structure sta ed by permanent civil servants has provided with continuity
and stability during the transfer of power.
3. Commitment to the constitution- political neutrality: well laid out rules and procedures
of the government have upheld the neutrality of the civil services.
4. Link between policy making and implementation: The framework of the Government
of India has facilitated a sta ng pattern which promotes a link between policy making
and implementation.
5. Has promoted a national outlook among civil servants

Weaknesses
1. Undue emphasis on routine functions: The Ministries are burdened by the large
volumes of routine work and are thus unable to focus on policy analysis and policy
making.
2. Proliferation of ministries/ Departments: leading to weak integration and coordination
3. An extended hierarchy with too many levels: vertical organisational structure causes
too many delays and lack of accountability.
4. Risk avoidance: A fall-out of a multi-layered structure has been the tendency towards
reverse delegation and avoidance of risk in decision making.
5. Absence of team work: The present rigid hierarchal structure e ectively rules out team
work in the present context where inter disciplinary approach is need of the hour.
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 6. Fragmentation of functions: At the operational level also, there has been a general
trend to divide and subdivide functions making delivery of services ine cient and
time-consuming.

Recommendations at various levels of government machinery

1. Subjects which are closely inter-related should be dealt with together: a golden mean
between the need for functional specialisation and the adoption of an integrated
approach should be adopted.
2. Separation of policy-making functions from execution: Ministries should give greater
emphasis on policy making while delegating the implementation functions to
operational units.
3. Coordinated implementation: The proliferation of vertical departments makes this an
impossible task except in cases where empowered commissions, statutory bodies
and autonomous societies have been created. Need for more such inter disciplinary
bodies.
4. Flatter structures- The structure of an organization including those in government
should be tailor-made to suit the speci c objectives it is supposed to achieve.
5. Well de ned accountability: A clearer demarcation of organizational responsibilities
would help in developing a performance management system for individual
functionaries.
6. Appropriate delegation: The principle of subsidiarity should be followed to locate
authority closer to the citizens.
7. Criticality of operational units: Organisations have tended to become top heavy
coupled with fragmentation and lack of authority, manpower having direct bearing on
citizens lives. Rationalization of Government sta pattern is necessary, commensurate
with the requirements of the citizens.
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 Union Executive

Pardoning powers of president

Article 72 provides for the pardoning powers of president.

Scope of judicial review

1. In Maru Ram case 1980, the Supreme Court declared that the power of the President
under Article 72 is subject to judicial review. It maintained that the power cannot be
exercised in an arbitrary manner.
2. Recent Judgment in Shatrughan Chauhan vs. Union of India (2014)
In this judgement SC held that:
1. Inordinate delay can be a justi ed ground for commutation of death penalty into
life imprisonment.
2. Psychiatric conditions developed during incarceration are grounds for clemency.
3. It ruled against the solitary con nement of death row prisoners.
4. It is not a mere prerogative of the President and the decision is subject to judicial
review.
5. It is a constitutional obligation of the President and Governors to dispose o mercy
petitions of convicts.
6. Right to seek mercy is a constitutional right
7. The person has the right to seek judicial review. After the rejection of mercy
petition, the
8. judiciary has the power to even invalidate a President’s decision, if there is
evidence of bias.

Veto power of the president

1. Absolute veto: refers to the power of the President to withhold his assent to a bill
passed by the Parliament. The bill then ends and does not become an act.
Eg. In 1954, President Rajendra Prasad withheld his assent to the PEPSU
Appropriation Bill. The bill was passed when president’s rule was in operation in
PEPSU but when presented to president, the president’s rule was revoked.

2. Suspensive veto: The President exercises this veto when he returns a bill for
reconsideration of the Parliament. However, if the bill is passed again by the
Parliament with or without amendments and again presented to the President, it is
obligatory for the President to give his assent to the bill.
President A.P.J. Abdul Kalam, in 2006 returned the O ce of Pro t Bill for
reconsideration of the Parliament.

3. Pocket veto: In this case, the President neither rati es nor rejects or returns the bill,
but simply keeps the bill pending for an inde nite period. This power of the President
to not take any action (either positive or negative) on the bill is known as the Pocket
Veto.
In 1986, President Zail Singh exercised the pocket veto with respect to the Indian
Post O ce (Amendment) Bill. The bill, passed by the Rajiv Gandhi Government,
imposed restriction on the freedom of press.
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 Cabinet committees

The N. Gopalaswamy Ayangar’s report on the Reorganization of the Machinery of

Government (1949) recommended setting up of Standing Committees (permanent in
nature) of Cabinet over de ned elds.

Eight parliamentary committees are present.

All committees except Cabinet Committee on Accommodation and Cabinet Committee

on Parliamentary A airs are headed by the Prime Minister.

They are extra-constitutional in emergence. However rules of business provide for their
establishment.

Role-
1. Organisational device to lessen the workload of the cabinet. They are based on the
principles of division of labour and e ective.
2. They not only resolve issues and frame proposals for cabinet’s consideration but also
take decisions.

Ordinance making power of the executive

An ordinance under Article 123 of the constitution is an instrument at the hands of

executives and president can make law in a situation when one or both the Houses of
Parliament are not in session.

Article 213 gives the same power to governor of the state.

But under separation of power principle legislature’s function is to make laws and
executives to implement it. However due to –
• Dynamics and complexity in governance.
• Practical and political compulsions.
Ordinance route has been resorted to more often than not.

Issues-
1. Deliberate bypassing of legislature- this is against the ethos and spirit of democracy.
As observed by the Supreme Court, re-promulgation of ordinances is a “fraud” on the
Constitution
2. Infringement of principle of separation of powers
3. The satisfaction of president: ordinance can be promulgated only when president is
satis ed, providing scope for misuse.

To maintain the separation of powers, ordinance making power has to be suitably

restrained. This need is also re ected in various judgements of Supreme Court
1. Supreme Court in RC Cooper vs. Union of India (1970)- held that president’s decision
to promulgate ordinances could be challenged on the ground that immediate action
was not required.
2. In DC Wadhwa Vs State of Bihar(1987): the legislative power of executive to issue
ordinances is be used in exceptional circumstances and not as a substitute for the
law-making power of the legislature.
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3. Krishna Kumar Singh v. the State of Bihar- SC held that authority to issue ordinances
is not an absolute entrustment, but is “conditional upon satisfaction that
circumstances exist rendering it necessary to take immediate action”.
UNION LEGISLATURE

10th schedule to the constitution/ Anti defection law

Advantages of anti defection law-

1. Brings political stability
2. Helps in checking corruption
3. Promotes party discipline
4. Restricts the breach of trust with voters

Criticisms of anti defection law

1. It reduces freedom of speech and expression of MPs
2. Subjects the party to the whip and reduces MPs accountability to the public
3. The law still has many loopholes and has not been able to completely curb
defections, as seen in various states in recent years

Suggestions for reform

1. According to Dinesh Goswami Committee, the issues related to defection must be
decided by the President or Governor as per the advice of the Election Commission.
2. Dissent within the party shouldn’t be equated with defection.
3. In Bangladesh, such matter is referred to a neutral body by the Speaker.
4. In Singapore, nal decision lies with the Parliament as a whole.
5. Finally, it is not simply a matter of law as humans can always circumvent legal
provisions. It’s a matter of ethics, which must be upheld by all the MPs in unison.

Devices of parliamentary proceedings

1. Question hour- First hour of parliament devoted to questions that Members of

Parliament raise about any aspect of administration and government activity.
2. Zero hour- time immediately following the question hour has come to be known as
zero hour. It starts around 12 noon and members can raise issues of urgent public
importance during this time.
3. Motions- Discussion on any matter can take place only when a motion is made with
the consent of the presiding o cer. The House expresses its decisions or opinions on
various issues through the adoption or rejection of motions moved by ministers or
private members
Three principle categories
1. Substantive nation- self contained independent proposal dealing with a very
important matter. Eg. Impeachment of president
2. Substitute motion: moved in substitution of another motion and proposes
alternative to it.
3. Subsidiary motion: it is a motion that by itself has no meaning without the
reference to original motion. Divided into three categories
1. Ancillary motion: used as a regular way of proceedings with various kinds of
business
2. Superseding motion: moved in course of debate on another issue and seeks to
supersede that issue
3. Amendment: seeks to modify or substitute only a part of original motion

Closure motion - moved to cut short the debate on a matter before the house
Privilege motion: concerned with breach of parliamentary privileges by a minister.
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 Calling attention motion: introduced to call the attention of a minister on matter of urgent
public importance.
Adjournment motion: procedure for adjournment of the business of the house for the
purpose of discussing a matter of public importance, and needs the support of 50
members to be admitted.
Its adoption is regarded as a sort of censure of the Government. Thus, Rajya Sabha is not
permitted to make use of this device.
No con dence motion- can only be introduced in Lok Sabha.
Censure motion: moved only in Lok Sabha. It is moved against council of minister or a
single minister.
Motion of thanks - moved at the rst sitting of parliament after general elections and on
the rst sitting of every scal year.

4. Resolutions- A resolution is one of the procedural devices to raise a discussion in the

House on a matter of general public interest. Subject to the provisions of the rules, a
members or a Minister may move a resolution.
While all resolutions are substantive motions, a motion need not necessarily be
substantive.
All motions are not necessarily put to vote of the House, whereas all resolutions are
required to be voted upon.
5. Point of order: relates to the interpretation or enforcement of rules of procedure or
such articles of constitution that regulate the business of the house.

Money bills and nancial bills

1. Money bills - mentioned under article 110(1).
Can be introduced only in LS with prior recommendation of the president.
The Rajya Sabha cannot make any amendments to it or reject it, but can give its
recommendations. RS has to return the bill in 14 days.
LS may or may not accept these recommendations.
2. Financial bills: Two types of money bills have been described under Indian constitution
1. Fist class (Financial Bills under article 117)- Bills that contain any of the matters
speci ed in Article 110 but does not contain solely those matters.
2. Second class ( nancial bills under article 117(3)): Any ordinary bill that contains
provisions involving expenditure from the Consolidated Fund of India.
Comparison between money and nancial bills
1. While the money bill deals solely with matters speci ed in article 110(1), nancial bill
contains some other provisions also.
2. Financial bills of the rst class can be be introduced only in LS with the prior
recommendation of president, however other restrictions of money bill does not apply
to this category.
3. Financial bills of 2nd class can be introduced in either house of parliament like any
other ordinary bill. However, recommendation of the President is essential for
consideration of these Bills by either House.

Role of Rajya Sabha

1. Revising chamber: Though there have not been many revisions, yet there is always a
possibility of revision as a result of second sober thought.
2. Federal chamber: giving representation to the states
3. Deliberative chamber: The high traditions of debates and discussions in the House
have guided the Members of Rajya Sabha not only to hold informed debates on public
issues but also to endeavor to make proceedings relevant to public welfare.
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 4. Chamber of continuity: not subject to dissolution. This ful ls the need to meet the
constitutional contingency at a time when the popularly elected house may be under
dissolution.
5. Chamber not concerned with government formation: the government is collectively
responsible to LS and as the RS has no role in formation of government, this chamber
is relatively free from compulsions of party politics.
6. E ective small chamber: the small size of the house promotes greater consensus
building and better time management.
7. Chamber securing executive accountability: through various committees. Out of 24
Departmental related standing committees, 8 function under RS.
8. Chamber of Ventilating Public Grievances: Through procedural devices such as
Questions, Calling Attention, Special Mentions, Short Duration Discussion, Half-an-
Hour Discussion, Motions, Resolutions, etc., it has raised issues of public importance,
focused attention on matters a ecting policies of the Government and provided a
forum for ventilation of public grievances.

Comparison of powers
Equal powers in relation to LS
1. Election and impeachment of president
2. Election and removal of Vice President. However, RS can alone initiate the removal.
3. Equal right with LS to make a law de ning parliamentary privileges, and also to punish
for contempt of court. (Art 105)
4. Approving the proclamation of emergency( issues under art 352).
5. Enlargement of jurisdiction of SC and UPSC
6. approval of ordinances
7. Reports of various authorities like CAG, National commission for SCs

Unequal status with LS

1. Money bill can be introduced only in LS and in other provision of money bill
2. Speaker of LS presides over joint sitting of both the houses
3. LS usually wins the battle in joint sitting owing to its larger strength
4. can only discuss the budget but cannot vote on the demands for grants.
5. resolution for the discontinuance of the national emergency can be passed only by the
Lok Sabha

Special powers with RS

1. Legislation on state matters: Article 249 of the Constitution provides that the Rajya
Sabha may pass resolution, by a majority of not less than two-thirds of the Members
present and voting, empowering parliament to enact law on matter in state list.
2. Creation of all India services: under article 312
3. Approval of the proclamation: of emergency in case the LS is not in session or is
dissolved.

Parliamentary committee
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 Part of the work of the parliament is transacted in the committees of the house, known as
parliamentary committees as parliament can not give close attention to all the legislative
and other matters before it, owing to varied, complex and voluminous nature of work.

The appointment, terms of o ce, functions and procedure of conducting business are
regulated as per rules made by the two Houses under Article 118(1) of the Constitution.

Two types-
1. Standing committees- permanent and regular.
2. Ad hoc - formed for a particular purpose

Important committees
1. Public accounts committee- consists of 15 members elected by LS and 7 from RS.
Term of committee is one year.
- Main duty is ascertain whether the money granted by the president has been spent
by the parliament within the scope of the demand.
- Appropriation and nance accounts of GOI and audit reports of CAG form the basis
for the examination of the committee.
2. Estimates committee : consists of 30 members, elected by LS. Term is one year.
- Main function is to report what economies, improvements in organisation, e ciency
or administrative reform, consistent with the policy underlying the estimates may be
e ected.
- It examines whether the money is well laid out within the limits of the policy implied
in the estimates and suggests the form in which the estimates shall be presented to
Parliament.
3. Committee on public undertakings: 15 members from LS and 7 from RS. functions
include:
1. To examine the reports and accounts of PSUs
2. Examine the reports of CAG on PSUs
3. Examine whether the the a airs of the Public Undertakings are being managed
in accordance with sound business principles and prudent commercial practices.
4. Departmentally related standing committees
Initially came into being in 1993, and were 17 in number. The number was raised to 24 in
2004. These committees cover under their jurisdiction all the ministries/ departments of
GOI.
31 members: 21 from LS and 10 from RS
Functions:
1. Consideration of demand for grants
2. Examination of bills referred by chairman
3. Consideration of annual reports

Importance of parliamentary committees

1. Accountability of government: through more detailed consideration of measures

2. Debates in parliament: important role of toning up of debates and e ciency of
functioning of parliamentary system
3. O er an opportunity to the members of house to have a glimpse into the working of
governments
4. Platform for experts: provide a platform where members can engage with domain of
experts and government o cials during their course of duty
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 5. Forum for building consensus among political parties: Committees have closed door
meetings, which allows them to freely question and discuss issues and arrive at a
consensus.
6. Recommendations and amendments to the bill. Eg. Scrutiny of Data protection bill

Concerns
1. Need strengthening in several areas: all bills are not referred to committees. Moreover,
they are thinly sta ed.
2. Limited support: currently the technical support available is limited to a secretariat
that helps with matters such as scheduling meetings and note taking
3. Participation of members: The success of the Committee system depends on the
participation of Members in these meetings which is generally low.

Way forward
1. Scrutiny of bills: Referring all Bills to a Committee would ensure that all laws go
through a minimum level of Parliamentary scrutiny.
2. Funding: Funds should be secured to assist these Committees in conducting
inquiries, holding public hearings, and collecting data
3. Expert support: Committees in other countries such as the UK, USA, and Canada can
retain specialist advisors (such as lawyers, economists, and statisticians) to assist in
speci c inquiries.
4. Public materials: Committees can also invite comments from the wider public which
can help Committees consider the wider implications of a Bill or policy.

Issues concerning the working of Indian parliament

1. Reduction in number of sittings: The 16th Lok Sabha worked for a total number of
1,615hours, 20% more than the 15th Lok Sabha. However, this is 40% lower than the
average of all full term Lok Sabhas (2,689 hours).
2. Discipline and decorum: There have been increased instances of interruptions and
disruptions leading sometimes even to adjournment of the proceedings of the House.
16th LS lost 16% of its time to disruptions.
3. Declining quality of parliamentary debates: once focussed on national and critical
issues, are now more about local problems, viewed from a parochial angle.
4. Low representation of women: 14% in 17th Lok Sabha. Still lower than 32% in US
and 21% in Bangladesh.
5. Inadequate discussion: Bills are being passed with no/minimum discussion and by
voice vote amidst pandemonium in the House.
6. Reduced scrutiny by parliamentary committees: in 16th LS, 25% of bills introduced
were referred to the committee, much lower than 71% in 15th LS.
7. Legislation through ordinances
8. Codifying parliamentary privileges: Parliamentary privileges have not been codi ed
leading to uncertainty and anxiety over their misuse.

Implications of poor functioning of parliament

1. Lack of accountability of government
2. Low productivity: Disruptions and reduced number of sittings lead to lesser workforce
productivity of both Houses. For instance, productivity for Lok Sabha in the 2016
winter session was 14%, while that of the Rajya Sabha was 20%.
3. Cost to the public exchequer: Certain legislations when delayed lead to high cost to
public exchequer and also bear a huge cost to society. E.g. It is estimated that the
delay in passing the GST Bill cost the nation 4% of GDP.
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 4. Legislative vacuum: Delay in policy making creates a legislative gap which is then
lled with other bodies in a direct assault on the doctrine of Separation of Powers.
5. Declining faith in democratic process: Parliament as an institution becomes less
relevant for national policy making.

Suggested reforms
1. Nodal standing committee on economy: to oversee issues of scal, monetary and
nancial policies in an integrated manner. (Recommendation by NCRWC)
2. Building a better image of parliament: It is necessary to establish a new rapport
between the people and the Parliament. Parliament must have access to public
opinion and public must have access to Parliament.
3. Improving quality of members: every member must be imbued with a sense of
purpose and responsibility. Members of important parliamentary committees need to
lay down a strict code of conduct for themselves
4. Reducing expenditure: Strictest self-control is necessary because parliamentary
budget, by convention, is not questioned or debated. A strict limit needs to be placed
on the number of Ministers and equivalent posts both at the Union level and in the
States.
5. Improving information supply: members of the parliament must remain upto date with
information in regard to developments in all areas of parliamentary concerns.Some of
the modern tools and techniques like brie ng by experts, audio-visual aids, practice
oriented studies etc can be used.
6. Planning legislation and improving its quality: legislation’s have often been criticised
for hasty drafting and rushed through the parliament. There is a need for dynamic
approach to legislative engineering and systematic programming of laws. This can be
done by streamlining the functions of parliamentary legal a airs committee.
7. Setting up a constitution committee: since parliament alone can initiate constitutional
amendments, the responsibility becomes much greater. The proposed involvement of
Parliament and scrutiny can be achieved through a novel device in form of a
Constitution Committee of Parliament.
8. Departmental committees and improving accountability: mentioned above
9. Codifying parliamentary privileges: These privileges should not be allowed to be used
in such a manner as to nullify themselves and become rights against the people.

Position of speaker
The Speaker is looked upon as the true guardian of the traditions of parliamentary
democracy. The crucial position of speaker can be understood from the following points:
1. The Speaker of the Lok Sabha conducts the business in house; and decides whether
a bill is a money bill or not
2. Maintains discipline and decorum in the house
3. Permits moving of various kinds of motions and resolutions
4. Power to disqualify an MP or MLA under anti defection

In view of these, there are many safeguards in the Constitution such as security of tenure,
salaries charged on Consolidated Fund of India, discussing their conduct only on
substantive motion etc. to protect the o ce of Speaker from undue political pressure.

But there have been numerous instances where actions of speaker has raised concerns:
1. 16 MLAs from ruling party in Arunachal Pradesh assembly and 9 in Uttarakhand
assembly were disquali ed in 2016 despite not o cially leaving the party or defying its
directives, etc.
2. Controversies regarding declaration of Aadhar Bill, 2016 as money bill by the speaker
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 Hence more steps are required in addition to existing safeguards
1. Power to decide upon question of disquali cation can be entrusted to ECI
2. After getting elected as speaker, he/she must resign from political party membership
as practiced in matured democracies.
3. Democratic conventions must be evolved through political consensus in order to
ensure non-partisan actions by speaker.

Parliamentary privileges

Parliamentary privilege refers to rights and immunities enjoyed by Parliament as an

institution and MPs in their individual capacity, without which they cannot discharge their
functions as entrusted upon them by the Constitution.

According to Article 105, the powers, privileges and immunities of Parliament and MPs
are to be de ned by the Parliament. No law has so far been enacted in this respect. In the
absence of any such law, it continues to be governed by British Parliamentary
conventions.

There exists compelling reasons to clearly de ne and delimit parliamentary privileges to

balance it with Fundamental Rights
1. To remove their vagueness, uncertainty and inscrutability.
2. Privileges may be misused to hide misdeeds like corruption and may have far
reaching implications for a clean public life.
For example, in 1998, a constitutional bench of Supreme Court in P.V. Narasimha
Rao vs. CBI held that bribe takers who had taken bribes and voted against the no-
con dence motion were immune from prosecution; but the bribe givers have no
such immunity.
3. raises the issue of con ict of interest as it allows parliamentarians to become judges
in their own cause and thus violates the principle of fair trial.

Concerns regarding codi cation

1. The codi cation of privileges would make the privileges subject to fundamental rights
and hence, to judicial scrutiny and evolution of new privileges would become di cult.
2. The codi cation at the present moment would leave no space for future adjustment
when a new situation may arrive.
3. Legislators also argue that codi cation of privileges may harm the sovereignty of the
Parliament.
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 STATE EXECUTIVE

O ce of Governor

The Governor is the chief executive of the State and his position is analogous to that of
the President at the Centre.
The constitution under art 153 provides for the o ce of governor for each state.

Concerns related to o ce of governor

1. Appointment of governor- while art 155 says that governor should be appointed from
amongst the persons of high status with eminence in public, the elected government
at state is not even consulted while making appointments.
2. Further successive governments have reduced this important constitutional o ce to a
sinecure and resting place for loyal and retired / about to retired / about to retire
politicians apart from docile bureaucrats.
3. Appointment and dismissal of chief minister: After elections in the state, there is a
convention to invite the largest party to form government in the state. This convention
has been outed many times at the whim of the governor. E.g.: the recent episode of
Karnataka after 2018 hung assembly elections.
4. Reservation of bills for consideration of president: However, the central government,
through the o ce of the governor, has used this provision to serve partisan interests
5. Misuses of article 356- In the Constituent Assembly, Ambedkar had made it clear that
the Article 356 would be applied as a last resort. He also hoped that” such articles will
never be called into operation and that they would remain a dead letter.”
6. Removal of governor: The governor has no security of tenure and no xed term of
o ce. E.g.: The mass changing of the governors of state whenever a new government
comes to power at Centre.

Major recommendations to improve governor’s o ce

1. On Appointment of CM during hung assembly: Recent Karnataka case, 2018: SC

observed that Governor’s discretion cannot be arbitrary or fanciful.
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 2. SR Bommai vs. Union of India, 1994: The case was about the limits to the Governor’s
powers in dismissing a state government under Article 356 of the Constitution. The
oor of the Assembly is the only forum that should test the majority of the government
of the day, and not the subjective opinion of the Governor.
3. Rameshwar Prasad Case, 2006: Supreme Court was called upon to pronounce its
verdict on the validity of the proclamation of President’s Rule and the dissolution of
the Assembly in Bihar in 2005. The SC held that the Governor could not decide based
on his subjective assessments.
4. On removal of governor: BP Singhal vs Union of India: The Supreme Court ruled that
even though the President could dismiss a Governor without having to provide
reasons for doing so, this power could not be exercised in an “arbitrary, capricious or
unreasonable manner”
5. Sarkaria commission - Governor should be a detached gure without intense political
links or should not have taken part in politics in recent past, Governors must not be
removed before completion of their ve-year tenure, except in rare and compelling
circumstances
6. Venkatachaliah Commission (2002): Governor’s appointment should be entrusted to a
committee comprising the prime minister, the home minister, the speaker of the Lok
Sabha and the chief minister of the concerned state, if governor to be removed before
completion of term, the central government should do so only after consultation with
the Chief Minister.
7. Punchhi Commission (2010): The phrase “during the pleasure of the President” should
be deleted from the Constitution; Governor should be removed only by a resolution of
the state legislature.

Way forward
1. Recommendations of Sarkaria and Punchhi commission should be examined closely
to make proper amendments
2. The Supreme Court Judgment (BP Singhal case) which curtailed the power of the
Centre to dismiss state governments arbitrarily is commendable.
3. Governor’s o ce should be apolitical: further, she should be appointed after
consulting CM of the state.
4. Discretionary powers should be curtailed. There should be proper guidelines on the
appointment of CM.
5. According to ex-PM Manmohan Singh, Governor’s o ce should facilitate in
maintaining internal security, ensure communal harmony and welfare of SCs and STs
and rise above partisan politics while discharging Constitutional obligations.

Role of governor with respect to administration of scheduled and tribal areas

Powers related to scheduled areas

1. Empowered to direct that any particular act of parliament or state legislature does not
apply to a scheduled area or applied with modi cations.
2. can also make regulations for the peace and good government of a scheduled area
after consulting the Tribal Advisory Council.

Powers related to tribal areas

1. The tribal areas in the four states (Assam, Meghalaya, Tripura and Mizoram) are to be
administered as autonomous districts/regions. The governor is empowered to
organize and re-organize the autonomous districts/regions.
2. Each autonomous district has a district council consisting of 30 members, of whom
four are nominated by the governor.
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 3. The acts of Parliament or the state legislature do not apply to autonomous districts
and autonomous regions or apply with speci ed modi cations and exceptions. In the
case of Assam, this power lies with the Governor.
4. The governor may also confer upon these councils the power to try certain suits and
o ences. Also, the laws made by the council shall have no e ect unless assented by
the governor.

Evaluation of achievements of 5th and 6th schedules

1. 5th schedule
1. PESA was supposed to be the logical step in 5th schedule areas but it was not
properly implemented.
2. Tribal communities have progressively been denied self-government and rights to
their communities’ natural resources
3. Similarly, under FRA (Forest Rights Act), it is the state that decides whether a
certain forest is denoted as Reserved Forest or Village forest. This classi cation
controls the rights that local communities have on the forests.
2. 6th schedule
The Sixth Schedule that embodies autonomy has its own shortcomings
1. breakdown of laws,
2. elections not being contested and rather than empowerment there is exclusion
that fails to provide much-needed protection to tribes
3. there are lack of courts at village and other levels in some District Councils
4. too much dependence on governments for nancial grants, and allotments, etc.
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 State legislature

Legislative assembly vs legislative council in a state

It is clear that position of legislative Council vis-à-vis the Legislative Assembly is much
weaker than the position of the Rajya Sabha vis-à-vis the Lok Sabha.
1. Money bill can only be introduced in assembly. The council cannot amend or reject
the money bill. It should return the bill in 14 days, either with or without
recommendations.
2. With regard to ordinary bills, council can cause delay of 4 months at most in the
passage of bill passed by assembly.
3. On the other hand, in case of a Bill originating in the Legislative Council, the Assembly
has the power of rejecting and putting an end to the Bill forthwith.
4. The very existence of legislative council depends upon the will of legislative assembly.
5. Council of ministers only responsible to legislate assembly.
6. Members of council do not participate in election of president of India.

Why less importance as compared to RS

1. RS represents a federal chamber. No such case with legislative council,
2. According to English system, upper house must give way to lower house, which
represents the will of people. This has been adopted at the state level as there is no
question of federal representation.
3. Legislative council is heterogeneously constituted, representing di erent interests of
di erent members. RS on the other hand is homogeneously constituted.

Utility of second chamber in states

1. Checks hasty, careless and ill considered legislation by assembly

2. Due to indirect elections and nomination of persons having special knowledge, the
Legislative Council commands better resources to vet and scrutinize legislations.
3. It also gives representation to the people who cannot directly face elections (via
nominations).
4. 2nd ARC suggested that Legislative Council must work as representatives of the
Panchayati Raj Institutions and the Constitution may be suitable amended to give the
required powers to the council to work for strengthening the local governance.

Criticism of second chamber in states

1. Plays Super uous and obstructive Role: if the majority in the upper house is same as
of lower house, then council turns into a ditto chamber. If the majority is di erent, then
causes unnecessary delays.
2. Not an e ective check: can only delay by 4 months at most
3. Stronghold of vested interests: who are not expected to support a progressive
legislation. Instead they might block such legislation
4. Backdown entry of defeated chamber: utilized to accommodate discredited party-
men who may not be able to return to Assemblies through popular votes.
5. Costly institution: drain on state’s exchequer. In West Bengal also one of the main
reasons for its abolition was stated as unnecessary burden on the State exchequer.
6. Utility doubtful: The provision for their abolition in the Constitution itself further
con rms that even the Constituent Assembly was doubtful about the utility of these
chambers.
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7. Heterogeneity: hotchpotch representation, neither serves the purpose of a revisory
chamber nor acts as an e ective brake against hasty legislation.

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 REPRESENTATION OF THE PEOPLE ACT, MODEL CODE OF CONDUCT
AND ELECTION RELATED JUDGEMENTS

Article 327 enables Parliament to enact provisions for elections and Article 328 provides
that states can enact provisions for House or Houses of the State Legislature, if the
Centre has not provided for the same.

Representation of people act, 1950

It provides for the-

1. Allocation of seats in the Lok Sabha, in the legislative assembly and legislative
council.
2. O cers-
1. Chief electoral o cer: for state, designated by election commission
2. District electoral o cer: for a district
3. Electoral registration o cer: for each assembly constituency.
3. Electoral rolls for assembly and parliamentary constituencies
Disquali cation from electoral roll:
1. If not citizen of India
2. Of unsound mind, and declared so by the competent court
3. is for the time being disquali ed from voting under the provisions of any law
relating to corrupt practices and other o ences in connection with elections.
4. Electoral roll for council constituencies
5. Manner of lling seats in the council of states to be lled by the representatives of UTs
1. Constitution of electoral collages: There shall be an electoral college for each
constituency, to ll any seat or seats in the Council of States
2. Termination of membership of electoral college: if a member of college becomes
subject to disquali cation for the membership of parliament under any law, he shall
cease to be such member of the college.
3. Manner of lling seats: the system of proportional representation by means of the
single transferable vote.

Representation of People Act, 1951

1. Quali cations for Members of Parliament and Members of State Legislature
Constitution prescribes certain quali cations and empowers parliament to make any law
regarding quali cations to be elected as a member of parliament as well as state
legislature.
1.1 constitutional provisions for membership of parliament:
1.1.1 a citizen of India
1.1.2 has completed 30 years of age in case of Rajya Sabha and 25 years in
case of Lok Sabha
1.1.3 possesses such other quali cations as may be prescribed in that
behalf by or under any law made by Parliament.
1.2 Quali cations for Membership of Parliament under RPA, 1951
1.2.1 council of states: a person has to be elector for parliamentary
constituency in India to be quali ed for membership in council of states.

RPA in its original form required the condition of elector ‘in that state or
territory’, but this requirement was dispensed by Representation of People
(Amendment) Act, 2003 and it was substituted by elector ‘in India’. In 2006,
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 the Hon’ble Supreme Court upheld the validity of this change in ‘Kuldip
Nayar vs Union of India and Ors. Case’.

1.2.1 House of the people:

1.2.1.1 In order to contest a seat reserved for the Scheduled Castes/
Scheduled Tribe he must be a member of any of the Scheduled
Castes/Tribe
1.2.1.2 In order to contest a seat reserved for the Scheduled Tribes in
the autonomous districts of Assam, he must be a member of any of
those Scheduled Tribes and must be an elector for parliamentary
constituency in which such seat is reserved, or any other
constituency comprising any such autonomous district
1.3 constitutional provisions for membership of state legislature
1.3.1 should be a citizen of India
1.3.2 not less than 25 years of age to be a member of the Legislative
Assembly and not less than 30 years to be a member of the Legislative
Council.
1.4 Quali cations for membership of a State Legislature under RPA, 1951
1.4.1 Legislative assembly
1.4.1.1 to contest a seat reserved for SC/ST he must be a member of
any of ST/SC
1.4.1.2 to contest a seat reserved for autonomous district of Assam,
must be a member of ST of any autonomous district and must be
doctor for assembly constituency in which such seat is reserved
1.4.1.3 In order to be quali ed to be chosen to ll any seat allocated
to the Tuensang district in the Legislative Assembly of Nagaland for
the period referred to in clause (2) of Article 371A, he must be a
member of the regional council referred to in that article.
1.4.2 Legislative Council
1.4.2.1 must be an elector for any Assembly constituency in
that State.
1.4.2.2 to be eligible for nomination by governor, he must be an
ordinary resident in the state or UT

2. Provisions for Disquali cation for Membership of Parliament and State Legislatures
Constitutional disquali cations:
1. If he holds any o ce of pro t under GOI
2. if he is of unsound mind and stands so declared by a competent court;
3. he is an undischarged insolvent;
4. has voluntarily acquired the citizenship of a foreign State, or is under any
acknowledgement of allegiance or adherence to a foreign State;
5. if he is so disquali ed by or under any law made by Parliament
6. If disquali ed under Anti defection law

Disquali cation under RPA, 1951

1. Section 8(1) provides for disquali cation on conviction for certain o ences:
A. Crimes under IPC:
1. O ence of promoting enmity between di erent groups
2. O ence of bribery
3. O ence of undue in uence or personation at an election
4. O ence of cruelty towards a women by husband or relative of husband
B. Protection of civil rights act, 1955: for preaching untouchability
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 C. Customs act, 1962: o ences related to importing and exporting prohibited goods
D. Unlawful activities (Prevention) act, 1967: o ence relates to being a member of
unlawful association
E. Foreign exchange (Regulation) act, 1973: related to dealings in foreign exchange

2. Section 8(2) convicted for contravention of any law regarding prevention of

hoarding or pro teering, adulteration of food or drugs or dowry prohibition act,
1961
3. Section 8(3) person convicted of any o ence and sentenced to imprisonment for
not less than 2 years
4. Section 8A: on grounds of corrupt practices. Such disquali cation is subjected to
the condition that the charges are established through an election petition before
the High Court and presented to the President as a High Court Order. Further, the
President will decide upon the disquali cation and the duration of such
disquali cation after obtaining an opinion from the Election Commission.
5. Section 9: disquali es a person who held a o ce under GoI in the past but was
dismissed for corruption or disloyalty to the state
6. Section 10A: Disquali cation for failure to lodge account of election expenses.
7. Section 10A: disquali cation for o ce under government company (in the capital
of which the appropriate government has not less than twenty- ve per cent share.)

3. Disquali cations for voting: under RPA

1. O ence of bribery
2. o ence of undue in uence or personation at an election
3. Promoting enmity between classes in connection with election
4. removal of ballot paper from polling station
5. found guilty of some electoral o ences, while being an o cer in connection with
the election) of RPA 1951
he will be disquali ed for voting at any election for a period of six years from the date of
conviction or from the date on which the order takes e ect.

4. Provisions related to the declaration of assets and liabilities

Section 75A of RPA, 1951 states that every elected candidate for either Houses of
Parliament shall furnish information regarding relating to the movable and immovable
property owned by him, his spouse or his children; the liabilities to any public nancial
institution or to Government within ninety days from the date of subscribing an oath for
taking a seat in Parliament.

5. Provisions related to election expenses

Section 77 of RPA, 1951, every candidate contesting in elections, shall keep a separate
and correct account of all expenditure in connection with the election incurred or
authorised by him.

6. Provision for settlement of disputes

No election shall be called in question except by an election petition presented to the
High Court having jurisdiction of the state involved.
An election petition can either be led by any candidate at such election or by any elector
within forty- ve days from, the date of election of the elected candidate.

Grounds for ling election petition

1. Retired candidate was not quali ed or was disquali ed
2. Corrupt practice committed by returned candidate
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 3. Any nomination has been improperly rejected
4. The result of the election has been materially a ected
1. By improper acceptance of any nomination
2. By any corrupt practice committed in the interest of candidate
3. By non compliance with the provisions of constitution or RPA, 1951

Election petition shall be tried and concluded within 6 months. If high court upholds the
petition, it declares the election of the selected candidate to be void.
Appeal can be made to SC within a period of 30 days.

7. Corrupt practices and electoral o ences

Section 123 describes corrupt practices:

1. Bribery: grati cation to the electors for voting or refraining from voting
2. Undue in uence: on the free exercise of electoral right.
3. Appeal to vote or refrain from voting for any person on the ground of his religion, race,
caste, community or language or the use of, or appeal to religious symbols or the use
of, or appeal to, national symbols
4. The promotion of feelings of enmity or hatred between classes of citizens of India
5. Propagation of practice of sati
6. Publication of false statement in relation to personal character or conduct of any
candidate
7. The hiring or procuring of any vehicle or vessel or the use of such vehicle or vessel for
the free conveyance of any elector
8. Booth capturing

Chapter III of Part VII of RPA, 1951 provides for the following electoral o ences:
1. Promoting Enmity between classes in connection with election
2. Penalty for ling false a davit, concealing information, cases pending etc.
3. Prohibition of public meetings during period of 48 hours ending with hour xed for
conclusion of poll
4. Restriction on publication and dissemination of result of exit polls, etc.
5. Disturbance at election meetings
6. Maintenance of secrecy of voting
7. Prohibition of canvassing in or near polling stations
8. Prohibition of going armed to or near a polling station
And so on.

Di erence between electoral o ences and corrupt practices

Corrupt practices Electoral o ences

Speci ed in RPA, 1951 act Both in IPC and RPA, 1951

Has the e ect of vitiating the whole election, and May not have such fatal bearing on election result
election of candidate will be void

Whole constituency su ers, as it goes without Only person committing the electoral o ence
representation in the legislature su ers

Grievance can only be initiated once the election is Cognisance taken as soon as o ence is committed,
over and through an election petition investigated and tries under CrPC
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 Corrupt practices Electoral o ences

Entails only civil disabilities like disquali cations Also Entails criminal liability apart from civil
disabilities

Model code of conduct

MCC is a set of norms for conduct and behaviour on the part of parties and candidates,
which has originated and evolved with the consensus of political parties.

Implication of applying the model code of conduct

1. Code contains guidelines for general conduct of political parties.
2. Ministers and those holding public o ces are not allowed to combine o cial visits
with electioneering tours.
3. Issue of advertisements at the cost of public exchequer is prohibited.
4. Grant of new scheme cannot be announced.

• It is through such restrictions that the advantage of being in power is blunted and the
contestants get the opportunity to ght on more or less equal terms.

Challenges in the enforcement

1. Emergence of new forms of electoral malpractices like manipulation through media
which is di cult to trace to speci c political parties and candidates.
2. Weakened capacity of the ECI to respond to violations of MCC in the form of weak or
delayed response.
3. Use of third-party contracts for disseminating most of the election-related information
to avoid legal responsibility.
4. Misuse of narrative by the ruling party over sensitive issues such as national security,
disaster management etc, that the ECI observes, do not fall under the ambit of MCC.

Should it be given legal status? Arguments in favour

1. Parliamentary committee on law and justice held that most provisions of MCC are
already contained in various laws and are therefore enforceable like secrecy of voting
and causing enmity among communities.
2. Since election commission claims to have powers to punish political parties through
plenary powers under art 324, backing it with statute will remove the vacuum for ECI
to exercise its power which is residual in nature.
3. It is suggested that the instructions or orders issues by ECI sometimes encroach upon
the legislative powers of parliament. Hence such instructions issued by EC may be
suitably incorporated into RPA, 1951.
4. It will become a legal framework which can be justiciable in the court.
5. Absence of an immediate appeal mechanism against the decision of retiring o cer to
cancel the nomination of the candidate. In this case, the decision can only be
challenged in the High Court after the announcements of election results.

Arguments against
1. The decision making power will go to the Judiciary and thus the swiftness, expedition
and promptness in dealing with the cases of violation of MCC will be gone.
2. The legal codi cation of these norms would be a potential nightmare, exposing the
entire electoral process to needless litigation.
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 3. The Election Commission itself is of the view that although statutory back up to the
code may make it more e ective and strengthen its binding nature, it may complicate
the implementation of the code in the middle of elections.
4. the manner in which violations of MCC have been handled by the Election
Commission with speed and urgency, proves that the code has stood the test of time.
Therefore, it should be left as an established way of enforcing the code.
5. The Department of Legal A airs and the Legislative Department, Ministry of Law and
Justice added that the Model Code of Conduct by its very nomenclature is only a self-
regulatory code.

Landmark judgements on issues around elections

1. An Accused can contest the election but cannot vote:

In Jan chaukidari vs Union of India, Patna high court- upheld by Supreme Court in 2013-
stated all those in lawful police or judicial custody, other than those held in preventive
detention, will forfeit their right to stand for election.

Judgement relied on section 4(d) of RPA, 1951, which says that one of the quali cations
for membership of parliament is that contestant must be an elector. Since Section 62(5) of
the Act prevents those in lawful custody from voting, those in such custody are not
quali ed for membership of legislative bodies.

This was followed by reaction by parliament which passed an amendment to RPA, which
nulli ed the judgment. It added that even if a person is prohibited from voting due to
being in custody, he shall not cease to be an elector.

Analysis
1. SC reasoned that it was reasonable to deny voting rights to convicted prisoners,
under trials and those in police custody, to curb the criminalisation of politics.
2. Practical considerations: additional resources that would be required to grant voting
rights to prisoners. Eg. Infra, deployment of security
3. Prisoner is in prison as a result of his own conduct, and hence cannot claim equal
rights with those who are not in prison.
However
1. It violates the principle of ‘innocent until proven guilty’. We are placing the people who
are accused of an o ence under the same category of those who are already
convicted and not allowing them to vote.

2. MPs, MLA to be Disquali ed on Date of Criminal Conviction

In Lily Thomas v. Union of India, 2013 the Supreme Court declared Section 8 (4) of the
RPA, 1951, (RPA) as unconstitutional.
This section allowed legislators a three-month window to appeal against their conviction,
e ectively delaying their disquali cation until such appeals were exhausted.

The Bench found it unconstitutional that convicted persons could be disquali ed from
contesting elections but could continue to be Members of Parliament and State
Legislatures once elected.

3. Supreme Court refusal to ban politicians facing criminal charges from elections
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 A ve-judge Constitution bench headed by Chief Justice Dipak Misra dismissed a batch
of petitions seeking the disquali cation of politicians from contesting elections once
charges are framed against them.

The court observed that Supreme Court cannot legislate for Parliament reasoning that
they could not add disquali cation of candidates on ling of chargesheet in criminal
cases.

4. Voters’ Right to Know

In Public Interest Foundation vs Union of India, 2020 the Supreme Court directed political
parties to publish criminal antecedents of contesting candidates along with reasons for
elding each one of these candidates, notwithstanding their ‘winnability’.

5. Voter’s Right to Cast Negative Vote and Right to Secrecy

With a view to bringing about purity in elections, the Supreme Court, in PUCL v. Union of
India, 2013 upheld the constitutional right of citizens to cast a negative vote in elections.

The Supreme Court held that a voter could exercise the option of negative voting and
reject all candidates as unworthy of being elected.

6. The VVPAT ruling

Supreme Court in the case Subramanian Swamy vs. Election Commission of India (ECI)
2013 held that VVPAT (Vote Veri able Paper Audit Trial) is “indispensable for free and fair
elections”.

7. Right to vote for under trials

Section 62(5) of RPA, 1951 governing the “right to vote”, stipulates that no person shall
vote in any election if they are con ned in a prison “under a sentence of imprisonment or
transportation or otherwise” or are in the “lawful custody” of the police.

The constitutionality of Section 62(5) of the RPA, 1951 was challenged before the
Supreme Court in Anukul Chandra Pradhan v. Union of India1997.
The Supreme Court took the view that it was reasonable to deny voting rights to
convicted prisoners, undertrials and those in police custody.

Arguments given by court

1. Practical considerations and requirement of additional resources.
2. Prisoner is in prison as a result of his own conduct, and hence cannot claim equal
rights with those who are not in prison.

Arguments against
1. Criminalisation of politics is a larger issue that cannot be handled only by preventing
the undertrials to vote.
2. Practicality and “resource crunch” are not sound justi cation to curb civil liberties.
3. The SC observation contradicts the principle of “innocent until proven guilty”, at the
same time, presume undertrials to be guilty as far as voting rights are concerned.

Other important issues related to ECI and electoral reforms

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Simultaneous elections

There has been a steady discourse regarding the veracity of simultaneous elections to the
national and state legislatures, panchayats and urban local bodies.

Arguments in favour
1. Allows governments to devote four years for governance. If elections are frequent
winning elections becomes the rst priority of all politicians during elections.
2. running an administration and attending to people’s grievances take a back- seat for
politicians and the bureaucracy rules the roost.
3. Vicious circle of continuous elections a ects stability. If local elections are included
there is always an election taking place in our country.
4. Reduce the huge economic burden of frequent elections.
5. Pace of economic development is hampered as Model code of conduct is in
operation wherein new welfare schemes and measures are usually not announced.

Challenges:
1. It is almost impossible to achieve in practice as Assemblies might get dissolved at an
untimely manner due to political realities.
2. According to Article 85 and Article 174, elections to Lok Sabha and Legislative
assemblies have to be held within six months (respectively) of dissolving either of
them. This is not feasible if elections are held only at xed durations. Also, if elections
are not held within six months, it would be a travesty of democracy.
3. Founding fathers of the Constitution envisaged a federal polity of a sui-generis nature.
So, multi-party system with elections is the most fundamental manifestation of this
will of the popular sovereign.
4. Frequent elections bring the politicians back to the voters and enhance the
answerability and accountability of politicians to the public.
5. May mix up issues of local and national issues in the minds of the voters, This may
give a boost to regional and local issues, while national issues can take a set-back.
6. there is a dearth of enough o cials to conduct simultaneous elections throughout the
country in one go

Way forward
Simultaneous elections to Panchayats, assembly and Lok Sabha are desirable however
they are not feasible. To make the election process more transparent, cost e ective,
peaceful and quick, some easily implementable solutions such as Putting cap on election
expenditure, reducing the duration of election process by conducting the elections in one
day.

Umesh Sinha Committee on Section 126 of Representation of the People Act, 1951

In the light of increasing in uence of digital media, the task of maintaining campaign
silence or election silence during last 48 hours before the conclusion of polling is
becoming increasingly onerous.

For the regulation of media platforms, committee recommended that

1. The social media agencies must be asked to label political advertisements to separate
them from other content, and
2. maintain an account of expenditure incurred by political parties/candidates for
advertising on their platforms.
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3. Social media platforms must work with the Election Commission to evolve a
mechanism by which it can ag content violating electoral law and social media sites
can take it down as soon as possible.

State funding of elections

State Funding of elections has been a contested issue when it comes to electoral reforms
related to electoral nancing and funding.

Various committees on the issue:

1. Indrajit Gupta committee: endorsed state funding. However noted that The Committee
noted that at the time of the report the economic situation of the country only suited
partial and not full state funding of elections. It also noted:
1. Firstly, that state funds should be given only to national and state parties allotted a
symbol and not to independent candidates.
2. Secondly, that in the short-term state funding should only be given in kind, in the
form of certain facilities to the recognised political parties and their candidates.
2. 1999 Law commission: concluded that total state funding of elections is “desirable”
so long as political parties are prohibited from taking funds from other sources.
however noted that only partial state funding was possible given the economic
conditions of the country at that time.
3. 2nd ARC Report: The “Ethics in Governance”, a report of the Second Administrative
Reforms Commission (2008) also recommended partial state funding of elections for
the purpose of reducing “illegitimate and unnecessary funding” of elections expenses.

Arguments in favour
1. State funding increases transparency inside the party and also in candidate nance,
as certain restrictions can be put along with state funding
2. State funding can limit the in uence of wealthy people and rich ma as, thereby
purifying the election process
3. Through state funding the demand for internal democracy in party, women
representations, representations of weaker section can be encouraged.
4. In India, with high level of poverty, ordinary citizens cannot be expected to contribute
much to the political parties. Therefore, the parties depend upon funding by corporate
and rich individuals.

Arguments against
1. Through state funding of elections the tax payers are forced to support even those
political parties or candidates, whose view they do not subscribe to.
2. State funding encourages status quo that keeps the established party or candidate in
power and makes it di cult for the new parties.
3. State funding increases the distance between political leaders and ordinary citizens as
the parties do not depend on the citizens for mobilization of party fund.
4. Political parties tend to become organs of the state, rather than being parts of the civil
society

Opinion and exit polls

An exit poll is a post-election survey conducted immediately after people have voted. EC
bans exit polls from the time the poll begins till half-an-hour after the polling ends. Exit
poll results cannot be published till the last round of elections is over.
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 An opinion poll is a pre-election survey to gather voters’ views on a range of election-
related issues. Results of any opinion poll or any other poll survey in any electronic media
is prohibited during the period 48 hours.

In 2010, restrictions were imposed only on exit polls through the introduction of Section
126(A) in RPA, 1951.

Signi cance
1. Opinion and Exit polls are useful to gain insight into what people think of the policies
and programmes of the government.
2. Polls also help people get aware about their rights. It helps the voters decide better
thus enhancing our deliberative democracy.

Issues
1. It is alleged that both opinion polls and exit polls hinder the conduct of free and fair
elections.
2. In uence of Paid news has further increased the resistance to such polls.
3. Some restrictions should be placed on the Opinion Polls so as to ensure more
transparency in methodology & sample size for more objective results.

Way forward
1. An independent regulator that could set up standards of professional integrity for all
poll research and accredit the agencies better scrutiny.
2. The regulator can also be empowered to setup standards on parameters of survey like
sample size, sampling methodology, timeframe, quality of training of research sta
etc.

Criminalisation of Politics

Means that the criminals entering the politics and contesting elections and even getting to
the parliament.

Reasons why criminalisation of politics still exists in India

1. Corruption: evident link between criminality and probability of winning is reinforced
when winnability of a candidate is looked into.
2. Vote bank: The political parties and independent candidates have astronomical
expenditure for vote buying and other illegitimate purposes through these criminals.
3. Denial of Justice and rule of law: Toothless laws against convicted criminals standing
for elections further encourage this process.
1. Constitution does not specify what disquali es an individual from contesting an
election to a legislature.
2. With cases dragging in courts for years, a disquali cation based on conviction
becomes ine ective. Low conviction rates in such cases compounds the problem;
voters don’t mind electing candidates facing criminal cases.
4. Lack of governance: The root of the problem lies in the country’s poor governance
capacity.
5. Scarce state capacity: The scarcity of state capacity is the reason for the public
preferring ‘strongmen’ who can employ the required pulls and triggers to get things
done.

Landmark judgments regarding criminalisation of politics

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 1. Lily Thomas vs GoI case: SC ruled that any MP or MLA who is convicted of a crime
and awarded a minimum of 2 year imprisonment, losses membership of the house
with immediate e ect, ie section 8(4) was declared unconstitutional.
2. In AOR and PUCL vs UOI, SC upheld a high court order to obtain and disclose the
background information relating to candidates.

Challenges in tackling the issue

1. Election Commission has limited powers to legislate on such laws
2. Public opinion too is not rm on the issue
3. survey found that opinion was divided when people were asked whether they would
vote for an honest candidate who may not get their work done, or a tainted candidate
who could get their work done.
4. In the present criminal justice system, it takes years, probably decades, to complete
the trial against a politician.
5. Those with political in uence have taken full advantage by delaying hearings,
obtaining repeated adjournments and ling innumerable interlocutory petitions to stall
any progress.

Way forward
1. Law panel report bats for using the time of the framing of charges to initiate
disquali cation as an appropriate measure to curb the criminalization of politics.
2. Political parties should themselves refuse tickets to the tainted
3. The RPA Act should be amended to debar persons against whom cases of a heinous
nature are pending from contesting elections.
4. Bringing greater transparency in campaign nancing is going to make it less attractive
for political parties to involve gangsters
5. The Election Commission of India (ECI) should have the power to audit the nancial
accounts of political parties, or political parties’ nances should be brought under the
right to information (RTI) law
6. Fast-track courts are necessary because politicians are able to delay the judicial
process and serve for decades before prosecution.
7. Political parties will have to be encouraged to have stronger inner party democracy
8. And nally, our judicial system will have to be overhauled drastically to ensure that
justice is dispensed swiftly in all cases.

Political parties under RTI

The move to place political parties under RTI had drawn up sharp protests from all major
parties. The issue is still under debate and political parties still don’t come under RTI.
Why
1. RTI act section 2 includes owned, controlled or substantially nanced bodies by
Government under its ambit. As political parties are allotted government land at
subsidised rates and are allotted free time on AIR and Doordarshan among other things,
they must be covered under the RTI act.
2. Political parties are the direct link between the government and the citizens. If we
expect transparency from the government there must be a similar expectation from the
political parties.
3. Although parties have to declare to the Election Commission all donations in excess of
Rs. 2000 they receive, they resort to under reporting to evade this clause. So inclusion of
them can curb black money and can reduce in uence of money in elections.
4. Public respect for political parties is already at an all time low. This will increase the
credibility of parties and increase voters con dence in them.
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 5. It would also strengthen internal democracy among the parties as parties try to project
themselves more democratic than others.
6. It can give morale boost for all the NGOs to disclose their revenues etc.
Why not
1. Political rivals with malicious intentions would le RTI applications, thereby adversely
a ecting the functioning of the parties.
2. Political parties do not maintain the documentation needed to respond to wide ranging
RTI queries and they now need to establish a new organisation only to ful l the RTI
obligations.
3. According to the political parties, divulging certain details under the RTI act may distort
the entire process of internal democracy of the party.
4. RTI will adversely a ect cash contributions or will further discourage parties from
reporting them.
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