Polity for Prelims and Mains Exam

Well defined Notes for Polity specifically designed by PSC Toppers and Guides for PSC Prelims and Mains Exam

Principles of Natural justice & Rule of Law

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Rule of Law may be defined as a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

In Indian Constitution, Rule of Law has been adopted under the Preamble where the ideals of justice, liberty and equality are enshrined. The Constitution has been made the supreme law of the country and other laws are required to be in conformity with the Constitution. Nonetheless, the courts have the onus to declare any law invalid, which is found in violation of any provision of the Constitution.

Principles of natural justice are firmly grounded in Articles 14 and 21 of the Constitution. The two basic principles of natural justice are – Nemo judex in causa sua – No one should be made a judge in his own cause or – Rule against Bias

Natural Justice is another name of commonsense Justice.Rules of Natural Justice are not codified canons but they are principles ingrained into the conscience of man.  Natural Justice is the administration of Justice in a commonsense liberal way. Justice is based substantially on natural Justice is based substantially on natural • ideals and human values. The administration of Justice is to be freed from the narrow and restricted  considerations which are usually associated with a formulated law involving linguistic • technicalities and grammatical niceties. • ?It is the substance of Justice which has to determine its form.

The expressions “Natural Justice” and “Legal Justice” do not present a water tight classification.  It is the substance of Justice which is to be secured by both and when ever legal .Justice fails to achieve this solemn purpose, natural Justice is called in aid of legal .Natural Justice relieves legal Justice from unnecessary technicality, grammatical  pedantry or logical prevarication. It supplies the omissions of a formulated law.

Determinants and Nature of Indian Politics, Election and Voting Behavior, Coalition Governments.

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Determinants and Nature of Indian Politics

In a multilingual,multi cultural democratic set up like India,voting behaviour is dictated by a plethora of complex issues.From time and again it has been proved that political parties in India can not rely upon any particular factor to win the trust and confidence of the voters.Such is the complex nature of the voting behavior that even the best of the psephologists or social scientists or even genius politicians failed to read public psychology on numerous occasions.

determinants of the voting behaviour in India:

 

  • Race: Sometimes and in some regions, yet race plays a role like in North Eastern states, it will be very tough to get elected by any south Indian and so is the case with south India also.
  • Religion: It is as fact that religion plays a important role especially where both the followers Hindus and Muslims are situated in a constituency. This gave a support to Religion based parties. Though in a secular state like India, it must not be used.
  • Casteism : This is the biggest determinants of the voting behaviour for the past five decades in India. This is the most ancient and widely used factor. Parties give tickets to the candidate of a caste which has the majority in the constituencies.
  • Regionalism: After 1990s it is getting more and more importance. Demanding separate region, promoting region specific interest, claiming representation to end exploitation etc. are the main emerging causes from regionalism.
  • Language: Language does not play a big role but at national level but it is deciding factor at state level politics
  • Charismatic Leaders: Leaders like J. L. Nehru, Indira Gandhi, Jai Prakash Narayan, attract a number of voters due to their personal influence of behaviour, look, style, and ideology.
  • Ideology: Some political ideologies play a deciding factor like democrats, socialism and communism.
  • Development: Development factor is practised in developed democracy. It is a sign of old and smooth running democratic system. It is expected that this is the main and desirable factor that should play a big role in determining the voting behaviour.
  • Incidences: Some important and sudden events and incidences can change the equations in politics.
  • Cadre: Some of the voters are emotionally attached to the political parties and they vote in the name of the party only.
  • Individuals: The ability and speciality and of course popularity of the individuals as the candidate also influence the voters.

Election System

Introduction

 

India is a constitutional democracy with a parliamentary system of government, and at the heart of the system is a commitment to hold regular, free and fair elections. These elections determine the composition of the government, the membership of the two houses of parliament, the state and union territory legislative assemblies, and the Presidency and vice-presidency.

 

Elections are conducted according to the constitutional provisions, supplemented by laws made by Parliament. The major laws are Representation of the People Act, 1950, which mainly deals with the preparation and revision of electoral rolls, the Representation of the People Act, 1951 which deals, in detail, with all aspects of conduct of elections and post election disputes. The Supreme Court of India has held that where the enacted laws are silent or make insufficient provision to deal with a given situation in the conduct of elections, the Election Commission has the residuary powers under the Constitution to act in an appropriate manner.

 

Indian Elections -Scale of Operation

 

Elections in India are events involving political mobilisation and organisational complexity on an amazing scale. In the 2004 election to Lok Sabha there were 1351 candidates from 6 National parties, 801 candidates from 36 State parties, 898 candidates fromofficially recognised parties and 2385 Independent candidates. A total number of 38,99,48,330 people voted out of total electorate size of 67,14,87,930. The Election Commission employed almost 4 million people to run the election. A vast number of civilian police and security forces were deployed to ensure that the elections were carried out peacefully.

 

Conduct of General Elections in India for electing a new Lower House of Parliament (Lok Sabha) involves management of the largest event in the world. The electorate exceeds 670 million electors in about 700000 polling stations spread across widely varying geographic and climatic zones. Polling stations are located in the snow-clad mountains in the Himalayas, the deserts of the Rajasthan and in sparsely populated islands in the Indian Ocean.

 

Constituencies & Reservation of Seats

 

The country has been divided into 543 Parliamentary Constituencies, each of which returns one MP to the Lok Sabha, the lower house of the Parliament. The size and shape of the parliamentary constituencies are determined by an independent Delimitation Commission, which aims to create constituencies which have roughly the same population, subject to geographical considerations and the boundaries of the states and administrative areas.

 

 

 

How Constituency Boundaries are drawn up

 

Delimitation is the redrawing of the boundaries of parliamentary or assembly constituencies to make sure that there are, as near as practicable, the same number of people in each constituency. In India boundaries are meant to be examined after the ten-yearly census to reflect changes in population, for which Parliament by law establishes an independent Delimitation Commission, made up of the Chief Election Commissioner and two judges or ex-judges from the Supreme Court or High Court. However, under a constitutional amendment of 1976, delimitation was suspended until after the census of 2001, ostensibly so that states’ family-planning programs would not affect their political representation in the Lok Sabha and Vidhan Sabhas. This has led to wide discrepancies in the size of constituencies, with the largest having over 25,00,000 electors, and the smallest less than 50,000.Delimitation exercise, with 2001 census data released on 31st December 2003, is now under process.

 

Reservation of Seats

 

The Constitution puts a limit on the size of the Lok Sabha of 550 elected members, apart from two members who can be nominated by the President to represent the Anglo-Indian community. There are also provisions to ensure the representation of scheduled castes and scheduled tribes, with reserved constituencies where only candidates from these communities can stand for election.

 

System of Election

 

Elections to the Lok Sabha are carried out using a first-past-the-post electoral system. The country is split up into separate geographical areas, known as constituencies, and the electors can cast one vote each for a candidate (although most candidates stand as independents, most successful candidates stand as members of political parties), the winner being the candidate who gets the maximum votes.

 

 

 

Parliament

 

The Parliament of the Union consists of the President, the Lok Sabha (House of the People) and the Rajya Sabha (Council of States). The President is the head of state, and he appoints the Prime Minister, who runs the government, according to the political composition of the Lok Sabha. Although the government is headed by a Prime Minister, the Cabinet is the central decision making body of the government. Members of more than one party can make up a government, and although the governing parties may be a minority in the Lok Sabha, they can only govern as long as they have the confidence of a majority of MPs, the members of the Lok Sabha. As well as being the body, which determines whom, makes up the government, the Lok Sabha is the main legislative body, along with the Rajya Sabha.

 

Rajya Sabha – The Council of States

 

The members of the Rajya Sabha are elected indirectly, rather than by the citizens at large. Rajya Sabha members are elected by each state Vidhan Sabha using the single transferable vote system. Unlike most federal systems, the number of members returned by each state is roughly in proportion to their population. At present there are 233 members of the Rajya Sabha elected by the Vidhan Sabhas, and there are also twelve members nominated by the President as representatives of literature, science, art and social services. Rajya Sabha members can serve for six years, and elections are staggered, with one third of the assembly being elected every 2 years.

 

Nominated members

 

The president can nominate 2 members of the Lok Sabha if it is felt that the representation of the Anglo-Indian community is inadequate, and 12 members of the Rajya Sabha, to represent literature, science, art and the social services.

 

 

 

State Assemblies

 

India is a federal country, and the Constitution gives the states and union territories significant control over their own government. The Vidhan Sabhas (legislative assemblies) are directly elected bodies set up to carrying out the administration of the government in the 28 States of India. In some states there is a bicameral organisation of legislatures, with both an upper and Lower House. Two of the seven Union Territories viz., the National Capital Territory of Delhi and Pondicherry, have also legislative assemblies.

 

Elections to the Vidhan Sabhas are carried out in the same manner as for the Lok Sabha election, with the states and union territories divided into single-member constituencies, and the first-past-the-post electoral system used. The assemblies range in size, according to population. The largest Vidhan Sabha is for Uttar Pradesh, with 403 members; the smallest Pondicherry, with 30 members.

 

 

 

President and Vice-President

 

The President is elected by the elected members of the Vidhan Sabhas, Lok Sabha, and Rajya Sabha, and serves for a period of 5 years (although they can stand for re-election). A formula is used to allocate votes so there is a balance between the population of each state and the number of votes assembly members from a state can cast, and to give an equal balance between State Assembly members and National Parliament members. If no candidate receives a majority of votes there is a system by which losing candidates are eliminated from the contest and votes for them transferred to other candidates, until one gain a majority. The Vice President is elected by a direct vote of all members elected and nominated, of the Lok Sabha and Rajya Sabha.

 

Who can vote?

 

The democratic system in India is based on the principle of universal adult suffrage; that any citizen over the age of 18 can vote in an election (before 1989 the age limit was 21). The right to vote is irrespective of caste, creed, religion or gender. Those who are deemed unsound of mind, and people convicted of certain criminal offences are not allowed to vote.

 

The Electoral Roll

 

The electoral roll is a list of all people in the constituency who are registered to vote in Indian Elections. Only those people with their names on the electoral roll are allowed to vote. The electoral roll is normally revised every year to add the names of those who are to turn 18 on the 1st January of that year or have moved into a constituency and to remove the names of those who have died or moved out of a constituency. If you are eligible to vote and are not on the electoral roll, you can apply to the Electoral Registration Officer of the constituency, who will update the register. The updating of the Electoral Roll only stops during an election campaign, after the nominations for candidates have closed.

 

Computerisation of Rolls

 

In 1998 the Commission took a historic decision to computerise the entire electoral rolls of 620 million voters. This work has been completed and now well printed electoral rolls are available. The photo identity card number of the voter has also been printed in the electoral rolls, for cross linking. The printed electoral rolls as well as CDs containing these rolls are available for sale to general public. National and State parties are provided these free of cost after every revision of electoral rolls. Entire country’s rolls are also available on this website.

 

Electors’ Photo Identity Cards (EPIC)

 

In an attempt to improve the accuracy of the electoral roll and prevent electoral fraud, the Election Commission ordered the making ofphoto identity cards for allvoters in the country in Aug, 1993. To take advantage of latest technological innovations, the Commission issued revised guidelines for EPIC Program in May 2000. More than 450 million Identity cards has been distributed till now.

 

Voter Education

 

Voters’ Participation in the democratic and electoral processes is integral to the successful running of any democracy and the very basis of wholesome democratic elections. Recognising this, Election Commission of India, in 2009, formally adopted Voter Education and Electoral participation as an integral part of its election management.

 

 

 

When do elections take place?

 

Elections for the Lok Sabha and every State Legislative Assembly have to take place every five years, unless called earlier. The President can dissolve Lok Sabha and call a general election before five years is up, if the government can no longer command the confidence of the Lok Sabha, and if there is no alternative government available to take over.

 

Governments have found it increasingly difficult to stay in power for the full term of a Lok Sabha in recent times, and so elections have often been held before the five-year limit has been reached. A constitutional amendment passed in 1975, as part of the government declared emergency, postponed the election due to be held in 1976. This amendment was later rescinded, and regular elections resumed in 1977.

 

Holding of regular elections can only be stopped by means of a constitutional amendment and in consultation with the Election Commission, and it is recognised that interruptions of regular elections are acceptable only in extraordinary circumstances.

 

Scheduling the Elections

 

When the five-year limit is up, or the legislature has been dissolved and new elections have been called, the Election Commission puts into effect the machinery for holding an election. The constitution states that there can be no longer than 6 months between the last session of the dissolved Lok Sabha and the recalling of the new House, so elections have to be concluded before then.

 

In a country as huge and diverse as India, finding a period when elections can be held throughout the country is not simple. The Election Commission, which decides the schedule for elections, has to take account of the weather – during winter constituencies may be snow-bound, and during the monsoon access to remote areas restricted -, the agricultural cycle – so that the planting or harvesting of crops is not disrupted, exam schedules – as schools are used as polling stations and teachers employed as election officials, and religious festivals and public holidays. On top of this there are the logistical difficulties that go with holding an election – sending out ballot boxes or EVMs, setting up polling booths, recruiting officials to oversee the elections.

 

The Commission normally announces the schedule of elections in a major Press Conference a few weeks before the formal process is set in motion. The Model Code of Conduct for guidance of candidates and Political Parties immediately comes into effect after such announcement. The formal process for the elections starts with the Notification or Notifications calling upon the electorate to elect Members of a House. As soon as Notifications are issued, Candidates can start filing their nominations in the constituencies from where they wish to contest. These are scrutinised by the Returning Officer of the constituency concerned after the last date for the same is over after about a week. The validly nominated candidates can withdraw from the contest within two days from the date of scrutiny. Contesting candidates get at least two weeks for political campaign before the actual date of poll. On account of the vast magnitude of operations and the massive size of the electorate, polling is held at least on three days for the national elections. A separate date for counting is fixed and the results declared for each constituency by the concerned Returning Officer. The Commission compiles the complete list of Members elected and issues an appropriate Notification for the due Constitution of the House. With this, the process of elections is complete and the President, in case of the Lok Sabha, and the Governors of the concerned States, in case of State Legislatures, can then convene their respective Houses to hold their sessions. The entire process takes between 5 to 8 weeks for the national elections, 4 to 5 weeks for separate elections only for Legislative Assemblies.

 

Who can stand for Election

 

Any Indian citizen who is registered as a voter and is over 25 years of age is allowed to contest elections to the Lok Sabha or State Legislative Assemblies. For the Rajya Sabha the age limit is 30 years.

 

very candidate has to make a deposit of Rs. 10,000/- for Lok Sabha election and 5,000/- for Rajya Sabha or Vidhan Sabha elections, except for candidates from the Scheduled Castes and Scheduled Tribes who pay half of these amounts. The deposit is returned if the candidate receives more than one-sixth of the total number of valid votes polled in the constituency. Nominations must be supported at least by one registered elector of the constituency, in the case of a candidate sponsored by a registered Party and by ten registered electors from the constituency in the case of other candidates. Returning Officers, appointed by the Election Commission, are put in charge to receive nominations of candidates in each constituency, and oversee the formalities of the election.

 

In a number of seats in the Lok Sabha and the Vidhan Sabha, the candidates can only be from either one of the scheduled castes or scheduled tribes. The number of these reserved seats is meant to be approximately in proportion to the number of people from scheduled castes or scheduled tribes in each state. There are currently 79 seats reserved for the scheduled castes and 41 reserved for the scheduled tribes in the Lok Sabha.

 

 

 

Number of Candidates

 

The number of candidates contesting each election steadily increased. In the general election of 1952 the average number of candidates in each constituency was 3.8; by 1991 it had risen to 16.3, and in 1996 stood at 25.6. As it was far too easy for ‘frivolous’ candidates to stand for election, certain remedial measures were taken in August 1996, which included increasing the size of the deposit and making the number of people who have to nominate a candidate larger. The impact of such measures was quite considerable at the elections which were subsequently held.As a result, in 1998 Lok Sabha elections, the number of candidates came down to an average of 8.74 per constituency. In 1999 Lok Sabha elections, it was 8.6, and in 2004 it was 10.

 

Campaign

 

The campaign is the period when the political parties put forward their candidates and arguments with which they hope to persuade people to vote for their candidates and parties. Candidates are given a week to put forward their nominations. These are scrutinised by the Returning Officers and if not found to be in order can be rejected after a summary hearing. Validly nominated candidates can withdraw within two days after nominations have been scrutinised. The official campaign lasts at least two weeks from the drawing up of the list of nominated candidates, and officially ends 48 hours before polling closes.

 

During the election campaign the political parties and contesting candidates are expected to abide by a Model Code of Conduct evolved by the Election Commission on the basis of a consensus among political parties. The model Code lays down broad guidelines as to how the political parties and candidates should conduct themselves during the election campaign. It is intended to maintain the election campaign on healthy lines, avoid clashes and conflicts between political parties or their supporters and to ensure peace and order during the campaign period and thereafter, until the results are declared. The model code also prescribes guidelines for the ruling party either at the Centre or in the State to ensure that a level field in maintained and that no cause is given for any complaint that the ruling party has used its official position for the purposes of its election campaign.

 

Once an election has been called, parties issue manifestos detailing the programmes they wish to implement if elected to government, the strengths of their leaders, and the failures of opposing parties and their leaders. Slogans are used to popularise and identify parties and issues, and pamphlets and posters distributed to the electorate. Rallies and meetings where the candidates try to persuade, cajole and enthuse supporters, and denigrate opponents, are held throughout the constituencies. Personal appeals and promises of reform are made, with candidates travelling the length and breadth of the constituency to try to influence as many potential supporters as possible. Party symbols abound, printed on posters and placards.

 

Polling Days

 

Polling is normally held on a number of different days in different constituencies, to enable the security forces and those monitoring the election to keep law and order and ensure that voting during the election is fair.

 

 

 

Ballot Papers & Symbols

 

After nomination of candidates is complete, a list of competing candidates is prepared by the Returning Officer, and ballot papers are printed. Ballot papers are printed with the names of the candidates (in languages set by the Election Commission) and the symbols allotted to each of the candidates. Candidates of recognised Parties are allotted their Party symbols.

 

How the voting takes place

 

Voting is by secret ballot. Polling stations are usually set up in public institutions, such as schools and community halls. To enable as many electors as possible to vote, the officials of the Election Commission try to ensure that there is a polling station within 2km of every voter, and that no polling stations should have to deal with more than 1500 voters. Each polling station is open for at least 8 hours on the day of the election.

 

On entering the polling station, the elector is checked against the Electoral Roll, and allocated a ballot paper. The elector votes by marking the ballot paper with a rubber stamp on or near the symbol of the candidate of his choice, inside a screened compartment in the polling station. The voter then folds the ballot paper and inserts it in a common ballot box which is kept in full view of the Presiding Officer and polling agents of the candidates. This marking system eliminates the possibility of ballot papers being surreptitiously taken out of the polling station or not being put in the ballot box.

 

Since 1998, the Commission has increasingly used Electronic Voting Machines instead of ballot boxes. In 2003, all state elections and bye elections were held using EVMs. Encouraged by this the Commission took a historic decision to use only EVMs for the Lok Sabha election due in 2004. More than 1 million EVMs were used in this election.

 

Political Parties and Elections

 

Political parties are an established part of modern mass democracy, and the conduct of elections in India is largely dependent on the behaviour of political parties. Although many candidates for Indian elections are independent, the winning candidates for Lok Sabha and Vidhan Sabha elections usually stand as members of political parties, and opinion polls suggest that people tend to vote for a party rather than a particular candidate. Parties offer candidates organisational support, and by offering a broader election campaign, looking at the record of government and putting forward alternative proposals for government, help voters make a choice about how the government is run.

 

 

 

Registration with Election Commission

 

Political parties have to be registered with the Election Commission. The Commission determines whether the party is structured and committed to principles of democracy, secularism and socialism in accordance with the Indian Constitution and would uphold the sovereignty, unity and integrity of India. Parties are expected to hold organisational elections and have a written constitution.

 

Recognition and Reservation of Symbols

 

According to certain criteria, set by the Election Commission regarding the length of political activity and success in elections, parties are categorised by the Commission as National or State parties, or simply declared registered-unrecognised parties. How a party is classified determines a party’s right to certain privileges, such as access to electoral rolls and provision of time for political broadcasts on the state-owned television and radio stations – All India Radio and Doordarshan – and also the important question of the allocation of the party symbol. Party symbols enable illiterate voters to identify the candidate of the party they wish to vote for. National parties are given a symbol that is for their use only, throughout the country. State parties have the sole use of a symbol in the state in which they are recognised as such Registered-unrecognised parties can choose a symbol from a selection of ‘free’ symbols.

 

Limit on poll expenses

 

There are tight legal limits on the amount of money a candidate can spend during the election campaign. Since December 1997, in most Lok Sabha constituencies the limit was Rs 15,00,000/-, although in some States the limit is Rs 6,00,000/- (for Vidhan Sabha elections the highest limit is Rs 6,00,000/-, the lowest Rs 3,00,000/-). Recent amendment in October 2003 has increased these limits. For Lok Sabha seats in bigger states, it is now Rs 25,00,000. In other states and Union Territories, it varies between Rs 10,00,000 to Rs 25,00,000. Similarly, for Assembly seats, in bigger states, it is now Rs 10,00,000, while in other states and Union Territories, it varies between Rs 5,00,000 to Rs 10,00,000. Although supporters of a candidate can spend as much as they like to help out with a campaign, they have to get written permission of the candidate, and whilst parties are allowed to spend as much money on campaigns as they want, recent Supreme Court judgments have said that, unless a political party can specifically account for money spent during the campaign, it will consider any activities as being funded by the candidates and counting towards their election expenses. The accountability imposed on the candidates and parties has curtailed some of the more extravagant campaigning that was previously a part of Indian elections.

 

Free Campaign time on state owned electronic media

 

By Election Commission, all recognised National and State parties have been allowed free access to the state owned electronic media-AIR and Doordarshan- on an extensive scale for their campaigns during elections. The total free time allocated extends over 122 hours on the state owned Television and Radio channels. This is allocated equitably by combining a base limit and additional time linked to poll performance of the party in recent election.

 

 

 

Splits and mergers and anti-defection law

 

Splits, mergers and alliances have frequently disrupted the compositions of political parties. This has led to a number of disputes over which section of a divided party gets to keep the party symbol, and how to classify the resulting parties in terms of national and state parties. The Election Commission has to resolve these disputes, although its decisions can be challenged in the courts.

 

Election Petitions

 

Any elector or candidate can file an election petition if he or she thinks there has been malpractice during the election. An election petition is not an ordinary civil suit, but treated as a contest in which the whole constituency is involved. Election petitions are tried by the High Court of the State involved, and if upheld can even lead to the restaging of the election in that constituency.

 

Supervising Elections, Election Observers

 

The Election Commission appoints a large number of Observers to ensure that the campaign is conducted fairly, and that people are free to vote as they choose. Election expenditure Observers keeps a check on the amount that each candidate and party spends on the election.

 

Counting of Votes

 

After the polling has finished, the votes are counted under the supervision of Returning Officers and Observers appointed by the Election Commission. After the counting of votes is over, the Returning Officer declares the name of the candidate to whom the largest number of votes have been given as the winner, and as having been returned by the constituency to the concerned house.

 

Media Coverage

 

In order to bring as much transparency as possible to the electoral process, the media are encouraged and provided with facilities to cover the election, although subject to maintaining the secrecy of the vote. Media persons are given special passes to enter polling stations to cover the poll process and the counting halls during the actual counting of votes.

Voting Behaviour

Voting is one of the most commonly used terms in contemporary age of democratic politics. The ever increasing popularity of democratic theory and practices has even made this term a household name. In democratic systems, and their number is quite large and ever increasing, each adult citizen uses ‘voting’ as a means for expressing his approval or disapproval of governmental decisions, policies and programmers of various political parties and the qualities of the candidates who are engaged in the struggle to get the status of being the representatives of the people. The study of determinants of electoral behaviour constitutes a very significant area of empirical investigation. Man is a rational creature in the philosophical sense of term; he is not so rational in the realms of his economic or political behaviour. An empirical study of the determinants of electoral behaviour displays the astounding fact that the behaviour of man is influenced by several irrational factors and pressure groups in invoking religius and communal factors, influence of money or charismatic personality of a leader and host of other irrational forces have their definite influence on the minds of the voters. The main purpose of the present study is to focus attention on voting behaviour in India and to highlight the factors that determine the voting behaviour in India.

In India, studies on voting behaviour had been mainly undertaken under the auspices of Indian Council of Social Science Research (ICSSR). Nowadays, however, such studies are done by many governmental institutions (e.g., Institutes of Developmental Studies) and private agencies such as ORG, Chanakya, etc.

It is generally held that in national/state elections only nearly half of the electorate bothers to vote. A large segment of voters do not vote. This fact is often noted and lamented. But there are social scientists like E.M. Lipset (1960) who argue that a low turnout of voters aids the democratic process.

It indicates that there is a general argument on social matters and that people are confident that the outcome of an election will not disturb. A high turnout (as in the case of elections held after emergency), in contrast, is viewed as indicating a high level of conflict that threatens social stability and a possible breakdown of the democratic process.

But other social scientists view this differently. They see the alienated voters as apathetic who do not find elections a solution to the problems that most concern them. For them the present party system offers too little choice, too little change from the status quo.

They feel that almost all parties are guided by their self-interests and not by the interests of common man. People, who are apathetic towards voting, feel they are without power. Directly or indirectly, this feeling is responsible for the low or decreased participation of the citizens in the elections.

The important determinants of voting are social class, occupation, race, ethnicity, age, gender etc. But, in India, generally, voters cast their vote on religion, caste or party lines. Party loyalty is based primarily on emotional basis.

Most people are not well informed about political issues and do not choose a party on the basis of political opinions. Rather they support a party for traditional or emotional reasons—perhaps because their families have always supported that party—and they are then guided by the party’s stand on the issues. In other words, voters are socialized by the political parties to view political issues in a certain way.

Since independence, not only the level of political awareness is constantly rising among all segments of population, the level of identification with political parties or leaders is also increasing. The other factors that play an important part in deciding voting behaviour in India are community, religion and money.

Coalition Government in India

Coalition government is a cabinet of a parliamentary government in which several parties cooperate. Coalition governments are usually formed as no party can individually achieve a majority in the parliament. However, a coalition government may also be created in a time of national difficulty or crisis. If a coalition collapses, a confidence vote is held or a motion of no confidence is taken.

The 1967 elections also initiated the dual era of short-lived coalition govemments and politics of defection. However, the elections broke Congress’s monopoly of power in the states. Congress was replaced not by a single party in any of the states but by a multiplicity of parties and groups and independents. Coalition governments were formed in all opposition-ruled states except in Tamil Nadu. In Punjab, Bihar and U.P., opposition governments included Swatantra, Jan Sangh, BKD, Socialists and CPI. Though CPM did not join these governments, it, too, actively supported them.

Congress too formed coalition governments in some of the states where it had been reduced to a minority, allying with independents and breakaway groups from the opposition parties. Except the DMK government in Tamil Naau and the Swatantra-led government in Orissa, the coalition governments in all the other states, whether formed by Congress or the opposition, proved to be highly unstable and could not stay in power for long. All the coalition governments suffered from constant tensions and internal strains because of the heterogeneity of the partners. These governments would get formed, break up as a result of changing loyalties of MLAs and then are re-formed again.

Parties, including Congress, would topple existing governments, change partners and form new governments. In between governments, a state would sometimes undergo a period of President’s Rule or even mid-term polls, which seldom changed the pattern of seats in the assembly. Thus, from the 1967 general elections to the end of 1970, Bihar had seven governments, U.P. four, Haryana, Madhya Pradesh, Punjab and West Bengal three each and Kerala two governmental changes, with a total of eight spells of President’s Rule in the seven states.

The other important feature of the coalition governments of the period was the beginning of the politics of defection. Many of the governmental changes in the northern states were the result of defections or floor crossings by individual legislators, both party members and independents. Corrupt legislators indulged in horse-trading and freely changed sides, attracted mainly by lure of office or money. In Haryana, where the defection phenomenon was first initiated, defecting legislators began to be called Ay a Ram and Goya Ram (in-coming Ram and out-going Ram). Consequently, except in the case of the two Communist parties and Jan Sangh, party discipline tended to break down. Between 1967 and 1970, nearly 800 assembly members crossed the floor, and nearly 155 of them were rewarded with ministerial offices.

 

 

Railway,Roades And Ports of India

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Railway,Roades And Ports of India

Impact on The Indian economy

The Indian Railways contributes to India’s economic development, accounting for about one per cent of the GNP and the backbone of freight needs of the core sector. It accounts for six per cent of the total employment in the organised sector directly and an additional 2.5 per cent indirectly through its dependent organisations.

Road transport is the second important mode of transport in India. It covers every corner of the country which the railway transport even could not cover. Road transport provides the basic infrastructural facilities to both the agricultural and industrial sector of the country.

Some of the important socio- economic benefits of ports are:

 

  • Fuels economic development – They are important links of hinterlands to points overseas. They facilitate movement of goods to and from hinterland. They increase international trade ( both exports and import).

 

  • Development of cities – Most of the world’s major cities are port cities. Ports spur the economic activities around them like banking, finance, Insurance, logistic etc.

 

  • Increase in Employment  –Ports increase employment both directly and indirectly. Direct employment refers to employment in port related activities. Indirect employment increases due to increased industrialization and increase in other services like banking and insurance.

 

  • Relatively Environment friendly –When compared to other transportation systems, railway transportation requires twice as much energy consumption, while road transportation requires ten times as much as sea conveyance.

 

  • Increase world Economic Integration –Globalization has been partially successful due to cheap transportation facilitated by ports.

 

  • Development of Infrastructure – Increase the economic activity between hinterland and ports lead to development of infrastructure including railways, roads & inland waterways.

 

Indian Railway

Introduction

Indian Railways is one of the world’s largest railway network consists of freight, passengers, tourist, Suburban rail systems, toy train and luxury trains. IR has 4,337 operating railway stations,operates on a multi-gauge network of broad, metre and narrow gauges. Indian Railways is divided into 16 zones and Locomotives are consist of electric and diesel locomotives.

  1. Project Planning and Implementation
  2. Indian Railways entered the Billion Club in freight loading in 2012-13 by achieving 1,008 million tonnes of originating loading. The loading target fixed for 2014-15 is 1,105 million tonnes which is 4.9% higher than the achievement of 2013-14. The XIIth Plan projections of freight loading in the terminal year of the Plan (2016-17) are 1,405 million tonnes.
  3. Indian Railways carried 8,425.6 million passengers in 2013-14 which is about 1,430 million higher than the population of the world put together. The annual target for passenger traffic in 2014-15 is 8,645 million, which is 2.6% higher than in 2013-14. The XIIth Plan target is 11,710 million passengers in the terminal year of the Plan.

The Challenges

  1. As the growth in the economy picks up in the years to come, IR will have a challenging task ahead because of line and terminal capacity constraints in transporting the incremental traffic. Therefore, there is need for significant investment in the network, especially the HDN routes and its feeder and other important routes

 

2.There is a large shelf of pending projects which is estimated at Rs. 4,91,510 crore on the basis of originally estimated costs Of these, fund requirement for the prioritized works such as doubling, new lines, gauge conversion, traffic facilities, signal & telecom works, workshops and electrification is estimated at Rs 2,08,054 crore

Budget 2017

  1. A Rail safety fund with a corpus of Rs 100,000 crore will be created over a period of 5 years

    2. The service charge on rail tickets booked through IRCTC will be withdrawn.

    3. As many as 500 rail stations will be made differently abled-friendly by providing lifts and escalators.

    4. Steps will be taken to launch dedicated trains for pilgrimage and tourism

    5. A new metro rail policy will be announced+. This is expected to open up new jobs for the youth

    6. At least 25 train stations are expected to be awarded during 2017-18

    7. By 2019, all coaches of the Indian railwayswill be fitted with bio-toilets

 

  1. Railways will integrate end to end transport solutions for selected commodities through partnerships

 

  1. Unmanned railway level crossings to be eliminated by 2020

 

  1. A 22% rise in the Railway Budget was announced

 

Structure of IR’s finances:

 

The structure of IR’s finances is such that they are divided into revenue and capital expenditures.While revenue expenditure takes care of the day to day and operational working expenses, inclusive of debt servicing and dividend payment, capital expenditures take care of IR’s investments inclusive of repair and renewals. There are three streams that comprise capital expenditure; these are Gross Budgetary Support from the Ministry of Finance, internal generation of resources and leasing from IRFC.

Indian Roads

Introduction

 

India has the second largest road network across the world at 4.7 million km. This road network transports more than 60 per cent of all goods in the country and 85 per cent of India’s total passenger traffic. Road transportation has gradually increased over the years with the improvement in connectivity between cities, towns and villages in the country.

 

Key Investments/Developments

1.The National Highways and Infrastructure Development Corporation (NHIDCL) has been           awarded a contract to build five all-weather access tunnels worth Rs 23,000 crore (US$ 3.57 billion) in Jammu and Kashmir by 2024.

2.Abertis Infraestructuras SA, a Spanish infrastructure firm, has agreed to buy two toll road assets in operation in South India from Macquarie Group for Rs 1,000 crore(US$ 150 million) to scale up its presence in India

Ports of India

 

Introduction

 

The nine coastal Indian states Gujarat, Maharashtra, Goa, Karnataka, Kerala, Tamil Nadu, Andhra Pradesh, Orissa and  West Bengal are home to all major and minor ports of India. The long coastline of India forms one of the biggest piece of land into a body of water,These twelve major Indian Ports are handle a large volume of cargo traffic and container traffic. There are total 13 major sea ports of India,out of 12 are government and one, Ennore port of Chennai is the corporate one. Ennore Port is one of the major port of India located at Coromandel Coast of Tamil Nadu state along with Kakinada Port and private Krishnapatnam Port and Mundra Port

 

 

 

Key Policy Development

 

1:No approval required for foreign equity up to 51 per cent in projects providing supporting

services to water transport

 

2:Automatic approval of foreign equity up to 100 per cent in construction and maintenance of ports and harbours. However, the proposal needs to be referred to FIPB for investments exceeding Rs 15 billion.

 

3: Open tenders to be invited for private sector participation on build-operate-transfer (BOT) basis

 

4: Permission granted for formation of joint ventures between Major Ports and foreign ports, Major Ports and Non-Major Ports, and Major Ports and companies

 

Challenges:

  1. Geograhical: Heavy silting as seen in riverine ports like Haldia.
  2. Technological: Inadequate dredging capacities. Poor mechanization and manual handling of critical processes Eg in Paradip port
  3. Infrastructural: Congestion of roads connecting the port leading to time delays as seen in JLN port Underutilization of physical infrastructure of the ports Eg in Cochin port.
  4. Policy and regulatory issues: Currently the ports operate on “Trust Model” where government is the owner and operator of the port. Non-uniform tariff structure (TAMP) which makes some ports uncompetitive High turnaround time is as much as 3-4 days compared to average time of 6-7hrs in other developed ports because of cumbersome documentation and clearance.

 

 

Parliamentary Committees

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The functions of Parliament are not only varied in nature, but considerable in volume. The time at its disposal is limited. It cannot make very detailed scrutiny of all legislative and other matters that come up before it. A good deal of Parliamentary business is, therefore, transacted in the committees.These are committees, with MPs as members, for specialized work on behalf of the entire Parliament.

Parliamentary Committees are of two kinds: Ad hoc Committees and the Standing Committees. Ad hoc Committees are appointed for a specific purpose and they cease to exist when they finish the task assigned to them and submit a report. The principal Ad hoc Committees are the Select and Joint Committees on Bills. Others like the Railway Convention Committee, the Committees on the Draft Five Year Plans and the Hindi Equivalents Committee were appointed for specific purposes. Apart from the Ad hoc Committees, each House of Parliament has Standing Committees like the Business Advisory Committee, the Committee on Petitions, the Committee of Privileges and the Rules Committee, etc.

The Estimates Committee reports on ‘what economies, improvements in organisation, efficiency or administrative reform consistent with policy underlying the estimates’ may be effected. It also examines whether the money is well laid out within limits of the policy implied in the estimates and suggests the form in which estimates shall be presented to Parliament.

The Public Accounts Committee scrutinises appropriation and finance accounts of Government and reports of the Comptroller and Auditor-General. It ensures that public money is spent in accordance with Parliament’s decision and calls attention to cases of waste, extravagance, loss or nugatory expenditure.

The Committee on Public Undertakings examines reports of the Comptroller and Auditor-General, if any. It also examines whether public undertakings are being run efficiently and managed in accordance with sound business principles and prudent commercial practices.

The Rules Committee of the Lok Sabha recommended setting-up of 17 Department Related Standing Committees (DRSCs). Accordingly, 17 Department Related Standing Committees were set up on 8 April 1993. In July 2004, rules were amended to provide for the constitution of seven more such committees, thus raising the number of DRSCs from 17 to 24. The functions of these Committees are:

to consider the Demands for Grants of various Ministries/Departments of Government of India and make reports to the Houses;

to examine such Bills as are referred to the Committee by the Chairman, Rajya Sabha or the Speaker, Lok Sabha, as the case may be, and make reports thereon;

to consider Annual Reports of ministries/departments and make reports thereon; and

to consider policy documents presented to the Houses, if referred to the Committee by the Chairman, Rajya Sabha or the Speaker, Lok Sabha, as the case may be, and make reports thereon.

Other Standing Committees in each House, divided in terms of their functions, are

Committees to Inquire:

Committee on Petitions examines petitions on bills and on matters of general public interest and also entertains representations on matters concerning subjects in the Union List; and

Committee of Privileges examines any question of privilege referred to it by the House or Speaker/Chairman;

Committees to Scrutinise:

Committee on Government Assurances keeps track of all the assurances, promises, undertakings, etc., given by Ministers in the House and pursues them till they are implemented;

Committee on Subordinate Legislation scrutinises and reports to the House whether the power to make regulations, rules, sub-rules, bye-laws, etc., conferred by the Constitution or Statutes is being properly exercised by the delegated authorities; and

Committee on Papers Laid on the Table examines all papers laid on the table of the House by Ministers, other than statutory notifications and orders which come within the purview of the Committee on Subordinate Legislation, to see whether there has been compliance with the provisions of the Constitution, Act, rule or regulation under which the paper has been laid;

Committees relating to the day-today business of the House:

Business Advisory Committee recommends allocation of time for items of Government and other business to be brought before the Houses;

Committee on Private Members’ Bills and Resolutions of the Lok Sabha classifies and allocates time to Bills introduced by private members, recommends allocation of time for discussion on private members’ resolutions and examines Constitution amendment bills before their introduction by private members in the Lok Sabha. The Rajya Sabha does not have such a committee. It is the Business Advisory Committee of that House which recommends allocation of time for discussion on stage or stages of private members’ bills and resolutions;

Rules Committee considers matters of procedure and conduct of business in the House and recommends amendments or additions to the Rules; and

Committee on Absence of Members from the Sittings of the House of the Lok Sabha considers all applications from members for leave or absence from sittings of the House. There is no such Committee in the Rajya Sabha. Applications from members for leave or absence are considered by the House itself;

Committee on the Welfare of Scheduled Castes and Scheduled Tribes, on which members from both Houses serve, considers all matters relating to the welfare of Scheduled Castes and Scheduled Tribes which come within the purview of the Union Government and keeps a watch whether constitutional safeguards in respect of these classes are properly implemented;

General Purposes Committee considers and advises Speaker/Chairman on matters concerning affairs of the House, which do not appropriately fall within the purview of any other Parliamentary Committee; and

House Committee deals with residential accommodation and other amenities for members;

Joint Committee on Salaries and Allowances of Members of Parliament, constituted under the Salary, Allowances and Pension of Members of Parliament Act, 1954, apart from framing rules for regulating payment of salary, allowances and pension to Members of Parliament, also frames rules in respect of amenities like medical, housing, telephone, postal, constituency and secretarial facility;

Joint Committee on Offices of Profit examines the composition and character of committees and other bodies appointed by the Central and State governments and Union Territories Administrations and recommends what offices ought to or ought not to disqualify a person from being chosen as a member of either House of Parliament;

The Library Committee consisting of members from both Houses, considers matters concerning the Library of Parliament;

Committee on Empowerment of Women with members from both the Houses was constituted with a view to securing, among other things, status, dignity and equality for women in all fields;

The Ethics Committee of the Rajya Sabha and the Lok Sabha.

Salient Features of Indian Constitution

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  • Lengthiest written Constitution: Originally our constitution contained 395 articles divided in 22 parts and 8 schedules. Constitution has been amended 98 times. Currently there are 25 Parts, 12 Schedules, and 448 Articles. These figures show our constitution as the most comprehensive constitution in the world. (British have no written constitution and Constitution of USA had originally only 7 articles)
  • Starts with a Preamble: It gives an insight into the Philosophy of the Constitution.
  • Drawn from different sources: fundamental rights from USA, bicameralism from UK, Fundamental duties from USSR etc,
  • Blend of Rigidity and Flexibility: making Law is quite flexible and easy in comparison to amending a law.
  • Sovereignty of the Country: managing internal and external affairs freely without any external forces.
  • Democratic state: governing power is derived from the people by means of elected representatives of the people.
  • Republic: India does not have a hereditary post of Head of the State. The Head of the state in India is President and he / she is elected.
  • Socialist State: Indian socialism is democratic socialism. The goals of the socialism are to be realized through democratic means.
  • Secular state: India is secular country. Here No religion is a state religion. The constitution provides equal treatment to all religions.
  • Parliamentary Form of Government: Westminster model of government. Presence of nominal and real executives, majority party rule, collective responsibility of executive to legislature, dissolution of lower house, prime minister has crucial and important role.
  • A blend of Federal and Unitary System: there are separate governments in the Union and States and there is division of power. Unitary features: Strong centre. Single Citizenship, single constitution for both the centre and states, emergency provisions, all India services. India is also quasi-federal as constitution describes India as union of states. States cannot unjoin as well as there is no agreement by states. We have union as well as state lists.
  • Integrated and independent Judiciary: The states have high courts but the verdicts of these courts are subject to appeal to the Supreme Court. The Constitution has made the High Courts subordinate to the Supreme Court.
  • Universal Adult Franchise: Every citizen who is above 18 years has a Voting Right without any discrimination.
  • Three tier government structure: union, state and panchayats.
  • Synthesis of parliamentary sovereignty and judicial supremacy: judicial review of Supreme Court by procedure established by law. Also, parliament can amend major portion of constitution.
  • Fundamental rights: to promote political democracy. Enforceable by courts for violation. They are Justiciable in nature.
  • Fundamental duties: to respect constitution; to promote national unity, integrity, sovereignty; to preserve rich cultural heritage and promote common brotherhood. They are not justiciable in nature.
  • Directive principles of state policy: socialistic, liberal and gandhian meant for promoting ideal social and economic democracy. To establish welfare state. It is the duty of state to apply these in governance. They are not justiciable.
  • Independent bodies: constitution not only provides legislative, executive and judicial organs of government (state and centre) but also has independent election commission, CAG, UPSC, SPSC with security of tenure, service conditions.

 

Public Interest Litigation

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“Public interest Litigation”,is a litigation filed in a court of law, for the protection of “Public Interest” , such as pollution, Terrorism, Road safety, constructional hazards etc. Article 32 of the Indian Constitution contains the tool which directly joins the public with the judiciary. Public Interest Litigation is not mentioned in any constitution or a law of the land. It has been interpreted by judges to consider the intent of public at large.

The origin and evolution of Public Interest Litigation in India emanated from realization of constitutional obligation by the Judiciary towards the vast sections of the society – the poor and the marginalized sections of the society. Prior to 1980s the aggrieved party could personally knock the doors of justice and seek remedy for his grievance and any other person who was not personally affected could not knock the doors of justice as a proxy for the victim or the aggrieved party. In other words, only the affected parties had the locus standi (standing required in law) to file a case and continue the litigation and the non-affected persons had no locus standi to do so. And as a result, there was hardly any link between the rights guaranteed by the Constitution of Indian Union and the laws made by the legislature on the one hand and the vast majority of illiterate citizens on the other.

Revolution in the PIL movement was brought by the Justice P.N. Bhagawati in the case of S.P. Gupta v. Union of India. In this case it was held that “any member of the public or social action group acting bonafide” can invoke the Writ Jurisdiction of the High Courts or the Supreme Court seeking redressal against violation of a legal or constitutional rights of persons who due to social or economic or any other disability cannot approach the Court. By this judgment PIL became a potent weapon for the enforcement of “public duties” where executed in action or misdeed resulted in public injury. And as a result any citizen of India or any consumer groups or social action groups can now approach the apex court of the country seeking legal remedies in all cases where the interests of general public or a section of public are at stake.

Judicial Review

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The Judiciary plays a very important role as a protector of the constitutional values that the founding fathers have given us. They try to undo the harm that is being done by the legislature and the executive and also they try to provide every citizen what has been promised by the Constitution under the Directive Principles of State Policy. All this is possible thanks to the power of judicial review.

 

All this is not achieved in a day it took 50 long years for where we are right now, if one thinks that it is has been a roller coaster ride without any hindrances they are wrong judiciary has been facing the brunt of many politicians, technocrats, academicians, lawyers etc. Few of them being genuine concerns, and among one of them is the aspect of corruption and power of criminal contempt. In this paper I would try to highlight the ups and downs of this greatest institution in India.

 

 

 

The rule of law is the bedrock of democracy, and the primary responsibility for implementation of the rule of law lies with the judiciary.1 This is now a basic feature of every constitution, which cannot be altered even by the exercise of new powers from parliament. It is the significance of judicial review, to ensure that democracy is inclusive and that there is accountability of everyone who wields or exercises public power. As Edmund Burke said: “all persons in positions of power ought to be strongly and lawfully impressed with an idea that “they act in trust,” and must account for their conduct to one great master, to those in whom the political sovereignty rests, the people”.2

 

 

 

India opted for parliamentary form of democracy, where every section is involved in policy-making, and decision taking, so that every point of view is reflected and there is a fair representation of every section of the people in every such body. In this kind of inclusive democracy, the judiciary has a very important role to play. That is the concept of accountability in any republican democracy, and this basic theme has to be remembered by everybody exercising public power, irrespective of the extra expressed expositions in the constitution.3

 

 

 

The principle of judicial review became an essential feature of written Constitutions of many countries. Seervai in his book Constitutional Law of India noted that the principle of judicial review is a familiar feature of the Constitutions of Canada, Australia and India, though the doctrine of Separation of Powers has no place in strict sense in Indian Constitution, but the functions of different organs of the Government have been sufficiently differentiated, so that one organ of the Government could not usurp the functions of another.4

 

The power of judicial review has in itself the concept of separation of powers an essential component of the rule of law, which is a basic feature of the Indian Constitution. Every State action has to be tested on the anvil of rule of law and that exercise is performed, when occasion arises by the reason of a doubt raised in that behalf, by the courts. The power of Judicial Review is incorporated in Articles 226 and 227 of the Constitution insofar as the High Courts are concerned. In regard to the Supreme Court Articles 32 and 136 of the Constitution, the judiciary in India has come to control by judicial review every aspect of governmental and public functions.5

 

 

 

Extent of Judicial Review in India:

 

The initial years of the Supreme Court of India saw the adoption of an approach characterised by caution and circumspection. Being steeped in the British tradition of limited judicial review, the Court generally adopted a pro-legislature stance. This is evident form the rulings such as A.K. Gopalan, but however it did not take long for judges to break their shackles and this led to a series of right to property cases in which the judiciary was loggerhead with the parliament. The nation witnessed a series of events where a decision of the Supreme Court was followed by a legislation nullifying its effect, followed by another decision reaffirming the earlier position, and so on. The struggle between the two wings of government continued on other issues such as the power of amending the Constitution.6 During this era, the Legislature sought to bring forth people-oriented socialist measures which when in conflict with fundamental rights were frustrated on the upholding of the fundamental rights of individuals by the Supreme Court. At the time, an effort was made to project the Supreme Court as being concerned only with the interests of propertied classes and being insensitive to the needs of the masses. Between 1950 and 1975, the Indian Supreme Court had held a mere one hundred Union and State laws, in whole or in part, to be unconstitutional.

 

After the period of emergency the judiciary was on the receiving end for having delivered a series of judgments which were perceived by many as being violative of the basic human rights of Indian citizens 7and changed the way it looked at the constitution. The Supreme Court said that any legislation is amenable to judicial review, be it momentous amendments8 to the Constitution or drawing up of schemes and bye-laws of municipal bodies which affect the life of a citizen9. Judicial review extends to every governmental or executive action – from high policy matters like the President’s power to issue a proclamation on failure of constitutional machinery in the States like in Bommai case, to the highly discretionary exercise of the prerogative of pardon like in Kehar Singh case  or the right to go abroad as in Satwant Singh case.Judicial review knows no bounds except the restraint of the judges themselves regarding justifiability of an issue in a particular case.

 

Judicial Review of Political Questions:

 

In the initial stages of the judicial adjudication Courts have said that where there is a political question involved it is not amenable to judicial review but slowly this changed, in Keshavananda Bharathi’s case,10 the Court held that, “it is difficult to see how the power of judicial review makes the judiciary supreme in any sense of the word. This power is of paramount importance in a federal constitution…. Judicial Review of constitutional amendments may seem involving the Court in political question, but it is the Court alone which can decide such an issue. The function of Interpretation of a Constitution being thus assigned to the judicial power the State, the question whether the subject of law is within the ambit of one or more powers of the legislature conferred by the constitution would always be a question of interpretation of the Constitution.”

 

Than it was in Special Courts Bill, 1978, In re, case where the majority opined that, “The policy of the Bill and the motive of the mover to ensure a speedy trial of persons holding high public or political office who are alleged to have committed certain crimes during the period of emergency may be political, but the question whether the bill or any provisions are constitutionally invalid is a not a question of a political nature and the court should not refrain from answering it.” What this meant was that though there are political questions involved the validity of any action or legislation can be challenged if it would violate the constitution. This position has been reiterated in many other cases11 and in S.R. Bommai’s case the Court held, “though subjective satisfaction of the President cannot be reviewed but the material on which satisfaction is based open to review…” the court further went on to say that, “The opinion which the President would form on the basis of Governor’s report or otherwise would be based on his political judgment and it is difficult to evolve judicially manageable norms for scrutinizing such political decisions. Therefore, by the very nature of things which would govern the decision-making under Article 356, it is difficult to hold that the decision of the president is justiciable. To do so would be entering the political thicker and questioning the political wisdom which the courts of law must avoid. The temptation to delve into the President’s satisfaction may be great but the courts would be well advised to resist the temptation for want of judicially manageable standards. Therefore, the Court cannot interdict the use of the constitutional power conferred on the President under Article 356 unless the same is shown to be male fide.”

 

As Soli Sorabjee points out, “there is genuine concern about misuse by the Centre of Article 356 on the pretext that the State Government is acting in defiance of the essential features of the Constitution. The real safeguard will be full judicial review extending to an inquiry into the truth and correctness of the basic facts relied upon in support of the action under Article 356 as indicated by Justices Sawant and Kuldip Singh. If in certain cases that entails evaluating the sufficiency of the material, so be it.”

 

What this meant was the judiciary was being cautious about the role it has to play while adjudicating matters of such importance and it is showing a path of restraint that has to be used while deciding such matters so that it does not usurp the powers given by the Constitution by way of the power of review at the same it is also minimizing the misusing of the power given under Article 356 to the President.

 

Judicial Review as a part of the Basic Structure:

 

In the celebrated case of Keshavanda Bharathi v. State of Kerela, the Supreme Court of India the propounded the basic structure doctrine according to which it said the legislature can amend the Constitution, but it should not change the basic structure of the Constitution, The Judges made no attempt to define the basic structure of the Constitution in clear terms. S.M. Sikri, C.J mentioned five basic features:

 

  1. Supremacy of the Constitution. 2. Republican and democratic form of Government. 3. Secular character of the Constitution. 4. Separation of powers between the legislature, the executive and the judiciary. 5. Federal character of the Constitution.

He observed that these basic features are easily discernible not only from the Preamble but also from the whole scheme of the Constitution. He added that the structure was built on the basic foundation of dignity and freedom of the individual which could not by any form of amendment be destroyed. It was also observed in that case that the above are only illustrative and not exhaustive of all the limitations on the power of amendment of the Constitution. The Constitutional bench in Indira Nehru Gandhi v. Raj Narain (1975 Supp SCC 1.) held that Judicial Review in election disputes was not a compulsion as it is not a part of basic structure. In S.P. Sampath Kumar v. Union of India((1987) 1 SCC 124 at 128.), P.N. Bhagwati, C.J., relying on Minerva Mills Ltd. ((1980) 3 SCC 625.) declared that it was well settled that judicial review was a basic and essential feature of the Constitution. If the power of judicial review was absolutely taken away, the Constitution would cease to be what it was. In Sampath Kumar the Court further declared that if a law made under Article 323-A(1) were to exclude the jurisdiction of the High Court under Articles 226 and 227 without setting up an effective alternative institutional mechanism or arrangement for judicial review, it would be violative of the basic structure and hence outside the constituent power of Parliament.

 

In Kihoto Hollohan v. Zachillhur (1992 Supp (2) SCC 651, 715, para 120) another Constitution Bench, while examining the validity of para 7 of the Tenth Schedule to the Constitution which excluded judicial review of the decision of the Speaker/Chairman on the question of disqualification of MLAs and MPs, observed that it was unnecessary to pronounce on the contention whether judicial review is a basic feature of the Constitution and para 7 of the Tenth Schedule violated such basic structure.

 

Subsequently, in L. Chandra Kumar v. Union of India ((1997) 3 SCC 261) a larger Bench of seven Judges unequivocally declared:

 

“that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure”.

 

Though one does not deny that power to review is very important, at the same time one cannot also give an absolute power to review and by recognizing judicial review as a part of basic feature of the constitution Courts in India have given a different meaning to the theory of Check’s and Balances this also meant that it has buried the concept of separation of powers, where the judiciary will give itself an unfettered jurisdiction to review any thing every thing that is done by the legislature.

 

Expansion of Judicial Review through Judicial Activism:

 

After the draconian exposition of power by the Executive and the Legislature during Emergency the expectations of the public soared high and the demands on the courts to improve the administration by giving appropriate directions for ensuring compliance with statutory and constitutional prescriptions. Likewise the judiciary has taken an activist view the Beginning with the Ratlam Municipality case 12the sweep of Social Action Litigation13 had encompassed a variety of causes14.

 

With the interpretation given by it in Menaka Gandhi case the Supreme Court brought the ambit of constitutional provisions to enforce the human rights of citizens and sought to bring the Indian law in conformity with the global trends in human-rights-jurisprudence. This was made possible in India, because of the procedural innovations with a view to making itself more accessible to disadvantaged sections of society giving rise to the phenomenon of Social Action Litigation/Public Interest Litigation15. During the Eighties and the first half of the Nineties, the Court have broken there shackle’s and moved much ahead from being a mere legal institution, its decisions have tremendous social, political and economic ramifications. Time and again, it has sought to interpret constitutional provisions and the objectives sought to be achieved by it and directed the executive to comply with its orders.

 

SAL, a manifestation of judicial activism, has introduced a new dimension regarding judiciary’s involvement in public administration16. The sanctity of locus standi and the procedural complexities are totally side-tracked in the causes brought before the courts through SAL. In the beginning, the application of SAL was confined only to improving the lot of the disadvantaged sections of the society who by reason of their poverty and ignorance were not in a position to seek justice from the courts and, therefore, any member of the public was permitted to maintain an application for appropriate directions17.

 

The new role of the Supreme Court has been criticised in some quarters as being violative of the doctrine of separation of powers; it is claimed that the Apex Court has, by formulating policy and issuing directions in respect of various aspects of the country’s administration, transgressed into the domain of the executive and the legislature. As Justice Cardozo puts it, “A Constitution states or ought to state not rules for the passing hour but principles for an expanding future.”18 It is with this view that innovations in the rules of standing have come into existence.

 

Limitation on the power of review:

 

The expansion of the horizon of judicial review is seen both with reverence and suspicion; reverence in as much as the judicial review is a creative element of interpretation, which serves as an omnipresent and potentially omnipotent check on the legislative and executive branches of government. But at the same time there is a danger that they may trespass into the powers given to the legislature and the executive.

 

One many say that if there is any limitation on judicial review other than constitutional and procedural19 that is a product of judicial self-restraint. As justice Dwivedi empathically observed, “Structural socio-political value choices involve a complex and complicated political process. This court is hardly fitted for performing that function. In the absence of any explicit Constitutional norms and for want of complete evidence, the court’s structural value choices will be largely subjective. Our personal predilections will unavoidably enter into the scale and give colour to our judgment. Subjectivism is calculated to undermine legal certainty, an essential element of rule of law.”20

 

The above observations also reveal another assumption to support an attitude of self-restraint, viz., the element subjectiveness in judicial decision on issues having socio-political significance. When one looks at the decisions of the Supreme Court on certain questions of fundamental issues of constitutional law one can see that there is a sharp division among the judges of the apex court on such basic questions of power of the Parliament to amend the Constitution, federal relations, powers of the President etc. This aptly demonstrates the observation of the judge. This would mean that though there has been expansion of powers of judicial review one cannot also say that this cannot be overturned.

 

Judicial self-restrain in relation to legislative power manifests itself in the form the there is a presumption of constitutionality when the validity of the statute is challenged. In the words of Fazl Ali, “…the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles”21

 

In applying the presumption of constitutionality the Courts sometimes apply an interpretational device called ‘reading down’. The essence of the device is that “if certain provisions of law construed in one way would make them consistent with the constitution, and another interpretation would render them unconstitutional, the court would lean in favour of the former construction.”22 But all this depends on the outlook and values of the judge.23

 

When it come judicial review of administrative action though the presumption of validity is not so strong in the case of administrative action as in the case of statutes. Still, when the legislature expressly leaves a matter to the discretion of an administrative authority the courts have adopted an attitude of restraint. They have said we cannot the question the legality of the exercise of discretionary power unless and until it is an abuse of discretionary power (which includes mala fide exercise of power, exercising the power for an improper motive, decision based on irrelevant considerations or in disregard of relevant consideration, and in some cases unreasonable exercise of power) and non-exercise of discretion ( which come when power is exercised without proper delegation and when it is acted under dictation).

 

The relevant considerations which should make the judicial choice in favour of activism or restraint are the policy and scheme of the statute, the object of conferring discretionary powers, the nature and scope of the discretion, and finally, the nature of the right and interests affected by the decision. Any impulsive move to activism without a serious consideration of these factors may only be viewed as undesirable. Judicial activism, being an exception, not the general rule, in relation to the control of discretionary power, needs strong reasons to justify it. In the absence of such strong support of reasons the interventionist strategy may provoke the other branches of Government may retaliate and impose further limitations on the scope of judicial review.

 

Conclusion:

 

Accountability is an essential part of the rule of law. It is essential for another reason, as in the earlier editions of Dicey,24 of course modified in later editions, referring to John Wilkes’s case,25 that “conferment of any discretion tends to arbitrariness and therefore there is something inconsistent with the rule of law.” But then, as time passed, it was realized that conferment of some discretion for the purpose of application to the facts of a given case is something you cannot do away with. The area of discretion should be the minimum possible, and set norms, standards or guidelines should regulate it, so that it does not tend to become arbitrary. Therefore, the rule of non-arbitrariness is something to be tested by the judiciary whenever the occasion arises.26

 

The growth of judicial review is the inevitable response of the judiciary to ensure proper check on the exercise of public power. Growing awareness of the rights in the people; the trend of judicial scrutiny of every significant governmental action and the readiness even of the executive to seek judicial determination of debatable or controversial issues, at times, may be, to avoid its accountability for the decision, have all resulted in the increasing significance of the role of the judiciary. There is a general perception that the judiciary in this country has been active in expansion of the field of judicial review into non-traditional areas, which earlier were considered beyond judicial purview.

 

The Judges have a duty to perform, which is even more onerous to keep the judicial ship afloat on even keel. It must avoid making any ad hoc decision without the foundation of a juristic principle, particularly, when the decision appears to break new grounds. The judgments must be logical, precise, clear, and sober, rendered with restraint in speech avoiding saying more than that, which is necessary in the case.27

 

It must always be remembered that a step taken in a new direction is fraught with the danger of being a likely step in a wrong direction. In order to be a path-breaking trend it must be a sure step in the right direction. Any step satisfying these requirements and setting a new trend to achieve justice can alone be a New Dimension of Justice and a true contribution to the growth and development of law meant to achieve the ideal of justice.

Consumer protection

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Consumer protection is a group of laws and organizations designed to ensure the rights of consumers, as well as fair trade, competition, and accurate information in the marketplace. The laws are designed to prevent the businesses that engage in fraud or specified unfair practices from gaining an advantage over competitors. They may also provide additional protection for those most vulnerable in society. Consumer protection laws are a form of government regulation that aim to protect the rights of consumers.

 

Consumer Protection Act, 1986

 

The Consumer Protection Act, 1986 was enacted to provide a simpler and quicker access to redress of consumer grievances. The Act seeks to promote and protects the interest of consumers against deficiencies and defects in goods or services. It also seeks to secure the rights of a consumer against unfair trade practices, which may be practiced by manufacturers and traders.

The set-up of consumer forum is geared to provide relief to both parties, and discourage long litigation. In a process called ‘informal adjudication’, forum officials mediate between the two parties and urge compromise.

 

The Act applies to all goods and services unless specifically exempted by the Central Government. It covers all the sectors whether private, public or cooperative.

 

This Act has provided machinery whereby consumers can file their complaints which will be heard by the consumer forums with special powers so that action can be taken against erring suppliers and the possible compensation may be awarded to consumer for the hardships he has undergone.

 

The consumer under this law is not required to deposit huge court fees, which earlier used to deter consumers from approaching the courts. The rigours of court procedures have been replaced with simple procedures as compared to the normal courts, which helps in quicker redressal of grievances. The provisions of the Act are compensatory in nature.

 

consumer courts provide redress only in cases of products or services for personal use, defects in products used for commercial purposes are not entertained.

 

Basic rights of consumers include:

 

  • Right to be protected against marketing of goods and services which are hazardous to life and property.

 

  • Right to be informed about the quality, quantity, standard and price of goods or services so as to protect the consumer against unfair trade practices.

 

  • Right to be assured, wherever possible, access to variety of goods and services at competitive prices.

 

  • Right to be heard and to be assured that consumers interests will receive due consideration at appropriate forums.

 

  • Right to seek redressal against unfair trade practices.

 

  • Right to consumer education.

 

 

Consumer redressal forum

 

Under the Consumer Protection Act, every district has at least one consumer redressal forum also called a consumer court. Here, consumers can get their grievances heard. Above the district forums are the state commissions. At the top is the National Consumer Disputes Redressal Commission in New Delhi.

 

A written complaint to the company is taken as proof that the company has been informed. The complaint must be backed by copies of bills, prescriptions and other relevant documents, and should set a deadline for the company to respond. Consumers can also complain through a consumer organisation.

 

  • Claims of less than Rs. 20 lakh should be filed with district forum,

 

  • Claims of Rs.20 lakh – Rs. 1 crore directly with the state commission,

 

 

  • Claims of more than Rs. 1 crore with the National Commission.

 

To file the complaint:

 

  • Complaint is to be filed within two years of buying the product or using the service.

 

  • Complaint needs to be in writing. Letters should be sent by registered post, hand-delivered, by email or fax. Don’t forget to take an acknowledgment.

 

  • The complaint should mention the name and address of the person who is complaining and against whom the complaint is being filed. Copies of relevant documents must be enclosed.

 

Appeal is a legal instrumentality whereby a person not satisfied with the findings of a court has an option to go to a higher court to present his case and seek justice. In the context of consumer forums:

 

  • An appeal can be made with the state commission against the order of the district forum within 30 days of the order which is extendable for further 15 days. (Section 15)

 

  • An appeal can be made with the National Commission against the order of the state commission within 30 days of the order or within such time as the National Commission allows. (Section 19)

 

  • An appeal can be made with the Supreme Court against the order of the National Commission within 30 days of the order or within such time as the Supreme Court allows. (Section 23)

 

Penalties

 

The consumer courts (district court, state commission and National Commission) are given vast powers to enforce their orders. If a defaulter does not appear in court despite notices and reminders, the court may decide the matter in his absence. The forum can sentence the defaulter to a maximum of three years’ imprisonment and impose a fine of Rs. 10,000. Forums can issue warrants to produce defaulters in court. They can use the police and revenue departments to enforce orders.

BUDGETARY REFORMS    

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Government bodies raise money by imposing taxes on citizens and then use those funds to pursue various programs such as education, defence, infrastructure and research and development. A government’s budget describes all of its sources of income and where it spends that income, and budget reform is the process of making changes to how the government collects and spends money.

Governments pursue budget reform for many reasons. If government spending is greater than the amount of money the government takes in with taxes, reform may be necessary to balance the budget and control government debt. Politicians may pursue changes in government spending or taxation to gain favor with their constituents.

Budget reform can have many potential benefits. Reforms can reduce wasteful expenditures and help lessen government deficit, potentially leading to surpluses. A surplus occurs when a government takes in more money than it spends. Budget reform can result in funding for new beneficial programs or increases in funding education, infrastructure or other areas to help certain individuals or organizations. Tax reforms can benefit individuals and businesses if they reduce their tax burden. Cutting taxes can stimulate spending, which can help stimulate economic activity.

Budget reform only describes changing the collection or spending of money, not whether spending or collection goes up or down. Any potential benefit to budget reform can also be a drawback if changes occur in an unfavourable direction. For instance, if the government reforms its budget by cutting spending on education and infrastructure, it could hurt students and those who rely on public infrastructure spending for their jobs. Increases in spending can make governments fall into debt.

Government spending and taxation is controversial, and any budget reform that a government pursues is likely to be viewed as beneficial by some and negatively by others. Budget reforms passed by Congress often reflect a compromise between desires of different political parties.

The parliamentary committee headed by the Congress MP M Veerappa Moily, had been constituted to review the all budgetary reforms. Besides the budget, the committee will also review the disinvestment policy, banking sector in India.

Budgetary Reform in India for 2017

The Union Cabinet had given in principle approval last year for advancement of the date of Budget presentation from the last day of February to a suitable date.

Besides in another reform relating to budgetary process, Union Cabinet had approved merger of Plan and Non Plan classification in Budget and Accounts.

Advancement of the date of Budget presentation Benefits Pave way for early completion of Budget cycle and enable Central Ministries and Departments to ensure better planning and execution of schemes from beginning of financial year. It will also enable Central Ministries and Departments to ensure better utilize the full working seasons including the first quarter of the year. It will preclude the need of appropriation through ‘Vote on Account’. It will enable implementation of legislative changes in tax and laws for new taxation measures from the beginning of financial year.

Merger of Plan and Non Plan classification in Budget and Accounts the Union Cabinet also approved proposal of Union Finance Ministry to do away with the Plan and Non-Plan expenditure classification from 2017-18and replace with ‘capital and receipt’. The relevance of plan and non-plan expenditure was lost after the abolition of the Planning Commission. However Budget will continue earmarking funds for Scheduled Castes Sub-Plan/Tribal Sub-Plan and similarly, the allocations for North Eastern States. Plan/Non-Plan will help in resolving the following issues This distinction of expenditure had led to a fragmented view of resource allocation to various schemes. It had made it difficult to ascertain cost of delivering a service and also to link outlays to outcomes. It had led to bias in favour of Plan expenditure by Centre as well as the State Governments and had neglected essential expenditures on maintenance of assets and other establishment related expenditures to provide essential social services. The merger is expected to provide appropriate budgetary framework that will have focus on the capital and revenue expenditure.

 

Significant Provisions

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Emergency Provisions in the Constitution of India

The Emergency Provisions are mentioned from Article 352 to Article 360.

?      Article 352: Proclamation of Emergency – due to external intrusion or war the President of India can declare a state of emergency through a Proclamation. This Article suggests that such a Proclamation can be revoked or a varied Proclamation can also be issued. However, the decision of the Cabinet ministers to issue such a proclamation must be sent to the President in written form prior to his issuance of the same. According to the Article, all such Proclamations should be presented to both the Houses of the Parliament. The Proclamations, if not accepted by a resolution, will be counted as ineffective after one month. If the Proclamation is not accepted after the passing of a second resolution, then it will become ineffective after the expiry of 6 months of the second resolution. It is also mentioned in the Article that not less than two-thirds of the members of any of the Parliamentary Houses should be required to pass a resolution. There are certain rules specified in this Article regarding the President revoking or issuing a varied Proclamation during Emergency.

?      Article 353: Effect of Proclamation of Emergency – this Article states that the Proclamation of Emergency includes extending the executive power of the union to the states in the form of directions. The Parliament, as per this Article, can confer the power to make laws, upon the officers or authorities of the Union.

?      Article 354: Application of provisions relating to distribution of revenues while a Proclamation of Emergency is in operation – provisions made under Articles 268 to 279 can be modified or exceptions can be made by the President of India by an Order while the Proclamation period of emergency is going on. Information about all such Orders must be conveyed to both the Houses of Parliament.

?      Article 355: Duty of the Union to protect States against external aggression and internal disturbance – this Article states the fact that the Union or Center is solely responsible for defending the various states from all types of violence and aggressions erupting from outside and disturbances occurring within the nation’s territory.

?      Article 356: Provisions in case of failure of constitutional machinery in States – the President of India can take charge of a state if the reports submitted to him by the Governor suggest that the government of the state has become incapable of exercising the Constitutional powers. The President is also subjected to exercise the powers of the government of such state by Proclamation. The Proclamation issued under such circumstances become ineffective after 6 months from the date of issuance, if not revoked during this time period. All such Proclamations have to be presented to both the Houses of Indian Parliament and will expire after two months. The Legislative powers of such state shall also be exercised by the Parliament. In the Houses of Parliament there are certain rules and regulations regarding the expiry of the Proclamation and the time period normally depends upon the fact whether it has been revoked earlier or not.

?      Article 357: Exercise of legislative powers under Proclamation issued under article 356 – the powers of the Legislature shall be exercised by the Parliament during emergency. The Parliament has the right to delegate Legislative powers to the President of India or any such authority. The President of India, after the Proclamation of Article 356, can make laws and shall have access to the consolidated fund during the time period when the House of the People is not in operation.

?      Article 358: Suspension of provisions of article 19 during emergencies – any provision under Article 19 will not be effective during emergency and the states can make law and undertake executive action. However, only those laws and executive actions containing recital related to emergency during the Proclamation of Emergency are effective as per the Article.

?      Article 359: Suspension of the enforcement of the rights conferred by Part III during emergencies – the President of India can suspend all ongoing proceedings in any court of the nation during emergencies by an Order. The President can also call upon all pending court proceedings in case of emergencies. All such orders declaring the suspension of court proceedings have to be submitted to both the Houses of Parliament.

?      Article 360: Provisions as to financial emergency – a declaration shall be made by the President of India through a Proclamation regarding the financial crisis of the nation if such situation arises. Such a Proclamation can be revoked and has to be presented in both the Houses of the Parliament. The Proclamation thus issued will become null and void after two months if the same is not approved through a resolution passed by the Houses of Parliament. In case the Houses are not in session the Article suggests certain specific guidelines regarding the Proclamation. This Article also includes provisions relating to the salary and allowance reduction of those who are employed with Union and state departments. A provision relating to money bills and other financial bills passed by the state Legislature is mentioned in the Article. This provision states that all such bills have to be considered by the President during financial instability.

 

Special Provisions Relating to Certain Classes

The Constitution of India has listed the special provisions relating to certain classes in Part XVI. From Article 330 to Article 342.

?      Article 330: Reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People – this Article states that a certain number of seats should be reserved in the House of the People for both the Schedule Castes and Schedule Tribes. However, clause b of the Article includes Schedule Tribes excluding those who live in the autonomous districts of Assam. Clause c of the Article includes the Schedule Tribes belonging to the autonomous Assam districts. It is also mentioned in this Article that the total number of such seats assigned to the Schedule Tribes of autonomous Assam districts should match the total number of seats allotted in the House of the People. The seats alloted to the Schedule Castes and Schedule Tribes of a particular state or Union Territory should be proportional to the total number of seats reserved for such state or Union Territory in the house of the People.

?      Article 331: Representation of the Anglo-Indian Community in the House of the People – it is specified in this Article of the Indian Constitution that the President of India has the sole right to elect a maximum of 2 members belonging to the Anglo-Indian section to represent the entire community.

?      Article 332: Reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States – This Article of the Constitution states that a definite number of seats in every state’s Legislative Assembly should be alloted to the Schedule Castes and Schedule Tribes. The Schedule Castes and Schedule Tribes of the autonomous districts of Assam are also given seats in the Legislative Assembly. It is also specified that a person not belonging to the Schedule Tribes category of Assam state cannot contest the Legislation Assembly election from any of the constituencies of the districts of the state. Also, all areas outside the periphery of the districts of Assam should not hold any constituency of the Legislative Assembly of the Assam state. The total seats alloted to the state Legislative Assembly of Assam should be in proportion of the total population and the share of the SC/ST in such population.

 

As per Article332, the number of seats alloted to the SC/STs of a state should follow a proportion to the total number of seats assigned in the Assembly as the total population of the SC/STs in that state with respect to the total state population.

In case of such states as Nagaland, Mizoram, Meghalaya and Arunachal Pradesh, as per the Constitution Act 1987, if all the seats of the Legislative Assembly after the first census of 2000, belong to the Schedule Tribes, then only one seat shall be alloted to other communities. Also, the total number of seats alloted to the Schedule Tribes shall not be less than the existing number of seats in the Assembly of the state.

The Article suggests that the the total number of seats of Schedule Tribes in the Legislative Assembly of Tripura state should be proportional to the total number of existing seats in the Assembly. As per the Constitution Act 1992, the number of the Schedule Tribe members in the Legislative Assembly of Tripura shall not be less than the total number of seats already available in the Assembly.

 

?      Article 333: Representation of the Anglo-Indian community in the Legislative Assemblies of the States – according to this Article of the Constitution of India if the Governor of any state thinks it necessary to elect one representative of the Anglo-Indian community for the Legislative Assembly of that state then he can do the same. Also, if the governor feels that Anglo-Indian community does not have sufficient representation in the state Legislative Assembly then also he can elect one member of that community for the Assembly.

?      Article 334: Reservation of seats and special representation to cease after 289A – This Article holds the fact that after 60 years of the enactment of the Indian Constitution, certain provisions shall become ineffective. However, it is also specified that the Article will not be applied until and unless the House of the People or the Legislative Assembly gets dissolved because of some significant reason. The Provisions with which this Article deals with include reserving seats for Anglo-Indian community, Schedule Castes and Schedule Tribes in the House of the People or in the Legislative Assembly.

?      Article 335: Claims of Scheduled Castes and Scheduled Tribes to services and posts – The Article states that the various claims of the Schedule Castes and Schedule Tribes shall be regarded accordingly. Relaxation of age, lower cut off marks and easier parameters of evaluation for the purpose of selecting SC/ST candidates to different posts and services will remain intact irrespective of the provisions mentioned in this Article.

?      Article 336: Special provision for Anglo-Indian community in certain services – as per this Article, for such posts of Union as postal and telegraph, customs and railway, the members of the Anglo-Indian community will be selected, for the first two years of the initiation of the Constitution, following the rules prevailing before 15th August, 1947. It is also specified that in every two years the total number of seats allotted to the Anglo-Indian community in different services and posts will go down by 10%. The Article states that these provisions will become ineffective after 10 years of the enactment of the Indian Constitution. However, clause 2 of this Article clearly mentions that if a candidate of the concerned community is eligible for any post other than the ones mentioned above then he will be selected with immediate effect.

?      Article 337: Special provision with respect to educational grants for the benefit of Anglo-Indian community – the provisions of this Article deal with the fact that grants to the Anglo-Indian community shall be offered in the first three years of the enactment of the Constitution following the same rules made on 31st March 1948. It is also stated that the amount of such grants will reduce by 10% in every three succeeding years. It is mentioned that after 10 years of the initiation of the Constitution of India all such grants will cease to exist. Moreover, the Article states that only when at least 40% of the admissions in educational units belong to communities other than Anglo-Indians, such grants will be offered to the said community.

?      Article 338: National Commission for Scheduled Castes and Scheduled Tribes – This Article covers the issues to be dealt with by the said Commission exclusively made for the Schedule Castes and Schedule Tribes. As per the Constitution of India, the Article holds that the Commission should include a Chairperson, Vice-Chairperson and other members all of whom are elected by the President of India. The Commission, according to the Article, has the power to investigate all matters that are related to the safeguard of the Sc/STs. The commission can also exercise its power by summoning any person from any part of the nation to interrogate him regarding a particular issue of the SC/STs. The Commission shall also take necessary measures to improve the socio-economic status of the Schedule Castes and Schedule Tribes. A report specifying whether the safeguards of the ST/SCs are maintained properly shall be submitted to the President of India every year by the Commission.

?      Article 339: Control of the Union over the administration of Scheduled Areas and the welfare of Scheduled Tribes – the Article suggests that a Commission specifying the administration of Scheduled Areas and Welfare of Scheduled Tribes shall be formed by Order of the President after 10 years of the Indian Constitution’s enactment. The various procedures and powers of the commission are to be included in the said Order. Planning and execution of various schemes pertaining to the development of the Schedule Tribes included in the executive power of the Union is also mentioned in the Article.

?      Article 340: Appointment of a Commission to investigate the conditions of backward classes – this Article specifies that the President of India can form a Commission by Order that will look into the overall condition of the people belonging to the backward classes. This Commission is also supposed to recommend any state or union the necessary steps through which the underprivileged classes can improve their social and economic status. On the basis of the investigation done, the Commission shall submit a report to the President of India. The President, in turn, shall present such report with a memorandum to both of the Houses of the Indian Parliament and will prescribe the necessary steps to be taken to develop the condition of the backward classes.

?      Article 341: Scheduled Castes – this Article states that the President of India after taking the advice of the Governor of any state or Union Territory, has the right to demarcate tribes, races or castes or a part of any group as Scheduled Castes, in accordance with the law of the Constitution. The president can do the same by issuing a public notification. However, the Parliament of India can, by law, accept or reject the list containing the Scheduled Caste groups.

?      Article 342: Scheduled Tribe – a group belonging to a tribe or an entire tribal community of a state or an Union Territory can be declared as Scheduled Tribe by the President of India through issuing a public notice. The President consults with the Governor of the concerned state or Union Territory before specifying a tribe as Scheduled Tribe. The Parliament of India can decide upon canceling or keeping the particular ST in the list of Scheduled Tribes. However, the public notification issued for declaration of the Scheduled Tribe can be saved by the Parliament.

 

Other provisions

 

Article 369 {Temporary power to Parliament to make laws with respect to certain matters in the State List as if they were matters in the Concurrent List}

Article 370 {Temporary provisions with respect to the State of Jammu and Kashmir}

Article 371 {Special provision with respect to the States of Maharashtra and Gujarat}

Article 371A {Special provision with respect to the State of Nagaland}

Article 371B {Special provision with respect to the State of Assam}

Article 371C {Special provision with respect to the State of Manipur}

Article 371D {Special provisions with respect to the State of Andhra Pradesh}

Article 371E {Establishment of Central University in Andhra Pradesh}

Article 371F {Special provisions with respect to the State of Sikkim}

Article 371G {Special provision with respect to the State of Mizoram}

Article 371H {Special provision with respect to the State of Arunachal Pradesh}

Article 371I {Special provision with respect to the State of Goa}

Article 372 {Continuance in force of existing laws and their adaptation}

Article 372A {Power of the President to adapt laws}

Article 373 {Power of President to make order in respect of persons under preventive detention in certain cases}

Article 374 {Provisions as to Judges of the Federal Court and proceedings pending in the Federal Court or before His Majesty in Council}

Article 375 {Courts, authorities and officers to continue to function subject to the provisions of the Constitution}

Article 376 {Provisions as to Judges of High Courts}

Article 377 {Provisions as to Comptroller and Auditor-General of India}

Article 378 {Provisions as to Public Commissions}

Article 378A {Special provisions as to duration of Andhra Pradesh Legislative Assembly}

Basic Structure

 

 

 

 

 

The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament. Key among these “basic features”, are the fundamental rights granted to individuals by the constitution. The doctrine thus forms the basis of a limited power of the Indian Supreme Court to review and strike down constitutional amendments enacted by the parliament which conflict with or seek to alter this “basic structure” of the constitution.

In 1965, The “basic features” principle was first expounded by Justice J.R. Mudholkar in his dissent in the case of Sajjan Singh v. State of Rajasthan.

In 1973, the basic structure doctrine triumphed in Justice Hans Raj Khanna’s judgment in the landmark decision of Kesavananda Bharati v. State of Kerala. Previously, the Supreme Court had held that the power of parliament to amend the constitution was unfettered. However, in this landmark ruling, the court adjudicated that while parliament has “wide” powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.

In 1975, Indira Nehru Gandhi v. Raj Narain, a Constitutional Bench of the Supreme Court used the basic structure doctrine to strike down the 39th amendment and paved the way for restoration of Indian democracy.

In 1980, The Constitution (Forty-Second Amendment) Act had been enacted by the government of Indira Gandhi in response to the Kesavananda judgment in an effort to reduce the power of the judicial review of constitutional amendments by the Supreme Court. In the Minerva Mills case, Nani Palkhivala successfully moved the Supreme Court to declare sections 4 & 55 of the 42nd amendment as unconstitutional. Chief Justice Yeshwant Vishnu Chandrachud explained in the Minerva Mills judgment that since the power of Parliament to amend the constitution was limited, as had been previously held through the basic structure doctrine in the Kesavananda case, the parliament could not by amending the constitution convert this limited power into an unlimited power (as it had purported to do by the 42nd amendment). In addition, the court also ruled that the parliament’s “power to amend is not a power to destroy”.

The basic structure doctrine applies only to constitutional amendments. It does not apply to ordinary acts of parliament, which must itself be in conformity with the constitution.

In Kesavananda there were differing opinions even among the majority for what the “basic structure” of the constitution comprised.

Chief Justice Sikri, writing for the majority, indicated that the basic structure consists of the following:

  • The supremacy of the constitution.
  • A republican and democratic form of government.
  • The secular character of the Constitution.
  • Maintenance of the separation of powers.
  • The federal character of the Constitution.

Justices Shelat and Grover in their opinion added three features to the Chief Justice’s list:

  • The mandate to build a welfare state contained in the Directive Principles of State Policy.
  • Maintenance of the unity and integrity of India.
  • The sovereignty of the country.

Justices Hegde and Mukherjea, in their opinion, provided a separate and shorter list:

  • The sovereignty of India.
  • The democratic character of the polity.
  • The unity of the country.
  • Essential features of individual freedoms.
  • The mandate to build a welfare state.

Justice Jaganmohan Reddy preferred to look at the preamble, stating that the basic features of the constitution were laid out by that part of the document, and thus could be represented by:

  • A sovereign democratic republic.
  • The provision of social, economic and political justice.
  • Liberty of thought, expression, belief, faith and worship.
  • Equality of status and opportunity.

The interpretation of the basic structure has since evolved in numerous other court rulings since theKesavananda judgment.

 

Citizenship

Part II of the Indian Constitution consists of the following articles:

  • Article 5. Citizenship at the commencement of the Constitution.
  • Article 6. Rights of citizenship of certain persons who have migrated to India from Pakistan.
  • Article 7. Rights of citizenship of certain migrants to Pakistan.
  • Article 8. Rights of citizenship of certain persons of Indian origin residing outside India.
  • Article 9. Persons voluntarily acquiring citizenship of a foreign State not to be citizens.
  • Article 10. Continuance of the rights of citizenship.
  • Article 11. Parliament to regulate the right of citizenship by law.

Citizen is a native or naturalized member of a state or other political community. The citizenship is a state of being a citizen of a particular social, political, or national community. The major issues in Constituent assembly on citizenship For the constitution assembly, to arrive at a final draft for Citizenship was one of the most arduous tasks while framing the constitution.

The problem was partition of India on one hand and India being recreated by uniting the princely states on the other. India’s partition into India and Pakistan caused millions of people cross the border. Partition on the basis of religion forced  The Hindus and Sikhs who were born in Pakistan side came to India and Muslims who were born in India migrated to Pakistan. Apart from that, there were people who had left their homeland India and started living abroad and now wanted to come back as the country was a free nation.

Constitution as Part II. The problem of citizenship was basically as follows: The people who were born and living in Pakistan and migrated to India were to be provided Indian Citizenship. The people who were born and living in India and migrated to Pakistan were to be excluded and debarred from Indian Citizenship. People who migrated to Pakistan in 1947 but returned back to live in India permanently had to be provided Citizenship. The people who were born in India, but living abroad but came back, had to be provided citizenship.

Article 5 : Citizenship at the commencement of the Constitution. At the commencement of this Constitution, every person who has his domicile in the territory of India and- who was born in the territory of India; or either of whose parents was born in the territory of India; or who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India. Article5 refers to the Citizenship on January 26, 1950. This article provided that the ordinary resident in the territory of India since or before January 26, 1945 were deemed to be Indian Citizens

Article 6. Rights of citizenship of certain persons who have migrated to India from Pakistan. Notwithstanding anything in article 5, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if- he or either of his parents or any of his grand-parents was born in India as defined in the Government of India Act, 1935 (as originally enacted); and (i) in the case where such person has so migrated before the nineteenth day of July, 1948, he has been ordinarily resident in the territory of India since the date of his migration, or (ii) in the case where such person has so migrated on or after the nineteenth day of July, 1948, he has been registered as a citizen of India by an officer appointed in that behalf by the Government of the Dominion of India on an application made by him there for to such officer before the commencement of this Constitution in the form and manner prescribed by that Government: Provided that no person shall be so registered unless he has been resident in the territory of India for at least six months immediately preceding the date of his application. Article 6 deals with those persons who migrated to India from Pakistan. India as defined in the Government of India Act, 1935 means undivided India.

These persons were divided into two categories.

Category 1: Those who came before July 19, 1948

Category 2: Those who came after July 19, 1948

Those who came from Pakistan to India before July 19, 1948 would automatically become Indian Citizens. Those who came after July 19, 1948 would become Indian Citizens provided they had been registered in the form and manner as prescribed by the Government of India.

Article 7: Rights of citizenship of certain migrants to Pakistan. Notwithstanding anything in articles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India: Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of clause (b) of article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948. Article 7 deals with those persons who had migrated to Pakistan but returned to India from Pakistan with intention to live here permanently. Please note that this article deals with the “permit system”. The permit system was introduced in July 19, 1948. This system provided that a person who is desiring to return back to India with an intention to permanently reside was required to get a separate permit

Article 8: Rights of citizenship of certain persons of Indian origin residing outside India. Notwithstanding anything in article 5, any person who or either of whose parents or any of whose grand-parents was born in India as defined in the Government of India Act, 1935 (as originally enacted), and who is ordinarily residing in any country outside India as so defined shall be deemed to be a citizen of India if he has been registered as a citizen of India by the diplomatic or consular representative of India in the country where he is for the time being residing on an application made by him therefor to such diplomatic or consular representative, whether before or after the commencement of this Constitution, in the form and manner prescribed by the Government of the Dominion of India or the Government of India. Article 8 deals with those persons who were living abroad. The article provides that any person who was born or his parents /grandparents were born in undivided India but living abroad and wants to return to India would need to be registered at the as Citizen of India by the diplomatic or consular representative of India in that country.

Article 9: Persons voluntarily acquiring citizenship of a foreign State not to be citizens. No person shall be a citizen of India by virtue of article 5, or be deemed to be a citizen of India by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any foreign State. Under article 9 of the constitution, any person who has voluntarily acquired the citizenship of a foreign country, even if qualified for Indian Citizenship under any of the provisions of the constitution will not be a Citizen of India.

Article 10: Continuance of the rights of citizenship. Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.

Article 11: Parliament to regulate the right of citizenship by law. Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship. The nature of provisions from Article 5 to 9 show that the objective of the constituent assembly was not to make a permanent law for citizenship. Ours is a Republic Country and various offices are to be occupied by the persons who are elected by the citizens. So, keeping this in view, it was necessary for the Constituent Assembly to make some provisions which could precisely determine that who is a Citizen of Independent Indian Dominion and who is not, at the time of the commencement of the constitution. Further, the constituent also gave plenary power to the parliament of India to deal with the question of nationality. Article 10 and more precisely Article 11 give the power to the parliament to make law in this connection as and when it suits to the demands of the circumstances. The power in parliament vested by Article 11 embraced not only acquisition but also the termination or any other matter related to Citizenship. Using the power vested in parliament by Article 11 of the Constitution of India, a comprehensive law “The Citizenship Act, 1955” was passed by the parliament. This act has been amended from time to time to make space for provisions as and when required.

OCI

An Overseas Citizen of India is a lifetime visa status. It is the closest thing to dual citizenship that India offers.

Who can be an OCI?

(This list was expanded as of 9 January 2015)

  1. A person who used to be an Indian citizen
  2. A person with at least one parent, grandparent,or great-grandparent who is/was an Indian citizen
  3. A person married to an Indian citizen or an existing OCI for at least two continuous years

The following groups of people cannot have OCI status:

  • Anyone who was ever a citizen of Pakistan or Bangladesh
  • Anyone whose parents or grandparents were citizens of Afghanistan, Pakistan, Bangladesh, China, or Sri Lanka
  • Anyone who served in a foreign military or worked in a foreign defense department

What are the benefits of being an OCI?

  • Lifelong multiple entry visa to India
  • You never have to report to the FRRO regardless of the length of your stay
  • You can eventually become a citizen of India if you remain an OCI for 5 years and live in India for at least 1 year(short breaks are now allowed)
  • You can use special counters during immigration
  • You don’t need a student visa to study in India
  • You don’t need an employment visa to get a job
  • You can open a special bank account in India, just like an NRI
  • You can make investments in India
  • You can buy non-farm property and exercise property ownership rights
  • Your can use your OCI card to apply for a driver’s license, open a bank account, or get a PAN card
  • You get the same economic, financial, and education benefits as NRIs (e.g. reserved admission quotas), and you can adopt children like an NRI
  • You pay the Indian resident fee when visiting a national parks, monuments, museums or wildlife sanctuary (of course it is ultimately up to the discretion of the man issuing tickets)

What are the drawbacks?

  • You may not purchase agricultural land or farm houses
  • You may not vote
  • You may not hold a government job
  • You may not be elected to a political position
  • You may not travel to restricted areas without permission

How do you become an OCI?

You can apply through the Indian embassy in your country of residence or within India at the local FRRO.

Here is a sample of documentation you will need (see your local consulate for a specific list):

  • Proof of present citizenship
  • Proof of former Indian citizenship (for you or your relative)
  • Proof of renunciation of Indian citizenship (if applicable)
  • Proof of relationship to an Indian citizen

The entire process can take several months in some cases. Fees vary from nationality to nationality. If you apply in India, the fee is Rs. 15,000 for an adult or Rs. 8,000 for a minor. You can convert a PIO card to an OCI card if you qualify, and the fees are very nominal.

PIO (Person of Indian Origin) used to be a 15 year visa for non-Indian citizens, but it has since been removed.

Fundamental Rights

The Constitution of India guarantees certain Fundamental Rights to the Citizens of India.

The Indian constitution contains a chapter on fundamental rights. Part III (Art. 12-35) contains fundamental rights of Indian citizens. The fundamental rights are called fundamental because they are basic to the development of human personality.

The Indian fundamental rights, contrasted with such rights contained in the U. S. bill of rights, present several peculiarities. First, the fundamental rights in India are far more elaborate than in the U. S. A. Thus, for example, the U. S. bill of rights (first ten amendments) only names some rights. The Supreme Court, through the process of judicial review decides the limitations on these rights. In India, determination of limitations on fundamental rights is not left to judicial interpretation. The constitution itself contains (clauses 2-6 in Art. 19) such limitations. The limitations contemplated by the constitution are-

  • public order,
  • security of the state and
  • sovereignty and integrity of India.

In the face of these limitations, the fundamental rights guaranteed by the constitution cannot be said to be absolute.

However, whenever the state restricts fundamental rights by legislation, the courts have the right to examine whether the limitations imposed are “reasonable or not.” The courts are free to strike down any law imposing unreasonable restriction on the enjoyment of fundamental rights. The courts in India enjoy a limited degree of judicial review with respect to fundamental rights.

Yet, in view of these limitations, some critics argue that the Indian constitution gives fundamental rights with one hand and takes them away with the other. It should also be pointed out that provision of preventive detention under Art. 22 is a gross violation of the individual liberty under Art. 21. The power of the state to detain persons without trial is not to be found in any other democratic country like the U. S. A. Further, in case of proclamation of emergency under Art. 352, fundamental rights guaranteed under Art. 19 remain suspended by virtue of Arts 358 and 359.

Again, the Indian constitution is based on the theory of Parliamentary sovereignty and not constitutional sovereignty, as is the case in the U. S. A. Consequently, the Parliament may easily tamper with Indian fundamental rights. The capacity of the judiciary to afford protection to the fundamental rights is very limited. The Supreme Court verdict that the fundamental rights are not amendable was subsequently reversed. In the Keshavanand Bharati case, Supreme Court held that the Parliament may amend the entire constitution. It cannot only alter any basic feature of the constitution.

The processes of amendment given in Art 368 are far easier than the one given in Art 5 of the U.S. constitution. Consequently, the Union Parliament with a qualified majority may now easily amend any fundamental right contained in Part III of the constitution.

Kinds of fundamental rights

The Indian constitution originally provided 7 categories of fundamental rights. But one fundamental right, that to property was removed from the list of fundamental rights by 44th amendment. Right to property now is an ordinary legal right. Thus there are now 6 categories of fundamental rights. These are:

 (1) Right to equality (Arts. 14-18).

In this category there are five rights

  • Equality Before Law:- Equality before law is well defined under the Article 14 of the Constitution which ensures that every citizen shall be likewise protected by the laws of the country. It means that the State will not distinguish any of the Indian citizens on the basis of their gender, caste, creed, religion or even the place of birth. The state cannot refuse equality before the law and equal defense of the law to any person within the territory of India. In other words, this means that no person or groups of people can demand for any special privileges. This right not only applies to the citizens of India but also to all the people within the territory of India. Equality means that equals should be treated equally.
  • Abolition Of Discrimination On Grounds Of Caste, Race, Sex Or Religion:- The right of Social Equality and Equal Access to Public Areas is clearly mentioned under the Article 15 of the Constitution of India stating that no person shall be shown favoritism on the basis of color, caste, creed language, etc. Every person shall have equal admittance to public places like public wells, bathing ghats, museums, temples etc. However, the State has the right to make any special arrangement for women and children or for the development of any socially or educationally backward class or scheduled castes or scheduled tribes. This article applies only to citizens of India.
  • Equality in public employment, Article 16 of the Constitution of India clearly mentions that the State shall treat everyone equally in the matters of employment. No citizen shall be discriminated on the basis of race, caste, religion, creed, descent or place of birth in respect of any employment or office under the State. Every citizen of India can apply for government jobs. However, there are some exceptions to this right. The Parliament may pass a law mentioning that specific jobs can only be filled by candidates who are residing in a particular area. This requirement is mainly for those posts that necessitate the knowledge of the locality and language of the area. Apart from this, the State may also set aside some posts for members of backward classes, scheduled castes or scheduled tribes which are not properly represented in the services under the State to uplift the weaker sections of the society. Also, a law may be passed which may entail that the holder of an office of any religious institution shall also be a person professing that specific religion. Though, this right shall not be granted to the overseas citizens of India as directed by the Citizenship (Amendment) Bill, 2003.
  • Abolition of untouchability, Article 17 of the Constitution of India abolishes the practice of untouchability in India. Practice of untouchability is declared as a crime and anyone doing so is punishable by law. The Untouchability Offences Act of 1955 (and now Protection of Civil Rights Act in 1976) states punishments for not allowing a person to enter a place of worship or from taking water from a well or tank.
  • Abolition of titles. Article 18 of the Constitution of India prohibits the State from granting any titles. Citizens of India are not allowed to accept titles from a foreign State. Titles like Rai Bahadurs and Khan Bahadurs given by the British government have also been abolished. Nevertheless, academic and military distinctions can be conferred upon the citizens of India. The awards of ‘Bharat Ratna’ and ‘Padma Vibhushan’ cannot be used by the beneficiary as a title and is not prohibited by the Constitution of India. From 15 December 1995, the Supreme Court has sustained the validity of such awards

 (2) Rights to freedom.

(Arts. 19-22) these now include six freedoms-

  • Freedoms of speech and expression,
  • Freedom of assembly without arms of association,
  • Freedom of movement,
  • Freedom of residence and
  • Freedom of profession oroccupation.

Each one of these six freedoms is subject to some restrictions. For rights can never be absolute. Individual rights must be reconciled with the interests of the community. It is logical that equal rights for all must mean limited rights for any. Hence, the state may impose ‘reasonable restrictions’ upon the exercise of any of these rights.

Restrictions

Firstly, the state may impose restrictions on the exercise of the right to freedom of speech and expression on eight grounds. These are:

  1. defamation,
  2. contempt of court,
  3. decency or morality,
  4. security of the state,
  5. friendly relations with other states,
  6. incitement of offence and,
  7. sovereignty and
  8. integrity of India.

Secondly, the freedom to assemble is subject to two restrictions. The assembly must be peaceable and the members of assembly must not bear arms. However the Sikhs are allowed to carry ‘Kirpan’ as part of their religious creed. In the U.S.A. right to bear arms is fundamental right. In India, this right is denied in the interest of public order.

Thirdly, the right to form associations or unions does not entitle persons to enter into criminal conspiracy either against individuals, groups or against the state.

Fourthly, the right to move freely or to reside and settle in any part of India, does not cover trespass into homes or restricted areas. State also may restrict this freedom to protect the aboriginal tribes.

Finally, the right to practice any profession or to carry on any occupation, trade or business are also subject to reasonable restrictions. Thus professions or, trade or, business must not be harmful to the interest of the community. The state may also prescribe qualifications for particular profession or, technical occupation. The state may itself carry on trade or business to the exclusion of citizens.

Power of Courts to enforce freedom of citizens of India

Every Indian citizen has the power to move the High Court or the Supreme Court for protecting and securing his personal freedom. The Courts are empowered to issue writs in the nature of habeas corpus. The courts can order the presence of detained or imprisoned person and set him free in case there is no legal justification for his detainment or imprisonment.

Rights to Freedom during National Emergency

The rights to freedom under Article 19 of Indian constitution are suspended during the period of National Emergency declared by the President of India.

Further, during the period when the National emergency is in operation, the President is empowered to suspend the right of citizens to move the Supreme Court for the enforcement of their personal freedom.

Conclusion

Each one of the fundamental freedoms guaranteed by the constitution of India is hedged by many restrictions. They are not absolute. This led to the criticism that Indian freedom is a myth and not reality for what has been given with one hand has been taken away with the other.

This criticism is unfair. For fundamental rights can nowhere be absolute. For logically, one can be absolutely free only when all others are absolute, slaves Individual freedom to be real must be social and hence must be limited.

There is a difference in the scheme of limitations on fundamental rights in the U.S. constitution and in the constitution of India. In the U.S.A. the restrictions are not mentioned in the constitution itself. This is left to judicial interpretations. In India on the other hand, the restrictions are mentioned in the constitution itself. It is not left to the vagaries of judicial interpretation.

On the whole fundamental rights everywhere are restricted or, limited. As Mr. Justice Mukherji observed in A. K. Gopalan vs. State of Madras case” There cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraints.”

 

These freedoms are however not without limitations.

(3) Rights against exploitation (Arts. 24 and 25)

Include prohibition of traffic in human beings and prohibition of child labour.

(4)  Rights to freedom of religion (Arts. 25-28)

Include  freedom of conscience and freedom of religion. Citizens are free to profess and practice any religion. These provisions make India a secular state.

 (5) Cultural and Educational rights (Arts. 29-30)

Include right to protection of language, script and culture given to the minorities. The minorities are also given the right to establish and administer educational institutions of their own.

(6)   Right to constitutional remedies (Arts. 32-35)

Provides for enforcement of fundamental rights through the judicial process.Dr BR Ambedkar  expressed it to be the heart and soal of Indian constitution.

Thus the constitution contains an elaborate scheme of fundamental rights. But the fundamental rights in India are not absolute. They are hedged by many limitations. Indeed, fundamental rights cannot be absolute anywhere in the world. Countries differ only in their degree of limitations on fundamental rights.

Preamble

The Constitution of India begins with a Preamble which describes the nature of the Indian State and the objectives it is committed to secure. K.M. Munshi describes the Preamble as the political horoscope of the constitution. Thakur Dass Bhargawa says Preamble is the most precious part and the soul of the constitution.

The Preamble reads:

We, the People of India having solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic, Republic and to secure to all its citizens;

Justice, social, economic, political;

Liberty of thought, expression, belief, faith and worship;

Equality of status and opportunity; and to promote among them all;

Fraternity, assuring the dignity of the individual and the unity and integrity of the nation ;

In our Constituent Assembly this, twenty sixth day of November 1949 do hereby Adopt, Enact and Give to ourselves this Constitution.

The words ‘Socialist ‘Secular” and ‘Integrity were initially not there in the Preamble. These were added by the 42nd Amendment (1976) of the Constitution.

Preamble: Features:

I. The Source of Authority:

Popular Sovereignty:

The Preamble categorically accepts the principle of Popular Sovereignty. It begins with the words: ‘We the people of India’. These words testify to the fact that the people of India are’ the ultimate source of all authority. The Government derives its power from them.

II. Nature of State:

The Preamble describes five cardinal features of the Indian state:

(1) India is a Sovereign State:

The Preamble proclaims that India is a sovereign state. Such a proclamation denotes the end of rule over India. It testifies to the fact that India is no longer a dependency or colony or possession of British Crown. As a sovereign independent state, India is free both internally and externally to take her own decisions and implement these for her people and territories.

(2) India is a Socialist State:

In 1976, the Preamble was amended to include the word ‘Socialism’. It is now regarded as a prime feature of the State. It reflects the fact that India is committed to secure social, economic and political justice for all its people. India stands for ending all forms of exploitation as well as for securing equitable distribution of income, resources and wealth. This has to be secured by peaceful, constitutional and democratic means. The term ‘India is a Socialist state’ really means, ‘India is a democratic socialist state.’

(3) India is a Secular State:

By the 42nd Amendment, the term ‘Secular’ was incorporated in the Preamble. Its inclusion simply made the secular nature of the Indian Constitution more explicit. As a state India gives special status to no religion. There is no such thing as a state religion of India. India guarantees equal freedom to all religions. All religions enjoy equality of status and respect.

(4) India is a Democratic State:

The Preamble declares India to be a Democratic State. The Constitution of India provides for a democratic system. The authority of the government rests upon the sovereignty of the people. The people enjoy equal political rights. The people freely participate in the democratic process of self rule.

They elect their government. For all its acts, the government is responsible before the people. The people can change their government through elections. The government enjoys limited powers. It always acts under the Constitution which represents the supreme will of the people.

(5) India is a Republic:

The Preamble declares India to be a Republic. Negatively, this means that India is not ruled by a monarch or a nominated head of state. Positively, it means that India has an elected head of state who wields power for a fixed term. President of India is the elected sovereign head of the state. He holds a tenure of 5 years. Any Indian citizen can get elected as the President of India.

III. Four Objectives of the Indian State:

The Preamble lists four cardinal objectives which are to be “secured by the state for all its citizens”.

These are:

(1) Justice:

India seeks to secure social, economic and political justice for its people.

(i) Social Justice:

Social Justice means the absence of socially privileged classes in the society and no discrimination against any citizen on grounds of caste, creed, colour, religion, sex or place of birth. India stands for eliminating all forms of exploitations from the society.

(ii) Economic Justice:

Economic Justice means no discrimination between man and man on the basis of income, wealth and economic status. It stands for equitable distribution of wealth, economic equality, end of monopolistic control over means of production and distribution, decentralisation of economic resources, and securing of adequate opportunities to all for earning their livelihoods.

(iii) Political Justice:

Political Justice means equal, free and fair opportunities to the people for participation in the political process. It stands for the grant of equal political rights to all the people without any discrimination. The Constitution of India provides for a liberal democracy in which all the people have the right and freedom to participate.

(2) Liberty:

The Preamble declares liberty to be the second cardinal objective to be secured. It includes liberty of thought, expression, belief, faith and worship. The grant of Fundamental Rights (Part III) including the right to freedom is designed to secure this objective. Liberty of faith and worship is designed to strengthen the spirit of secularism.

(3) Equality:

The Preamble declares Equality as the third objective of the Constitution. Equality means two basic things:

(i) Equality of status i.e. natural equality of all persons as equal and free citizens of India enjoying equality before law.

(ii) Equality of opportunity i.e. adequate opportunities for all to develop. For securing the equality of status and opportunity, the Constitution of India grants and guarantees the fundamental Right to Equality.

(4) Fraternity:

Promotion of Fraternity among the people is the fourth objective is to promote Fraternity among all the people. Fraternity means the inculcation of a strong feeling of spiritual and psychological unity among the people. It is designed to secure dignity of the individual and unity and integrity of the nation.

IV. Date of Adoption and Enactment:

In its final paragraph, the Preamble specifies the important historical fact that the Constitution was adopted on 26 November, 1949. It was on this day that the Constitution received the signatures of the President of the Constituent Assembly and was declared passed.

V. Self-made Constitution:

The Constitution of India is an adopted, enacted and self-made constitution. It was adopted and enacted by the Constituent Assembly acting as the elected representative body of the people of India. The Preamble states the philosophical foundations of the Constitution India and enumerates its objectives.

It constitutes a Key for the interpretation of the Constitution. It is a part of the Basic Structure of the Constitution. Through, it’s Preamble, the Constitution a commits itself to Democracy, Republicanism, Socialism, Secularism, Liberalism and Welfare State. The Preamble states the objectives which the Constitution is committed to secure for all the people of India.

 

 

Part IV-A was added by the 42nd Amendment Act, 1976. It encompasses Part IV, Article 51A enu­merating Ten Fundamental Duties of the Citizens of India.

There is no provision in the Constitution for direct enforcement of any of these Duties nor for any sanction to prevent their violation.But it may be expected that in determining the Consti­tutionality of any law, if a Court finds that it seeks to give effect to any of these duties, it may consider such law to ‘be reasonable’ in relation to Article 14 or 19, and thus save such law from unconstitutionality.

Directive Principles Of State Policy

An important feature of the constitution is the Directive Principles of State Policy. Although the Directive Principles are asserted to be “fundamental in the governance of the country,” they are not legally enforceable. Instead, they are guidelines for creating a social order characterized by social, economic, and political justice, liberty, equality, and fraternity as enunciated in the constitution’s preamble.

Article 37 of the Constitution declares that the DPSP “shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.” It is not a mere coincidence that the apparent distinction that is drawn by scholars between the ICCPR rights and ESC rights holds good for the distinction that is drawn in the Indian context between fundamental rights and DPSP. Thus the bar to justiciability of the DPSP is spelled out in some sense in the Constitution itself.

 

Determinants and Nature of Indian Politics, Election and Voting Behavior, Coalition Governments.