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GS Paper-2
Section-I
(Indian Polity)
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List of Topics :

1) Preamble (Understanding the meaning of each and

every word mentioned in it)
2) Fundamental rights (special focus on Art. 21 and Right
to Privacy/Data Protection) (65th BPSC)
3) Directive principles of state policy
4) Correlation between Fundamental Rights and DPSPs
5) Art. 370 and Art. 35 A- Removal and its impact
6) Judicial review (65th BPSC)
7) Doctrine of Basic Structure (Keshvananda Bharti
case) (Very Important)
8) Governor
9) Election Commission
10) CAG
11) Lokpal and Lokayukta
12) Elections-Growing Regional political Parties in India
13) Elections- Caste and Class Politics (With reference to
Bihar)
14) Anti-defection Law
15) Federalism in Indian context
16) Contempt of Court
17) 9th Schedule
18) Presidential vs Parliamentary form of government
19) Impeachment of President
20) Delimitation Commission
21) RTI Act and its amendment
22) Aspirational district programme
23) Electoral Bonds
24) EVMs, VVPAT and Issues
25) Centre-State Relations (During Covid-19)
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26) One Nation-one language

27) Simultaneous election
28) Job reservations-Promotion Quotas not a
fundamental right
29) 22nd Law Commission
30) E-governance and its benefits
31) Constitutional Morality
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1. Preamble
The term ‘Preamble’ refers to the introduction or preface to the Constitution.
It contains the summary or essence of the Constitution. N.A. Palkhivala, an
eminent jurist and constitutional expert, called the Preamble as the ‘identity
card of the Constitution.
The Preamble to the Indian Constitution is based on the
‘Objectives Resolution’, drafted and moved by Pandit Nehru, and adopted by
the Constituent Assembly. It has been amended by the 42nd Constitutional
Amendment Act (1976), which added three new words–Socialist, Secular and
Integrity.
 The Preamble in its present form 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 and Political; LIBERTY
of thought, expression, belief, faith and worship; EQUALITY of status and of
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”.
 Meaning of words mentioned in the Preamble (values enshrined in
Preamble):
The values expressed in the Preamble are sovereignty, socialism, secularism,
democracy, republican character, justice, liberty, equality, fraternity, human
dignity and the unity and integrity of the Nation.
a) Sovereignty
• By declaring India as a sovereign entity, Preamble emphasizes complete
political freedom.
• It testifies to the fact that India is no longer a dependency or colony or
possession of British Crown.
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• If a state cannot freely determine what it wants and how to achieve it, it
loses the rationale to exist. Further, sovereignty gives the state the dignity of
existence.
Same critics, however, point out that the
membership of ‘Commonwealth of Nations limits the sovereign status of India
in so far as this membership accepts the British King/Queen as the head of
the Commonwealth. However, this view is not correct. The Commonwealth is
no longer the British Commonwealth. Since 1949 it has been an association
of sovereign equal friends who, because of their historical links, have preferred
to join hands in the Commonwealth for the promotion of their national
interests through cooperative efforts. India’s membership of the
Commonwealth is a voluntary act and a courtesy arrangement. British
King/Queen as head of the Commonwealth has no place in the Indian
Constitution. India owes no allegiance to him. “British King is a symbolic head
of the Free Association ofCommonwealth.” (Nehru) Prof. Ramaswamy has
rightly observed. “Indian membership of Commonwealth is a courtesy
arrangement devoid of any constitutional significance.”
b) Socialist
• The word ‘socialist’ was added to the Preamble by the 42nd amendment act
of 1976.
• It stands to end all forms of exploitation in all spheres of our existence.
• Our Constitution directs the state to ensure a planned and coordinated
social advance in all fields while preventing concentration of wealth and power
in few hands.
• Even after adopting liberalization, privatization and competitive economic
system, the Indian state remains committed to secure socialistic goals-Socio-
economic equality and an egalitarian society. Securing of socialist objectives
of development through democratic and liberal means continues to be a basic
objective of India.
c) Secularism
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• The ideal of secularism in Indian context implies that our country is not
guided by any religion or any religious considerations. By the 42nd
Amendment, the term ‘Secular’ was incorporated in the Preamble.
• It allows all its citizens to profess, preach and practice any religion of their
liking.
• Articles from 25 to 28 ensure freedom of religion to all its citizens.
Constitution strictly prohibits any discrimination on the ground of religion.
All minority communities are granted the right to conserve their distinctive
culture and the right to administer their educational institutions.
• Indian Secularism has a place not only for the right of individuals to profess
their religious beliefs but also for the right of religious communities to
establish and maintain educational institution.
• Indian Secularism is concerned as much with interreligious domination as
it is with intra-religious domination. It also ushered ideas of inter-community
equality to replace the notion of hierarchy.
• Indian secularism equally opposed the oppression of dalits and women
within Hinduism, the discrimination against women within Indian Islam or
Christianity, and the possible threats that a majority community might pose
to the rights of the minority religious communities.
• Indian secularism does not erect a wall of separation between the state and
religion. This allows the state to intervene in religions, to help or hinder them
without the impulse to control or destroy them.

Q. Explain the concept of secularism in Indian context. How is it different

from western secularism?
Secularism, as a political concept evolved post French Revolution and has
been adopted, cherished as dominant ideology in most modern nation states
of the 20th century. It means separation of state, institutions of governance
from the religious activities, either by following, preaching and enforcing. This
is largely synonymous with the idea of liberty and freedom of thinking. State
shall not preach any religious instructions using public funds.
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The Indian concept of secularism differs from western model

of secularism as secularism emerged in the Western Europe as an opposite
ideology to the church hegemony and as a protest against the wars and
massacres in the name of religion. Secularism thus originated as an anti-
religious principle. On the other hand, the Indian concept of secularism is not
a rejection of religious practices. In Indian context, secularism means equal
respect for all faiths and the state keeping itself impartial in not preferring
one religion over other.
The term ‘secularism’ is akin to the Vedic concept of ‘Dharma
nirapekshata’ i.e. the indifference of state to religion. This model of secularism
is adopted by western societies where the government is totally separate from
religion (i.e. separation of church and state).
Indian philosophy of secularism is related to “Sarva
Dharma Sambhava” (literally it means that destination of the paths followed
by all religions is the same, though the paths themselves may be different)
which means equal respect to all religions. This concept, embraced and
promoted by personalities like Vivekananda and Mahatma Gandhi is called
‘Positive secularism’ that reflects the dominant ethos of Indian culture.
Secularism and the Indian Constitution
There is a clear incorporation of all the basic principles of secularism into
various provisions of constitution .The term ‘Secular’ was added to the
preamble by the forty-second constitution Amendment Act of 1976, (India is
a sovereign, socialist, secular, democratic, republic).It emphasise the fact that
constitutionally, India is a secular country which has no State religion. And
that the state shall recognise and accept all religions, not favour or patronize
any particular religion.
While Article 14 grants equality before the law and equal
protection of the laws to all, Article 15 enlarges the concept of secularism to
the widest possible extent by prohibiting discrimination on grounds of
religion, race, caste, sex or place of birth.

Article 16 (1) guarantees equality of opportunity to all

citizens in matters of public employment and reiterates that there would be
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no discrimination on the basis of religion, race, caste, sex, descent, place of

birth and residence.

Article 25 provides ‘Freedom of Conscience’, that is, all

persons are equally entitled to freedom of conscience and the right to freely
profess, practise and propagate religion.

As per Article 26, every religious group or individual has

the right to establish and maintain institutions for religious and charitable
purposes and to manage its own affairs in matters of religion.

As per Article 27, the state shall not

compel any citizen to pay any taxes for the promotion or maintenance of any
particular religion or religious institution.

Article 28 allows educational institutions maintained by

different religious groups to impart religious instruction.

Article 29 and Article 30 provides cultural and educational rights to the

minorities.

Article 51A i.e. Fundamental Duties obliges all the citizens to promote
harmony and the spirit of common brotherhood and to value and preserve
the rich heritage of our composite culture.

As per the western model of secularism, the “State” and the “religion”
have their own separate spheres and neither the state nor the religion shall
intervene in each other’s affairs. Thus, the western concept of secularism
requires complete separation of religion and state. However, in India, neither
in law nor in practice any 'wall of separation' between religion and the State
exists. In India, both state and religion can, and often do, interact and
intervene in each other's affairs within the legally prescribed and judicially
settled parameters. In other words, Indian secularism does not require a
total banishment of religion from the State affair.

As per the western model, the state cannot

give any financial support to educational institutions run by religious
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communities. On the other hand, Indian model has chosen a positive mode
of engagement. In India, the state provides all religious minorities the right
to establish and maintain their own educational institutions which may
receive assistance from state.

In the western model, State does not intervene in the

affairs of religion till the time religion is working within the limits of the law.
On the other hand, in Indian secularism, state shall interfere in religion so
as to remove evils in it. India has intervened by enforcing legislation against
the practices of sati or widow-burning, dowry, animal and bird sacrifice,
child marriage, and preventing Dalits from entering temples.

In western concept of secularism,

religion is relegated entirely to the private sphere and has no place in public
life whatsoever. The western model prohibits any public policy to be drafted
on the basis of religion therefore; state is absolutely distanced from the
religious activities and practices of its citizens. In India, state has the policy
of setting up Departments of Religious Endowments, Wakf Boards, etc. It is
also involved in appointing Trustees of these boards.

Indian secularism therefore imbibes

concept of equal treatment of all religion, promote tolerance among them,
initiate reform and enable continuity and change of the institutions.

d) Democracy
A democratic polity, as stipulated in the Preamble, is based on the doctrine of
popular sovereignty, that is, possession of supreme power by the people.
Democracy is of two types–direct and indirect. In direct
democracy, the people exercise their supreme power directly as is the case in
Switzerland. There are four devices of direct democracy, namely, Referendum,
Initiative, Recall and Plebiscite . In indirect democracy, on the other hand, the
representatives elected by the people exercise the supreme power and thus
carry on the government and make the laws. This type of democracy, also
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known as representative democracy, is of two kinds–parliamentary and

presidential.
The Indian Constitution provides for representative parliamentary
democracy under which the executive is responsible to the legislature for all
its policies and actions. Universal adult franchise, periodic elections, rule of
law, independence of judiciary, and absence of discrimination on certain
grounds are the manifestations of the democratic character of the Indian
polity.
The term ‘democratic’ is used in the Preamble in the broader sense embracing
not only political democracy but also social and economic democracy. This
dimension was stressed by Dr. Ambedkar in his
concluding speech in the Constituent Assembly.
• Democracy contributes to stability in the society and it secures peaceful
change of rulers. It allows dissent and encourages tolerance.
e) Republic
A democratic polity can be classified into two categories– monarchy and
republic. In a monarchy, the head of the state (usually king or queen) enjoys
a hereditary position, that is, he comes into office through succession, e.g.,
Britain.
In a republic, on the other hand, the head of the state is always elected
directly or indirectly for a fixed period, e.g., USA. Therefore, the term ‘republic’
in our Preamble indicates that India has an elected head called the president.
He is elected indirectly for a fixed period of five years.
A republic also means two more things: one, vesting of political
sovereignty in the people and not in a single individual like a king; second,
the absence of any privileged class and hence all public offices being opened
to every citizen without any discrimination.
f) Justice
The term ‘justice’ in the Preamble embraces three distinct forms–social,
economic and political, secured through various provisions of Fundamental
Rights and Directive Principles.
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Social justice denotes the equal treatment of all citizens without any social
distinction based on caste, colour, race, religion, sex and so on. It means
absence of privileges being extended to any particular section of the society,
and improvement in the conditions of backward classes (SCs, STs and OBCs)
and women.
Economic justice denotes the non-discrimination between people on the
basis of economic factors. It involves the elimination of glaring inequalities in
wealth, income and property. A combination of social justice and economic
justice denotes what is known as ‘distributive justice’.
Political justice implies that all citizens should have
equal political rights, equal access to all political offices and equal voice in the
government.
The ideal of justice–social, economic and political–has been taken
from the Russian Revolution (1917).
g) Liberty
The term ‘liberty’ means the absence of restraints on the activities of
individuals, and at the same time, providing opportunities for the
development of individual personalities.
The Preamble secures to all citizens of India liberty of thought, expression,
belief, faith and worship, through their Fundamental Rights, enforceable in
court of law, in case of violation.
Liberty as elaborated in the Preamble is very essential for the successful
functioning of the Indian democratic system. However, liberty does not mean
‘license’ to do what one likes, and has to be enjoyed within the limitations
mentioned in the Constitution itself. In brief, the liberty conceived by the
Preamble or Fundamental Rights is not absolute but qualified.
The ideals of liberty, equality and fraternity in our Preamble have been taken
from the French Revolution (1789–1799).
h) Equality
The term ‘equality’ means the absence of special privileges to any section of
the society, and the provision of adequate opportunities for all individuals
without any discrimination.
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The Preamble secures to all citizens of India equality of status and

opportunity. This provision embraces three dimensions of equality–civic,
political and economic.
The following provisions of the chapter on Fundamental Rights ensure civic
equality:
(a) Equality before the law (Article 14).
(b) Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth (Article 15).
(c) Equality of opportunity in matters of public employment (Article 16).
(d) Abolition of untouchability (Article 17).
(e) Abolition of titles (Article 18).
There are two provisions in the Constitution that seek to achieve political
equality. One, no person is to be declared ineligible for inclusion in electoral
rolls on grounds of religion, race, caste or sex (Article 325). Two, elections to
the Lok Sabha and the state assemblies to be on the basis of adult suffrage
(Article 326).
The Directive Principles of State Policy (Article 39) secures to men and women
equal right to an adequate means of livelihood and equal pay for equal work.
i) Fraternity
Fraternity means a sense of brotherhood. The Constitution promotes this
feeling of fraternity by the system of single citizenship. Also, the Fundamental
Duties (Article 51-A) say that it shall be the duty of every citizen of India to
promote harmony and the spirit of common brotherhood amongst all the
people of India transcending religious, linguistic, regional or sectional
diversities. The Preamble declares that fraternity has to assure two things–
the dignity of the individual and the unity and integrity of thenation.
j) Dignity of the individual
• Fraternity and dignity of the individuals have a close link. Fraternity is only
achievable when the dignity of the individual will be secured and promoted.
Therefore, the founding fathers of our Constitution attached supreme
importance to it.
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According to K.M. Munshi, a member of the Drafting Committee of the

Constituent Assembly, the phrase ‘dignity of the individual’ signifies that the
Constitution not only ensures material bettermentand maintain a democratic
set-up, but that it also recognises that the personality of every individual is
sacred. This is highlighted through some of the provisions of the Fundamental
Rights and Directive Principles of State Policy, which ensure the dignity of
individuals. Further, the Fundamental Duties (Article 51-A) also protect the
dignity of women by stating that it shall be the duty of every citizen of India
to renounce practices derogatory to the dignity of women, and also makes it
the duty of every citizen of India to uphold and protect the sovereignty, unity
and integrity of India.
k) Unity and integrity of the Nation
The word ‘integrity’ has been added to the preamble by the 42nd
Constitutional Amendment (1976).
The phrase ‘unity and integrity of the nation’ embraces both the psychological
and territorial dimensions of national integration. Article 1 of the Constitution
describes India as a ‘Union of States’ to make it clear that the states have no
right to secede from the Union, implying the indestructible nature of the
Indian Union. It aims at overcoming hindrances to national integration like
communalism, regionalism, casteism, linguism, secessionism and so on.

Significance of Preamble: (Remember some comment by eminent personalities

on Preamble)
The Preamble embodies the basic philosophy and fundamental values–
political, moral and religious–on which the Constitution is based. It contains
the grand and noble vision of the Constituent Assembly, and reflects the
dreams and aspirations of the founding fathers of the Constitution.
According to K.M. Munshi, a member of the Drafting Committee
of the Constituent Assembly, the Preamble is the ‘horoscope of our sovereign
democratic republic’.
Pandit Thakur Das Bhargava, another member of the Constituent
Assembly, summed up the importance of the Preamble in the following words:
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‘The Preamble is the most precious part of the Constitution. It is the soul of
the Constitution. It is a key to the Constitution. It is a jewel set in the
Constitution. It is a proper yardstick with which one can measure the worth
of the Constitution’.
Sir Ernest Barker, a distinguished English political scientist, described the
Preamble as the ‘key-note’.
Preamble as part of Constitution
One of the controversies about the Preamble is as to whether it is a part of
the Constitution or not.
In the Berubari Union case (1960), the Supreme Court said that the Preamble
shows the general purposes behind the several provisions in the Constitution,
and is thus a key to the minds of the makers of the Constitution. Further,
where the terms used in any article are ambiguous or capable of more than
one meaning, some assistance at interpretation may be taken from the
objectives enshrined in the Preamble. Despite this recognition of the
significance of the Preamble, the Supreme Court specifically opined that
Preamble is not a part of the Constitution.
In the Kesavananda Bharati case (1973), the Supreme Court rejected the
earlier opinion and held that Preamble is a part of the Constitution. It
observed that the Preamble is of extreme importance and the Constitution
should be read and interpreted in the light of the grand and noble vision
expressed in the Preamble.
In the LIC of India case (1995) also, the Supreme Court again held that the
Preamble is an integral part of the Constitution.
Like any other part of the Constitution, the Preamble was also enacted by the
Constituent Assembly; but, after the rest of the Constitution was already
enacted. The reason for inserting the Preamble at the end was to ensure that
it was in conformity with the Constitution as adopted by the Constituent
Assembly. While forwarding the Preamble for votes, the President of the
Constituent Assembly said, ‘The question is that Preamble stands part of the
Constitution’19. The motion was then adopted. Hence, the current opinion
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held by the Supreme Court that the Preamble is a part of the Constitution, is
in consonance with the opinion of the founding fathers of the Constitution.
Amenability of Preamble:
The question as to whether the Preamble can be amended under Article 368
of the Constitution arose for the first time in the historic Kesavananda Bharati
case (1973). It was urged that the Preamble cannot be amended as it is not a
part of the Constitution. The petitioner contended that the amending power
in Article 368 cannot be used to destroy or damage the basic elements or the
fundamental features of the Constitution, which are enshrined in the
Preamble.
The Supreme Court, however, held that the Preamble is a part of the
Constitution. The Court stated that the opinion tendered by it in the Berubari
Union (1960) in this regard was wrong, and held that the Preamble can be
amended, subject to the condition that no amendment is done to the ‘basic
features’. In other words, the Court held that the basic elements or the
fundamental features of the Constitution as contained in the Preamble cannot
be altered by an amendment under Article 368 .
The Preamble has been amended only once so far, in 1976, by the 42nd
Constitutional Amendment Act, which has added three new words–Socialist,
Secular and Integrity–to the Preamble. This amendment was held to be valid.
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2. Fundamental Rights

What are the Fundamental Rights?

Fundamental rights are the basic human rights enshrined in the Constitution
of India which are guaranteed to all citizens. They are applied without
discrimination on the basis of race, religion, gender, etc.
Significantly, fundamental rights are enforceable by the courts, subject to
certain conditions.

The Fundamental Rights are enshrined in Part III of the Constitution from
Articles 12 to 35. In this regard, the framers of the Constitution derived
inspiration from the Constitution of USA (i.e., Bill of Rights).

Part III of the Constitution is rightly described as the Magna Carta of India. It
contains a very long and comprehensive list of ‘justiciable’ Fundamental
Rights. In fact, the Fundamental Rights in our Constitution are more
elaborate than those found in the Constitution of any other country in the
world, including the USA.

The Fundamental Rights are guaranteed by the Constitution to all persons

without any discrimination. They uphold the equality of all individuals, the
dignity of the individual, the larger public interest and unity of the nation.

The Fundamental Rights are meant for promoting the ideal of political
democracy. They prevent the establishment of an authoritarian and despotic
rule in the country, and protect the liberties and freedoms of the people
against the invasion by the State. They operate as limitations on the tyranny
of the executive and arbitrary laws of the legislature. In short, they aim at
establishing ‘a government of laws and not of men’.
The Fundamental Rights are named so because they are guaranteed and
protected by the Constitution, which is the fundamental law of the land. They
are ‘fundamental’ also in the sense that they are most essential for the all-
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round development (material, intellectual, moral and spiritual) of the

individuals.
Originally, the Constitution provided for seven Fundamental Rights viz,
1. Right to equality (Articles 14–18)
2. Right to freedom (Articles 19–22)
3. Right against exploitation (Articles 23–24)
4. Right to freedom of religion (Articles 25–28)
5. Cultural and educational rights (Articles 29–30)
6. Right to property (Article 31)
7. Right to constitutional remedies (Article 32)
However, the right to property was deleted from the list of Fundamental Rights
by the 44th Amendment Act, 1978. It is made a legal right under Article 300-
A in Part XII of the Constitution. So at present, there are only six Fundamental
Rights.
Characteristics of Fundamental Rights
The Fundamental Rights guaranteed by the Constitution are characterised by
the following:
1. Some of them are available only to the citizens while others are available to
all persons whether citizens, foreigners or legal persons like corporations or
companies.
2. They are not absolute but qualified. The state can impose reasonable
restrictions on them. However, whether such restrictions are reasonable or
not is to be decided by the courts. Thus, they strike a balance between the
rights of the individual and those of the society as a whole, between individual
liberty and social control.
3. All of them are available against the arbitrary action of the state. However,
some of them are also available against the action of private individuals.
4. Some of them are negative in character, that is, place limitations on the
authority of the State, while others are positive in nature, conferring certain
privileges on the persons.
5. They are justiciable, allowing persons to move the courts for their
enforcement, if and when they are violated.
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6. They are defended and guaranteed by the Supreme Court. Hence, the
aggrieved person can directly go to the Supreme Court, not necessarily by way
of appeal against the judgement of the high courts.
7. They are not sacrosanct or permanent. The Parliament can curtail or repeal
them but only by a constitutional amendment act and not by an ordinary act.
Moreover, this can be done without affecting the ‘basic structure’ of the
Constitution
8. They can be suspended during the operation of a National Emergency
except the rights guaranteed by Articles 20 and 21. Further, the six rights
guaranteed by Article 19 can be suspended only when emergency is declared
on the grounds of war or external aggression (i.e., external emergency) and
not on the ground of armed rebellion (i.e., internal emergency).
9. Their scope of operation is limited by Article 31A (saving of laws providing
for acquisition of estates, etc.), Article 31B (validation of certain acts and
regulations included in the 9th Schedule) and Article 31C (saving of laws
giving effect to certain directive principles).
10. Their application to the members of armed forces, para-military forces,
police forces, intelligence agencies and analogous services can be restricted
or abrogated by the Parliament (Article 33).
11. Their application can be restricted while martial law is in force in any
area. Martial law means ‘military rule’ imposed under abnormal
circumstances to restore order (Article 34). It is different from the imposition
of national emergency.
12. Most of them are directly enforceable (self-executory) while a few of them
can be enforced on the basis of a law made for giving effect to them. Such a
law can be made only by the Parliament and not by state legislatures so that
uniformity throughout the country is maintained (Article 35).

Explanation of Six Fundamental Rights: (No need to go in detail of each and

every Article as BPSC does not demand such detail. We should know the
broad objectives of these fundamental rights):
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1. Right to Equality (Articles 14 – 18)

Right to equality guarantees equal rights for everyone, irrespective of religion,

gender, caste, race or place of birth. It ensures equal employment
opportunities in the government and insures against discrimination by the
State in matters of employment on the basis of caste, religion, etc. This right
also includes the abolition of titles as well as untouchability.

2. Right to Freedom (Articles 19 – 22)

Freedom is one of the most important ideals cherished by any democratic

society. The Indian Constitution guarantees freedom to citizens. The freedom
right includes many rights such as:

Freedom of speech

Freedom of expression

Freedom of assembly without arms

Freedom of association

Freedom to practise any profession

Freedom to reside in any part of the country

Some of these rights are subject to certain conditions of state security, public
morality and decency and friendly relations with foreign countries. This
means that the State has the right to impose reasonable restrictions on them.

3. Right against Exploitation (Articles 23 – 24)

This right implies the prohibition of traffic in human beings, begar, and other
forms of forced labour. It also implies the prohibition of children in factories,
etc. The Constitution prohibits the employment of children under 14 years in
hazardous conditions.

4. Right to Freedom of Religion (Articles 25 – 28)

This indicates the secular nature of Indian polity. There is equal respect given
to all religions. There is freedom of conscience, profession, practice and
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propagation of religion. The State has no official religion. Every person has
the right to freely practice his or her faith, establish and maintain religious
and charitable institutions.

5. Cultural and Educational Rights (Articles 29 – 30)

These rights protect the rights of religious, cultural and linguistic minorities,
by facilitating them to preserve their heritage and culture. Educational rights
are for ensuring education for everyone without any discrimination.

6. Right to Constitutional Remedies (32 – 35)

The Constitution guarantees remedies if citizens’ fundamental rights are

violated. The government cannot infringe upon or curb anyone’s rights. When
these rights are violated, the aggrieved party can approach the courts.
Citizens can even go directly to the Supreme Court which can issue writs for
enforcing fundamental rights.

Why Right to Property is not a Fundamental Right?

There was one more fundamental right in the Constitution, i.e., the right to
property. However, this right was removed from the list of fundamental rights
by the 44th Constitutional Amendment. This was because this right proved
to be a hindrance towards attaining the goal of socialism and redistributing
wealth (property) equitably among the people.

Note: The right to property is now a legal right and not a fundamental right.

Criticism of Fundamental Rights:

The Fundamental Rights enshrined in Part III of the Constitution have met
with a wide and varied criticism. The arguments of the critics are:

1. Excessive Limitations

They are subjected to innumerable exceptions, restrictions, qualifications and

explanations. Hence, the critics remarked that the Constitution grants
Fundamental Rights with one hand and takes them away with the other.
Jaspat Roy Kapoor went to the extent of saying that the chapter dealing with
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the fundamental rights should be renamed as ‘Limitations on Fundamental

Rights’ or ‘Fundamental Rights and Limitations Thereon’.

2. No Social and Economic Rights

The list is not comprehensive as it mainly consists of political rights. It makes

no provision for important social and economic rights like right to social
security, right to work, right to employment, right to rest and leisure and so
on. These rights are made available to the citizens of advanced democratic
countries. Also, the socialistic constitutions of erstwhile USSR or China
provided for such rights.

3. No Clarity

They are stated in a vague, indefinite and ambiguous manner. The various
phrases and words used in the chapter like ‘public order’ , ‘minorities’,
‘reasonable restriction’, ‘public interest’ and so on are not clearly defined. The
language used to describe them is very complicated and beyond the
comprehension of the common man. It is alleged that the Constitution was
made by the lawyers for the lawyers. Sir Ivor Jennings called the Constitution
of India a ‘paradise for lawyers’.

4. No Permanency

They are not sacrosanct or immutable as the Parliament can curtail or abolish
them, as for example, the abolition of the fundamental right to property in
1978. Hence, they can become a play tool in the hands of politicians having
majority support in the Parliament. The judicially innovated ‘doctrine of basic
structure’ is the only limitation on the authority of Parliament to curtail or
abolish the fundamental right.

5. Suspension During Emergency

The suspension of their enforcement during the operation of National

Emergency (except Articles 20 and 21) is another blot on the efficacy of these
rights. This provision cuts at the roots of democratic system in the country by
placing the rights of the millions of innocent people in continuous jeopardy.
 22 BPSC MAINS

According to the critics, the Fundamental Rights should be enjoyable in all

situations–Emergency or no Emergency.

6. Expensive Remedy

The judiciary has been made responsible for defending and protecting these
rights against the interference of the legislatures and executives. However, the
judicial process is too expensive and hinders the common man from getting
his rights enforced through the courts. Hence, the critics say that the rights
benefit mainly the rich section of the Indian Society.

7. Preventive Detention

The critics assert that the provision for preventive detention (Article 22) takes
away the spirit and substance of the chapter on fundamental rights. It confers
arbitrary powers on the State and negates individual liberty. It justifies the
criticism that the Constitution of India deals more with the rights of the State
against the individual than with the rights of the individual against the State.
Notably, no democratic country in the world has made preventive detention
as an integral part of their Constitutions as has been made in India.

8. No Consistent Philosophy

According to some critics, the chapter on fundamental rights is not the

product of any philosophical principle. Sir Ivor Jennings expressed this view
when he said that the Fundamental Rights proclaimed by the Indian
Constitution are based on no consistent philosophy. The critics say that this
creates difficulty for the Supreme Court and the high courts in interpreting
the fundamental rights.

Significance of Fundamental Rights:

In spite of the above criticism and shortcomings, the Fundamental Rights are
significant in the following respects:
1. They constitute the bedrock of democratic system in the country.
2. They provide necessary conditions for the material and moral protection of
man.
 23 BPSC MAINS

3. They serve as a formidable bulwark of individual liberty.

4. They facilitate the establishment of rule of law in the country.
5. They protect the interests of minorities and weaker sections of society.
6. They strengthen the secular fabric of the Indian State.
7. They check the absoluteness of the authority of the government.
8. They lay down the foundation stone of social equality and social justice.
9. They ensure the dignity and respect of individuals.
10. They facilitate the participation of people in the political and
administrative process.

Amendability of Fundamental Rights

Any changes to the fundamental rights require a constitutional amendment

that should be passed by both the Houses of Parliament. The amendment bill
should be passed by a special majority of Parliament.

As per the Constitution, Article 13(2) states that no laws can be made that
take away fundamental rights.

The question is whether a constitutional amendment act can be termed law

or not.

In the Sajjan Singh case of 1965, the Supreme Court held that the Parliament
can amend any part of the Constitution including fundamental rights.

But in 1967, the SC reversed its stance taken earlier when in the verdict of
the Golaknath case, it said that the fundamental rights cannot be amended.

In 1973, a landmark judgement ensued in the Kesavananda Bharati case,

where the SC held that although no part of the Constitution, including
Fundamental Rights, was beyond the Parliament’s amending power, the
“basic structure of the Constitution could not be abrogated even by a
constitutional amendment.”
 24 BPSC MAINS

This is the basis in Indian law in which the judiciary can strike down any
amendment passed by Parliament that is in conflict with the basic structure
of the Constitution.

In 1981, the Supreme Court reiterated the Basic Structure doctrine.

It also drew a line of demarcation as April 24th, 1973 i.e., the date of the
Kesavananda Bharati judgement, and held that it should not be applied
retrospectively to reopen the validity of any amendment to the Constitution
which took place prior to that date.

Right to Life (Art. 21): (Very Important)

The Right to Life and Personal Liberty is assured by the Indian Constitution under
Article 21.
According to Article 21: “Protection of Life and Personal Liberty: No person shall be
deprived of his life or personal liberty except according to procedure established by
law.”

 This fundamental right is available to every person, citizens and foreigners

alike.

 Article 21 provides two rights:

 Right to life

 Right to personal liberty

 The fundamental right provided by Article 21 is one of the most important

rights that the Constitution guarantees.

 The Supreme Court of India has described this right as the ‘heart of
fundamental rights’.

 The right specifically mentions that no person shall be deprived of life and
liberty except as per the procedure established by law. This implies that this
right has been provided against the State only. State here includes not just
the government, but also, government departments, local bodies, the
Legislatures, etc.

 Any private individual encroaching on these rights of another individual does

not amount to a violation of Article 21. The remedy for the victim, in this case,
would be under Article 226 or under general law.
 25 BPSC MAINS

 The right to life is not just about the right to survive. It also entails being able
to live a complete life of dignity and meaning.

 The chief goal of Article 21 is that when the right to life or liberty of a person
is taken away by the State, it should only be according to the prescribed
procedure of law.

Interpretation of Article 21

Judicial intervention has ensured that the scope of Article 21 is not narrow
and restricted. It has been widening by several landmark judgements.

A few important cases concerned with Article 21:

1. AK Gopalan Case (1950): Until the 1950s, Article 21 had a bit of a

narrow scope. In this case, the SC held that the expression ‘procedure
established by law’, the Constitution has embodied the British concept
of personal liberty rather than the American ‘due process’.
2. Maneka Gandhi vs. Union of India Case (1978): This case overturned
the Gopalan case judgement. Here, the SC said that Articles 19 and 21
are not watertight compartments. The idea of personal liberty in Article
21 has a wide scope including many rights, some of which are embodied
under Article 19, thus giving them ‘additional protection’. The court also
held that a law that comes under Article 21 must satisfy the
requirements under Article 19 as well. That means any procedure under
law for the deprivation of life or liberty of a person must not be unfair,
unreasonable or arbitrary. Read the Maneka Gandhi case in detail in
the linked article.
3. Francis Coralie Mullin vs. Union Territory of Delhi (1981): In this case,
the court held that any procedure for the deprivation of life or liberty of
a person must be reasonable, fair and just and not arbitrary, whimsical
or fanciful.
4. Olga Tellis vs. Bombay Municipal Corporation (1985): This case
reiterated the stand taken earlier that any procedure that would deprive
a person’s fundamental rights should conform to the norms of fair play
and justice.
 26 BPSC MAINS

5. Unni Krishnan vs. State of Andhra Pradesh (1993): In this case, the SC
upheld the expanded interpretation of the right to life. The Court gave
a list of rights that Article 21 covers based on earlier judgements. Some
of them are:
1. Right to privacy
2. Right to go abroad
3. Right to shelter
4. Right against solitary confinement
5. Right to social justice and economic empowerment
6. Right against handcuffing
7. Right against custodial death
8. Right against delayed execution
9. Doctors’ assistance
10. Right against public hanging
11. Protection of cultural heritage
12. Right to pollution-free water and air
13. Right of every child to a full development
14. Right to health and medical aid
15. Right to education
16. Protection of under-trials

Right to Privacy and Recent Whatsapp controversy:

In August 2017,a nine-judge bench of the Supreme Court in Justice K. S.

Puttaswamy (Retd) Vs Union of India unanimously held that Indians have a
constitutionally protected fundamental right to privacy that is an intrinsic
part of life and liberty under Article 21.

It held that privacy is a natural right that inheres in all natural persons, and
that the right may be restricted only by state action that passes each of the
three tests:

First, such state action must have a legislative mandate; Second, it must be
pursuing a legitimate state purpose; and Third, it must be proportionate i.e.,
 27 BPSC MAINS

such state action — both in its nature and extent, must be necessary in a
democratic society and the action ought to be the least intrusive of the
available alternatives to accomplish the ends.

Privacy Judgement as a guiding tool:

 This landmark judgement fundamentally changed the way in which the

government viewed its citizens’ privacy, both in practice and
prescription.
 It requires governments to undertake structural reforms and bring
transparency and openness in the process of commissioning and
executing its surveillance projects, and build a mechanism of judicial
oversight over surveillance requests.
 It demands from the authorities to demonstrate great care and
sensitivity in dealing with personal information of its citizens.
 It requires to legislate a transformative, rights-oriented data protection
law that holds all powerful entities that deal with citizens’ personal data
(data controllers), including the state, accountable.

Steps taken by Government to strengthen Privacy Regime:

 Government appointed a committee of experts for Data protection

under the chairmanship of Justice B N Srikrishna that submitted its
report in July 2018 along with a draft Data Protection Bill.
The Report has a wide range of recommendations
to strengthen privacy law in India. Its proposals included restrictions
on processing and collection of data, Data Protection Authority, right to
be forgotten, data localisation, explicit consent requirements for
sensitive personal data, etc.
 Information Technology Act, 2000: The IT Act provides for safeguard
against certain breaches in relation to data from computer systems. It
contains provisions to prevent the unauthorized use of computers,
computer systems and data stored therein.

New Whatsapp Policy & Privacy

 28 BPSC MAINS

Recently, WhatsApp has updated its policy, which states that it may share
information of any of its users with its family of companies (Facebook). This
new update has caused a lot of concern over the privacy of the people that
use this application.

Privacy experts and antitrust bodies have also raised the alarm at this new
privacy policy of WhatsApp. Moreover, Indian users are more vulnerable due
to the absence of any data protection law.

As the Supreme court in K. Puttaswamy’s judgment held that the right to

privacy is a fundamental right, the Whatsapp new policy is yet another reason
why India needs data protection law.

Issues Related to New Whatsapp Policy

 Whatsapp As the Owner of Data: The information that WhatsApp

automatically collects and will be sharing with Facebook includes the
mobile phone number, user activity, and other basic information of the
WhatsApp account.

o WhatsApp’s recent privacy policy to share commercial user data

with Facebook establishes that it is the owner of the data rather
than an intermediary.

o The policy essentially takes away the choice users had until now
to not share their data with other Facebook-owned and third-
party apps.

 Against the Recommendations of the Srikrishna Committee Report: The

new Whatsapp policy contradicts the recommendations of the Srikrishna
Committee report, which forms the basis of the Data Protection Bill
2019. For Example:

o The principle of Data Localisation, which aims to put curbs on

the transfer of personal data outside the country, may come in
conflict with WhatsApp’s new privacy policy.
 29 BPSC MAINS

o The report stated that using the information for purposes that
are reasonably linked to the purpose for which the information
was given. However, the updated privacy policy of WhatsApp
can be seen as a move to ensure subtle forms of commercial
exploitation and micro-targeting by political
campaigns (Cambridge Analytica scandal).

 Sharing of Metadata: WhatsApp held that the end-to-end encryption

clause remains intact, which will ensure that it can’t see your messages
or share them with anyone.

o However, with the updated privacy policy, WhatsApp can now

share one’s metadata, essentially everything beyond the
conversation’s actual text.

 Take it or Leave it’ Policy: If users disagree with the messaging platform’s
updated privacy policy, they will have to quit WhatsApp when the new
terms of service are set to come into effect.

Way Forward

 Expediting Data Protection Law: India’s data protection law has been
languishing for two years now. If India had a data protection law in place,
WhatsApp would not have been able to go ahead with this update in the
first place.

o For instance, WhatsApp’s updated privacy policy guidelines

won’t be applicable if you live in the European Region thanks to
the data protection law (GDPR) in place there.

o Therefore, India must expedite the process of finalizing the data

protection law.

o Further, India should use the current Whatsapp issue to update

the already under process intermediary guidelines.
 30 BPSC MAINS

 Public Awareness: According to many experts, WhatsApp users in India

will not care too much about this issue, what with privacy policies being
generally difficult to be understood by the public.

o Therefore, the government and civil society must engage in

awareness programs to make the public aware of the importance
of digital privacy.

Conclusion

The privacy of a billion citizens is too important a thing to be left just to the
practices of a commercial enterprise. It will be reassuring if a strong law
guarantees it.
 31 BPSC MAINS

3. DPSP (Directive Principles of state

Policy)
The Directive Principles of State Policy are enumerated in Part IV of the
Constitution from Articles 36 to 51. The framers of the Constitution borrowed
this idea from the Irish Constitution of 1937, which had copied it from the
Spanish Constitution. Dr. B.R. Ambedkar described these principles as ‘novel
features’ of the Indian Constitution. The Directive Principles along with the
Fundamental Rights contain the philosophy of the Constitution and is the
soul of the Constitution. Granville Austin has described the Directive
Principles and the Fundamental Rights as the ‘Conscience of the
Constitution’.

Features of Directive Principles of State Policy :

1. The phrase ‘Directive Principles of State Policy’ denotes the ideals that the
State should keep in mind while formulating policies and enacting laws. These
are the constitutional instructions or recommendations to the State in
legislative, executive and administrative matters. According to Article 36, the
term ‘State’ in Part IV has the same meaning as in Part III dealing with
Fundamental Rights. Therefore, it includes the legislative and executive
organs of the central and state governments, all local authorities and all other
public authorities in the country.
2. The Directive Principles resemble the ‘Instrument of Instructions’
enumerated in the Government of India Act of 1935. In the words of Dr. B.R.
Ambedkar, ‘the Directive Principles are like the instrument of instructions,
which were issued to the Governor-General and to the Governors of the
colonies of India by the British Government under the Government of India
Act of 1935. What is called Directive Principles is merely another name for the
instrument of instructions. The only difference is that they are instructions
to the legislature and the executive’.
 32 BPSC MAINS

3. The Directive Principles constitute a very comprehensive economic, social

and political programme for a modern democratic State. They aim at realising
the high ideals of justice, liberty, equality and fraternity as outlined in the
Preamble to the Constitution. They embody the concept of a ‘welfare state’
and not that of a ‘police state’, which existed during the colonial era. In brief,
they seek to establish economic and social democracy in the country.
4. The Directive Principles are non-justiciable in nature, that is, they are not
legally enforceable by the courts for their violation. Therefore, the government
(Central, state and local) cannot be compelled to implement them.
Nevertheless, the Constitution (Article 37) itself says that these principles are
fundamental in the governance of the country and it shall be the duty of the
State to apply these principles in making laws.
5. The Directive Principles, though non-justiciable in nature, help the courts
in examining and determining the constitutional validity of a law. The
Supreme Court has ruled many a times that in determining the
constitutionality of any law, if a court finds that the law in question seeks to
give effect to a Directive Principle, it may consider such law to be ‘reasonable’
in relation to Article 14 (equality before law) or Article 19 (six freedoms) and
thus save such law from unconstitutionality.

Directive Principles of State Policy – Classification

Indian Constitution has not originally classified DPSPs but on the basis of
their content and direction, they are usually classified into three types-

 Socialistic Principles,

 Gandhian Principles and,

 Liberal-Intellectual Principles.

The details of the three types of DPSPs are given below:

 33 BPSC MAINS

DPSP – Socialistic Principles

Definition: They are the principles that aim at providing social and economic justice
and set the path towards the welfare state. Under various articles, they direct the state
to:

Article Promote the welfare of the people by securing a social order through justice—
38 social, economic and political—and to minimise inequalities in income,
status, facilities and opportunities

Article Secure citizens:

39
 Right to adequate means of livelihood for all citizens

 Equitable distribution of material resources of the community for the

common good

 Prevention of concentration of wealth and means of production

 Equal pay for equal work for men and women

 Preservation of the health and strength of workers and children

against forcible abuse

 Opportunities for the healthy development of children

Article Promote equal justice and free legal aid to the poor
39A

Article In cases of unemployment, old age, sickness and disablement, secure

41 citizens:

 Right to work

 Right to education
 34 BPSC MAINS

 Right to public assistance,

Article Make provision for just and humane conditions of work and maternity relief
42

Article Secure a living wage, a decent standard of living and social and cultural
43 opportunities for all workers

Article Take steps to secure the participation of workers in the management of

43A industries

Article Raise the level of nutrition and the standard of living of people and to
47 improve public health

DPSP – Gandhian Principles

Definition: These principles are based on Gandhian ideology used to represent the
programme of reconstruction enunciated by Gandhi during the national movement.
Under various articles, they direct the state to:

Article Organise village panchayats and endow them with necessary powers and
40 authority to enable them to function as units of self-government

Article Promote cottage industries on an individual or co-operation basis in rural

43 areas
 35 BPSC MAINS

Article Promote voluntary formation, autonomous functioning, democratic control

43B and professional management of co-operative societies

Article Promote the educational and economic interests of SCs, STs, and other
46 weaker sections of the society and to protect them from social injustice and
exploitation

Article Prohibit the consumption of intoxicating drinks and drugs which are
47 injurious to health

Article Prohibit the slaughter of cows, calves and other milch and draught cattle
48 and to improve their breeds

DPSP – Liberal-Intellectual Principles

Definition: These principles reflect the ideology of liberalism. Under various articles,
they direct the state to:

Article Secure for all citizens a uniform civil code throughout the country
44

Article Provide early childhood care and education for all children until they
45 complete the age of six years

Article Organise agriculture and animal husbandry on modern and scientific lines
48
 36 BPSC MAINS

Article Protect monuments, places and objects of artistic or historic interest which
49 are declared to be of national importance

Article Separate the judiciary from the executive in the public services of the State
50

Article  Promote international peace and security and maintain just and
51 honourable relations between nations

 Foster respect for international law and treaty obligations

 Encourage settlement of international disputes by arbitration

What are the new DPSPs added by the 42nd Amendment Act, 1976?
42nd Amendment Act, 1976 added four new Directive Principles in the list:

S.No Article New DPSPs

1 Article 39 To secure opportunities for the healthy development of children

2 Article To promote equal justice and to provide free legal aid to the poor
39A

3 Article To take steps to secure the participation of workers in the

43A management of industries

4 Article To protect and improve the environment and to safeguard forests

48A and wildlife
 37 BPSC MAINS

The 44th Amendment Act of 1978 added one more Directive Principle, which
requires the State to minimise inequalities in income, status, facilities and
opportunities (Article 38).
The 86th Amendment Act of 2002 changed the subject-matter of Article 45
and made elementary education a fundamental right under Article 21 A. The
amended directive requires the State to provide early childhood care and
education for all children until they complete the age of six years.
The 97th Amendment Act of 2011 added a new Directive Principle relating to
cooperative societies. It requires the state to promote voluntary formation,
autonomous functioning, democratic control and professional management of
co-operative societies (Article 43B).

Analysis of DPSPs:
Sir B.N. Rau, the Constitutional Advisor to the Constituent Assembly,
recommended that the rights of an individual should be divided into two
categories–justiciable and non-justiciable, which was accepted by the
Drafting Committee. Consequently, the Fundamental Rights, which are
justiciable in nature, are incorporated in Part III and the Directive Principles,
which are non-justiciable in nature, are incorporated in Part IV of the
Constitution.
Though the Directive Principles are non-justiciable, the Constitution (Article
37) makes it clear that ‘these principles are fundamental in the governance of
the country and it shall be the duty of the state to apply these principles in
making laws’. Thus, they impose a moral obligation on the state authorities
for their application, but the real force behind them is political, that is, public
opinion. As observed by Alladi Krishna Swamy Ayyar, ‘no ministry responsible
to the people can afford light-heartedly to ignore the provisions in Part IV of
the Constitution’. Similarly, Dr. B.R. Ambedkar said in the Constituent
Assembly that ‘a government which rests on popular vote can hardly ignore
the Directive Principles while shaping its policy. If any government ignores
them, it will certainly have to answer for that before the electorate at the
election time’.
 38 BPSC MAINS

The framers of the Constitution made the Directive Principles non-justiciable

and legally non-enforceable because:
1. The country did not possess sufficient financial resources to implement
them.
2. The presence of vast diversity and backwardness in the country would
stand in the way of their implementation.
3. The newly born independent Indian State with its many pre occupations
might be crushed under the burden unless it was free to decide the order, the
time, the place and the mode of fulfilling them.
‘The Constitution makers, therefore, taking a pragmatic view, refrained from
giving teeth to these principles. They believed more in an awakened public
opinion rather than in court procedures as the ultimate sanction for the
fulfilment of these principles’.

Criticism of DPSPs :
The Directive Principles of State Policy have been criticised by some members
of the Constituent Assembly as well as other constitutional and political
experts on the following grounds:
1. No Legal Force
The Directives have been criticised mainly because of their nonjusticiable
character. While K.T. Shah dubbed them as ‘pious superfluities’ and
compared them with ‘a cheque on a bank, payable only when the resources
of the bank permit’ ,Nasiruddin contended that these principles are ‘no better
than the new year’s resolutions, which are broken on the second of January’.
Even as T.T. Krishnamachari described the Directives as ‘a veritable dustbin
of sentiments’, K C Wheare called them as a ‘manifesto of aims and
aspirations’ and opined that they serve as mere ‘moral homily’, and Sir Ivor
Jennings thought they are only as ‘pious aspirations’.
2. Illogically Arranged
Critics opine that the Directives are not arranged in a logical manner based
on a consistent philosophy. According to N Srinivasan, ‘the Directives are
neither properly classified nor logically arranged. The declaration mixes up
 39 BPSC MAINS

relatively unimportant issues with the most vital economic and social
questions. It combines rather incongruously the modern with the old and
provisions suggested by the reason and science with provisions based purely
on sentiment and prejudice’14. Sir Ivor Jennings too pointed out that these
principles have no consistent philosophy.
3. Conservative
According to Sir Ivor Jennings, the Directives are based on the political
philosophy of the 19th century England. He remarked: ‘The ghosts of Sydney
Webb and Beatrice Webb stalk through the pages of the text. Part IV of the
Constitution expresses Fabian Socialism without the socialism’. He opined
that the Directives ‘are deemed to be suitable in India in the middle of the
twentieth century. The question whether they are suitable for the twenty-first
century cannot be answered; but it is quite probable that they will be entirely
out moded.
4. Constitutional Conflict
K Santhanam has pointed out that the Directives lead to a constitutional
conflict (a) between the Centre and the states, (b) between the President and
the Prime Minister, and (c) between the governor and the chief minister.
According to him, the Centre can give directions to the states with regard to
the implementation of these principles, and in case of non-compliance, can
dismiss the state government. Similarly, when the Prime Minister gets a
bill (which violates the Directive Principles) passed by the Parliament, the
president may reject the bill on the ground that these principles are
fundamental to the governance of the country and hence, the ministry has no
right to ignore them. The same constitutional conflict may occur between the
governor and the chief minister at the state level.

Utility of Directive Principles of State Policy:

In spite of the above criticisms and shortcomings, the Directive Principles are
not an unnecessary appendage to the Constitution. The Constitution itself
declares that they are fundamental to the governance of the country.
According to L.M. Singhvi, an eminent jurist and diplomat, ‘the Directives are
 40 BPSC MAINS

the life giving provisions of the Constitution. They constitute the stuff of the
Constitution and its philosophy of social justice’. M.C. Chagla, former Chief
Justice of India, is of the opinion that, ‘if all these principles are fully carried
out, our country would indeed be a heaven on earth. India would then be not
only democracy in the political sense, but also a welfare state looking after
the welfare of its citizens’. Dr. B.R. Ambedkar had pointed out that the
Directives have great value because they lay down that the goal of Indian
polity is ‘economic democracy’ as distinguished from ‘political democracy’.
Granville Austin opined that the Directive Principles are ‘aimed at furthering
the goals of the social revolution or to foster this revolution by establishing
the conditions necessary for its achivement’. Sir B.N. Rau, the constitutional
advisor to the Constituent Assembly, stated that the Directive Principles are
intended as ‘moral precepts for the authorities of the state. They have at least
an educative value.’
According to M.C. Setalvad, the former Attorney General of India, the Directive
Principles, although confer no legal rights and create no legal remedies, are
significant and useful in the following ways:
1. They are like an ‘Instrument of Instructions’ or general recommendations
addressed to all authorities in the Indian Union. They remind them of the
basic principles of the new social and economic order, which the Constitution
aims at building.
2. They have served as useful beacon-lights to the courts. They have helped
the courts in exercising their power of judicial review, that is, the power to
determine the constitutional validity of a law.
3. They form the dominating background to all State action, legislative or
executive and also a guide to the courts in some respects.
4. They amplify the Preamble, which solemnly resolves to secure to all citizens
of India justice, liberty, equality and fraternity.

The Directives also play the following roles:

 41 BPSC MAINS

1. They facilitate stability and continuity in domestic and foreign policies in

political, economic and social spheres in spite of the changes of the party in
power.
2. They are supplementary to the fundamental rights of the citizens. They are
intended to fill in the vacuum in Part III by providing for social and economic
rights.
3. Their implementation creates a favourable atmosphere for the full and
proper enjoyment of the fundamental rights by the citizens. Political
democracy, without economic democracy, has no meaning.
4. They enable the opposition to exercise influence and control over the
operations of the government. The Opposition can blame the ruling party on
the ground that its activities are opposed to the Directives.
5. They serve as a crucial test for the performance of the government. The
people can examine the policies and programmes of the government in the
light of these constitutional declarations.
6. They serve as common political manifesto. ‘A ruling party, irrespective of
its political ideology, has to recognise the fact that these principles are
intended to be its guide, philosopher and friend in its legislative and executive
acts’.
 42 BPSC MAINS

4. Correlation between Fundamental

Rights and DPSPs.
Conflict between Fundamental rights and DPSPs

The justiciability of Fundamental Rights and non-justiciability of Directive

Principles on the one hand and the moral obligation of State to implement
Directive Principles (Article 37) on the other hand have led to a conflict
between the two since the commencement of the Constitution. In the
Champakam Dorairajan case (1951), the Supreme Court ruled that in case of
any conflict between the Fundamental Rights and the Directive Principles, the
former would prevail. It declared that the Directive Principles have to conform
to and run as subsidiary to the Fundamental Rights. But, it also held that the
Fundamental Rights could be amended by the Parliament by enacting
constitutional amendment acts. As a result, the Parliament made the First
Amendment Act (1951), the Fourth Amendment Act (1955) and the
Seventeenth Amendment Act (1964) to implement some of the Directives.
The above situation underwent a major change in 1967 following
the Supreme Court’s judgement in the Golaknath case (1967). In that case,
the Supreme Court ruled that the Parliament cannot take away or abridge
any of the Fundamental Rights, which are ‘sacrosanct’ in nature. In other
words, the Court held that the Fundamental Rights cannot be amended for
the implementation of the Directive Principles.
The Parliament reacted to the Supreme Court’s judgement in
the Golaknath Case (1967) by enacting the 24th Amendment Act (1971) and
the 25th Amendment Act (1971). The 24th Amendment Act declared that the
Parliament has the power to abridge or take away any of the Fundamental
Rights by enacting Constitutional Amendment Acts. The 25th Amendment Act
inserted a new Article 31C which contained the following two provisions:
1. No law which seeks to implement the socialistic Directive Principles
specified in Article 39 (b) and (c) shall be void on the ground of contravention
of the Fundamental Rights conferred by Article 14 (equality before law and
 43 BPSC MAINS

equal protection of laws), Article 19 (protection of six rights in respect of

speech, assembly, movement, etc) or Article 31 (right to property).
2. No law containing a declaration for giving effect to such policy shall be
questioned in any court on the ground that it does not give effect to such a
policy.
In the Kesavananda Bharati case (1973), the Supreme Court declared the
above second provision of Article 31C as unconstitutional and invalid on the
ground that judicial review is a basic feature of the Constitution and hence,
cannot be taken away. However, the above first provision of Article 31C was
held to be constitutional and valid.
Later, the 42nd Amendment Act (1976) extended the scope of the above first
provision of Article 31C by including within its protection any law to
implement any of the Directive Principles and not merely those specified in
Article 39 (b) and (c). In other words, the 42nd Amendment Act accorded the
position of legal primacy and supremacy to the Directive Principles over the
Fundamental Rights conferred by Articles 14, 19 and 31. However, this
extension was declared as unconstitutional and invalid by the Supreme Court
in the Minerva Mills case (1980). It means that the Directive Principles were
once again made subordinate to the Fundamental Rights. But the
Fundamental Rights conferred by Article 14 and Article 19 were accepted as
subordinate to the Directive Principles specified in Article 39 (b) and (c).
Further, Article 31 (right to property) was abolished by the 44th Amendment
Act (1978).
In the Minerva Mills case (1980), the Supreme Court also held that
‘the Indian Constitution is founded on the bedrock of the balance between the
Fundamental Rights and the Directive Principles. They together constitute the
core of commitment to social revolution. They are like two wheels of a chariot,
one no less than the other. To give absolute primacy to one over the other is
to disturb the harmony of the Constitution. This harmony and balance
between the two is an essential feature of the basic structure of the
Constitution. The goals set out by the Directive Principles have to be achieved
without the abrogation of the means provided by the Fundamental Rights’.
 44 BPSC MAINS

Therefore, the present position is that the Fundamental Rights enjoy

supremacy over the Directive Principles. Yet, this does not mean that the
Directive Principles cannot be implemented. The Parliament can amend the
Fundamental Rights for implementing the Directive Principles, so long as the
amendment does not damage or destroy the basic structure of the
Constitution.
 45 BPSC MAINS

5. Art. 370 and Art. 35-A : Removal and its

impact

Background
 In 1948, Indian Government signed Treaty of Accession with ruler of
Kashmir to provide Kashmir protection from Pakistan’s aggression. Post
signing of Treaty of Accession, Article 370 was inserted in the part XXI
of the Constitution that proclaimed it to be "Temporary, Transitional
and Special Provision" and provided for a special status to Jammu and
Kashmir (J&K).
 As per the Article, the centre needed the state government's
concurrence to apply laws — except in defence, foreign affairs, finance
and communications.
 Also, the state's residents lived under a separate set of laws, such as
those related to citizenship, ownership of property, separate penal code
and fundamental rights, as compared to other Indian citizens.
o Article 35A of the Indian Constitution gave powers to the Jammu
and Kashmir Assembly to define permanent residents of the
state, their special rights and privileges.
 In August 2019, President of India promulgated Constitution
(Application to Jammu and Kashmir) Order, 2019 which stated that
provisions of the Indian Constitution were applicable in the State.
 This effectively meant that all the provisions that formed the basis of a
separate Constitution for Jammu and Kashmir stand abrogated. With
this, Article 35A was scrapped automatically.
 Also, Jammu and Kashmir Reorganization Act, 2019 was passed by the
Parliament, which re-organized J&K into two Union Territories (UTs)-
o J&K division with a legislative assembly
o UT of Ladakh without a legislative assembly.
 46 BPSC MAINS

Arguments in favour of scrapping Article 370 :

1. Temporary Provision- Article 370 was added as a “temporary provisions

with respect to the State of Jammu and Kashmir”. The constitutional
framers including Jawaharlal Nehru envisaged that it will erode
eventually, but contrary to it, this article had assumed permanency.
2. Impediment in Integration- Allowing a separate constitution, flag and
powers to Jammu and Kashmir had created a sense of separate identity
among the people of the state. This had been used to misguide youth
and create a demand of separatism among them. The article was also
not successful in protecting the interests of entire demography of
Kashmir, rather some sections like the Kashmiri Pandits had to flee
from their houses following the ethnic attacks on them.
3. Security and Terrorism- Owing to cross border terrorism, around 42
thousand people have lost lives in the state. The special status was
considered an impediment in fight against terrorism.
4. Governance- It was alleged by various activists that due to poor anti-
graft architecture (anti-corruption agencies could not enter the state),
the resources would never reach the common man. For instance, the
average money spent in Jammu and Kashmir is Rs. 14000/ person
compared to Rs. 3683/ person for the rest of the country.
5. Lack of economic development- Owing to a different applicability of
laws, following concerns remained
o Land Prices- The land in the state could only be sold and bought
by the permanent residents of the state. This did not allow the land
prices to rise in the region.
o Lack of investments- Large businesses houses did not invest in
the region owing to land concerns. It resulted in monopoly of some
businesses. E.g. Cement prices remain near Rs.100 against a much
lesser price in rest of the country.
6. Recent International events- The situation in western neighbourhood
i.e. Afghanistan has been turbulent in recent times owing to possible
ascendance of Taliban after withdrawal of US forces.
 47 BPSC MAINS

7. Local Democracy- Owing to the concerns of capture of power by certain

political parties and killing of elected village heads (sarpanch), the idea
of democratic system of Indian Constitution could not reach at the
grassroots level.
8. Central Laws inapplicable- Since all the laws enacted by the Parliament
were not applicable automatically to the state, various enabling
legislations such as Right to Education, Right to Information were not
available to the citizens of Jammu and Kashmir.
9. Reservations Benefits- which are available to marginalized sections like
OBCs, SC, STs, in rest of the country were not available to the
marginalized sections of the state.
10. Equitable Development- The entire governance machinery was
felt to be concentrated on Kashmir valley with less attention to Jammu
and Ladakh, which may now be given adequate attention.

Concerns over the process followed to abrogate special status:

While there has been a broad consensus among political parties over the
above arguments for scrapping the Article 370, there have been some
concerns that it has been scrapped without consultations or due process.
Doubts have been cast over the legality of the amendment of Article 370 itself
through Presidential order. Also, misusing the President Rule and making
Governor as a substitute for the elected assembly as well as equating state
assembly with constituent assembly. Abrogation goes against J&K’s position
promised in the original constitution. Further, clampdown on political parties
and civil liberties has been criticized as undemocratic.

Abrogation of Article 370 in itself would not solve the alienation of Kashmiris.
Besides ‘security oriented approach’ to contain radicalization of the youth and
reducing the terror attacks and infiltration attempts, the Government needs
to strengthen the democratic setup in the region. It can begin with releasing
the leaders of political parties and allowing a more constructive discussion on
the future prospects of the region. Further, the government must also work
towards reducing the security footprint to allow democratic institutions work
 48 BPSC MAINS

smoothly. The Government needs to win hearts and minds of the people
through better governance and economic empowerment of the people. Not
only this, it needs to gradually work towards improving public perception
towards the Indian Government and the State by working in close
collaboration with community organizations and encouraging public
participation in governance, then only Jammu and Kashmir will get more
integrated to India.

Analyzing developments since abrogation of Article 370

Developments Analysis
Measures were taken by the Central Development in the region has the
government for transformational potential to increase investments in
development in the J&K region: the region, boost industrial growth,
• In January 2020, Central create job opportunities, decrease
government granted a package of Rs militancy and strengthen its
80,000 crore for development works economy.
in J&K.
Legislative changes: Many of 354 Several Critical legislations passed
State laws in the erstwhile Jammu by the Government of India are now
and Kashmir have been repealed, applicable in J&K like Right to
modified while around 170 central Information Act, 2005, Whistle
laws have been made applicable. Blowers Protection Act, 2014 etc.
Government introduced an array of • Citizens residing in J&K can now
Central schemes in the region reap benefits of central schemes
such as Ayushman Bharat scheme,
Atal Pension Yojana, PM-KISAN,
Pradhan Mantri Jan Dhan Yojana
and Stand-Up India.
• Under the National Saffron
Mission, more than 3,500 hectares
of land in J&K is being rejuvenated
for saffron cultivation.
 49 BPSC MAINS

Administrative changes in J&K and • Structural reforms have been

Ladakh after them being carried out in various departments
declared as a Union Territories where overlapping functions have
been merged or downsized.
Dilution in Domicile laws after • The ease in procurement of land
Article 35A was repealed: will draw more investors in the state
• Parliament has redefined the boosting the economic structure of
domiciles in J&K as those who J&K.
have been a resident for a period of • Central government employees
15 years in the UT or have posted in J&K can now reap same
studied for a period of seven years benefits as in the rest of the
and appeared in Class X/XII country.
exam in a registered educational
institute in J&K.
• The domiciles now also include
children of central government
or central government aided
organizations, PSU who have
served in J&K for a period of 10
years.
• Over 4 lakh people in Jammu and
Kashmir have been issued new
domicile certificates.
Several measures were taken to • Impact of strict security measures
contain violent protests and like lockdown and communication
maintain peace in the J&K region and internet blockade include Job
like extended Curfews , Continued losses, closure of schools and
detention of political prisoners etc. colleges etc.
Diplomatic and international • While Pakistan tried to
developments: internationalize the Kashmir issue
• Pakistan portrayed the changes in through the UNSC consultation, the
Kashmir as a “humanitarian
 50 BPSC MAINS

crisis” that threatened the stability meeting was closed, informal and
of the region. did not yield any outcome.
• Countries such as Turkey and • Almost all countries underlined
Malaysia criticized the restrictions that J&K was bilateral issue & did
imposed in the J&K valley in the UN not deserve time and attention of
General Assembly. Council.
• Concerns regarding human rights
violations in Kashmir were
also raised by some sections in the
US, the UK and other
European countries.

Conclusion
Revocation of the special status granted to the state of Jammu & Kashmir
under Article 370 of the Indian Constitution has unfolded an ambitious
roadmap of peace and progress ushering in a new era of inclusive development
and transparent governance in the entire region. Development of
decentralized local bodies, confidence building measures among youth and
restoration of internet services in a phased manner can further aid in
participatory socio-economic development of the region .
 51 BPSC MAINS

6. Judicial Review And Judicial Activism

The doctrine of judicial review originated and developed in the USA. It was
propounded for the first time in the famous case of Marbury versus Madison
(1803) by John Marshall, the then chief justice of the American Supreme
Court.
In India, on the other hand, the Constitution itself confers the power of
judicial review on the judiciary (both the Supreme Court as well as High
Courts). Further, the Supreme Court has declared the power of judicial review
as a basic feature of the Constitution or an element of the basic structure of
the Constitution. Hence, the power of judicial review cannot be curtailed or
excluded even by a constitutional amendment.
Meaning of Judicial Review:
Judicial review is the power of the judiciary to examine the constitutionality
of legislative enactments and executive orders of both the Central and State
governments. On examination, if they are found to be violative of the
Constitution (ultra vires), they can be declared as illegal, unconstitutional and
invalid (null and void) by the judiciary. Consequently, they cannot be enforced
by the Government.
Justice Syed Shah Mohamed Quadri has classified the judicial review into the
following three categories :
1. Judicial review of constitutional amendments.
2. Judicial review of legislation of the Parliament and State Legislatures and
subordinate legislations.
3. Judicial review of administrative action of the Union and State and
authorities under the state.

The Supreme Court used the power of judicial review in various cases, as for
example, the Golaknath case (1967), the Bank Nationalisation case (1970),
the Privy Purses Abolition case (1971), the Kesavananda Bharati case (1973),
the Minerva Mills case (1980), and so on.
 52 BPSC MAINS

In 2015, the Supreme Court declared both the 99th Constitutional

Amendment, 2014 and the National Judicial Appointments Commission
(NJAC) Act, 2014 as unconstitutional and null and void.

Importance of Judicial Review:

Judicial review is needed for the following reasons:
(a) To uphold the principle of the supremacy of the Constitution.
(b) To maintain federal equilibrium (balance between the Centre and the
states).
(c) To protect the Fundamental Rights of the citizens.
Constitutional Provisions for Judicial review:
Though the phrase ‘Judicial Review’ has nowhere been used in the
Constitution, the provisions of several Articles explicitly confer the power of
judicial review on the Supreme Court and the High Courts. These provisions
are explained below:
1. Article 13 declares that all laws that are inconsistent with or in derogation
of the Fundamental Rights shall be null and void.
2. Article 32 guarantees the right to move the Supreme Court for the
enforcement of the Fundamental Rights and empowers the Supreme Court to
issue directions or orders or writs for that purpose.
3. Article 131 provides for the original jurisdiction of the Supreme Court in
centre-state and inter-state disputes.
4. Article 132 provides for the appellate jurisdiction of the Supreme Court in
constitutional cases.
5. Article 133 provides for the appellate jurisdiction of the Supreme Court in
civil cases.
6. Article 134 provides for the appellate jurisdiction of the Supreme Court in
criminal cases.
7. Article 134-A deals with the certificate for appeal to the Supreme Court
from the High Courts.
8. Article 135 empowers the Supreme Court to exercise the jurisdiction and
powers of the Federal Court under any pre-constitution law.
 53 BPSC MAINS

9. Article 136 authorises the Supreme Court to grant special leave to appeal
from any court or tribunal (except military tribunal and court martial).
10. Article 143 authorises the President to seek the opinion of the Supreme
Court on any question of law or fact and on any pre-constitution legal matters.
11. Article 226 empowers the High Courts to issue directions or orders or
writs for the enforcement of the Fundamental Rights and for any other
purpose.
12. Article 227 vests in the High Courts the power of superintendence over all
courts and tribunals within their respective territorial jurisdictions (except
military courts or tribunals).
13. Article 245 deals with the territorial extent of laws made by Parliament
and by the Legislatures of States.
14. Article 246 deals with the subject matter of laws made by Parliament and
by the Legislatures of States (i.e., Union List, State List and Concurrent List).
15. Articles 251 and 254 provide that in case of a conflict between the central
law and state law, the central law prevails over the state law and the state law
shall be void.
16. Article 372 deals with the continuance in force of the pre -constitution
laws.

Scope of Judicial Review:

The constitutional validity of a legislative enactment or an executive order can
be challenged in the Supreme Court or in the High Courts on the following
three grounds-
(a) it infringes the Fundamental Rights (Part III),
(b) it is outside the competence of the authority which has framed it, and
(c) it is repugnant to the constitutional provisions.
From the above, it is clear that the scope of judicial review in India is narrower
than what exists in the USA, though the American Constitution does not
explicitly mention the concept of judicial review in any of its provisions. This
is because, the American Constitution provides for ‘due process of law’ against
 54 BPSC MAINS

that of ‘procedure established by law’ which is contained in the Indian

Constitution. The difference between the two is: “The due process of law gives
wide scope to the Supreme Court to grant protection to the rights of its
citizens. It can declare laws violative of these rights void not only on
substantive grounds of being unlawful, but also on procedural grounds of
being unreasonable. Our Supreme Court, while determining the
constitutionality of a law, however examines only the substantive question
i.e., whether the law is within the powers of the authority concerned or not. It
is not expected to go into the question of its reasonableness, suitability or
policy implications”.
The exercise of wide power of judicial review by the American
Supreme Court in the name of ‘due process of law’ clause has made the critics
to describe it as a ‘third chamber’ of the Legislature, a super-legislature, the
arbiter of social policy and so on. This American principle of judicial
supremacy is also recognised in our constitutional system, but to a limited
extent. Nor do we fully follow the British Principle of parliamentary
supremacy. There are many limitations on the sovereignty of Parliament in
our country, like the written character of the Constitution, the federalism with
division of powers, the Fundamental Rights and the judicial review. In effect,
what exists in India is a synthesis of both, that is, the American principle of
judicial supremacy and the British principle of parliamentary supremacy.

Judicial Activism:
The concept of judicial activism originated and develope d in the
USA. In India, the doctrine of judicial activism was introduced in mid-1970s.
Justice V.R. Krishna Iyer, Justice P.N. Bhagwati, Justice O.Chinnappa
Reddy and Justice D.A. Desai laid the foundations of judicial activism in the
country.
Judicial activism denotes the proactive role played by the judiciary in
the protection of the rights of citizens and in the promotion of justice in the
society. In other words, it implies the assertive role played by the judiciary to
force the other two organs of the government (legislature and executive) to
 55 BPSC MAINS

discharge their constitutional duties. Judicial activism is also known as

“judicial dynamism”. It is the antithesis of “judicial restraint”, which means
the self-control exercised by the judiciary. A few cases of judicial activism in
India are: Golaknath case in which Supreme Court declared that
Fundamental Rights enshrined in Part 3 are immutable and cannot be
amended , Kesavananda Bharati whereby Supreme Court introduced doctrine
of basic structure, i.e. Parliament has power to amend without altering basic
structure of the Constitution etc.
There is only a thin line of separation between review and activism. While
judicial review means to decide if the law/act is consistent with the
Constitution, but Judicial Activism judges participate in law-making policies,
i.e., not only they uphold or invalidate laws in terms of constitutional
provisions, but also exercise their policy preferences in doing so. It is majorly
based on public interest, speedy disposal of cases etc.
The concept of judicial activism is closely related to the concept of Public
Interest Litigation (PIL). It is the judicial activism of the Supreme Court which
is the major factor for the rise of PIL. In other words, PIL is an outcome of
judicial activism. In fact, PIL is the most popular form (or manifestation) of
judicial activism.

Arguments in favour of Judicial Activism :

 It provides a system of checks and balances to the other government
branches. Judicial Activism is a delicate exercise involving creativity. It
brings out required innovation in the form of a solution.

 Judicial Activism provides judges to use their personal wisdom in cases

where the law failed to provide a balance.

 Judicial Activism also provides insights into the issues. The reason why
this is a good thing is that it shows the instilled trust placed in the justice
system and its judgments.

 Many a time public power harms the people, so it becomes necessary for
the judiciary to check misuse of public power.
 56 BPSC MAINS

 It provides speedy solutions where the legislature gets stuck in the issue
of majority.

Arguments against the Judicial Activism :

 Firstly, when it surpasses its power to stop and misuse or abuse of power
by the government. In a way, it limits the functioning of the government.

 It clearly violates the limit of power set to be exercised by the constitution

when it overrides any existing law.

 The judicial opinions of the judges once taken for any case becomes the
standard for ruling other cases.

 Judicial activism can harm the public at large as the judgment may be
influenced by personal or selfish motives.

 Repeated interventions of courts can diminish the faith of the people in the
integrity, quality, and efficiency of the government.

 Another criticism is that it goes against the separation of power between

different three arms of state.

Judicial activism is not backed by the Constitution; it is a

product devised solely by the judiciaries. When the judiciary steps over the
line of the powers given to it, in the name of judicial activism, one can say
that the judiciary then begins to nullify the concept of separation of powers
specified in the Constitution. If judges are free to make laws of their choices,
not only would that go against the principle of separation of powers, it could
also lead to uncertainty in the law and chaos as every judge will start drafting
his own laws according to his whims and fancies. Judicial discipline has to
be observed to maintain a clear balance. Making laws is the function of the
legislature. It is the duty of the legislature to fill the gap of laws and it is the
duty of executive to implement it in a proper manner. So that only the
interpretation remains as a work for the judiciary. Only the fine equilibrium
between these organs of Government can sustain the constitutional values.
 57 BPSC MAINS

7. Doctrine of Basic Structure

(Keshvananda Bharti Case)
Basics of the Basic Structure Doctrine
● According to the Constitution, Parliament and the state legislatures in India
have the power to make laws within their respective jurisdictions.
● This power is not absolute in nature.
● The Constitution vests in the judiciary, the power to adjudicate upon the
constitutional validity of all laws.
● If a law made by Parliament or the state legislatures violates any provision
of the Constitution, the Supreme Court has the power to declare such a law
invalid or ultra vires.
● This check notwithstanding, the founding fathers wanted the Constitution
to be an adaptable document rather than a rigid framework for governance.
Hence Parliament was invested with the power to amend the Constitution.
● Article 368 of the Constitution gives the impression that Parliament's
amending powers are absolute and encompass all parts of the document.
● But the Supreme Court has acted as a brake to the legislative enthusiasm
of Parliament ever since independence.
● With the intention of preserving the original ideals envisioned by the
constitution makers, the apex court pronounced that Parliament could not
distort, damage or alter the basic features of the Constitution under the
pretext of amending it.
● The phrase 'basic structure' itself cannot be found in the Constitution.
● The Supreme Court recognised this concept for the first time in the historic
Kesavananda Bharati case in 1973.
● Ever since the Supreme Court has been the interpreter of the Constitution
and the arbiter of all amendments made by Parliament.

Kesavananda Bharati case

● In the Kesavananda Bharati case (1973), the Supreme Court overruled its
judgement in the Golak Nath case (1967).
 58 BPSC MAINS

● In the Golak Nath case, the Supreme Court ruled that the Fundamen tal
Rights are given a ‘transcendental and immutable’ position and hence, the
Parliament cannot abridge or take away any of these rights. A constitutional
amendment act is also a law within the meaning of Article 13 and hence,
would be void for violating any of the Fundamental Rights.
● In Kesavananda Bharati Case, the Supreme Court upheld the validity of the
24th Amendment Act (1971) and stated that Parliament is empowered to
abridge or take away any of the Fundamental Rights.
● At the same time, it laid down a new doctrine of the ‘basic structure’ (or
‘basic features’) of the Constitution.
● It ruled that the constituent power of Parliament under Article 368 does not
enable it to alter the ‘basic structure’ of the Constitution.
● This means that the Parliament cannot abridge or take away a Fundamental
Right that forms a part of the ‘basic structure’ of the Constitution.

Various other Cases which Reaffirmed the Doctrine of Basic Structure

● The doctrine of basic structure of the constitution was reaffirmed and
applied by the Supreme Court in the Indira Nehru Gandhi case (1975).
● Again, the Parliament reacted to this judicially innovated doctrine of ‘basic
structure’ by enacting the 42nd Amendment Act (1976).
● This Act amended Article 368 and declared that there is no limitation on the
constituent power of Parliament and no amendment can be questioned in any
court on any ground including that of the contravention of any of the
Fundamental Rights.
● However, the Supreme Court in the Minerva Mills case (1980) invalidated
this provision as it excluded judicial review which is a ‘basic feature’ of the
Constitution.
● Again in the Waman Rao case(1981), the Supreme Court adhered to the
doctrine of the ‘basic structure’ and further clarified that it would apply to
constitutional amendments enacted after April 24, 1973 (i.e., the date of the
judgement in the Kesavananda Bharati case).
 59 BPSC MAINS

Features of Basic Structure

1. Supremacy of the Constitution
2. Sovereign, democratic and republican nature of the Indian polity
3. Secular character of the Constitution
4. Separation of powers between the legislature, the executive and the
judiciary
5. Federal character of the Constitution
6. Unity and integrity of the nation
7. Welfare state (socio-economic justice)
8. Judicial review
9. Freedom and dignity of the individual
10. Parliamentary system
11. Rule of law
12. Harmony and balance between Fundamental Rights and Directive
Principles
13. Principle of equality
14. Free and fair elections
15. Independence of Judiciary

There have been criticism by various Political Scientists that it undermines

the Parliamentary Democracy:

 Restriction on amendment powers: It restricts parliament to introduce new

laws or scarp any old laws which are no more required. For instance,
preamble states India has a socialist country but since 1991, India has
followed capitalism in principles.
 Due process of law: Constitution established “procedure established by
law” but it was replaced by “due process of law”, which gives power to
judiciary to scarp any laws. Even though not arbitrarily, but still it affects
law making power of parliament.
 Against constitution: Preamble of the constitution says people are
sovereign (Give to ourselves this constitution) and they passed on this
 60 BPSC MAINS

power to elected representatives but judiciary has taken over to itself in

name of Judicial review.
 The original constitution doesn't provide any such doctrine. This doctrine
has emerged as a result of judicial activism.
 Ambiguous in nature: There is no proper definition or what constitutes
basic structure. With passage of time, the contents of basic structure are
increasing and over time it is feared that parliament may lose its value and
power to judiciary to enact and implement laws.
 There are various instances where it can be proved that judiciary has
restricted parliamentary powers like in case of NJAC bill ( 99th amendment
to constitution), Aadhaar bill ( diluted provisions of bill), Set aside
reservations in promotion and above 50% reservation in states granted by
certain state government.

But at the same time there are certain Political Scientists and Constitution
Experts who believe that Basic structure doctrine has enhanced the
Parliamentary Democracy rather than undermining it :

 Check on arbitrary use of power: Judiciary does not take away amendment
powers or power to make laws, it just places certain restrictions in order
to enhance democratic principles.
 Effective and efficient laws: Basic structure helps in increasing culture of
debate which helps in bringing effective and efficient laws for welfare of
people.
 Democracy: Basic structure has protected and promoted democracy or else
India would have become a dictatorship or taken over by armed rebellions
like Pakistan, Afghanistan etc.
 Supremacy of constitution: It places restriction on any institution gaining
immense power or power over others. It helps in maintaining supremacy
of constitution and its principles.
 Political ideology: It prevents India from becoming battle ground for
different ideologies or change the country according to specific ideologies
or ideologies of party in power.
 61 BPSC MAINS

 Being dynamic in nature, it is more progressive and open to changes in

time unlike the rigid nature of earlier judgements
 Certain instances where basic structure has enhanced parliamentary
sovereignty can be, Ordinance for SC/ST act to nullify SC order, placin g
Fundamental rights and DPSP on equal footing, Triple talaq ordinance to
give effect to SC order on Triple talaq etc.

Even though judiciary never gave a solid test to

discover what basic structure is, it however, has acted as a brake to the
legislative enthusiasm of Parliament, thereby preserving the original ideals
envisioned by the constitution-makers and strengthening the democracy.
 62 BPSC MAINS

8. Governor

The Constitution of India envisages the same pattern of government in the

states as that for the Centre, that is, a parliamentary system. The governor is
the chief executive head of the state. But, like the president, he is a nominal
executive head (titular or constitutional head). The governor also acts as an
agent of the central government. Therefore, the office of governor has a dual
role. Usually, there is a governor for each state, but the 7th Constitutional
Amendment Act of 1956 facilitated the appointment of the same person as a
governor for two or more states.
The governor is neither directly elected by the people nor indirectly
elected by a specially constituted electoral college as is the case with the
president. He is appointed by the president by warrant under his hand and
seal. In a way, he is a nominee of the Central government. But, as held by the
Supreme Court in 1979, the office of governor of a state is not an employment
under the Central government. It is an independent constitutional office and
is not under the control of or subordinate to the Central government.
Powers of Governor : A governor possesses executive, legislative, financial
and judicial powers more or less analogous to the President of India. However,
he has no diplomatic, military or emergency powers like the president.

Executive Power: All executive actions of the government of a state are

formally taken in his name. He appoints the chief minister and other
ministers. They also hold office during his pleasure. There should be a Tribal
Welfare minister in the states of Chattisgarh, Jharkhand, Madhya Pradesh
and Odisha appointed by him. The state of Bihar was excluded from this
provision by the 94th Amendment Act of 2006. He appoints the advocate
general of a state and determines his remuneration. The advocate general
holds office during the pleasure of the governor. He appoints the state election
commissioner and determines his conditions of service and tenure of office.
However, the state election commissioner can be removed only in like manner
and on the like grounds as a judge of a high court. He appoints the chairman
 63 BPSC MAINS

and members of the state public service commission. However, they can be
removed only by the president and not by a governor. He can recommend the
imposition of constitutional emergency in a state to the president. During the
period of President’s rule in a state, the governor enjoys extensive executive
powers as an agent of the President. He acts as the chancellor of universities
in the state. He also appoints the vice – chancellors of universities in the state.

Legislative Powers : A governor is an integral part of the state legislature. He

can summon or prorogue the state legislature and dissolve the state legislative
assembly. He can address the state legislature at the commencement of the
first session after each general election and the first session of each year. He
can send messages to the house or houses of the state legislature, with
respect to a bill pending in the legislature or otherwise. He can appoint any
member of the State legislative assembly to preside over its proceedings when
the offices of both the Speaker and the Deputy Speaker fall vacant. Similarly,
he can appoint any member of the state legislature council to preside over its
proceedings when the offices of both Chairman and Deputy Chairman fall
vacant. He nominates one-sixth of the members of the state legislative council
from amongst persons having special knowledge or practical experience in
literature, science, art, cooperative movement and social service. He can
nominate one member to the state legislature assembly from the Anglo-Indian
Community. He decides on the question of disqualification of members of the
state legislature in consultation with the Election Commission. When a bill is
sent to the governor after it is passed by state legislature, he can:
(a) Give his assent to the bill, or
(b) Withhold his assent to the bill, or
(c) Return the bill (if it is not a money bill) for reconsideration of the state
legislature. However, if the bill is passed again by the state legislature
with or without amendments, the governor has to give his assent to the
bill, or
(d) Reserve the bill for the consideration of the president.
 64 BPSC MAINS

He can promulgate ordinances when the state legislature is not in session.

These ordinances must be approved by the state legislature within six weeks
from its reassembly. He can also withdraw an ordinance anytime. This is the
most important legislative power of the governor. He lays the reports of the
State Finance Commission, the State Public Service Commission and the
Comptroller and Auditor-General relating to the accounts of the state, before
the state legislature.
Financial Power : He sees that the Annual Financial Statement (state budget)
is laid before the state legislature. Money bills can be introduced in the state
legislature only with his prior recommendation. No demand for a grant can be
made except on his recommendation. He can make advances out of the
Contingency Fund of the state to meet any unforeseen expenditure. He
constitutes a finance commission after every five years to review the financial
position of the panchayats and the municipalities.

Judicial Power : He can grant pardons, reprives, respites and remissions of

punishment or suspend, remit and commute the sentence of any person
convicted of any offence against any law relating to a matter to which the
executive power of the state extends. He is consulted by the president while
appointing the judges of the concerned state high court. He makes
appointments, postings and promotions of the district judges in consultation
with the state high court. He also appoints persons to the judicial service of
the state (other than district judges) in consultation with the state high court
and the State Public Service Commission.
Constitutional Position of Governor
In estimating the constitutional position of governor, particular reference has
to be made to provisions of Article 153,154,163 and 164. Art. 153 provides
that there shall be a governor in each state and Art. 154 incorporates all
executive power of state within the office of governor.
To determine the scope of Art. 154,
illustration of Art. 163 is necessary. Art. 163 (1) requires the governor to act
on advice of council of ministers and Chief minister, except in so far as he is
 65 BPSC MAINS

by or under this constitution required his function in his discretion. The

expression 'require' signifies that the governor can exercise his discretion only
if there is a compelling necessity to do so. It has been held by Supreme Court
that the expression 'by or under this constitution' means that the necessity
to exercise such power may arise from any expressed provision of the
constitution or by necessary implication. In other words Art. 163 doe sn't give
the governor a general discretionary power to act against or without the advice
of government of state and the area of his discretion is limited. Even in this
limited area his choice of action should not be arbitrary or autocratic.
Under Art. 167, it is the duty of Chief Minister to
furnish information about administration and legislation to the governor of
state. In the case of absence of such information, governor may call for such
information. The optional available to the governor under Art. 167 gives him
persuasive power and not dictatorial power to override the decisions or
proposals of state government.

Discretionary Power of Governor

• Choice of Chief Minister in case of a hung Assembly.
• Asking the Government to prove its strength in the Assembly.
• Dismissing a Chief Minister who loses the confidence of the House.
• Recommending President's Rule (Art.356).
• Reserving Bills for consideration of the President (Art. 200).

Issues related to post of Governor

a) Controversy in appointment of Chief M inister
• The Executive Power of a State shall be vested in the Governor who shall be
the head of the State. The Governor is appointed by the President and shall
hold office during the pleasure of the President. Thus, effectively the governor
acts as the head of the state and also as a representative of the Centre.
• Controversy at times arises when both functions of the Governor overlap
and the question arises as to which function supersedes which in this era of
multi-party system. This dual function of the Governor in recent times has
 66 BPSC MAINS

created enough controversies where different parties enjoy power at the

Centre and in the States.
• In most of the recent held Assembly elections in Goa, Manipur, Meghalaya
and Karnataka, no political party had majority on their own. Hence, in such
a situation the role of governor became crucial as he has discretion to call
either -
ο the single largest party,
ο political parties having pre-poll alliance or
ο different political parties who may stitch a post poll alliance
• The use of such discretionary powers at times becomes controversial when
different political parties are in government at the Centre and in the state. It
is important to note here that discretion given by the constitution has a
purpose and such powers needs to used only to fulfill the mandate of the
constitution and not of any political party.
VIEWS OF SARKARIA COMMISSION
The central government set up the Justice R S Sarkaria Commission in June
1983 to examine the relationship and balance of power between state and
central governments. The Commission suggested that in choosing a Chief
Minister, the Governor should be guided by the following principles:
• The party or combination of parties that command the widest support in the
Legislative Assembly should be called to form the government.
• The Governor’s task is to see that a government is formed and not to try to
form a government that will pursue policies that he approves.
• If no party has a majority, the Governor has to invite:
a) a pre-poll alliance,
b) the largest single party that is able to gain majority support,
c) a post-election coalition that has the required members,
d) a post-election coalition in which partners are willing to extend
outside support.
• The Commission recommended that whoever is appointed as the Chief
Minister, must seek a vote of confidence in the Assembly on the floor of the
House within 30 days of taking over.
 67 BPSC MAINS

• The Governor should not resort to mechanisms where determining of

majority of the government is done outside the assembly.

VIEWS OF PUNCHHI COMMISSION - 2007

A Commission headed by former Chief Justice of India M. M. Punchhi was set
up in April 2007 to take a fresh look at the roles and responsibilities of
governments at various levels, and the relations between them. The
Commission recommended that there should be clear guidelines for the
appointment of Chief Ministers, so that there was some sort of regulation on
the discretionary power of the Governor. It said that a pre-poll alliance must
be treated as one political party, and laid down the order of precedence that
the Governor must follow in case of a hung House:
• Group with the largest pre-poll alliance commanding the largest number;
• Single largest party with support of others;
• Post-electoral coalition with all parties joining the government;
• Post-electoral alliance with some parties joining the government, and the
remaining, including Independents, supporting from outside.

b) Appointment of Governor
• The provision for centrally appointed Governors for the States has remained
as an anachronism, which is not in keeping with a federal democratic polity.
If the post of Governor has to be retained, then the Governor should be
appointed by the President from a list of three eminent persons suggested by
the Chief Minister, satisfying the criteria mentioned by the Sarkaria
Commission.
• The Sarkaria Commission approvingly quoted the eligibility criteria that
Jawaharlal Nehru advocated and recommended its adoption in selecting
Governors. These criteria are:
ο He should be eminent in some walk of life.
ο He should be a person from outside the State
ο He should be a detached figure and not too intimately connected with
the local politics of the States; and
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ο He should be a person who has not taken too great a part in politics
generally and particularly in the recent past.
• The words and phrases like "eminent", "detached figure", "not taken active
part in politics" are susceptible to varying interpretations and parties in power
at the Centre seem to have given scant attention to such criteria.
• The result has been politicization of Governorship and sometimes people
unworthy of holding such high Constitutional positions getting appointed.
This has led to some parties demanding the abolition of the office itself and
public demonstration against some Governors in some States. This trend not
only undermines Constitutional governance but also leads to unhealthy
developments in Centre-State relations.

VIEWS OF M.M PUNCHI COMMISION

• Given the status and importance conferred by the Constitution on the office
of the Governor and taking into account his key role in maintaining
Constitutional governance in the State, it is important that the Constitution
lays down explicitly the qualifications or eligibility for being considered for
appointment.
• The Commission is of the view that the Central Government should adopt
strict guidelines as recommended in the Sarkaria report and follow its
mandate in letter and spirit lest appointments to the high Constitutional office
should become a constant irritant in Centre-State relations and sometimes
embarrassment to the Government itself.
• Governors should be given a fixed tenure of five years and their removal
should not be at the sweet will of the Government at the Centre.
• The phrase "during the pleasure of the President" in Article 156(i) should be
substituted by an appropriate procedure under which a Governor who is to
be reprimanded or removed for whatever reasons is given an opportunity to
defend his position and the decision is taken in a fair and dignified manner
befitting a Constitutional office.
 69 BPSC MAINS

• It is necessary to provide for impeachment of the Governor on the same lines

as provided for impeachment of the President in Article 61 of the Constitution.
The dignity and independence of the office warrants such a
procedure.
• The "pleasure doctrine" coupled with the lack of an appropriate procedure
for the removal of Governors is inimical to the idea of Constitutionalism and
fairness. Given the politics of the day, the situation can lead to unsavory
situations and arbitrariness in the exercise of power.
• Of course, such impeachment can only be in relation to the discharge of
functions of the office of a Governor or violations of Constitutional values and
principles.
• The procedure laid down for impeachment of President, mutatis mutandis
can be made applicable for impeachment of Governors as well.
c) M isuse of Article 356
• Under Article 356, the President can dismiss a State Government or dissolve
a State Assembly or keep it under suspended animation in the event of a
failure of the constitutional machinery in that State. The Article owes its
genesis to Section 93 of the Government of India Act 1935, a section which
essentially dealt with the "taking over of the Provincial Government by the
Governor."
• Since the coming into force of the Constitution on 26 January 1950, Article
356 and analogous provisions have been invoked 111 times.
S.R. BOMMAI V UNION OF INDIA
• In 1989, S.R. Bommai was the Chief Minister (CM) of Karnataka. Some
members of the party defected which raised suspicion on majority for the
government.
• The CM suggested the Governor to call the Assembly session for a floor test.
• The Governor ignored the suggestion and without trying to find another
alternative to form the government asked the President to impose Article 356.
• Bommai challenged the proclamation in the Karnataka High Court. The
Karnataka High Court dismissed the petition without questioning the grounds
 70 BPSC MAINS

on which proclamation was issued. The Court also ruled that recourse to
floor test was not a pre-requisite to the sending of report to the President.
• The case was appealed in the Supreme Court where it gave the following
orders to be followed in case of proclamation issued under Article 356:
ο The President exercises his power under Article 356 (1) on the advice
of the Council of Minister.
ο The question whether the Chief Minister has lost majority support in
the Assembly must be decided on the floor of the House and not in
Governor’s chamber.
ο Governor must try to explore the possibility of an alternative ministry
before asking the President to impose Article 356(1).
ο The material facts on which proclamation was issued can be judicially
reviewed to ascertain whether such facts had any rational nexus to
the action proposed or were done in bad faith or by arbitrary decision.
ο The dissolution of State Assembly is not an automatic outcome of
every proclamation under Article 356. The dissolution of the
Assembly prior to the approval of the Proclamation under Article
356(3) shall be invalid.
• Thus, the judgment on S.R. Bommai provided certain limitations on the use
of discretionary power of the governor under Article 356. Sarkaria
Commission and Punchhi Commission further laid down certain norms to
be followed in case of Hung Assembly.
SARKARIA COMMISSION VIEWS
• The Commission was not in favour of deletion of Article356.
• In considering the issues raised regarding article 356 the Commission found
that a great part of the remedy to prevent its misuse lies in the domain of
creating safeguards and constitutional conventions governing its use. The
ultimate protection against the misuse of article 356 lies in the character of
the political process itself.
• The Commission is, therefore, for generating a constitutional culture that
relies on conventions and treats them with same respect as a constitutional
provision.
 71 BPSC MAINS

• In case of political breakdown, the Commission recommends that before

issuing a proclamation under article 356 the concerned State should be given
an opportunity to explain its position and redress the situation, unless the
situation is such, that following the above course would not be in the interest
of security of State, or defence of the country, or for other reasons
necessitating urgent action.
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9. Election Commission
The Election Commission of India is an autonomous constitutional authority
responsible for administering Union and State election processes in India.
Article 324 of the Constitution of India provides for an independent Election
Commission. It has the powers of superintendence, direction and conduct of
elections to the Parliament, the state legislatures, the office of the President
and the office of the Vice President. It currently consists of Chief Election
Commissioner and two Election Commissioners. Parliament has been
empowered to make provisions with respect to all matters relating to elections.
However, the ECI can also take necessary measures under Article 324 to
ensure free and fair elections.
Concept of free and fair election mainly relates
to political liberty and equality. In matters of election it implies that no one,
under the electoral process, is in bondage of another, having his personal
rights, social and political liberty, free thinking and choice subjected to a
legal discipline. While exercising his right to vote one is not under undue
influence of party discipline, religion, caste, creed, sex, language and also
one is not under the strain of corrupt practices and so on. Thus, free and
fair elections are the foundations of democratic form of government. Concept
of free and fair election includes even preliminary stages to election such
as delimitation of constituencies, preparation, revision or amendment of
electoral rolls and many others.

But there are certain issues and concern regarding

conducting free and fair election in India. These concerns include – Growing
menace of money power, criminalization of politics and politicization of
criminals, EVM manipulation and hacking. Also Voter bribery and
manipulation through the media have become the techniques of unethically
influencing voters. Over the past few years incidence of corruption in public
life in which politicians and officials have diverted the available resources to
personal use has increased. Public funds have been misappropriated and
have destroyed the moral and ethical environment of the nation. These all
 73 BPSC MAINS

issues and concerns have raised question against the role played by Election
Commission of India in ensuring free and fair election.

Issues and Challenges faced by Election Commission

1.) Allegation of partisan role- The opposition alleged that the ECI was
favoring the ruling government in giving clean chits to the model code
violations made by the Prime Minister/Chief Minister.
2.) Lack of capacity- The Election Commission is vested with absolute
powers under Article 324, but still has to act according to laws made by
Parliament and it cannot transgress the same. E.g. Despite being the
registering authority for political parties under Section 29A of the
Representation of the People Act, 1951, it has no power to de -register them
even for the gravest of violations.
3.) Lack of proactive use of authority- The Election Commission had told
the Supreme Court that its powers to discipline politicians who sought votes
in the name of caste or religion were “very limited”.
4.) Ineffective control over political parties- ECI I snot adequately equipped
to regulate the political parties. The EC has no role in enforcing inner party
democracy and regulation of party finance.

Implications
1.) Breakdown of democratic principles- such as free and fair elections,
observation of common Model Code of Conduct among others.
2.) Erosion of institutional integrity- whereby the credibility and authority
of the commission is undermined.
3.) Loss of people’s trust in elections- If people lose faith in the institutions
of democracy, the credibility of the consent obtained through electoral verdicts
itself will be in doubt.
4.) Degradation of political discourse- where barriers of civility and decency
are not respected by the politicians and abuse of power becomes a norm. This
also results into issues of national/local importance taking a backseat and
personal rivalries among candidates coming to fore.
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5.) Politicisation of the Election Commission- since the Chief Election

Commissioner is not barred from post service posts, the critics allege CEC’s
independence is prone to being compromised.

Elections are the bedrock of democracy and the EC’s credibility is central to
democratic legitimacy. Hence, the guardian of elections itself needs urgent
institutional safeguards to protect its autonomy. In its 255th report, the Law
Commission recommended a collegium, consisting of the Prime Minister, the
Leader of the Opposition and the Chief Justice of India for the appointment
of the Election Commissioners. Also there is a need to strengthen the Election
Commission of India to ensure free and fair elections in India.
Suggestions to strengthen the ECI
 Give constitutional protection for all three-election commissioners as
opposed to just one at present.
 Institutionalize the convention where the senior most EC should be
automatically elevated as CEC in order to instil a feeling of security in
the minds of the ECs and that they are insulated from executive
interference in the same manner as CEC.
 Reducing the ECI’s dependence on DoPT, Law Ministry and Home
Ministry. The ECI should have an independent secretariat for itself and
frame its own recruitment rules and shortlist and appoint officers on
its own.
 Its expenditures must be charged upon the Consolidated Fund of India
similar to other constitutional bodies such as the UPSC.

Voter ID:

Voter ID card is a document which ascertains your identity as an adult citize n

of the country, and is primarily used in casting one’s vote in municipal, state,
and general elections. It is issued by the Election Commission, and is also
known as Electoral Photo ID Card or EPIC. It can be used as a general identity,
address, and age proof for other purposes such as buying a mobile phone SIM
card or applying for a passport.
 75 BPSC MAINS

The ECI has made voter identification mandatory at the time of polls – you
have to show your Voter ID Card issued by the ECI or any other documentary
proof allowed by the ECI in order to be able to vote.

Also, having the Voter ID Card does not mean that one will definitely be
allowed to vote, it is essential that his/her name should appear in the electoral
rolls. Once one have found out that his/her name is present in the electoral
roll and also possess an identification document prescribed by the ECI (the
Voter ID card or any other acceptable document), you one be eligible to vote.
Thus, Electoral Identity card is a way to ensure citizens' participation in voting
and ensuring free election.
 76 BPSC MAINS

10. CAG (Comptroller and Auditor General)

The Comptroller and Auditor General of India (CAG) constituted under Article
148, is the guardian of the public purse and controls the entire financial
system of the country at both the levels—the Centre and the state.

Role of CAG:
1. The accountability of the executive to the Parliament in the sphere of
financial administration is secured through audit reports of the CAG.
2. CAG audits the accounts related to all expenditure from the following :
(i) Consolidated Fund of India, Contingency Fund of India and the Public
Account of India
(ii) Consolidated fund of each state and Consolidated fund of each union
territory having a Legislative Assembly.
(iii) Contingency fund of each state and the public account of each state .
3. CAG audits all trading, manufacturing, profit and loss accounts, balance
sheets and other subsidiary accounts kept by any department of the Central
Government and state governments.
4. CAG audits the receipts and expenditure of the:
(i) All bodies and authorities substantially financed from the Central or
state revenues
(ii) Government companies
(iii) Other corporations and bodies, when so required by related laws.
5. The CAG submits three audit reports to the President audit report on
appropriation accounts, audit report on finance accounts, audit report on
public undertakings. The President lays these reports before both the Houses
of Parliament. After this, the Public Accounts Committee examines them and
reports its findings to the Parliament.
6. CAG acts as a guide, friend and philosopher of the Public Accounts
Committee of the Parliament.
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Types of Audit performed by CAG

1. Regulatory Audit: It is an audit to ascertain whether the moneys spent were

authorised for the purpose for which they were spent and also that the
expenditure incurred was in conformity with the laws, rules and regulations.
2. Supplementary Audit: CAG takes up supplementary audits in PSUs, even
after the commercial audits are done by the auditors appointed by the CAG,
for detection of leakages.
3. Propriety Audit: It focuses on whether the expenditure made is in public
interest or not i.e. it moves beyond mere scrutiny of expenditure to question
its wisdom and economy in order to identify cases of improper expenditure
and waste of public money.
4. Efficiency Audit: Efficiency audit as the name suggests answers the question
whether the money invested yields optimum results. The main purpose of the
efficiency audit is to ensure that the investment is prioritized and channeled
into its most profitable utilization.
5. Performance Audit: Performance audit answers whether the government
programmes such as NREGA have achieved the desired objectives at the
lowest cost and given the intended benefits. It generally does not get into the
merits-demerits of a particular policy/scheme rather looks into the
effectiveness with which the scheme is implemented and any deficiencies
thereof.
6. Environmental Audit: This is a relatively new area of concern for the CAG
keeping in mind the challenges facing India with respect to conservation and
management of the environment. More than 100 audits on environmental
issues like bio-diversity, pollution of rivers, waste management have been
conducted by the CAG to identify critical issues and suggest possible
solutions by involving all stakeholders.

Criticism of CAG :

1. Appointment: The present selection process for the CAG is entirely internal
to the Government machinery. This goes against its role of ensuring executive
accountable.
 78 BPSC MAINS

2. Post facto audit: Its report is post-facto, unlike in UK where no money can
be drawn from the public exchequer without the approval of the CAG. Thus,
CAG of India only performed the role of an Auditor General and not of a
Comptroller but in Britain it has the power of both Comptroller as well as
Auditor General.
3. In India, CAG is not a member of the parliament while in Britain; CAG is a
member of house of the Commons.
4. Exceeding mandate: Some sections criticised CAG’s reports on 2G, Coal
blocks allocation as beyond its jurisdiction and mandate.
5. Promoting risk averse attitude: as auditors may not take into consideration
the practical problems in the administration. Thus, when CAG look into
‘wisdom, faithfulness, economy’ of policy, administrators may not will to take
risk.
6. Conflict of interest: when former secretaries are appointed as CAG, that
compromise the independence of the institution because of
apparent/perceived conflict of interest. E.g. Appointment of former defence
secretary Shashi Kant Sharma as the CAG.
7. The secret service expenditure is a limitation on the auditing role of the
CAG. In this regard, the CAG cannot call for particulars of expenditure
incurred by the executive agencies, but has to accept a certificate from the
competent administrative authority that the expenditure has been so incurred
under his authority.
8. Delay in supply of documents: Usually delayed and more often, the crucial
documents are supplied to the auditors at the end of the audit programme.
This is done with objective of obstructing meaningful audit of crucial records.

In view of the nature of work of CAG,

Dr. B.R. Ambedkar said that the CAG shall be the most important Office
under the Constitution of India. Hence, It becomes imperative to maintain the
independent nature of office of the CAG which in turn will ensure that CAG
will remain as a keystone in the arch of constitutional measure of
accountability.
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11. Lokpal and Lokayukta

Lokpal and Lokayukta are centre and state levels India’s anti-corruption
ombudsman respectively which look into corruption charges against certain
categories of public servants.

Powers and Procedures

● The Bill provides that a complaint can be lodged to the Lokpal or the
Lokayukta, firstly, in the case of a grievance by the person aggrieved, and
secondly, in the case of an allegation by any person other than a public
servant.
● The Lokpal or the Lokayukta may, in his discretion, refuse to investi- gate
any complaint involving a grievance or an allegation.
● However, if he decides to investigate a complaint, he shall forward a copy of
the complaint, along with the grounds thereof to the relevant public authority
concerned.
● He shall give him an opportunity to offer his comments on such complaints
or statements.
● The procedure for conducting an investigation by the Lokpal or the
Lokayukta is to be such as he considers appropriate in the circumstances of
the case.
● The identity of the complainant and the identity of the Public servant
affected by the investigation is not to be disclosed to the press or the public
either before or after the investigation.
● He has all the powers of a civil court while trying a suit under the Code of
Civil Procedure, 1908 in respect of certain matters.
● Similarly, any proceedings before the Lokpal or the Lokayukta shall be
deemed to be a judicial proceeding within the meaning of section 193 of the
Indian Penal Code.
● The Bill, however, provides that no person shall be required or authorised
to furnish any information or answer any question or produce any document,
which might prejudice the security or defence or international relation of
 80 BPSC MAINS

India, or the investigation or detection of crime, or which might involve the

disclosure of proceedings of the Cabinet or any committee of the Cabinet of
the Government of India.

The Lokpal and Lokayuktas Act of 2013

● On January 16, 2014, The Lokpal and Lokayuktas Act, 2013 (Lokpal Act),
a historic Indian anti-corruption law, came into effect.
● The Act allowed setting up of an anti-corruption ombudsman called Lokpal
at the Centre and Lokayukta at the State-level.
● The act extends to the whole of India and is applicable to "public servants"
within and outside India.
● The States were asked to institute Lokayukta within one year of the
commencement of the Act.
● Every State shall establish a body to be known as the Lokayukta for the
State, if not so established, constituted or appointed, by a law made by the
State Legislature, to deal with complaints relating to corruption against
certain public functionaries, within a period of one year from the date of
commencement of this Act.
● Establishing a Lokayukta and further appointments are under the regime
of the states.
● The Act has a provision for attachment and confiscation of property acquired
by corrupt means even while the prosecution is pending.
● It is a compulsion for public servants to declare their assets and liabilities
along with their spouse and dependent children.
● The Act ensures that public servants who act as whistleblowers are
protected.
● All entities receiving donations from foreign source s in the context of the
Foreign Contribution Regulation Act (FCRA) in excess of Rs. 10 lakhs per year
are brought under the jurisdiction of Lokpal.
● Lokpal will have power of superintendence and direction over any
investigation agency including CBI for cases referred to them by Lokpal.
 81 BPSC MAINS

● A high powered Committee chaired by the Prime Minister will recommend

selection of the Director, CBI

Key features of the Lokpal Act include:

● National and State-level Bodies: The Act will establish a national-level
Lokpal, which will include a chairperson and a maximum of eight members,
and Lokayukta at the state level.
● Broad Jurisdiction: The jurisdiction of the Lokpal will include all levels of
public servants, including the Prime Minister.
● High-levelAuthority: The Lokpal will have power to oversee and direct the
investigative agencies, including the Central Bureau of Investigation, that are
inquiring into allegations received by the Lokpal.
● Clear Timelines: The Act establishes clear timeframes in which allegations
should be investigated and tried. A preliminary inquiry into allegation s must
be completed in three months (although this period may be extended by three
months); the investigation should be completed in six months (may be
extended by six months at a time); and a trial must commence within one
year after an investigation is complete (may be extended by one year).
● Harsher Penalties: The maximum jail time under the Prevention of
Corruption Act was increased from seven to ten years. Minimum punishments
for certain sections of the Prevention of Corruption Act were also increased.

ISSUES/LIMITATIONS
● Lack of political will in appointing Lokpal for 5 years- For more than five
years, the chairperson and members of the Lokpal were not appointed as the
government claimed lack of Leader of Opposition in the Parliament.
● In March 2019, Justice Pinaki Chandra Ghose was appointed as the Chief
of the first Lokpal, with another 8 members.
● Exclusion of judiciary from the ambit of Lokpal is unfair to Legislature and
Executive.
● The specific details in relation to the appointment of Lokayukta have been
left completely on the States.
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● The appointment of Lokpal can be manipulated in a way as there is no

criterion to decide who is an ‘eminent jurist’ or ‘a person of integrity.’ These
words are not properly defined and are vague in nature.
● The Lokpal has been provided with no constitutional backing and no
provisions are made regarding appeals against orders of the Lokpal.
● Imbalance between three branches of the system- The Lokpal bill attempts
to alter the balance between three branches of government attained through
the years. Any alteration of it could lead to accumulation of power either with
one of these or with Lokpal itself.
● Parallel system created- It can dismiss serving all India civil servants, a
power the only President has. It has authority over CBI officers on deputation .
With no additional resources, the power to dismiss a case as frivolous or false
and fine the complaint.
● Many countries have established national-level Ombudsmen and have
started functioning effectively, but in India, it still remains a theoretical
construct.
● Some of the plausible reasons attributed to this situation could be listed
as- the lack in general of political will, at times failure to arrive at consensus
among political actors, the absence of strong public opinion against
corruption and corruption being treated by common man as a way of life and
fait accompli.

SUGGESTIONS
● Authorities should ensure that delays in appointments are avoided. The
Lokayuktas in the remaining states should also be appointed without any
further delay.
● Mechanism to address the inclusion of Judiciary within the ambit of
Lokpal’s jurisdiction.
● Lokpal and Lokayukta must be financially, administratively and legally
independent of those whom they are called upon to investigate and prosecute.
● Setting up machinery which would take cognizance of complaints of
favouritism and nepotism against central and state ministers.
 83 BPSC MAINS

● This system which should cover actions of not only the whole central
government but also that of local government and where even the little man
can approach easily and get the redressal for his grievances arose due to the
faulty administrative system.
● To determine the success of the institution, implementation of the law needs
to be foolproof.
● The Lokpal in isolation cannot work successfully. So along with this, the
Right of Citizens for Time Bound Delivery of Goods and Services and Redressal
of their Grievances Bill, 2011 (Citizens Charter Bill), Whistleblowers
Protection Bill and Judicial Accountability Bill should have been passed.
 84 BPSC MAINS

12. Elections- Growing Regional Political

Parties in India

In a democracy, political parties provide an agency to the society to gather

different views on various issues and to present these to the government. They
bring various representatives together so that a responsible government could
be formed. They provide a mechanism to support or restrain the government,
make policies, justify or oppose them. India has a multi-party system.

Political Parties in India

 Every political party in India has to register with the Election

Commission.

 The Election Commission registers political parties for the purpose of

elections and grants them recognition as national or state parties on the
basis of their poll performance

 Recognised Parties:

o Are given a unique symbol – only the official candidates of that party
can use that election symbol

o National Parties: A party that secures at least 6% of the total votes

in Lok Sabha elections or Assembly elections in four States and wins
at least four seats in the Lok Sabha is recognised as a national party.

o State Parties: A party that secures at least 6% of the total votes in an

election to the Legislative Assembly of a State and wins at least two
seats is recognised as a State party.

 According to the Election Commission of India, there are over 2000

political parties in India, which include eight "recognized national" and
more than 50 "recognized state" parties.
 85 BPSC MAINS

Regional Parties in India

 Other than the 8 national parties- Indian National Congress, Bharatiya

Janata Party, Nationalist Congress Party, Communist Parties, Bahujan
Samaj Party, Rashtriya Janata Dal, All India Trinamool Congress and
National People's Party; most of the major parties of the country are
classified by the Election Commission as ‘State parties’. These are
commonly referred to as regional parties.

 Yet these parties need not be regional in their ideology or outlook. Some
of these parties are all India parties that happen to have succeeded only
in some states .

 The presence of a number of ethnic, cultural, linguistic, religious and

caste groups within the Indian society is greatly responsible for the origin
and growth of regional parties.

 In India regional parties are based on themes like– Identity, Statehood,

Autonomy and Development etc :

o Autonomy consists of demanding greater powers to the states (like

the National Conference in Jammu and Kashmir).

o Statehood consists of fighting for an independent state within the

country (like the Telangana Rastra Samiti demanded a separate state
of Telangana).

o Identity consists of fighting for recognition of cultural rights of a

group (like the Shiv Sena in Maharashtra or the DMK fighting for the
identity of the Dalits).

o Development consists of regional parties believing that only they can

bring development to the people of a particular region.

o Sometimes regional parties create these ‘cultural

specificities’ for electoral gains.

Role Of regional parties: The following points highlight the important role
played by regional parties in a rich democracy like India:-
 86 BPSC MAINS

 Making democracy more representative by widening the ambit of

participation.
 by providing better governance at the regional level and especially in
neglected areas.
 They have provided a place for better representation of local issues like
Mizo National Front, putting forward the demands of tribes.
 Regional parties also have strengthened the federal axis of Indian
democracy by providing voice and bargaining powers to the state.
 They have made the political process more competitive and brought
leadership role out of the clutches of major parties only.
 They have challenged the One Party Dominant system, e specially the
Congress Era. And thus helping in breaking the monopoly of one party.
 They also have helped in widening the choices for the voters. Now a
voter can vote the party represent ting the interest of his state.
 the political awareness of the people have been raised due to the efforts
of Regional parties, they look at narrow and local social issues and
brought them in front of the public. Therefore generating more political
consciousness among masses.
 They provide a ground for the representation of minority, therefore
making democracy successful. As democracy aims at equal
representation of both majority as well as the minority.
 Regional parties also help in preventing tyranny of party in power. As a
party which is in power at both centre and state may have a dictatorial
and bias attitude.
 They have played an important role in the times of coalition politics, by
providing support to other parties in lieu of benefits for their regions.

Negative impacts of Regional Parties: however, there are some negative effects
associated with the formation of regional parties like-

 They have undermined National interests in lieu of narrow regional

interests, thus harming National interest.
 87 BPSC MAINS

 Fragmentation of national parties has led to instability in the

government. Also the coalition government at the certer now depends
on the whims and fancies of regional parties and hence it is detrimental
to the stability of government.
 They have given a boost to the tendencies of the division of states on
the basis of language, caste, tribe and other ethnic factors.
 They focus more on populist policies like frequent loan waiver by
various states, in order to enhance their voter base, This, in turn, harms
fiscal balance in the economy. This also leads to broadening of the fiscal
deficit of the country. This has also promoted the concept of vote bank
politics in India.
 This frequent representation by regional parties leads to a rise of
separationist tendencies among the public.
 Rise of regional parties has made politics as cut-throat competition,
therefore promoting greater use of irrational means like money and
muscle power to gain political power. This can be seen in terms of
violence in various Indian states during elections.
 Rise of corruption in politics can also be associated with this, as
widening of power makes it hard to find the culprit of corruption.
 Regional parties also hinder the solution of interstate disputes as well
as interstate water disputes. Therefore undermining cooperative
federalism and welfare of the nation as a whole.
 They have also involved in nepotism, corruption, favouritism and other
misadventures. Therefore undermining the spirit of our Constitution.
 They also hinder the timely implementation of foreign treaties and
policies. for example - constant intervention of Trinamool Congress in
West Bengal against the water-sharing arrangement of Indian
Government with Bangladesh Government.

Regional parties though having some shortcomings, yet have proved to be

helpful in providing representation to the rich and diverse culture of India and
 88 BPSC MAINS

also helped in widening Democratic culture. Apart from it, regional parties
have made a strong impact on the nature of Centre-State relations in India.

They are a natural consequence of a democratic

system based on adult franchise in multi-ethnic, multi-racial, multi-religious
and multi-linguistic societies like India. Thus, their growth is in synergy with
entire spirit of democracy.
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13. Elections- Caste and Class Politics

(with reference to Bihar)
Caste and Class jointly determine the position of an individual in social strain.
Particularly in rural communities where caste system has maintained its
rigidity. It forms the basic for economic and special life.

According to Weber, Caste and class are both status groups.

While caste is perceived as a hereditary group with a fixed ritual status, a
social class is a category of people who have a similar socio-economic status
in relation to other segments of their community or society.

Caste system is characterised by cumulative in-

equality but class system is characterised by dispersed inequality. The
members of a class have a similar socio-economic status in relation to other
classes in the society, while the members of a caste have either a high or low
ritual status in relation to other castes.

Further, in the caste system, status of a caste is

determined not by the economic and the political privileges but by the
ritualistic legitimization of authority, i.e., in the caste system, ritual norms
encompass the norms of power and wealth. In the class system, ritual norms
have no importance at all but power and wealth alone determine one’s status.

Positive role played by caste and class based politics in Indian politics

 Deepen Democracy – They provide vital link between the government and
the governed.
 Political empowerment – Caste based assertions and political bargaining
power has increased for many backward castes. Eg: OBC reservation.
 Influence policy decision – Pre-independence political groups/parties
highlighted social issues which led to constitutional provision of securing
equality and justice for downtrodden. Towards this pursuit, state came out
with affirmative measures like reservation in education and employment.
 90 BPSC MAINS

 Achieve constitutional ideals – equality, justice and dignity. Voice is given

to the marginalised sections as they cannot be ignored in the first-past-
the-post electoral system.
 Strengthen democracy as these caste and class based parties encourage
people’s political participation. Help educating group on their rights and
form public opinion on important issues.
 Regional politics origin is also traced to caste based political group which
entered into political domain. Ex: AIDMK, BSP. This has made national
political landscape more accommodative of regional aspirations.

Negative fall outs

 Identity politics – caste and class based politics promote the causes of a
particular caste or group. Likelihood of minority castes being left out.
 Fissure in society – reinforcing caste and community consciousness. Ex:
Lingayats in Karnataka.
 Increased social unrest and social animosity. Ex: caste based violence
bhima-koregaon.
 Law and order issue with their agitation turning violent. Ex: Jats for
reservation, Karni Sena protest against Padmavat.
 Violent protests obstructing development through protests.
 Political class agreeing to demands under pressure. Ex: reservation for
Marathas when they do not meet the criteria of socially-educationally
backward class

History testifies that Bihar has been at the centre of politics in India for a very
long time. Many significant political changes that have taken place in India
during the last several decades have had their genesis in Bihar.
Implementation of the Mandal Commission Report by the then prime
minister VP Singh—leading to the creation of a new category of other
backward castes (OBCs) for job reservations—caused significant churn in
North Indian politics. Backward classes replaced powerful upper castes in
positions of political power, especially in Bihar and Uttar Pradesh.
 91 BPSC MAINS

After the decline of Congress in Bihar, regional parties

started playing important role in Bihar Politics. These regional parties had
support of different caste and class. These parties included Rashtriya Janta
Dal, Janta Dal united, Lok Jan Shakti Party etc. Based on the support of
respective castes they even formed the the Government of Bihar. This was
indicative of the fact that lower castes like Yadavas, Kurmis, Kushwaha etc
and Dalit had started their empowerment and had a prominent say in the
politics of Bihar. Last three decades has clearly seen this trend where
prominent national parties like Congress and BJP has a kind of subsidiary/
helping role and Chief Minister has come from OBC class.
Thus we see that caste and class has an important role in politics
of Bihar. Although, Political scientists have raised this as a major cause in
the backwardness of Bihar. They argue that parties in Bihar uses the caste
as an instrument to gain the Political power and not as a means to end the
poverty and backwardness of these section. This has developed fissure in the
society and has further caused the backwardness of the state. So, to develop
state like Bihar it is necessary to give an equal say to all section of Bihar.
 92 BPSC MAINS

14. Anti-defection Law

The anti-defection law is contained in the 10th Schedule of the Constitution

The Anti-Defection Law was passed in 1985 through the 52nd amendment to
the Constitution. It added the Tenth Schedule to the Indian Constitution.
The main intent of the law was to combat “the evil of political defections”.
Legislators used to change parties frequently, often brought about political
instability. This caused serious concerns to the right-thinking political
leaders of the country. So, to stop such activity this law was brought. It has
provisions like:

1.Disqualification under the Tenth Schedule

According to it, a member of a House belonging to any political party becomes

disqualified for being a member of the House, if:

 he voluntarily gives up his membership of such political party; or

 he votes or abstains from voting in such House contrary to any direction

issued by his political party without obtaining prior permission of such
party and such act has not been condoned by the party within 15 days.

2. Exceptions to the Disqualification on the Ground of Defection

 If a member goes out of his party as a result of a merger of the party with
another party. A merger takes place when two-thirds of the members of
the party have agreed to such merger.

 If a member, after being elected as the presiding officer of the House,

voluntarily gives up the membership of his party or rejoins it after he
ceases to hold that office. This exemption has been provided in view of
the dignity and impartiality of the office.

3. Powers of Speaker with regard to Anti-Defection Law

 93 BPSC MAINS

 Any question regarding disqualification arising out of defection is to be

decided by the presiding officer of the House.

 After the Kihoto Hollohan case (1992) the Supreme Court declared that
the decision of the presiding officer is not final and can be questioned in
any court. It is subject to judicial review on the grounds of malafide,
perversity, etc.

Issues Associated W ith the Defection

 Subversion of electoral mandates: Defection is the subversion of electoral

mandates by legislators who get elected on the ticket of one party but
then find it convenient to shift to another, due to the lure of ministerial
berths or financial gains.

 Affects the normal functioning of government: The infamous “Aaya Ram,

Gaya Ram” slogan was coined against the background of continuous
defections by the legislators in the 1960s. The defection leads to
instability in the government and affects the administration.

 Promote horse-trading: Defection also promotes horse-trading of

legislators which clearly go against the mandate of a democratic setup.

Challenges/ Concerns of Anti-Defection Law

 Against the true spirit of representative democracy: The anti-defection

law seeks to provide a stable government by ensuring the legislators do
not switch sides.

o However, this law also enforces a restriction on legislators from

voting in line with their conscience, judgement and interests of his
electorate.

 Impedes legislative control on government: The anti-defection law

impedes the oversight function of the legislature over the government, by
ensuring that members vote based on the decisions taken by the party
leadership.
 94 BPSC MAINS

o In short, if legislators are not able to vote on laws independently,

they would not act as an effective check on the government.

o The Anti-Defection Law, in effect, dilutes the separation of powers

between the Executive and the Legislature – and centralises power
in the hands of the executives.

 Role of presiding officer of the house: The law lays down that legislators
may be disqualified on grounds of defection by the Presiding Officer of a
legislature based on a petition by any other member of the House.

o However, there are many instances when presiding officers play a

part with the vested interests of a political party/government in
power.

o Also, the law does not specify a time period for the Presiding Officer
to decide on a disqualification plea.

o The decision thus is sometimes based on the whims and fancies of

the presiding officer.

 Affects the debate and discussion: The Anti-Defection Law has created a
democracy of parties and numbers in India, rather than a democracy of
debate and discussion.

o In this way, it does not make a differentiation between dissent and

defection and weaken the Parliamentary deliberations on any law.

Rational use of the anti-defection law: Several experts have suggested that
the law should be valid only for those votes that determine the stability of
the government. e.g. passage of the annual budget or no-confidence motions.

Various commissions
including National Commission to review the working of the constitution
(NCRWC) have recommended that rather than the Presiding Officer, the
decision to disqualify a member should be made by the President (in case of
MPs) or the Governor (in case of MLAs) on the advice of the Election
Commission.
 95 BPSC MAINS

Justice Verma in Hollohan judgment said that tenure of the

Speaker is dependent on the continuous support of the majority in the House
and therefore, he does not satisfy the requirement of such independent
adjudicatory authority. Also, his choice as the sole arbiter in the matter
violates an essential attribute of the basic feature. Thus, the need for an
independent authority to deal with the cases of defection.
170th Law Commission report underscored the
importance of intra-party democracy by arguing that a political party cannot
be a dictatorship internally and democratic in its functioning outside. Thus,
the parties should listen to the opinions of the members and have
discussions on the same. This would give the freedom of speech and
expression to its members and promote inner-party democracy.

Though due to anti-defection law, political instability caused by the frequent

and unholy change of allegiance on the part of the legislators of our country
has been contained to a very great extent, yet there is a need for a more
rationalised version of anti-defection laws which will help establish a truly
representative democracy.
 96 BPSC MAINS

15. Federalism in Indian Context

A federal government, is one in which powers are divided between the national
government and the state/regional governments by the Constitution itself and
both operate in their respective jurisdictions independently. US, Switzerland,
Australia, Canada, Russia, Brazil, Argentina have the federal model of
government.

Feature of Federal Government :

1. Dual Polity – The constitution of a federal government establishes a dual
polity consisting the union at the centre and the states at the periphery. Each
is endowed with sovereign powers to be exercised in the field assigned to them
respectively by the constitution.
2. Written Constitution – Federal form of government usually have a written
constitution which specifies the structure, organization, powers and functions
of both the central government and state governments and prescribes the
limits within which they must operate. Thus, it avoids the misunderstanding
and disagreements between the two.
3. Division of Power –The Constitution divides the powers between the
Centre and the states.
4. Supremacy of constitution - The Constitution is the supreme (or the
highest) law of the land. The laws enacted by the Centre and the states must
conform to its provisions. Otherwise the Judiciary has the power to declare
such law null and void.
5. Rigid Constitution – The division of powers established by the Constitution
as well as the supremacy of the Constitution can be maintained only if the
method of its amendment is rigid. Hence, the Constitution is rigid to the extent
that those provisions which are concerned with the federal structure (i.e.,
Centre-state relations and judicial organisation) can be amended only by the
joint action of the Central and state governments.
6. Independent Judiciary – Independent Judiciary is required – one , to
protect the supremacy of the Constitution by exercising the power of judicial
 97 BPSC MAINS

review; and two, to settle the disputes between the Centre and the states or
between the states.
7. Bicameralism – Federal government has bicameral legislature consisting
of an Upper House and a Lower House. The upper house is required to
maintain the federal equilibrium by protecting the interests of the states
against the undue interference of the centre.
Indian model of federalism is called quasi-federal
system as it contains major features of both a federation and union. It can be
better phrased as ‘federation sui generis‘ or federation of its own kind. Indian
constitution is a blend of federal feature with unitary bias.

Federal features of Indian constitution:

o Division of Powers: The Seventh Schedule of the Constitution contains three

lists of subjects which show how division of power is made between the two
sets of government.

o Written Constitution: The Constitution of India is written. Every provision of

the Constitution is clearly written down and has been discussed in detail.
o Supremacy of the Constitution.
o Independent judiciary The Constitution establishes an independent judiciary
headed by the Supreme Court for two purposes: one, to protect the
supremacy of the Constitution by exercising the power of judicial review;
and two, to settle the disputes between the Centre and the states or between
the states.
o Bi-cameral legislation: The Indian Parliament, i.e., the legislature has two
houses - the Lok Sabha and the Rajya Sabha.

Unitary or Non-Federal Features:

o Single Constitution: There are no separate constitutions for the States. In a

true federation, there are separate constitutions for the union and the States.
 98 BPSC MAINS

o Centre’s control over States: The States have to respect the laws made by the
central government and cannot make any law on matters on which there is
already a central law.
o Rajya Sabha does not represent the States equality: In a true federation, the
upper house of the legislature has equal representation from the constituting
units or the States.
o Existence of States depends on the Centre: The boundary of a State can be
changed by created out of the existing States.
o Single citizenship: In a true federal state, citizens are given dual citizenship.
In India however, the citizens enjoy single citizenship, i.e., Indian citizenship
or citizenship of the country as a whole.
o Unified judiciary: India has a unified or integrated judicial system. The
Supreme Court is the highest court of justice in the country and all other
subordinate courts are under it.
o Proclamation of emergency: When emergency is declared, the Union or
Central governments become all powerful and the State governments come
under the total control of it. The State governments lose their autonomy.

Following provision proves though India is federal in nature but its soul is
unitary:

o In legislative matters, the Union Parliament is very powerful. It has not only
exclusive control over the Union list and the residuary powers, but it has also
dominance over the Concurrent list and the State list. This is of important for
uniformity of laws in the country.

o In administrative matters also, the Central government has been made more
powerful than the States. The State governments have to work under the
supervision and control of the Central government. The States should exercise
its executive powers in accordance with the laws made by the Parliament. It
can control the State governments by directing them to take necessary steps
for proper running of administration. If the State fails to work properly or
 99 BPSC MAINS

according to the Constitution, it can impose President’s rule there under

Article 356 and take over its (the State’s) administration.
o Financial matters, the President of India has the power to make alterations in
the distribution of revenues earned from income-tax between the centre and
the States. The Centre has also the power to great loans and great-in-aid to
the State governments. The Comptroller and Auditor General India and the
Finance Commission of India which are the central agencies also have control
over the State finances.

In 1983, the Sarkaria Commission emphasized co-

operative federalism in India. It is a fact that India has a strong Central
government but it should not always try to interfere in the matters of the
States. Both the governments should respect one another’s power or authority
and work harmoniously.
EMERGING ISSUES IN FEDERALISM
Three cross-cutting developments, namely the rise of regional political parties,
globalisation and liberalisation of the economy and judicialisation of the
federal process have deeply influenced the manner in which the concept of
federalism is perceived today from what was originally envisaged by the
framers of the Indian Constitution. These triggers have brought federalism
under a new spotlight, even as tensions between the Centre and states over
crucial issues continue to rise.

SARKARIA COMMISSION (1983)

SARKARIA COMMISSION (1983)
A three member Commission on Centre-state relations under the
chairmanship of R. S. Sarkaria to review examine and review the working of
existing arrangements between the Centre and states in all spheres and
recommend appropriate changes and measures. It emphasized on the need
for changes in the function or operational aspects and did not favour
structural changes.
It stated strong Centre is essential to safeguard the national
unity and integrity which is being threatened by the fissiparious tendencies
 100 BPSC MAINS

in the body politic. However, it did not equate strong Centre with
centralisation of powers. It observed that over-centralisation leads to blood
pressure at the centre and anemia at the periphery.
The important recommendations are mentioned below:
1. Appointment of Governor: The procedure of consulting the chief minister
in the appointment of the state governor should be prescribed in the
Constitution itself. The governor's term of five years in a state should not be
disturbed except for some extremely compelling reasons.
2. President Rule: Article 356 (President's Rule) should be used very sparingly,
in extreme Cases as a last resort, when all the available alternatives fail.
3. Inter State Council: A permanent Inter-State Council called the Inter-
Governmental Council should be set up under Article 263.
4. All India Services: The institution of All-India Services should be further
strengthened-and some more such services should be created.
5. Bill Assent: When the president withholds his assent to the state bills, the
reasons should be communicated the state government.
6. Zonal Council: The zonal councils should be constituted afresh and
reactivated to promote the spirit of federalism.
7. Armed Forces Deployment: The Centre should have powers to deploy its
armed forces, even without the consent of states. However, it is desirable that
the states should be consulted.
8. Legislative matters: The Centre should consult the states before making a
law on a subject of the Concurrent List.
9. Financial:
i) The net proceeds of the corporation tax may be made
permissibly shareable with the states.
ii) The surcharge on income fax should not be levied by
the Centre except for a specific purpose and for a strictly limited period.
10.Language:
i) Steps should be taken to uniformly implement the three language
formula in its true spirit.
ii) The commissioner for linguistic minorities should be activated.
 101 BPSC MAINS

16. Contempt of Court

Contempt refers to the offence of showing disrespect to the dignity or authority

of a court. The Contempt of Courts Act, 1971 defines contempt (the expression
contempt of court is not defined in the constitution). It divides contempt into
civil and criminal contempt.

1. Civil contempt refers to the wilful disobedience of an order of any court.

2. Criminal contempt means the publication (whether by words, spoken

or written, or by signs, or by visible representations, or otherwise) of
any matter or the doing of any other act whatsoever which scandalises
or tends to scandalise, or lowers or tends to lower the authority of, any
court and have the effect of undermining public confidence in the
judiciary; or prejudices, or interferes or tends to interfere with, the due
course of any judicial proceeding; or interferes or tends to interfere with,
or obstructs or tends to obstruct, the administration of justice in any
other manner.

The rationale for this provision is that courts must be protected from
tendentious attacks that lower its authority, defame its public image, and
make the public lose faith in its impartiality. In Pritam Lal v. High Court of
M.P the Supreme Court held that to preserve the proceedings of the Courts
from interference and to keep the streams of justice pure, it becomes the duty
of the Court, to punish the contemnor in order to preserve its dignity.

Also, Article 261 says, Full faith and credit shall be given
throughout the territory of India to public acts, records and judicial
proceedings of the Union and of every State.

Constitutional Provisions in relation to contempt:

1. Contempt of court is one of the reasonable restrictions on freedom of speech

and expression under Article 19(2).
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2. Article 129 of the Constitution conferred on the Supreme Court the power
to punish contempt of itself Article 215 conferred a corresponding power on
the High Courts. Every High Court shall have and exercise the same
jurisdiction, powers and authority, in accordance with the same procedure
and practice, in respect of contempt of courts subordinate to it as it has and
exercises in respect of contempt of itself.

3. Article 142(2) says that when any law is made by the Parliament on the
provisions mentioned in clause 1 of this Article, the Supreme Court has all
the power to make an order for securing any person's attendance, production
of any documents or has the power to give punishment to anyone for its
contempt.

Exceptions to contempt of Court:

(i) Fair and accurate reporting of judicial proceedings.
(ii) Any fair criticism on the merits of a judicial order after a case is heard and
disposed of.
(iii) If the publication or other act is merely a defamatory attack on the judge
and is not intended to interfere with the administration of justice, it will not
be taken as contempt of court.
(iv) The Act was amended in 2006 and introduced truth as a valid defence, if
it was in public interest and was invoked in a bona fide manner .

Issues with contempt of court:

1. Stifle with freedom of speech and Expression: Law of contempt still
continues to strike a fine balance between 'the need to uphold the majesty of
the courts and administration of justice' AND 'the non-comprisable
fundamental right to freedom of speech protected and guaranteed by Article
19(1)(a) of the Constitution of India', subject of course to "reasonable
restrictions" .
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2. Vague and wide jurisdiction: Definition of criminal contempt in India is

extremely wide and can be easily invoked because of the Suo motu powers of
the Court to initiate such proceedings.

3. Against Natural Justice: A fundamental principle of natural justice, that no

one may be the judge in his or her own case. However, the contempt law
enables judiciary to sits in judgement on itself.

4. Limited right to appeal: As per the present statutory scheme, a person

convicted for the criminal contempt has the right to file a review petition
against the judgment and that plea is decided in chambers by the bench
usually without hearing the contemnor.

5. Impact Executive functioning: Court Orders can be sometimes be used to

blackmail executive. Fear of contempt of court make misallocation of
resources of administration like using of force, logistics etc .

Under the Indian Contempt of Courts laws power is discretionary in nature.

To check its abusive use it should be made more determinate and principled.
Judiciary should balance two conflicting principles, i.e. freedom of expression,
and fair and fearless justice. Power to punish for contempt of court must
always be exercised cautiously, wisely and with circumspection.. In the case
of PN Dua v Shiv Shankar and others, the Supreme Court held that mere
criticism of the Court does not amount to contempt of Court. There should be
an independent panel to check the misuse of Contempt of Court power.
It is necessary to distinguish between constructive
criticism and malicious statement and the test for contempt needs to be
evaluated. It should be whether the contemptuous remarks in question
actually obstruct the Court from functioning and should not be allowed to be
used as a means to quash reasonable dissent.
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17. 9th Schedule

Recently there was demand to put reservation provisions for schedule caste,
schedule tribe and other backward classes under 9th schedule of
constitution.

Background of 9th schedule

• At the time of independence, a significant part of the country’s population
lived in the villages and was dependent on agriculture, hence to attain the
goal of social and economic justice, agrarian reforms were most important.
And, fundamental rights (especially right to property) were seen as hindrance
to this process of social reform. Hence, 9th schedule was introduced with the
objective of expediting the process of Agrarian reforms.
• 9th Schedule contains a list of central and state laws which cannot be
challenged in courts even if they violated the Fundamental Rights.
• It was added by 1st Amendment to the Constitution, which inserted Article
31B which declares that none of the Acts and Regulations specified in the
Ninth Schedule shall be deemed to be void on the ground that it is
inconsistent with any of the Fundamental Rights.
• Also, it has retrospective operation i.e. if laws are inserted in the Ninth
Schedule after they are declared unconstitutional, they are considered to have
been in the Schedule since their commencement, and thus valid.

Criticisms of 9th schedule

• Against fundamental rights: 9th schedule provides complete blanket
protection to Central as well as the State laws against Fundamental Rights.
Thus, it acts as a stumbling block against the fundamental rights enshrined
in the constitution.
• Against principle of Judicial review: It deprives the courts of the power to
examine the constitutionality of the Acts. Supreme Court, in L. Chandra
Kumar case- 1997 held that power of judicial review over legislative action
vested in the High Courts under Article 226 and in the Supreme Court under
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Article 32 of the Constitution is an integral and essential feature of the

Constitution, constituting part of its basic structure.
• Outlived its utility: The main motive during the insertion of this schedule
was to protect land reform legislations from judicial dissection and ensuing
delay. But in due course it has been expanded to contain laws which have
nothing to do with not only land reforms but also fundamental rights and
directive principles of state policy at large.
• Tool to realise political gains: Since the commencement, 9th Schedule has
dilated constantly to the extent that it now harbours 257 acts within it. It has
given rise to various demands to include Acts under it to protect them from
constitutional challenge. E.g. A Tamil Nadu law that provides 69 per cent
reservation in the state is part of the Schedule.

Supreme Court’s view on 9th Schedule

• In IR Coelho versus State of Tamil Nadu case, Supreme Court held that laws
placed in the 9th Schedule were open to judicial scrutiny implying that such
laws could not be entitled to blanket protection.
o SC observed that Judicial review is a basic feature of the Constitution
and to insert in the 9th Schedule an Act which, or part of which, has
been struck down as unconstitutional in exercise of the power of
judicial review, is to destroy or damage the basic structure of the
Constitution.
• Thus, SC laid down dual test to examine the validity of a law placed in the
Ninth Schedule i.e. Whether it violates any fundamental right and if yes
whether the violation also damages or destroys the basic structure.
o If the answer to both the questions is in the affirmative, then only a
law placed in the Ninth Schedule can be declared unconstitutional.
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Conclusion
From its inception, 9th Schedule was put up as a constitutional device to
safeguard land reform laws. The provisions were of significant importance at
that point of time. But historical functioning of this provisions reveals that it
has worked to its exhaustion and this necessitates a relook into its
requirement.
 107 BPSC MAINS

18. Presidential Vs Parliamentary form of

Government
The Constitution of India provides for a parliamentary form of government,
both at the Centre and in the states. Articles 74 and 75 deal with the
parliamentary system at the Centre and Articles 163 and 164 in the states.

Modern democratic governments are classified into parliamentary and

presidential on the basis of nature of relations between the executive and the
legislative organs of the government. The parliamentary system of government
is the one in which the executive is responsible to the legislature for its policies
and acts. The presidential system of government, on the other hand, is one in
which the executive is not responsible to the legislature for its policies and
acts, and is constitutionally independent of the legislature in respect of its
term of office.

The parliamentary government is also known as cabinet government or

responsible government or Westminster model of government and is prevalent
in Britain, Japan, Canada, India among others. The presidential government,
on the other hand, is also known as non-responsible or non-parliamentary or
fixed executive system of government and is prevalent in USA, Brazil, Russia,
Sri Lanka among others.

Ivor Jennings called the parliamentary system as ‘cabinet system’ because the
cabinet is the nucleus of power in a parliamentary system. The parliamentary
government is also known as ‘responsible government’ as the cabinet (the real
executive) is accountable to the Parliament and stays in office so long as it
enjoys the latter’s confidence. It is described as ‘Westminster model of
government’ after the location of the British Parliament, where the
parliamentary system originated.
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In the past, the British constitutional and political experts described the
Prime Minister as ‘primus inter pares’ (first among equals) in relation to the
cabinet. In the recent period, the Prime Minister’s power, influence and
position have increased significantly vis-a-vis the cabinet. He has come to play
a ‘dominant’ role in the British politico-administrative system. Hence, the
later political analysts, like Cross-man, Mackintosh and others have
described the British system of government as ‘prime ministerial government’.
The same description holds good in the Indian context too.

Features of Parliamentary Government: The features or principles of

parliamentary government in India are:

1. Nominal and Real Executives

The President is the nominal executive (de jure executive or titular executive)
while the Prime Minister is the real executive (de facto executive). Thus, the
President is head of the State, while the Prime Minister is head of the
government. Article 74 provides for a council of ministers headed by the Prime
Minister to aid and advise the President in the exercise of his functions. The
advice so tendered is binding on the President.
2. Majority Party Rule
The political party which secures majority seats in the Lok Sabha forms the
government. The leader of that party is appointed as the Prime Minister by
the President; other ministers are appointed by the President on the advice of
the prime minister. However, when no single party gets the majority, a
coalition of parties may be invited by the President to form the government.
3. Collective Responsibility
This is the bedrock principle of parliamentary government. The ministers are
collectively responsible to the Parliament in general and to the Lok Sabha in
particular (Article 75). They act as a team, and swim and sink together. The
principle of collective responsibility implies that the Lok Sabha can remove
the ministry (i.e., council of ministers headed by the prime minister) from
office by passing a vote of no confidence.
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4. Political Homogeneity
Usually members of the council of ministers belong to the same political party,
and hence they share the same political ideology. In case of coalition
government, the ministers are bound by consensus.
5. Double Membership
The ministers are members of both the legislature and the executive. This
means that a person cannot be a minister without being a member of the
Parliament. The Constitution stipulates that a minister who is not a member
of the Parliament for a period of six consecutive months ceases to be a
minister.
6. Leadership of the Prime Minister
The Prime Minister plays the leadership role in this system of government. He
is the leader of council of ministers, leader of the Parliament and leader of the
party in power. In these capacities, he plays a significant and highly crucial
role in the functioning of the government.
7. Dissolution of the Lower House
The lower house of the Parliament (Lok Sabha) can be dissolved by the
President on recommendation of the Prime Minister. In other words, the prime
minister can advise the President to dissolve the Lok Sabha before the expiry
of its term and hold fresh elections. This means that the executive enjoys the
right to get the legislature dissolved in a parliamentary system.
8. Secrecy
The ministers operate on the principle of secrecy of procedure and cannot
divulge information about their proceedings, policies and decisions. They take
the oath of secrecy before entering their office. The oath of secrecy to the
ministers is administered by the President.

Features of Presidential form of Government:

Unlike the Indian Constitution, the American Constitution provides for the
presidential form of government. The features of the American presidential
system of government are as follows:
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(a) The American President is both the head of the State and the head of
government. As the head of State, he occupies a ceremonial position. As the
head of government, he leads the executive organ of government.
(b) The President is elected by an electoral college for a fixed tenure of four
years. He cannot be removed by the Congress except by impeachment for a
grave unconstitutional act.
(c) The President governs with the help of a cabinet or a smaller body called
‘Kitchen Cabinet’. It is only an advisory body and consists of non-elected
departmental secretaries. They are selected and appointed by him, are
responsible only to him, and can be removed by him any time.
(d) The President and his secretaries are not responsible to the Congress for
their acts. They neither possess membership in the Congress nor attend its
sessions.
(e) The President cannot dissolve the House of Representatives–the lower
house of the Congress.
(f) The doctrine of separation of powers is the basis of the American
presidential system. The legislative, executive and judicial powers of the
government are separated and vested in the three independent organs of the
government.

Merits of the Parliamentary System:

The parliamentary system of government has the following merits:

1. Harmony Between Legislature and Executive

The greatest advantage of the parliamentary system is that it ensures
harmonious relationship and cooperation between the legislative and
executive organs of the government. The executive is a part of the legislature
and both are interdependent at work. As a result, there is less scope for
disputes and conflicts between the two organs.
2. Responsible Government
By its very nature, the parliamentary system establishes a responsible
government. The ministers are responsible to the Parliament for all their acts
 111 BPSC MAINS

of omission and commission. The Parliament exercises control over the

ministers through various devices like question hour, discussions,
adjournment motion, no confidence motion, etc.
3. Prevents Despotism
Under this system, the executive authority is vested in a group of individuals
(council of ministers) and not in a single person. This dispersal of authority
checks the dictatorial tendencies of the executive. Moreover, the executive is
responsible to the Parliament and can be removed by a no-confidence motion.
4. Ready Alternative Government
In case the ruling party loses its majority, the Head of the State can invite the
opposition party to form the government. This means an alternative
government can be formed without fresh elections. Hence, Dr. Jennings says,
‘the leader of the opposition is the alternative prime minister’.
5. Wide Representation
In a parliamentary system, the executive consists of a group of individuals
(i.e., ministers who are representatives of the people). Hence, it is possible to
provide representation to all sections and regions in the government. The
prime minister while selecting his ministers can take this factor into
consideration.

Demerits of Parliamentary System:

In spite of the above merits, the parliamentary system suffers from the
following demerits:

1. Unstable Government
The parliamentary system does not provide a stable government. There is no
guarantee that a government can survive its tenure. The ministers depend on
the mercy of the majority legislators for their continuity and survival in office.
A no-confidence motion or political defection or evils of multiparty coalition
can make the government unstable. The Government headed by Morarji
Desai, Charan Singh, V.P. Singh, Chandra Sekhar, Deva Gowda and I.K.
Gujral are some such examples.
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2. No Continuity of Policies
The parliamentary system is not conductive for the formulation and
implementation of longterm policies. This is due to the uncertainty of the
tenure of the government. A change in the ruling party is usually followed by
changes in the policies of the government. For example, the Janata
Government headed by Morarji Desai in 1977 reversed a large number of
policies of the previous Congress Government. The same was repeated by the
Congress government after it came back to power in 1980.
3. Dictatorship of the Cabinet
When the ruling party enjoys absolute majority in the Parliament, the cabinet
becomes autocratic and exercises nearly unlimited powers. H.J. Laski says
that the parliamentary system gives the executive an opportunity for tyranny.
Ramsay Muir, the former British Prime Minister, also complained of the
‘dictatorship of the cabinet’. This phenomena was witnessed during the era of
Indira Gandhi and Rajiv Gandhi.
4. Against Separation of Powers
In the parliamentary system, the legislature and the executive are together
and inseparable. The cabinet acts as the leader of legislature as well as the
executive. As Bagehot points out, ‘the cabinet is a hyphen that joins the
buckle that binds the executive and legislative departments together.’ Hence,
the whole system of government goes against the letter and spirit of the theory
of separation of powers. In fact, there is a fusion of powers.
5. Government by Amateurs
The parliamentary system is not conducive to administrative efficiency as the
ministers are not experts in their fields. The Prime Minister has a limited
choice in the selection of ministers; his choice is restricted to the members of
Parliament alone and does not extend to external talent. Moreover, the
ministers devote most of their time to parliamentary work, cabinet meetings
and party activities.

Reason for adopting Parliamentary System in India:

The founding fathers preferred the British parliamentary system due to the
 113 BPSC MAINS

following reasons:

1. Familiarity with the System

The Constitution-makers were somewhat familiar with the parliamentary
system as it had been in operation in India during the British rule. K.M.
Munshi argued that, ‘For the last thirty or forty years, some kind of
responsibility has been introduced in the governance of this country. Our
constitutional traditions have become Parliamentary. After this experience,
why should we go back and buy a novel experience.’
2. Preference to More Responsibility
Dr. B.R. Ambedkar pointed out in the Constituent Assembly th at ‘a
democratic executive must satisfy two conditions: stability and responsibility.
Unfortunately, it has not been possible so far to devise a system which can
ensure both in equal degree. The American system gives more stability but
less responsibility. The British system, on the other hand, gives more
responsibility but less stability. The Draft Constitution in recommending the
parliamentary system of Executive has preferred more responsibility to more
stability.’
3. Need to Avoid Legislative–Executive Conflicts
The framers of the Constitution wanted to avoid the conflicts between the
legislature and the executive which are bound to occur in the presidential
system prevalent in USA. They thought that an infant democracy could not
afford to take the risk of a perpetual cleavage, feud or conflict or threatened
conflict between these two organs of the government. They wanted a form of
government that would be conductive to the manifold development of the
country.
4. Nature of Indian Society
India is one of the most heterogeneous States and most complex plural
societies in the world. Hence, the Constitution-makers adopted the
parliamentary system as it offers greater scope for giving representation to
various section, interests and regions in the government. This promotes a
national spirit among the people and builds a united India.
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Whether the parliamentary system should be

continued or should be replaced by the presidential system has been a point
of discussion and debate in our country since the 1970s. This matter was
considered in detail by the Swaran Singh Committee appointed by the
Congress government in 1975. The committee opined that the parliamentary
system has been doing well and hence, there is no need to replace it by the
presidential system.

Distinction between Indian and British model of Parliamentary Government:

The parliamentary system of government in India is largely based on the
British parliamentary system. However, it never became a replica of the
British system and differs in the following respects:

1. India has a republican system in place of British monarchical system. In

other words, the Head of the State in India (that is, President) is elected, while
the Head of the State in Britain (that is, King or Queen) enjoys a hereditary
position.
2. The British system is based on the doctrine of the sovereignty of Parliament,
while the Parliament is not supreme in India and enjoys limited and restricted
powers due to a written Constitution, federal system, judicial review
and fundamental rights .
3. In Britain, the prime minister should be a member of the Lower House
(House of Commons) of the Parliament. In India, the prime minister may be a
member of any of the two Houses of Parliament.
4. Usually, the members of Parliament alone are appointed as ministers in
Britain. In India, a person who is not a member of Parliament can also be
appointed as minister, but for a maximum period of six months.
5. Britain has the system of legal responsibility of the minister while India has
no such system. Unlike in Britain, the ministers in India are not required to
countersign the official acts of the Head of the State.
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6. ‘Shadow cabinet’ is an unique institution of the British cabinet system. It

is formed by the opposition party to balance the ruling cabinet and to prepare
its members for future ministerial office. There is no such institution in India.
 116 BPSC MAINS

19. Impeachment of US President

And
US Presidential election

Impeachment Of President in India and U.S

Recently, US House of Representatives Speaker announced that the House

would initiate a formal impeachment inquiry against former US President
Trump.
Procedure for Impeachment of Procedure for Impeachment of
President of India (Article 61) President of US
• Indian President can be removed • US president can be removed from
from office for “violation of the office for ‘Treason, Bribery, or other
constitution” whose meaning is not high Crimes and Misdemeanours’.
defined in the constitution.
• The impeachment charges can be • Only House of Representatives
initiated by either House of (lower house) can initiate
Parliament. impeachment proceedings
• These charges should be signed by • Once this is passed with a simple
one-fourth members of the House majority, the process goes for trial.
(that framed the charges), and a 14
days’ notice should be given to the
President.
• After the impeachment resolution • Next, the Senate (upper house) is
is passed by a majority of two-thirds convened like a court, with both
of the total membership of that sides presenting evidence.
House, it is sent to the other House,
which should investigate the
charges.
 117 BPSC MAINS

• If the other House also sustains • At the conclusion of these

the charges and passes hearings, the
the impeachment resolution by a President can be removed from
majority of two-thirds of the total office only if two-thirds of the
membership, then the President Senate votes for it.
stands removed from his office from
the date on which the bill
is so passed.

Process of US Presidential Election versus Indian Presidential Election

Process of Indian Presidential Process of US Presidential Election

Election
To be eligible for election as President must be 35 years of age,
President she should be a citizen of be a natural-born citizen, and must
India and should have completed 35 have lived in the United States for at
years of age, among other things. least 14 years.
President’s election is held in The two main political parties -
accordance with the system of Republican and Democratic - hold
proportional representation by primaries and caucuses to choose
means of the single transferable vote the best candidate to represent
them in the general election.
Each member of the electoral college Each party holds a national
is given only one ballot paper. The convention to select a final
voter, while casting his vote, is presidential nominee. State
required to indicate his preferences delegates from the primaries and
by marking 1, 2, 3, 4, etc. against caucuses will “endorse” their favorite
the names of candidates. candidates.
President is elected by members of US citizens vote to elect a group of
electoral college consisting of elected officials called electors, (the total
members of being 538) who choose the president
• both the Houses of Parliament, and vice-president. The
118 BPSC MAINS

• legislative assemblies of the states; number of electors in a state is

• legislative assemblies of the Union proportionate to the size of its
Territories of Delhi and Puducherry. population.
Candidate, in order to be declared The candidate who receives the
elected to the office of President, majority of the votes from the
must secure a fixed quota of votes. people of a state will receive all
electoral votes of that state. The
presidential nominee with the most
electoral votes becomes the
President.
 119 BPSC MAINS

20. Delimitation Commission

Central government has constituted the Delimitation Commission for the
purpose of delimitation of Assembly and Parliamentary constituencies in the
Union territory of Jammu and Kashmir and the States of Assam, Arunachal
Pradesh, Manipur and Nagaland.

About Delimitation
• Delimitation literally means the act or process of fixing limits or boundarie s
of territorial constituencies in a country or a province having a legislative
body.
• The job of delimitation is assigned to a high power body. Such a body is
known as Delimitation Commission or a Boundary Commission.
• Under Article 82, the Parliament enacts a Delimitation Act after every
Census which establishes a delimitation commission.
• Under Article 170, States also get divided into territorial constituencies as
per Delimitation Act after every Census.
• In India, such Delimitation Commissions have been constituted 4 times – in
1952, 1963, 1973 and 2002.
• In 2002, the 84th Constitutional Amendment was used to freeze the process
of delimitation for Lok Sabha and State assemblies till at least 2026.
• As a result, the Delimitation Commission could not increase the total seats
in the Lok Sabha or Assemblies. It may be done only after 2026.
• This had led to wide discrepancies in the size of constituencies, with the
largest having over three million electors, and the smallest less than 50,000.

About Delimitation Commission:

• The Delimitation Commission is appointed by the President of India
and works in collaboration with the Election Commission of India.
• The commission has three ex-officio members:
o a serving or retired judge of the Supreme Court as the chairperson,
 120 BPSC MAINS

o the Chief Election Commissioner or Election Commissioner

nominated by the CEC and
o State Election Commissioner of the concerned state.
• Its functions include:
o Determining the number and boundaries of constituencies to make
population of all constituencies nearly equal and providing equal
representation to equal segments of a population.
o Identifying seats reserved for Scheduled Castes and Scheduled Tribes,
wherever their population is relatively large.
• Its orders have the force of law and cannot be called in question before any
court.

Issues arising out of Unequal Representation

• Mal apportionment in Democracy- The present delimitation, based on 2001
census, has been undertaken after 30 years. The population has increased by
almost 87% and the nature of constituencies in the country, by and large,
had become mal apportioned.
• Dilution of the principle of “One Citizen One Vote”- e.g. the average MP from
Rajasthan represents over 30 lakh people while the one in Tamil Nadu or
Kerala represents less than 18 lakh.
• Increasing burden on the Representatives- An MP today represents more
than four times the number of voters than what an MP did in 1951-52, when
the first general elections were held
• Don’t include changing dynamics-In 1988, the voting age was lowered from
21 to 18 via 61st Amendment Act. This led to a substantial increase in the
size of each constituency. Further, Migration to urban or industrialized areas
has made such increase skewed in direction and intensity.
• Lead to divide among the people- The perception of one region controlling
the others or ignoring cultural and social aspirations may invoke popular
agitations. Also it creates a divide of politically important vs. unimportant
states for the political parties. It also creates demand for smaller states.
 121 BPSC MAINS

Implications if the limitation freeze is lifted

• Concerns of family planning remains- where the states will be apprehensive
towards such measures as it may reduce their seats in Parliament.
• Control of Presiding Officers of House- who find it extremely difficult to
conduct the proceedings of the House. Their directions and rulings are not
shown proper respect, and disruptions of proceedings aggravate the problem.
The sudden increase in numbers will further aggravate this matter.
• Working of the house- It will be subjected to severe strain because the hourly
window for the Zero Hour, Question Hour etc. will be too small for increased
members.

Way Forward
• The Chairman of Delimitation Commission 2002 recommended that
delimitation should be carried out after every census so that changes are not
too extensive and the value of every elector’s vote remains more or less steady.
• There needs to be a debate and consensus on how to deal with the problems
that are likely to arise.
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21. RTI Act and its amendment

What is the RTI Act, 2005?
 Right to Information Act is considered to be one of the most successful
laws in India.
 It is the law that gives an ordinary citizen the right to ask questions to the
government.
 It dictates the government to provide a timely response to the citizen who
seeks it.
 The Ministry of Personnel, Public Grievances and Pensions has taken the
initiative to ensure that a portal is provided for the citizens so that they
can search and obtain information quickly.
 According to estimates, nearly 60 lakhs applications were filed every year.
It was used by both the citizens and the media.
 Under the RTI Act, 2005, Public Authorities are required to make
disclosures on various aspects of their structure and functioning.
 This includes:
 Disclosure of their organisation, function and structure.
 Powers and duties of its officers and employees
 Financial information.
 The Public Authority here includes the bodies of self-government
established under the constitution or any law or government notification.
 These include the Ministries, public sector undertakings and regulators.
 It also includes any entities owned, controlled or substantially financed
and non-governmental organisations substantially financed directly or
indirectly by funds provided by the government.
The History:
 The right to information gained prominence when the Universal
Declaration of Human Rights was adopted in 1948, giving everyone th e
right to seek and receive information and ideas through any media,
regardless of frontiers.
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 The International Covenant on Civil and Political Rights, 1966 states that
everyone shall have the right to freedom of expression, freedom to seek
and impart information and ideas of all kinds.
 The genesis of RTI law started in 1986, through the judgement of the
Supreme Court in Mr Kulwal vs. Jaipur Municipal Corporation Case.
 During this case, the apex court had stated that the freedom of speech
and expression provided under Article 19 of the Constitution clearly
implies the Right to Information.
 This is because the freedom of speech and expression cannot be fully used
without information.
 It was viewed by the Indian Parliament that it was the right of the
individual to seek information from the government and had enacted the
Right to Information Act, 2005.
 In 2019, this Act was amended and had received the President’s assent.
What are the objectives of the Act?
 To empower citizens
 To ensure transparency and accountability of the government
 To contain corruption
 To enhance people’s participation in the democratic process.
Why is it important?
 The RTI Act, 2005 plays a significant role in strengthening participatory
democracy.
 It ensures people-centred governance.
 This Act does not create a new bureaucracy for its implementation.
Rather, it mandated the government officials to change their attitudes and
duty from one of secrecy to one of sharing and openness.
 It empowers the Information Commission to be the highest authority in
the country to mandate government offices to provide information in
accordance with the provisions of the Act. It also empowers the
Commission to fine the officials who do not follow the mandate to make
them accountable.
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 This Act also empowers the poor and the marginalised by giving them
rights to demand and get information about government policies and
actions. This, in turn, leads to their welfare.
 It has exposed the offences at high places, such as in the organisation of
the Commonwealth Games and allocation of 2G spectrum and coal
blocks.
 RTI allows the public to have access to the government’s records so that
they can scrutinize and analyse what the government does and how
effectively. Therefore, the government is more accountable to the pe ople.
 It further improves the decision-making capacity of the policymakers by
removing unnecessary secrecy.
What are the challenges?
 RTI is not seeing its full potential in India due to illiteracy and
unawareness.
 Individuals misusing the provisions are often creating harassment of the
authorities. For example – People asking of useless, voluminous and often
difficult to obtain information; creating publicity stunts and using it as a
vindictive tool against the public authorities.
 Though RTI’s objective is not to create a grievance redressal mechanism,
the notices from the Information Commissions often force the public
authorities to redress grievances.
What are the changes made in the RTI (Amendment) Act, 2019?
 The term in office: As per the RTI Act, 2005, the Chief Information
Commissioner (CIC) (at the Central and state level) will hold office for a
term of 5 years. The Amended Act removes this provision and states that
the Union government will notify the term of office for the CIC and ICs
 Salaries: The RTI Act, 2005 states that the salary for the CIC and IC (at
the Central level) will be equivalent to the salary paid to the Chief Election
Commissioner and Election Commissioners respectively. The amended
Act removes these provisions and states that the salaries, allowances and
other terms and conditions of services of the Central and State CIC and
ICs will be determined by the Central government.
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 Salary deduction: The 2005 Act states that at the time of appointment of
the CIC and ICs (at the Central and state levels) if they are receiving
pensions or any other retirement benefits for the previous government
services, their salary will be reduced by an amount equal to the pension.
The 2019 amended Act removed this provision.
What are the arguments for the Amendment?
 The Chief Election Commissioner and Election Commissioners have
salaries of an SC judge.
 This brings the CIC and ICs on par with the SC judges.
 It is argued that the functions carried out by the Election Commission of
India and Central and State Information Commissions are different.
 Election Commission of India is a constitutional body, Central
Information Commission and State Information Commissions are
statutory bodies established under the RTI Act, 2005.
 CIC has been given the status of the SC judge. However, CIC’s judgements
can be challenged in High Courts.
 These amendments are made to correct certain irregularities in the RTI
Act, 2005.
 It is also argued that these amendments can strengthen the overall RTI
structure.
What are the arguments against the Amendment?
Threatens Federalism:
 It empowers Centre to unilaterally decide the tenure, salary, allowances
and other terms of service of Information Commissioners, both as the
Centre and state levels.
 This is intentionally assaulting the idea of federalism.
Reduces the power of Information Commission:
 It is also diminishing the status of the CIC, ICs and the State CICs from
that of the Supreme Court Judge and would reduce their ability to issue
the directives to the senior government officials, thereby undermining the
basic principle of the RTI.
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 These amendments could “kill the RTI Act” and is an “affront to

federalism, good governance and ultimately, democracy”.
 It would also make freedom of speech meaningless.
Independence under question:
 The amendments would empower the Centre to decide the tenure, salary
and allowance of the Information Commissioners both at the Centre and
the state levels.
 Independence of the Commission is vital for its flawless functioning and
the amendments take away just that.
 These amendments reduce the independence of the Commission and can
only function like a Department of the Central government.
No public consultation:
 The Amendment Bill was brought to the Parliament without prior
consultation from the public.
 This is a huge concern in a democratic country as it is against the public
will.
Way forward:
 RTI should be strengthened rather than be weakened in favour of the
government.
 It is, in fact, as per the SC’s judgement, the integral part of the right to
free speech and expression under the Indian Constitution’s Article 19.
 This Amended Act needs to be changed to bring about transparency and
accountability of the government since this is the whole purpose of this
Act in the first place.
 All public authorities must digitize their records so that they are in the
public domain and there is little need for the citizens to request
information formally from the government.
 Awareness must be made so that all individual citizens are alert about
the government’s functioning and its impacts on their lives.
 It is in the duty of citizens at large to safeguard democracy. Therefore,
every one of them should participate in democratic activity for it to be safe
 127 BPSC MAINS

and secure. Therefore all citizens must consistently use the RTI Act for
the common good.
Conclusion:
RTI Act was implemented to ensure social justice, transparency and to make
government accountable to its actions. However, it has numerous limitations
and drawbacks. Steps must be taken so that the RTI Act is strengthened as
it plays a significant role in Indian democracy.

Do political parties come under the RTI Act?

 Recently, the SC, in D.A.V College Trust and Management Society vs.
Director of Public Instruction, had held that the NGOs that are
substantially funded by the appropriate government fall within the ambit
of ‘public authority’ under Section 2(h) of the RTI Act, 2005.
 Under this section, the “public authority” means any authority or body or
institution of self-government established or constituted by or under the
constitution. It also includes any non-governmental organisation that is
substantially financed directly or indirectly by funds provided by the
appropriate government.
 This judgement can have wide ramifications in a pertaining to the ambit
of the RTI regime on national political parties.
 In the D.A.V case, the apex court held that “substantial” means a large
portion which can be both, direct or indirect.
 It also held that it need not be a major portion or more than 50% as no
straitjacket formula can be resorted to in this regard.
 For example, if a portion of land in a city is given free of cost or a heavily
subsidised rate to hospitals, educational institutions or any other bodies
that are funded by the government, it can be qualified as substantial
financing.
 In 2010, the Association for Democratic Reforms (ADR) had filed an
application under the RTI to all national parties, seeking information
about the “10 maximum voluntary contributions” received by them in the
past 5 years.
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 None of these parties had volunteered to disclose this information.

 Consequently, ADR and a RTI activist had filed a petition with the Central
Information Commission (CIC).
 In 2013, the full bench of the CIC had held that all national parties come
under ‘public authorities’ and were within the purview of the RTI Act.
 Thus, they were directed to designate Central Public Information Officers
(CPIOs) and the appellate authorities at their headquarters within 6
weeks.
 In 2013, the RTI (amendment) Bill was introduced in the parliament to
keep the political parties explicitly outside the purview of the RTI Act. But
this Bill was lapsed following the dissolution of the 15th Lok Sabha.
 Despite the binding value of the CIC’s order under Section 19(7) of the
RTI Act, none of the political parties complied.
 Also, none of them were present during the hearing when the Commission
issued show-cause notices for non-compliance.
 Finally, in 2019, a Public Interest Litigation was filed in the SC seeking
the declaration of political parties as ‘public authorities’ and this matter
is now under sub judice.
 Drawing the analogy between the apex court’s judgement on D.A.V and
the political parties’ issue which is sub judice, it can be argued that
national parties are ‘substantially’ funded by the Central Government.
 For instance, numerous concessions like land allocation,
accommodation, bungalows in national and state capitals, tax exemption
against income under Section 13A of the IT Act, free air time on TV and
radio etc. can easily satisfy the prerequisite of Section 2(h) of the RTI.
 This interpretation is based on purposive approach of interpretation
which is sometimes referred to as purposive construction, purposive
interpretation or the “modern principle of construction”.
 It is an approach to statutory and constitutional interpretation under
which common law courts interpret an enactment (statute, part of statute
or a clause of the constitution) based on the purpose for which it was
enacted.
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Does CJI come under the RTI Act?

 The apex court had recently stated that the office of the Chief Justice of
India (CJI) is a public authority and that it will come under ambit of the
RTI Act.
 This ruling was given by the 5-judge Constitution Bench that was headed
by the Chief Justice Ranjan Gogoi.
Key highlights:

 The Supreme Court is a “public authority” and the office of the CJI is part
of this institution.
 Thus, if the top court is a public authority, so is the office of the CJI.
 The judiciary cannot function in total isolation as the judges hold the
constitutional post.
 Nonetheless, Right to Privacy is an important aspect and has to be
balanced with transparency while deciding to give out information from
the office of the CJI.
 RTI cannot be used as a tool for surveillance and that judicial
independence should be kept in mind while also ensuring transparency.
 On the issue related to the judges’ appointment, the apex court held that
only the names of the judges recommended by the Collegium for
appointment can be disclosed and not the reason.
Consequences:

 The office of the CJI will now accommodate RTI applications.

 The public authority under the RTI Act, 2005 includes the body
constituted by or under the Indian Constitution.
 Article 124 of the Indian Constitution deals with the establishment of the
Supreme Court of India.
 The information includes any material in any form, including records,
documents, memos, e-mails, etc. from the office of Chief Justice of India.
 This ruling is an example for other bodies like the political parties, trusts
and public-private partnerships that are resisting the categorization as
public authority under this Act.
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 However, there have been instances when the offices the PM, the
President and the others are denying information under the RTI Act by
quoting the apex court’s separate observations.
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22. Aspirational District Programme

About Aspirational Districts Programme (ADP)

• ADP was launched by the GOI in January 2018 to accelerate improvement
in the socio-economic indicators of the most underdeveloped districts of the
country.
• Currently, the programme has been implemented in 112 of India’s 739
districts including 35 Left Wing Extremism (LWE) affected regions spread
across the country.
• The programme is driven by the following ideas that signal a shift in the
approach of the government towards policy and governance:
o Moving Beyond Economic Measures of Success
o Enabling Equitable Regional Development
o Driving Change through Cooperative and Competitive Federalism
• The programme focuses on practical and measurable social progress
outcomes, in six main themes that directly impact the quality of life as well
as the economic productivity of citizens.
o These are- Health and Nutrition, Education, Agriculture and Water
Resources, Financial Inclusion, Skill Development, and Basic
Infrastructure. These are further broken down into 49 indicators.
• The programme is based on three core principles, which are encapsulated
in the 3Cs Approach – Convergence (among State and Central Government
initiatives at the district level), Collaboration (among citizens and
functionaries of Central & State Governments including district teams), and
Competition (among districts).
• Basic Structure of the programme:
o At the Central level, NITI Aayog is anchoring the programme and
individual Ministries have assumed responsibilities to drive the
progress of the districts.
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o The state governments are the main drivers of change. Each state has
formed a committee under their respective Chief Secretaries to
implement as well as track the programme.
o For each district, a central Prabhari Officer of the rank of Additional
Secretary/ Joint Secretary has been appointed to provide feedback and
recommendations based on their local level findings.
• Under the programme, NITI Aayog releases Delta Ranking that ranks
districts based on the monthly improvement achieved in the six focus areas
through the Champions of Change dashboard (an online Dashboard).

FOCUS THEMES
The programme focuses on 5 main themes which have a direct impact on
quality of life and economic productivity of citizens –
Themes Weight Allotted:
 Health & Nutrition =30%
 Education =30%
 Agriculture & Water Resources= 20%
 Financial Inclusion & Skill Development=10%
 Basic Infrastructure =10%

Key Parameters of each theme:

Health It focus on antenatal care, postnatal

care, gender parity, health of new-
born, growth of children,
contagious diseases, and health
infrastructure.
Education It focuses on learning outcomes,
infrastructure of schools and
institutional indicators.
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 Learning Outcomes -
transition rate from primary
to upper primary, and
subsequently to secondary
schooling, average scores in
mathematics and languages
etc.
 Infrastructure - toilet access
for girls, drinking water,
electricity supply etc.
 Institutional Indicators - RTE
mandated pupil-teacher ratio,
timely delivery of textbooks.
Agriculture & Water Agriculture is the backbone of India,
Resources with more than 50% of our
workforce engaged in cultivation
and allied activities and hence
becomes one of the key factors of
governance.
The focus is on
 Output - yield, price
realisation etc.,
 Inputs - quality seed
distribution, soil health cards,
and
 Institutional Support - crop
insurance, electronic markets,
artificial insemination, animal
vaccination etc.
Financial Inclusion & Progress in financial inclusion shall
Skill Development be measured through
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 Implementation of important
government schemes – like
Atal Pension Yojana, Pradhan
Mantri Jeevan Jyoti Bima
Yojana etc.
 Reach of institutional banking
- number of accounts opened
under Jan Dhan Yojana
 Ease of institutional financing
for small businesses -
disbursement of Mudra loans
 Skill Development shall be
tracked through progress in
skilling of youth, employment,
and the skilling of
vulnerable/marginalized
youth under Pradhan Mantri
Kaushal Vikas Yojana
(PMKVY).
Basic Infrastructure  Housing for all with water,
electricity, and road
connectivity is the priority of
the Government.
 Basic Infrastructure shall also
be measured through
availability of individual
household latrines, drinking
water, electricity, and road
connectivity.
 Districts are also tracked for
the number of internet
 135 BPSC MAINS

connected Gram Panchayats,

and panchayats with
Common Service Centres.

Key Benefits:
• Districts can utilise the data available on various indicators to improve their
performance in each of the identified core themes.
• The purpose of this ranking is to spur a sense of competition among dynamic
teams in districts including identification of challenging areas pertaining for
each district.
• This will further help the Central Government in identifying key challenges
for various districts in terms of implementation of central government
schemes. This will further help the government in identifying weak districts
for better targeting of government schemes for its citizens.
• This will not only help district authorities in improving quality of life of
citizens but will help in promoting the concept of competitive governance
among districts on quantifiable parameters.

Existing challenges with ADP

• Insufficient budgetary resources.
• Multiple ministries leading to a lack of coordination.
• Lack of high-quality administrative data impacting implementation and
design at the local level.
• The Delta rankings are largely focused on assessing quantity (th at is,
coverage of access) rather than quality .
Conclusion
• Uneven distribution of economic gains across regions and individual citize ns
has only served to highlight the need for a broader agenda aimed at inclusive
growth and social progress.
• By focusing on “what works” in advancing inclusive growth and social
progress, ADP has the potential to serve as a model for India’s future economic
and social development strategy.
 136 BPSC MAINS

23. Electoral Bonds

The concept of electoral bond was introduced in the Budget of 2017-18 for a
check on political funding. The Ministry of Finance recently notified the
Scheme of Electoral Bonds. Electoral Bonds are bearer instrument in the
nature of a Promissory Note and are an interest free banking instrument.
Electoral Bond shall be issued for any value, in multiples of - Rs.1,000,
Rs.10,000, Rs.1,00,000, Rs.10,00,000 and Rs.1,00,00,000 from the Specified
Branches of the State Bank of India (SBI).

The purchaser would be allowed to buy Electoral Bonds only on due

fulfillment of all the extant KYC norms and by making payment from a bank
account. It will not carry the name of payee. Electoral Bonds would have a life
of only 15 days during which it can be used for making donation only to
political parties:
• Which are registered under section 29A of the Representation of the Peoples
Act, 1951; and
• Which has secured not less than one per cent of the votes polled in the last
general election to the House of the People or to Legislative Assembly.

Every political party in its returns will have to disclose the amount of
donations it has received through electoral bonds to the Election Commission.

Rationale behind introduction of Electoral Bonds

• To limit the use of cash in political funding: To reduce using illicit means of
funding and the ‘system’ was wholly opaque and ensured complete
anonymity.
• To curb black money- due to the following features included in the electoral
bonds-
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o Payments made for the issuance of the electoral bonds are accepted
only by means of a demand draft, cheque or through the Electronic
Clearing System or direct debit to the buyers’ account”.
o Limiting the time for which the bond is valid ensures that the bonds
do not become a parallel currency.
• Eliminate fraudulent political parties- that were formed on pretext of tax
evasion, as there is a stringent clause of eligibility for the political parties in
the scheme.
• Protects donor from political victimization- as non-disclosure of the identity
of the donor is the core objective of the scheme.

Analysis of use of electoral bonds on political funding

• Still maintains opacity in political funding- due to the following reasons-
o Prior to electoral bonds, political parties had to maintain records of
donations above Rs 20,000. However, the electoral bonds were kept out
of the purview of this requirement.
o Further, political parties are legally bound to submit their income tax
returns annually under Section 13A of the Income Tax Act, 1961.
However, the electoral bonds have also been exempted from IT Act.
o The electoral bonds were also opened for foreign funding, which has
been highlighted in the recent dissent note of the RBI.
• Allowed possibility of corporate misuse- as revealed from the nature of
transactions discussed above.
o Earlier, no company could donate more than 7.5% of its profits to a
political party. But this limit was completely removed under this
scheme.
• Lack of level playing field in terms of political funding- as
o Government amended Section 29B of the Representation of the People
Act, restricting the benefits of electoral bonds only to a few political
parties.
 138 BPSC MAINS

o Data revealed through the audit report of ruling party also showed
that the ruling party has received 94.6% of all the electoral bonds sold
in 2017-18.
• Merely an urban phenomenon- the data also highlights the fact, that
electoral bonds have been used by the rich players in cities, rather it being
percolating to the majority population, especially in rural areas.

DEMERITS
• As per Section 29C of Representation of People Act, 1951 – Every political
party had to declare donations in excess of Rs. 20,000 received from any
person or companies.
• As per Section 13-A of Income Tax Act, 1961 political parties were supposed
to maintain records of contributions made in excess of Rs. 20,000 along with
the names and address of all donors.
• However, an amendment made in the Finance Act, 2017 has kept electoral
bonds out of the purview of both these provisions.
• Thus, the donor is not required to disclose the name of political party while
purchasing electoral bonds and political parties are not required to maintain
records of the donors. This affects the cause of transparency in the funding
of elections.
• As per Section 182 of Companies Act, 2013, a company must be at least
three years old to contribute to a party and its contribution could not have
been more than 7.5% of its Average Net Profit in the three preceding years.
• However, through amendment in Companies Act, 2013, the government has
removed -
of 7.5% on political donations by companies
of political party to which the company has
contributed
• Now any company can donate any amount of cash through electoral bonds
and the identity of such company shall not be disclosed. Thus, shell
companies can be formed just for political funding and can be a source of
corruption .
 139 BPSC MAINS

conclusion:
The early trends on electoral bonds attest to what political analysts have been
fearing that the new channel would greatly undermine India’s electoral
democracy by inviting unbridled corporate influence. There is a need to carry
out a thorough check on the way the scheme is being implemented otherwise
it can undo the significant gains achieved in political finance reforms and
transparency norms.
 140 BPSC MAINS

24. EVMs, VVPAT and Issues

About Electronic Voting Machine (EVM)

 An EVM consists of a "control unit" and a "balloting unit". The control
unit is with the Election Commission-appointed polling officer; the
balloting unit is in the voting compartment into where voter casts her
vote in secret.
 It runs on a single alkaline battery fitted in the control unit, and can
even be used in areas that have no electricity.
 They are manufactured by Electronics Corporation of India Limited
(ECIL) and Bharat Electronics Limited (BEL).

History of EVMs in Indian Elections

 EVMs were 1st used in 1982 Kerala Assembly elections (by-election).
 However, SC struck down the election since Representation of People
Act, 1951, and Conduct of Elections Rules, 1961, did not allow use of
EVMs.
 RP Act 1951 was amended in 1988 to allow usage of EVMs.
 In 1999, they were used for the 1st time in the entire state for Goa
Legislative Assembly elections.
 In 2004, EVMs were used for the 1st time in Lok Sabha elections.

Recently, there have been controversies surrounding EVMs regarding their

safety feature.
Safety Features within EVMs
 Non-reprogrammable: It consists of an integrated circuit (IC) chip that
is one time programmable (software burnt at the time of
manufacturing) and cannot be reprogrammed.
 No external communication: EVMs are not networked by any wired or
wireless system, nor do they have any frequency receiver and data
 141 BPSC MAINS

decoder, so there cannot be any external communication. Control Unit

(CU) accepts only specially encrypted & dynamically coded data from
Ballot Unit (BU).
o Other countries like Netherlands and Germany (which
discontinued the use of EVMs) use computer based EVMs which
are prone to hacking, while Indian EVMs are standalone
machines.
 Secure Source Code: Software and source code developed in-house by
selected group of engineers in BEL and ECIL.
 It allows a voter to cast the vote only once. The next vote can be
recorded only after Presiding Officer enables the ballot on CU.
 Time stamping of votes: EVMs are installed with real time clock, full
display system and time-stamping of every key pressing so there is no
possibility of system generated/latent votes.
 Secure against post-manufacturing tampering: The machines with self
diagnostics shut down automatically in case of tampering.
 There are also various procedural checks and balances (Standard
Operating Procedure) like functional checks, trial run, random
allocation, multi-stage testing, dry run and safe & secure storage post
voting, included for ensuring free and fair elections.

Arguments for going back to ballot system

 In terms of the three pillars of free and fair elections (transparency,
verifiability and secrecy) the EVMs face following issues
o Not transparent: An electronic display of the voter’s selection
may not be the same as the vote stored electronically in the
machine’s memory. To bridge this gap, VVPATs were introduced.
o Not verifiable: Only the vote number can be verified and not the
voting choice.
o Not secret: Counting in EVMs is equivalent to booth-wise
counting, which allows one to discern voting patterns & renders
marginalized communities vulnerable to pressure.
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 Possibility of hacking: Accusations of EVMs getting hacked or even the

possibility of them being hacked creates a mistrust about electoral
processes in the minds of the public.
 Malfunctioning EVMs: Though provided with specific training for
correct usage of EVMs, officers sometimes don't pay attention &
connect machines in wrong order.

Arguments in favor of continuing with EVMs

 Ease of use and accessible: EVMs are found to be easy to use, even by
illiterate voters who just need to recognize the symbols of the parties.
Electronic voting makes voting more accessible for e.g. enabling disable
people to vote independently.
 Safe and secure: The instances of booth capturing, rigging and stuffing
ballot boxes with ink have been checked by the use of EVMs.
o Further, the EVMs in itself is a secure machine which is highly
improbable to be hacked.
 Faster results and build trust: For other countries, particularly large
ones like Brazil, India and the Philippines, electronic voting and
electronic counting means that people can get official election results
within hours, instead of weeks.
 Completely auditable: One of the reasons our electronic voting system
has been praised so highly is that it’s designed around the idea that all
parties, citizens and election commissions are able to audit the
electoral process at every stage, including before an election has even
begun.

Other benefits include

 elimination of the possibility of invalid and doubtful votes which, in
many cases, are the root causes of controversies and election petitions.
 reduction in the use of paper during the elections.
 143 BPSC MAINS

Way Forward

 While there have been cases of “malfunction” (which suggests a

technical defect), there has not been any case of proven “tampering’”
(manipulation aimed at fraud). In 2017, EC even held an ‘EVM
Challenge’, where it invited political parties to demonstrate/proof any
allegations of tampering.
 However, cost and efficiency considerations are secondary to the
integrity of the election. EC must ensure that any unjustified suspicion
in the minds of public is removed through:
 100% deployment of VVPAT in all elections and by-polls
and on detection of any faulty EVM in a constituency must
entail the VVPAT hand-counting of all the EVMs in that
constituency.
 EC must introduce Totalizer Machines for counting of
votes. It increases the secrecy of voting by counting votes
polled at 14 polling booths together, as against the current
practice of announcing booth-wise results.
 Regular demonstrations must be organized by EC in all the
poll-going States to reduce information gap on EVMs.
 EC should provide training to officers in small batches and
focus on hands on-learning. As a long term structural
reform, EC must be provided with an independent
secretariat so that it can have a dedicated cadre of officers.

Voter Verifiable Paper Audit Trail (VVPAT)

allow voters to
verify that their votes were cast correctly, to detect possible election
fraud/malfunction and to provide a means to audit the stored results in case
of disputes.
 144 BPSC MAINS

the
candidate along with recording of vote in CU. The printed slip is visible (for 7
seconds) in a viewing window attached to BU in voting compartment.
for
transparency in voting and must be implemented by ECI. In General Elections
2019, VVPATs will be used in all the constituencies.

Recent changes
 The Supreme Court recently increased VVPAT verification to five
random EVMs in each Assembly segment/constituency “to ensure the
greatest degree of accuracy, satisfaction in election process."
 Earlier, under the ECI guidelines, only the VVPAT slips from one EVM
in every Assembly segment/constituency was subjected to physical
verification.
 The Conduct of Election Rules say that a voter who has complained his
vote went to wrong party can be allowed a test vote. However, if the
VVPAT shows no error, the voter can be penalized with six months’
imprisonment and a fine.
 VVPAT slip counting takes place in specially erected VVPAT counting
booths under the close monitoring of the returning officer and direct
oversights of the observer.
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25. Centre-State Relations (During Covid-

19)
COVID-19 has brought to the fore the friction between Centre and States with
respect to the current legal framework in managing a crisis.

Centre state issues during COVID-19

• One size fits all approach: During the course of pandemic, Centre issued a
top-down, homogeneous set of guidelines to states under Disaster
Management Act, 2005 (DM Act). For instance, when Kerala decided to open
restaurants, buses and private vehicles in specific zones, the Central
government considered these steps as dilution of its guidelines.
• Non-consultative decision making: Central Government neither drew up any
plan, nor did it consult the State Governments before it imposed the
lockdown. Thus, states had no time or manoeuvring room to work the logistics
vis-à-vis the migrant labourers.
• Micromanaging: Inter-Ministerial Central Teams were sent to places where
COVID-19 spread was considered serious, for assessments and suggesting
additional mitigation measures. However, it was done without clarifying the
criteria for the basis of selection of districts which was seen as violative of the
spirit of federalism.
• Impacting States’ financial autonomy:
o While on the one hand the states’ revenue stream has been drying up
(on account of the ban of alcohol sale, fall in the real estate market, etc),
on the other, Centres’ steps further crippled the financial autonomy of
the States, which were at the forefront of the war against the pandemic.
o Central government enhanced the borrowing limit of state
governments from 3 per cent to 5 per cent of their gross state domestic
product. However, only the first 0.5 per cent of this increase is
unconditional and remaining was linked to specific reforms such as
debt sustainability, job creation, power sector reforms etc.
 146 BPSC MAINS

o Centre has declared that corporations donating to PM-CARES can

avail CSR exemptions, but those donating towards any Chief Minister’s
Relief Fund cannot. This disincentivised donations to any Chief
Minister’s Relief Fund and makes the States largely dependent upon
the Centre.

Factors which caused such ambiguities

• Issues with Constitutional provisions:
o The Seventh Schedule to the Constitution does not have an explicit
entry on disaster management. Hence, Parliament had to resort to
Concurrent List entry 23 on “Social security and social insurance;
employment and unemployment” to trigger provisions of the DM Act.
o Public order and public health are subjects that lie with the States as
per the Constitution. So, various states invoked the Epidemic Diseases
Act, 1897 to pass orders and guidelines on social distancing measures
etc. But there was lack of clarity in how the Centre and States have
interpreted their roles under the Constitution.
• Issues with DM Act
o While enforcing the provisions of the DM Act, the Centre declared the
pandemic a ‘notified disaster’ to remedy the situation. The DM Act
states the Centre can “take all such measures as it deems necessary”,
which leaves room for it to have almost sweeping powers.
o DM Act is not specifically aimed at targeting epidemics, the Centre
couldn’t use this provision to enact the law. So, it used another entry
— “social security and social insurance; employment and
unemployment” — in the List to trigger provisions of the Act.
• Issues with Epidemic Diseases Act (EDA) 1897:
o It empowers both the central and state governments to regulate the
spread of epidemic diseases. However, the Act emphasises only the
powers of the central and state governments during the epidemic, but
it does not describe the government’s duties in preventing and
controlling the epidemic.
 147 BPSC MAINS

Way forward
One of the major advantages of having a multi-level federal system is the
presence of governance structures at the most local levels, which are best
placed to deal with emergent crises. For responsive and efficient governance
that is tailored to meet local exigencies, State and third-tier governments
should be taking the lead in tackling public health crises. Role of Centre shall
be to ensure coordination between States, rather than directing States.
ARC had recommended the addition of a
new entry in the Concurrent List for “Management of Disasters and
Emergencies, Natural or Man-made. It was reiterated by National Commission
to Review the Working of the Constitution and later by a Ministry of Home
Affairs Task Force set up to review the DM Act.
 148 BPSC MAINS

26. One Nation-One Language

Recently, on the occasion of Hindi Diwas, the Union home minister had
proposed to promote Hindi as the country’s common language which
resurfaced debate over one nation one language in the country.
Background
• The debate over One Nation One Language started in the constituent
assembly debates on the official language.
• Hindi was voted as official language, however due to outpour and anti-Hindi
agitation from various sections, English was also continued as an associated
official language.

Basis for promoting Hindi language

• Article 351: It shall be the duty of the Union
 to promote the spread of the Hindi language,
 to develop it so that it may serve as a medium of expression for all the
elements of the composite culture of India and
 to secure its enrichment by assimilating without interfering with its
genius, the forms, style and expressions used in Hindustani and in the
other languages of India specified in the Eighth Schedule.
• Article 120 and 210 regarding language to be used in Parliament and state
legislature respectively gives the option of transacting business in Hindi as
well in English.
• Article 343 gives power to parliament to decide by law, the languages to be
used for official work.
• Article 344 provides for constitution of a parliamentary committee every 10
years to recommend to the President regarding progressive use of the Hindi
language for the official purposes of the Union and restrictions on the use
of English.

Key Debates on the issue

• Understanding the Relation Between
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Language and Identity: Language is intrinsically tied to identity, and this often
includes the identity of a nation.
o Thus, there is a close connection between language, identity
and policy.
• Language vs Nationalism: The relationship between language and a nation
is a fundamental one, as language is often used in the very creation of nations.
• What is the Idea of having one Nation: The meaning of one in ‘one nation’
cannot be based on quantity and has to be only a quality as majority does not
create oneness. Thus, the oneness is the kind of oneness which is between
the humans and the world, and oneness between each individual of nation,
independent of the language we speak or the religion we practice.

Arguments in favour of One Nation One language

• Removing barriers in the development: There are various areas where there
is a perceived lag only because of lack of national language, like trade,
education and research.
• For effective administration: The various people who work for central
government or Armies etc. always face the language problem when they move
to other regions of India. Therefore, the administrative machinery will not be
able to deliver efficiently, if the language becomes a barrier in understanding
people’s aspirations and needs.
• To give India a global Identity: A uniform national language, will give us great
advantage at global scale due to its large number of users thus forcing people
of other nations to learn that language etc.

Arguments against One Nation One Language

• Idea of one country, one language: A colonial Construct: The idea that a
language represents a nation is one of the colonialism’s construct.
• Issue of consensus: There is a lack of consensus- among the population with
respect to one language, as the whole construct of a national language seems
more of an imposition of one language over others.
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• Diverse structure: A uniform language goes against the idea of a diverse and
federal structure of the country, where such common language may not be
desirable. It also runs contrary to the spirit of the Constitution and our
country’s linguistic diversity”
• Against the spirit of three-language formula, which should not be tinkered
with and unnecessary controversies should be avoided on such ‘emotive’
issues.
• Inevitability of English: English is today’s language of science and
technology in the whole world. Even if we replace English from all
technological usage in India with Hindi, still it will remain the language of
science.

Can Hindi be the choice for “One Language, one nation”?

Arguments in Favour
• Hindi can serve as a crucial link to preserve our ancient philosophy, culture
and memory of freedom struggle.
• Hindi is most widely spoken in the country across various regions thus can
become the lingua franca.
• In agreement with constitutional framers- such as Mahatma Gandhi and
Sardar Patel, who appealed to citizens to increase the use of the mother
tongue and Hindi.
• Safeguard the diverse language base- of the country which comprise of 122
languages and more than 19,500 dialects. It is important that the culture is
preserved from the foreign influence.
• Suitable application of Hindi- could be done such as in the areas of law and
science and technology.

Arguments Against
• Hindi is spoken in pure form even in the Hindi Heartland (North and Central
India) with several dialects of the language. Further, majority-spoken
language is Hinglish (a mix of Hindi and English) while there are parts of the
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country where Hindi is hardly spoken or understood leave alone being the
language of choice.
• Similarly, the history of Hindi is much more recent than many languages of
India, say Tamil, Kannada, Telugu, and so on.
• Most of marginalized castes and indigenous communities of India prefer
English, a language devoid of caste memory and a language that provides
mobility.
• Article 29 gives every Indian the right to a distinct language, script & culture.

Three-language formula
• It is commonly understood that the three languages referred to are Hindi,
English and the regional language of the respective States.
• Though the teaching of Hindi across the country was part of a long-standing
system, it was crystallised into a policy in an official document only in the
National Policy on Education, 1968.
• It was again mooted in NPE 2019 but later the idea was dropped from the
draft.
• State has been following the two-language formula for many decades, under
which only English and one regional language are compulsory in schools.

Conclusion
• To preserve our ancient philosophy, our culture and the memory of our
freedom struggle, it’s important that we strengthen our local languages
simultaneously without being biased towards any one language.
• While the development of Hindi is undoubtedly a constitutional command
the Union government cannot ignore, however, the manner in which it is done
should not give the impression to the States that there is creeping imposition
of Hindi. At the same time three language policy can also be pondered upon.
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27. Simultaneous Elections

Prime Minister raised the pitch for Simultaneous Elections to the Lok Sabha
and State Assemblies.

About Simultaneous Elections (SE)

• It means structuring the Indian election cycle in a manner that elections to
Lok Sabha and State Assemblies are synchronized together under which
voters in a particular constituency vote for both on the same day.
• SE were the norm until 1967. But following dissolution of some Legislative
Assemblies in 1968 and 1969 and that of Lok Sabha in 1970, elections to
State Assemblies and Parliament have been held separately.
• Later, SE idea was proposed by Election Commission in 1983. It was also
referred by Law Commission and NITI Aayog.
• SE does not mean that voting across the country for Lok Sabha and State
Assemblies happen on a single day. It can be conducted in a phase-wise
manner and voters in a particular constituency vote for both State Assembly
and Lok Sabha the same day.

Arguments in favor of Simultaneous Elections

• Policy paralysis: Frequent elections lead to imposition of Model Code of
Conduct (MCC) over prolonged periods of time which often leads to policy
paralysis and governance deficit in the form of suspended development
programs, welfare schemes, capital projects etc.
• Huge expenditures: By various stakeholders like political parties, individual
candidates, etc. The urge to spend more (than the set limit) to win elections
is blamed as one of the key drivers for corruption and black-money in the
country.
• Engagement of security forces: Deployment of security forces is normally
throughout the elections and frequent elections takes away a portion of such
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armed police force which could otherwise be better deployed for other internal
security purposes.
• Disrupting public life: Frequent elections lead to disruption of normal public
life and impact the functioning of essential services. If SE are held, this period
of disruption would be limited to a certain predetermined period of time.
• Impact on social fabric: Frequent elections perpetuate caste, religion and
communal issues across the country as elections are polarizing events which
have accentuated casteism, communalism and corruption.
• Focus on populist measures: Frequent elections will impact the focus of
governance and policy making as it forces the political class to typically think
in terms of immediate electoral gains rather than focus on long-term
programmes and policies.
• Impact on voter turnout: According to law commission report simultaneous
polls will boost voter turnout.

Arguments against Simultaneous Elections

• Operational feasibility such as how to synchronize cycle for the first time,
what will be the procedure in case ruling party/coalition loses majority before
5 years, feasibility for the Election Commission to conduct elections at such
a massive scale etc.
• Constitutional issues: Holding SE will require certain requirements such as
Curtailment and extension of terms of the House of the People/ State
Legislative Assemblies, Amendment to the relevant provisions of the
Constitution, Amendment to the Representation of People Act, 1951,
ratification by the States to these Constitutional amendments.
• National and state issues are different, and holding simultaneous elections
may affect the judgment of voters and and he/she may vote for the same
political party, which in most cases may be larger national parties.
• Reduce government's accountability to the people as frequent elections bring
the politicians back to the voters and enhance accountability of politicians to
the public.
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• It can go against federalism as when an election in a State is postpone d until

the synchronized phase, President’s rule will have to be imposed in the interim
period in that state.
• Homogenization of the country, instead of bringing equity, sustain ing
plurality, and promoting local and regional leadership, as SE may promote
national parties.

Conclusion
Analysis of financial implications, effect of MCC and law commission’s
recommendations suggest that there is a feasibility to restore SE as it existed
during the first two decades of India’s independence.
However, SE cannot be the panacea. The
issues related to frequent elections can be addressed by, re-looking at the
duration of restrictions under MCC, curbing poll expenditures by electoral
funding reforms, bringing political parties under RTI, etc.
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28. Job Reservations, Promotion Quotas

not a Fundamental Right

The Supreme Court ruled that there is no fundamental right to reservations

in appointments and promotions under articles 16(4) and 16(4A) of the
Constitution.
More on Case
• The case pertains to a decision by the Uttarakhand government in 2012.
Back then, the government had decided to fill up posts in public services
without providing reservation to members of the Scheduled Caste (SC) and
Scheduled Tribe (ST) communities.

About the Judgement

The Court held that
• Article 16 (4) and 16 (4-A) are in the nature of enabling provisions, vesting
a discretion on the State Government to consider providing reservations, if
the circumstances so warrant.
• It is settled law that the state cannot be directed to give reservations for
appointment in public posts. The order further adds that the state is not
bound to make a reservation for SCs and STs in matters of promotions.
• However, if the state wishes to exercise its discretion and make such
provision, it has to collect quantifiable data showing ‘inadequacy of
representation of that class in public services.
• If the decision of the state government to provide reservations in promotion
is challenged then the state concerned will have to place before the court the
quantifiable data that reservations became necessary on account of
inadequacy of representation of SCs and STs without affecting general
efficiency of administration as mandated by Article 335.
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Analysis of the judgement

• The fact that reservation cannot be claimed as a fundamental right is a
settled position under the law and has been pointed out by several judgments
in the past.
o In 1967, a five-judge bench in C.A. Rajendran v. Union of India held
that the government is under no constitutional duty to provide
reservations for SCs and STs, either at the initial stage of recruitment
or at the stage of promotion.
o The position went on to be reiterated in several other decisions,
including the nine-judge bench ruling in Indra Sawhney v. Union of
India (1992) and the five-judge bench decision in M Nagaraj v. Union of
India (2006).
• Although this position of law is a settled one, it is nonetheless at odds with
certain other principles at the heart of the constitutional vision of equality.
o In NM Thomas judgement (1976), the Supreme Court held that the
Constitution was committed to an idea of substantive equality, i.e. it
had to take the actual circumstances of people into account when
determining what constituted “equal treatment”.
o The principled reason for this position was that groups of people who
face structural and institutional barriers towards being able to compete
on “equal terms” with others in society — for reasons that are historical,
but whose effects are enduring — must be treated in a way that
mitigates those existing conditions of inequality.
• To interpret the obligations of the state purely from the textual foundations
of Article 16 is not an appropriate approach. Fundamental rights are not
isolated provisions and ought to be looked into as an interconnected whole.
• As there are less avenues for the direct appointment in higher posts,
reservations play a major role for the representation of backward classes in
higher posts.
o According to a Parliament reply last year, only one of the 89
secretaries posted at the Centre belonged to the SC, while three belong
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to the ST. The court order may go against the substantive equality in
higher posts.
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29. 22nd Law Commission

Law Commission of India is neither a constitutional body nor a statutory

body, it is an executive body established by an order of the Government of
India, every three years. Its major function is to work for legal reform and
works as an advisory body to the Ministry of Law and Justice. It has so far
submitted 277 reports.
The first Law Commission was established during the British Raj
era in 1834 by the Charter Act of 1833 and was presided over by Lord
Macaulay. However, the first Law Commission of Independent India was
constituted in 1955 with Mr. M. C. Setalvad, as its Chairman.
The recommendations of the commission are not binding on the
government. They may be accepted or rejected. Action on the said
recommendations depends on the ministries/departments, which are
concerned with the subject matter of the recommendations.

Functions Of Law commission

The Law Commission, on a reference made to it by the Central Government
or suo-motu, undertakes research in law and review of existing laws in India
for making reforms therein and enacting new legislations. It also undertakes
studies and research for bringing reforms in the justice delivery systems for
elimination of delay in procedures, speedy disposal of cases, reduction in the
cost of litigation etc.
The other functions of the Law Commission include:
 Review/Repeal of obsolete laws: Identification of laws which are no
longer relevant and recommending for the repeal of obsolete and
unnecessary enactments.
 Law and Poverty: Examines the Laws which affect the poor and carries
out post-audit for socio-economic legislations.
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 Suggesting enactment of new legislation as may be necessary

to implement the Directive Principles and to attain the objectives set
out in the Preamble of the Constitution.

 Judicial Administration: Considering and conveying to the

Government its views on any subject relating to law and judicial
administration that may be specifically referred to it by the
Government through the Ministry of Law and Justice (Department of
Legal Affairs).

 Research: Considering the requests for providing research to any

foreign countries as may be referred to it by the Government through
the Ministry of Law & Justice (Department of Legal Affairs).

 Examine the existing laws with a view of promoting gender

equality and suggesting amendments thereto.

 Examine the impact of globalization on food security, unemployment

and recommend measures for the protection of the interests of the
marginalized.

 Preparing and submitting to the Central Government, from time to

time, reports on all issues, matters, studies and research undertaken
by it and recommending in such reports for effective measures to be
taken by the Union or any State.

 Performing such other functions as may be assigned to it by the

Central Government from time to time.

Recently, the Union Cabinet approved the creation of the 22nd Law
Commission, with a term of three years.

Composition: It will consist of:

 a full-time Chairperson (usually who is a retired Supreme Court judge
or Chief Justice of a High Court);
 four full-time Members (including Member-Secretary)
 Secretary, Department of Legal Affairs as ex-officio Member;
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 Secretary, Legislative Department as ex officio Member; and

 not more than five part-time Members.

Terms of reference: The Law Commission shall, inter-alia: –

1. identify laws which are no longer needed or relevant and can be
immediately repealed
2. examine the existing laws in the light of Directive Principles of State
Policy and suggest ways of improvement and reform.
3. Consider and convey to the Government its views on any subject
relating to law and judicial administration that may be specifically
referred to it by the Government through Ministry of Law and Justice.
4. Consider the requests for providing research to any foreign countries
as may be referred to it by the Government through the Ministry of
Law and Justice (Department of Legal Affairs);
5. take all such measures as may be necessary to harness law and the
legal process in the service of the poor;
6. revise the Central Acts of general importance so as to simplify them
and remove anomalies, ambiguities, and inequities.
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30. E- governance and its benefits

BASICS OF E-GOVERNANCE:
● The ‘e’ in e-Governance stands for ‘electronic’. According to the 2nd
Administrative Reform Commission (ARC) Report e-Governance is basically
associated with carrying out the functions and achieving the results of
governance through the utilization of what has today come to be known as
ICT (Information and Communication Technology).
● World Bank - “E-Governance refers to the use by government agencies of
information technologies (such as Wide Area Networks, the Internet, and
mobile computing) that have the ability to transform relations with citizens,
businesses, and other arms of government.
● These technologies can serve a variety of different ends:
○ better delivery of government services to citizens
○ improved interactions with business and industry
○ citizen empowerment through access to information
○ or more efficient government management.
● The broad goals of the e-Governance are:
○ Better service delivery to the citizens
○ Ushering in transparency and accountability
○ Empowering people through information
○ Improved efficiency within Government
○ Improved interference with business and industry

INTERACTIONS IN E-GOVERNANCE:
1. Government to Citizen (G2C):-
● It allows citizens to access government information and services promptly,
conveniently, from everywhere, by use of multiple channels.
● Expands the accessibility and availability of government services and also
improves the quality of services.
● Some of government to citizen services are-
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○ Government services like direct benefit transfer for Kerosene and PDS,
information regarding APMC, e-NAM, information regarding soil health,
meteorological information during monsoon period, etc. can be provided
to all farmers.
○ Health care services like e-Mamta (mother and child tracking system)
by the Government of Gujarat, e-Aushadhi by the Rajasthan
Government, etc.
○ Educational services like Swayam, Swayam Prabha, National
Academic Depository, National Digital Library, Mooc Online courses,
etc.
○ Transport aspects that can be easily e-governed include: Registration
of motor vehicles, Issue of driving licenses, Issue of plying permissions
(Permits), Tax and fee collection through Cash and Bank Challans and
Control of Pollution.
2. Government to Government (G2G):-
● This model refers to the services which are shared between the governments.
● In this interaction, Information and Communications Technology is used to
reorganize the governmental processes involved in the functioning of
government entities as well as to increase the flow of information and services
within and between different entities.
● Main intent of this interaction is to increase efficiency, performance, and
output.
● Some of government to government services are-
○ Government is trying to create a Secretariat by equipping officials with
IT enabled systems which aid their day to day activities. Example: E-
Secretariat in Rajasthan.
○ In an e-democracy the Government informs the citizen, represents the
citizen, encourages the citizen to vote, consults the citizen and engages
the citizen in the Governance.
○ Under E-Police various state police departments are trying to leverage
the usage of ICT in order to reduce the crime rates. Example: The Delhi
Police have come out with a slew of mobile and web-based apps to make
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the force more people- friendly like Himmat, an app that a woman can
use in case of distress to send SOS alerts and even audio-video feeds if
caught in a situation where there is threat to their safety.
3. Government to Businessmen (G2B):-
● In this type of interaction, e-Governance tools are used to help the business
organizations that provide goods and services to seamlessly interact with the
government.
● They share information through this model like:
○ Collection of taxes
○ Rejection and approval of patent
○ Payment of all kind of bills and penalty
○ Sharing of all kind of information, rules and data
○ Complaints or any kind of dissatisfaction can be expressed
○ Some government to businessmen services are - Defence E-
Procurement Portal, Government e- Marketplace (GeM), etc.
4. Government to Employees (G2E):-
● The aim of this relationship is to serve employees and offer some online
services such as applying online for an annual leave, checking the balance of
leave, and reviewing salary payment records, among other things.
● This model increases the transparency between government and its
employees and thus strengthens their relationship.

IMPORTANCE OF E-GOVERNANCE
● Governance of a highly populated country like India through traditional
methods and techniques has become very difficult and hampers efficiency. E-
governance brings in simplicity, efficiency and accountability in government
and also extends reach of effective governance to a larger population
● The emergence of Information and Communications Technology (ICT) has
provided means for faster and better communication, efficient storage,
retrieval and processing data and exchange and utilization of information to
its users, be they individuals, groups, businesses, organizations or
governments.
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● Increases efficiency and effectiveness of government processes and aids the

emergence of the digital citizen.
● Industrial development in India has been hampered in the past with
complex procedures and bureaucratic delays. E-governance aims to expedite
the various processes important for industrial development.
● An increased use of computers and web based services improves the
awareness levels of citizens about their rights and powers. It helps to reduce
the discretionary powers of government officials and curtail corruption.
● Most of the Government expenditure is appropriated towards the cost of
stationary. Paper-based communication needs lots of stationary, printers,
computers, etc. which calls for continuous heavy expenditure. The Internet
and Phones make communication cheaper, saving valuable money for the
Government.

CHALLENGES WITH E-GOVERNANCE

● Lack of information on the Human resource requirements to support the
central and state e-Governance mission.
● Non-availability of specific standards, policy guidelines for e -Governance.
● Inaccessibility: An e-government site that provides web based access and
support often does not offer the potential to reach many users including those
who live in the remote areas, have low literacy levels and exist on poverty line
incomes.
● Cost: In developing countries like India, cost is one of the most important
obstacles in the path of implementation of e-governance projects. A huge
amount of money is involved in implementation, operational and evolutionary
maintenance tasks.
● Privacy and Security: A critical obstacle in implementing e-Governance is
the privacy and security of an individual’s personal data that he/she provides
to obtain government services.
● Lack of thrust on institutional capacity building in the domain of e
Governance.
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● In-adequate expertise and skills within the state training institutions to lead
training programs at the policy maker level.
● Interoperability: Interoperability is the ability of systems and organizations
of different qualities to work together. The e-Governance applications must
have this characteristic so that the newly developed and existing applications
can be implemented together.
● Local language: The e-governance applications must be written in the local
language of the people so that they may be able to use and take advantage of
these applications.
● Maintenance Issue: As the Information Technology changes very fast and it
is very difficult for us to update our existing systems very fast. Maintenance
is a key factor for long living systems in a rapidly changing technical
environment.

SUGGESTIONS FOR E-GOVERNANCE

● e-Governance through regional languages is necessary for nations like India
where people from several linguistic backgrounds are the participants.
● Some of recommendations give by 2nd ARC are:
○ Governmental forms, processes and structures should be redesigned
to make them adaptable to e-Governance, backed by procedural,
institutional and legal changes.
○ Each government organization should prepare a time bound plan for
providing transactional information through their websites.
○ Evaluation of success or failure of e-Governance projects may be done
by independent agencies on the basis of parameters fixed beforehand.
○ Public-Private partnership should be promoted in several components
of e-Governance projects.
○ Gram Panchayats should be involved in monitoring the operation of
the Common Service Centers in the first four years of their operation.
○ Union and State Governments should take proactive measures for
establishing Knowledge Management Systems as a pivotal step for
administrative reforms in general and e- Governance in particular.
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○ Develop a national e-Governance ‘enterprise architecture’ framework

as has been done in some countries.
● A hybrid approach needs to be adopted for enhancing interoperability
among e-governance applications which will encompass a centralized
approach for document management, knowledge management, file
management, grievance management etc

Government has come up various e-governance initiatives in different sectors

to provide easy access of government services for people such as -
• UMANG – Unified Mobile App for New Age Governance - provides over 100
services such as payment of utility bills, filing income tax, booking a gas
cylinder, checking provident fund account etc.
• E-KRANTI – Make all government services accessible to the public in their
locality via Common Service Delivery outlets; ensure efficiency, transparency
and reliability in such services at affordable costs; and realise the basic needs
of common people
• mKisan portal - It enables farmers and all other stakeholders to obtain
advisories and information being sent by experts and government officials at
different levels.
• BHIM App – for e-payment directly through accounts
• m-passport seva – app for passport services
• GST Rate finder – to find GST Rates by traders and entrepreneurs by
themselves
• Digital Locker System: It serves as a platform to enable citizens to securely
store and share their documents with service providers who can directly
access them electronically.
• e-Hospital- Online Registration Framework (ORF) is an initiative to facilitate
the patients to take online OPD appointments with government hospitals.
This framework also covers patient care, laboratory services and medical
record management.
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• National Scholarships Portal (NSP): provides a centralized platform for

application and disbursement of scholarship to students under any
scholarship scheme. Over 1 crore applications have been submitted.
• Common Services Centres 2.0 (CSC 2.0): The Government of India is
implementing CSCs scheme to develop and provide support to the use of
information technology in rural areas of the country. The CSCs are
Information and Communication Technology (ICT) enabled kiosks with
broadband connectivity to provide various Governments, private and social
services at the doorstep of the citizen.
• National Centre of Geo-informatics (NCoG): Under this project, Geographic
Information System (GIS) platform for sharing, collaboration, location based
analytics and decision support system for Departments has been developed.

Conclusion - All these initiatives of the government have reduced the interface
between common people and the government authorities by improving access
to delivery of services through the use of internet. This has made citizens more
aware about their requirement in respective fields and thereby has improved
transparency as well as accountability on the government to deliver services
on time. This has effectively facilitated both the service provider and service
recipient. This improves efficiency of the entire system and reduces time with
respect to demand and delivery of services. Use of e-governance also improves
business prospects as highlighted in improved Ease of Business Rankings for
India.
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31. Constitutional Morality

Introduction

 According to Dr. Ambedkar, Constitutional morality would mean effective

coordination between conflicting interests of different people and the
administrative cooperation to resolve them amicably without any
confrontation amongst the various groups working for the realization of
their ends at any cost.

 Constitutional morality has been regarded as a paramount reverence for

the constitution.

 Constitutional morality provides a principled understanding for

unfolding the work of governance. It specifies norms for institutions to
survive and an expectation of behaviour that will meet not just the text
but the soul of the Constitution. It also makes the governing institutions
and representatives accountable.

 Constitutional Morality is scarcely a new concept. It is written largely in

the Constitution itself like in the section of Fundamental Rights (Article
12 to 35), Directive Principle of State Policy (Article 36 to
51), Preamble and Fundamental duties.

Elements of constitutional morality

1. Rule of Law
2. Individual Liberty
3. Right to Equality
4. Right of Choice
5. Preamble
6. Freedom of Expression
7. Social Justice
8. Procedure established by Law
9. Due process of Law
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Supreme Court's Judgements and Constitutional Morality

 Constitutional morality is not limited only to following the constitutional

provisions literally but is based on values like individual autonomy and
liberty; equality without discrimination; recognition of identity with
dignity; the right to privacy.

 Constitutional morality means adherence to the core principles of

constitutional democracy.

o For Example: In Supreme Court’s Sabarimala verdict religious

freedom, gender equality and the right of women to worship
guaranteed under Article 14, 21 and 25 of the Constitution was
reinstated which struck down the practice of banning entry of
women of a certain age to the Sabarimala temple in Kerala as
unconstitutional.

 Constitutional morality here went against social morality that

discriminates against women based on biological reasons like
menstruation.

 Other Judgments by the Supreme Court defining Constitutional Morality:

o In Kesavananda Bharati Case, the Supreme Court restricted the

power of the Parliament to violate the Basic Structure of the
Constitution.

o In the Naz Foundation case, the Supreme Court opined that only
Constitutional Morality and not Public Morality should prevail.

o In Lt Governor of Delhi case, SC proclaimed constitutional morality

as a governing ideas that "highlight the need to preserve the trust of
people in the institution of democracy.

o In Sabarimala case, the Supreme Court bypassed the “doctrine of

essentiality” to uphold the Constitutional morality
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Significance

 Constitutional morality ensures the establishment of rule of law in the

land while integrating the changing aspirations and ideals of the society.

 Constitutional morality as a governing ideal that highlights the need to

preserve the trust of the people in institutions of democracy. As such an
ideal, it allows people to cooperate and coordinate to pursue
constitutional aspirations that cannot be achieved single -handedly.

 Constitutional morality can use laws and forms to impact and change the
persisting social morality. For example, by abolishing the practice of Sati
by legislation, the right to dignity and life was passed on to the widows
which later on affected the perception of the practice in the society.

 Constitutional morality recognises plurality and diversity in society and

tries to make individuals and communities in the society more
inclusive in their functioning by constantly providing the scope for
improvement and reforms. For example in Navtej Singh Johar v. Union
of India, the SC provided a framework to reaffirm the rights of LGBTQ
and all gender non-conforming people to their dignity, life, liberty, and
identity.

Concerns
 The term has not been clearly defined by the SC, which leaves the scope
of its subjective interpretation by the individual judges.

 This top-down approach to morality can affect the possibility of organic

emergence of the solutions to the persisting ethical problems in society.

 Violates the principle of separation of powers: It establishes judicial

supremacy over parliamentary supremacy. Against the very principle of
democratic government.

 It is claimed that the application of this doctrine amounts to judicial

overreach and are thereby pitting “constitutional
morality” against “societal/popular morality”
 171 BPSC MAINS

Need to Uphold Constitutional Morality

 The central elements of constitutional morality are freedom and self-

restraint. Self-restraint was a precondition for maintaining freedom
under a proper constitutional government.

o To uphold constitutional morality, the constitutional methods must

be used for achieving social and economic objectives.

 Commitment to the ideals and aspirations of the Constitution.

o Awareness creation among the common public regarding their rights

which are protected by the Constitution.

o Following the Fundamental Duties while exercising Fundamental

Rights.

Conclusion

 Constitutional Morality is a sentiment to be cultivated in the minds of a

responsible citizen. Upholding constitutional morality is not just the duty
of Judiciary or state but also of individuals.

o The preamble of the constitution explicitly mentions the type of

society we wish to establish; it is only through constitutional
morality it can become reality.

 The progressive and monumental precedents have been set-up by the

judiciary in the past few years, where this doctrine has been applied
especially in relation to the cases of gender-justice, institutional
propriety, social uplift, checking majoritarianism and other such evils.