Indian Constitution - Chapter 10
THE PHILOSOPHY OF THE CONSTITUTION
INTRODUCTION
In this book, so far we have studied some important provisions of our Constitution and the way in which these have worked in the last half century. We also studied the way in which the Constitution was made. But have you ever asked yourself why leaders of the national movement felt the need to adopt a constitution after achieving independence from British rule? Why did they choose to bind themselves and the future generations to a constitution? In this book, you have repeatedly visited the debates in the Constituent Assembly. But it should be
asked why the study of the constitution must be accompanied by a deep examination of the debates in the Constituent Assembly? This question will be addressed in this chapter. Secondly, it is important to ask what kind of a constitution we have given ourselves. What objectives did we hope to achieve by it? Do these objectives have a moral content? If so, what precisely is it? What are the strengths and limitations of this vision and, by implication, the achievements
and weaknesses of the Constitution? In doing so, we try to understand what can be called the philosophy of the Constitution. After reading this chapter, you should be able to understand:
�� why it is important to study the philosophy of the Constitution;
�� what are the core features of the Indian Constitution;
�� what are the criticisms of this Constitution; and
�� what are the limitations of the Constitution?
WHAT IS MEANT BY PHILOSOPHY OF THE CONSTITUTION?
Some people believe that a constitution merely consists of laws and that laws are one thing, values and morality, quite another. Therefore, we can have only a legalistic, not a political philosophy approach to the Constitution. It is true that all laws do not have a moral content, but many laws are closely connected to our deeply held values. For example, a law might prohibit discrimination of persons on grounds of language or religion. Such a law is connected to the idea of equality. Such a law exists because we value equality. Therefore, there is a
connection between laws and moral values. We must therefore, look upon the constitution as a
document that is based on a certain moral vision. We need to adopt a political philosophy approach to the constitution. What do we mean by a political philosophy approach to the constitution? We have three things in mind.
�� First, we need to understand the conceptual structure of the constitution. What does this mean? It means that we must ask questions like what are the possible meanings of terms used in the constitution such as ‘rights’, ‘citizenship’, ‘minority’ or ‘democracy’?
�� Furthermore, we must attempt to work out a coherent vision of society and polity conditional upon an interpretation of the key concepts of the constitution. We must have a better grasp of the set of ideals embedded in the constitution.
�� Our final point is that the Indian Constitution must be read in conjunction with the Constituent Assembly Debates in order to refine and raise to a higher theoretical plane, the justification of values embedded in the Constitution. A philosophical treatment of a value is incomplete if a detailed justification for it is not provided. When the framers of the Constitution chose to guide Indian society and polity by a set of values, there must have been a
corresponding set of reasons. Many of them, though, may not have been fully explained. A political philosophy approach to the constitution is needed not only to find out the moral content expressed in it and to evaluate its claims but possibly to use it to arbitrate between varying interpretations of the many core values in our polity. It is obvious that many of its ideals are challenged, discussed, debated and contested in different political arenas, in the legislatures, in party forums, in the press, in schools and universities. These ideals are variously interpreted and sometimes wilfully manipulated to suit partisan short term
interests. We must, therefore, examine whether or not a serious disjunction exists between the
constitutional ideal and its expression in other arenas. Sometimes, the same ideal is interpreted differently by different institutions. We need to compare these differing interpretations. Since the expression of the ideal in the constitution has considerable authority it must be used to arbitrate in conflict of interpretation over values or ideals. Our Constitution can perform this job of arbitration.
Constitution as Means of Democratic Transformation
In the first chapter we have studied the meaning of the term constitution and the need to have a constitution. It is widely agreed that one reason for having constitutions is the need to restrict the exercise of power. Modern states are excessively powerful. They are believed to have a
monopoly over force and coercion. What if institutions of such states fall into wrong hands who abuse this power? Even if these institutions were created for our safety and well-being, they can easily turn against us. Experience of state power the world over shows that most states are prone to harming the interests of at least some individuals and groups. If so, we need to draw the rules of the game in such a way that this tendency of states is continuously checked. Constitutions provide these basic rules and therefore, prevent states from turning tyrannical.
Constitutions also provide peaceful, democratic means to bring about social transformation. Moreover, for a hitherto colonised people, constitutions announce and embody the first real exercise of political self-determination. Nehru understood both these points well. The demand
for a Constituent Assembly, he claimed, represented a collective demand for full self-determination because; only a Constituent Assembly of elected representatives of the Indian people had the right to frame India’s constitution without external interference. Second, he argued, the Constituent Assembly is not just a body of people or a gathering of able lawyers. Rather, it is a ‘nation on the move, throwing away the shell of its past political and possibly
social structure, and fashioning for itself a new garment of its own making.’ The Indian Constitution was designed to break the shackles of traditional social hierarchies and to
usher in a new era of freedom, equality and justice. This approach had the potential of changing the theory of constitutional democracy altogether: according to this approach, constitutions exist not only to limit people in power but to empower those who traditionally have been deprived of it. Constitutions can give vulnerable people the power to achieve collective good.
Why do we need to go back to the Constituent Assembly?
Why look backwards and bind ourselves to the past? That may be the job of a legal historian — to go into the past and search for the basis of legal and political ideas. But why should students of politics be interested in studying the intentions and concerns of those who framed the Constitution? Why not take account of changed circumstances and define anew the normative function of the constitution? In the context of America — where the constitution was written
in the late 18th century— it is absurd to apply the values and standards of that era to the 21st century. However, in India, the world of the original framers and our present day world may not have changed so drastically. In terms of our values, ideals and conception, we have not separated ourselves from the world of the Constituent Assembly. A history of our Constitution is still very much a history of the present. Furthermore, we may have forgotten the real point underlying several of our legal and political practices, simply because somewhere down the road we began to take them for granted. These reasons have now slipped into the background, screened off from our consciousness even though they still provide the organizational
principle to current practices. When the going is good, this forgetting is harmless. But when these practices are challenged or threatened, neglect of the underlying principles can be
harmful. In short, to get a handle on current constitutional practice, to grasp their value and meaning, we may have no option but to go back in time to the Constituent Assembly debates and perhaps even further back in time to the colonial era. Therefore, we need to remember and
keep revisiting the political philosophy underlying our Constitution.
WHAT IS THE POLITICAL PHILOSOPHY OF OUR CONSTITUTION?
It is hard to describe this philosophy in one word. It resists any single label because it is liberal, democratic, egalitarian, secular, and federal, open to community values, sensitive to the needs of religious and linguistic minorities as well as historically disadvantaged groups, and committed to building a common national identity. In short, it is committed to freedom, equality, social justice, and some form of national unity. But underneath all this, there is a clear
emphasis on peaceful and democratic measures for putting this philosophy into practice.
Individual freedom
The first point to note about the Constitution is its commitment to individual freedom. This commitment did not emerge miraculously out of calm deliberations around a table. Rather, it was the product of continuous intellectual and political activity of well over a century. As early as the beginning of the nineteenth century, Rammohan Roy protested against curtailment of the freedom of the press by the British colonial state. Roy argued that a state responsive to the needs of individuals must provide them the means by which their needs are communicated. Therefore, the state must permit unlimited liberty of publication. Likewise, Indians continued to demand a free press throughout the British rule. It is not surprising therefore that freedom of expression is an integral part of the Indian Constitution. So is the freedom from arbitrary arrest. After all, the infamous Rowlatt Act, which the national movement opposed so vehemently, sought to deny this basic freedom. These and other individual freedoms such as freedom of conscience are part of the liberal ideology. On this basis, we can say that the
Indian Constitution has a pretty strong liberal character. In the chapter on fundamental rights we have already seen how the Constitution values individual freedom. It might be recalled that for over forty years before the adoption of the Constitution, every single resolution, scheme, bill and report of the Indian National Congress mentioned individual rights, not just in passing but as a nonnegotiable value.
Social Justice
When we say that the Indian Constitution is liberal, we do not mean that it is liberal only in the classical western sense. In the book on Political Theory, you will learn more about the idea of liberalism. Classical liberalism always privileges rights of the individuals over demands of social justice and community values. The liberalism of the Indian Constitution differs from this version in two ways. First, it was always linked to social justice. The best example of this is the provision for reservations for Scheduled Castes and Scheduled Tribes in the Constitution. The makers of the Constitution believed that the mere granting of the right to equality was not enough to overcome age-old injustices suffered by these groups or to give real meaning to their right to vote. Special constitutional measures were required to advance their interests. Therefore the constitution makers provided a number of special measures to protect the interests of Scheduled Castes and Scheduled Tribes such as the reservation of seats in legislatures. The Constitution also made it possible for the government to reserve public sector jobs for these groups. Respect for diversity and minority rights The Indian Constitution encourages equal respect between communities. This was not easy in our country, first
because communities do not always have a relationship of equality; they tend to have hierarchical relationships with one another (as in the case of caste). Second, when these communities do see each other as equals, they also tend to become rivals (as in the case of religious communities). This was a huge challenge for the makers of the Constitution: how to make communities liberal in their approach and foster a sense of equal respect among
them under existing conditions of hierarchy or intense rivalry? It would have been very easy to resolve this problem by not recognising communities at all, as most western liberal constitutions do. But this would have been unworkable and undesirable in our country. This is not because Indians are attached to communities more than others. Individuals everywhere also belong to cultural communities and every such community has its own values, traditions, customs and language shared by its members. For example, individuals in France or Germany
belong to a linguistic community and are deeply attached to it. What makes us different is that we have more openly acknowledged the value of communities. More importantly, India is a land of multiple cultural communities. Unlike Germany or France we have several linguistic and religious communities. It was important to ensure that no one community systematically dominates others. This made it mandatory for our Constitution to recognise community based rights. One such right is the right of religious communities to establish and run their own educational institutions. Such institutions may receive money from the government. This provision shows that the Indian Constitution does not see religion merely as a ‘private’
matter concerning the individual. Secularism Secular states are widely seen as treating religion as only a private matter. That is to say, they refuse to give religion public or official recognition. Does this mean that the Indian Constitution is not secular? This does not follow.
Though the term ‘secular’ was not initially mentioned, the Indian Constitution has always been secular. The mainstream, western conception, of secularism means mutual exclusion of state and religion in order to protect values such as individual freedom and citizenship rights of individuals. Again, this is something that you will learn more about in Political Theory. The term ‘mutual exclusion’ means this:
both religion and state must stay away from the internal affairs of one another. The state must not intervene in the domain of religion; religion likewise should not dictate state policy or influence the conduct of the state. In other words, mutual exclusion means that religion and state must be strictly separated.
What is the purpose behind strict separation? It is to safeguard the freedom of individuals. States which lend support to organised religions make them more powerful than they already are. When religious organisations begin to control the religious lives of individuals, when they start dictating how they should relate to God or how they should pray, individuals may have the option of turning to the modern state for protecting their religious freedom, but what
help would a state offer them if it has already joined hands with these organisations? To protect religious freedom of individuals, therefore, state must not help religious organisations. But at the same time, state should not tell religious organisations how to manage their affairs. That too can thwart religious freedom. The state must, therefore, not hinder religious organisations either. In short, states should neither help nor hinder religions. Instead, they should keep themselves at an arm’s length from them. This has been the prevalent western conception of secularism. Conditions in India were different and to respond to the challenge they posed, the makers of the Constitution had to work out an alternative conception of secularism. They departed from the western model in two ways and for two different reasons.
�� Rights of Religious Groups
First, as mentioned already, they recognised that intercommunity equality was as necessary as equality between individuals. This was because a person’s freedom and sense of self-respect was directly dependent upon the status of her community. If one community was dominated by another, then its members would also be significantly less free. If, on the other hand, their relations were equal, marked by an absence of domination, then its members would also walk about with dignity, self-respect and freedom. Thus, the Indian Constitution grants rights to all
religious communities such as the right to establish and maintain their educational institutions. Freedom of religion in India means the freedom of religion of both individuals and communities.
�� State’s Power of Intervention
Second, separation in India could not mean mutual exclusion. Why is it so? Because, religiously
sanctioned customs such as untouchability deprived individuals of the most basic dignity and self-respect. Such customs were so deeply rooted and pervasive that without active state intervention, there was no hope of their dissolution. The state simply had to interfere in the affairs of religion. Such intervention was not always negative. The state could also help religious communities by giving aid to educational institutions run by them. Thus, the state may help or hinder religious communities depending on which mode of action promotes values such as freedom and equality. In India separation between religion and state did not mean their mutual exclusion but rather principled distance, a rather complex idea that allows the state to be distant from all religions so that it can intervene or abstain from interference, depending upon which of these two would better promote liberty, equality and social justice.
We have hitherto mentioned three core features — these can also be seen as the achievements — of our Constitution.
�� First, our Constitution reinforces and reinvents forms of liberal individualism. This is an important achievement because this is done in the backdrop of a society where community values are often indifferent or hostile to individual autonomy.
�� Second, our Constitution upholds the principle of social justice without compromising on individual liberties. The constitutional commitment to caste-based affirmative action programme shows how much ahead India was compared to other nations. Can one forget that affirmative action programmes in the U.S. were begun after the 1964 Civil Rights Movement, almost two decades after they were constitutionally entrenched in India?
�� Third, against the background of inter-communal strife, the Constitution upholds its commitment to group rights (the right to the expression of cultural particularity). This indicates that the framers of the Constitution were more than willing to face the challenges of what more than four decades later has come to be known as multiculturalism.
Universal franchise
Two other core features may also be regarded as achievements. First, it is no mean achievement to commit oneself to universal franchise, specially when there is widespread belief that traditional hierarchies in India are congealed and more or less impossible to eliminate, and when the right to vote has only recently been extended to women and to the working class in stable, Western democracies. Once the idea of a nation took root among the elite, the idea of democratic self government followed. Thus, Indian nationalism always conceived of a political order based on the will of every single member of society. The idea of universal franchise lay securely within the heart of nationalism. As early as the Constitution of India Bill (1895), the first non-official attempt at drafting a constitution for India, the author declared that every citizen, i.e., anyone born in India, had a right to take part in the affairs of the country and be admitted to public office. The Motilal Nehru Report (1928) reaffirms this conception of citizenship, reiterating that every person of either sex who has attained the age of
twenty-one is entitled to vote for the House of Representatives or Parliament. Thus from very early on, universal franchise was considered as the most important and legitimate instrument by which the will of the nation was to be properly expressed.
Federalism
Second, by introducing the articles concerning Jammu and Kashmir ( Art. 370) and the North-East (Art. 371), the Indian Constitution anticipates the very important concept of asymmetric federalism. We have seen in the chapter on federalism that the Constitution has created a
strong central government. But despite this unitary bias of the Indian Constitution, there are important constitutionally embedded differences between the legal status and prerogatives of different sub-units within the same federation. Unlike the constitutional symmetry of
American federalism, Indian federalism has been constitutionally asymmetric. To meet the specific needs and requirements of some sub-units, it was always part of the original design to have a unique relationship with them or to give them special status. For example, the accession of Jammu and Kashmir to the Indian union was based on a commitment to safeguard its autonomy under Article 370 of the Constitution. This is the only State that is governed by its own constitution. Similarly, under Article 371A, the privilege of special status was also accorded to the North-Eastern State of Nagaland. This Article not only confers validity on preexisting laws within Nagaland, but also protects local identity through restrictions on immigration. Many other States too, are beneficiaries of such special provisions. According to the Indian Constitution, then, there is nothing bad about this differential treatment. Although the Constitution did not originally envisage this, India is now a multi-lingual federation. Each major linguistic group is politically recognised and all are treated as equals. Thus, the democratic and linguistic federalism of India has managed to combine claims to unity with
claims to cultural recognition. A fairly robust political arena exists that allows for the play of multiple identities that complement one another.
National identity
Thus, the Constitution constantly reinforces a common national identity. In the chapter on federalism, you have studied how India strives to retain regional identities along with the national identity. It is clear from what is mentioned above that this common national identity was not incompatible with distinct religious or linguistic identities. The Indian Constitution tried to balance these various identities. Yet, preference was given to common identity under certain conditions. This is clarified in the debate over separate electorates based on religious identity which the Constitution rejects. Separate electorates were rejected not because they fostered difference between religious communities as such or because they endangered a simple notion of national unity but because they endangered a healthy national life. Rather than forced unity, our Constitution sought to evolve true fraternity, a goal dear to the
heart of Dr. Ambedkar. As Sardar Patel put it, the main objective was to evolve ‘one community’.
PROCEDURAL ACHIEVEMENTS
All these five core features are what might be called the substantive achievements of the Constitution. However, there were also some procedural achievements.
�� First, the Indian Constitution reflects a faith in political deliberation. We know that many groups and interests were not adequately represented in the Constituent Assembly. But the
debates in the Assembly amply show that the makers of the Constitution wanted to be as inclusive in their approach as possible. This open-endedness indicates the willingness of people
to modify their existing preferences, in short, to justify outcomes by reference not to self-interest but to reasons. It also shows a willingness to recognise creative value in difference and
disagreement.
�� Second, it reflects a spirit of compromise and accommodation. These words, compromise and accommodation, should not always be seen with disapproval. Not all compromises are bad. If something of value is traded off for mere self-interest, then we naturally have compromised in the bad sense. However, if one value is partially traded off for another
value, especially in an open process of free deliberation among equals, then the compromise arrived in this manner can hardly be objected to. We may lament that we could not have everything but to secure a bit of all things important cannot be morally blameworthy.
Besides, a commitment to the idea that decisions on the most important issues must be arrived
at consensually rather than by majority vote is equally morally commendable.
CRITICISMS
The Indian Constitution can be subjected to many criticisms of which three may be briefly mentioned: first, that it is unwieldy; second, that it is unrepresentative and third, that it is alien to our conditions. The criticism that it is unwieldy is based on the assumption that the entire constitution of a country must be found in one compact document. But this is not true even of countries such as the US which do have a compact constitution. The fact is that a country’s constitution is to be identified with a compact document and with other written documents with constitutional status. Thus, it is possible to find important constitutional statements and
practices outside one compact document. In the case of India, many such details, practices and statements are included in one single document and this has made that document somewhat large in size. Many countries for instance, do not have provisions for election commission
or the civil service commission in the document known as constitution. But in India, many such matters are attended to by the Constitutional document itself. A second criticism of the Constitution is that it is unrepresentative. Do you remember how the Constituent Assembly was formed? At that time, adult franchise was not yet granted and most members came from the advanced sections of the society. Does this make our Constitution unrepresentative?
Here we must distinguish two components of representation, one that might be called voice and the other opinion. The voice component of representation is important. People must be recognised in their own language or voice, not in the language of the masters. If we look at the Indian Constitution from this dimension, it is indeed unrepresentative because members of the
Constituent Assembly were chosen by a restricted franchise, not by universal suffrage. However, if we examine the other dimension, we may not find it altogether lacking in representativeness. The claim that almost every shade of opinion was represented in the Constituent Assembly may be a trifle exaggerated but may have something to it. If we read the debates that took place in the Constituent Assembly, we find that a vast range of issues and opinions were mentioned, members raised matters not only based on their individual social concerns but based on the perceived interests and concerns of various social sections as well.
Is it a coincidence that the central square of every other small town has a statue of Dr. Ambedkar with a copy of the Indian Constitution? Far from being a mere symbolic tribute to him, this expresses the feeling among Dalits that the Constitution reflects many of their aspirations. A final criticism alleges that the Indian Constitution is entirely an alien document, borrowed article by article from western constitutions and sits uneasily with the cultural ethos of the Indian people. This criticism is often voiced by many. Even in the Constituent Assembly itself, there were some voices that echo this concern. How far is this charge true? It is true that the Indian Constitution is modern and partly western. Do you remember that in the first chapter we have listed the various sources from which our Constitution ‘borrowed’? But in this chapter you have also seen that it was never a blind borrowing. It was innovative borrowing.
Besides, as we shall see, this does not make it entirely alien. First, many Indians have not only adopted modern ways of thinking, but have made these their own. For them westernisation
became a form of protest against the filth in their own tradition. Rammohan Roy started this trend and it is continued to this day by Dalits. Indeed, as early as 1841, it was noticed that the Dalit people of northern India were not afraid to use the newly introduced legal system and bring suits against their landlords. So, this new instrument of modern law was effectively adopted by the people to address questions of dignity and justice. Second, when western modernity began to interact with local cultural systems, something like a hybrid culture began to emerge, possibly by creative adaptation, for which a parallel can be found neither in western modernity nor in indigenous tradition. This cluster of newly developed phenomenon forged out of western modern and indigenous traditional cultural systems have the character of a different, alternative modernity. In non-western societies, different modernities emerged as non-western societies tried to break loose not only from their own past practices but also from the shackles of a particular version of western modernity imposed on them. Thus, when we were drafting our Constitution, efforts were made to amalgamate western and traditional Indian values. It was a process of selective adaptation and not borrowing.
Limitations
All this is not to say that the Constitution of India is a perfect and flawless document. Given the social conditions within which the Constitution was made, it was only natural that there may
be many controversial matters, that there would be many areas that needed careful revision. There are many features of this Constitution that have emerged mainly due to the exigencies of the time. Nonetheless, we must admit that there are many limitations to this Constitution.
Let us briefly mention the limitations of the Constitution.
�� First, the Indian Constitution has a centralised idea of national unity.
�� Second, it appears to have glossed over some important issues of gender justice, particularly within the family.
�� Third, it is not clear why in a poor developing country, certain basic socio-economic rights were relegated to the section on Directive Principles rather than made an integral feature of our fundamental rights. It is possible to give answers to these limitations, to explain why this happened, or even to overcome them. But that is not our point. We are arguing that these limitations are not serious enough to jeopardise the philosophy of the Constitution.
Conclusion
In the previous chapter we described the Constitution as a living document. It is these core
features of the Constitution that give it this stature of a living document. Legal provisions and
institutional arrangements depend upon the needs of the society and the philosophy adopted by the society. The Constitution gives expression to this philosophy. The institutional arrangements that we studied throughout this book are based on a core and commonly agreed vision. That vision has historically emerged through our struggle for independence. The Constituent Assembly was the platform on which this vision was stated, refined and articulated in legal-institutional form. Thus, the Constitution becomes the embodiment of this vision. Many people have said that the best summary of this vision or the philosophy of the Constitution is to be found in the preamble to our Constitution. Have you carefully read the preamble? Apart from the various objectives mentioned in it, the preamble makes a very humble claim: the Constitution is not ‘given’ by a body of great men, it is prepared and adopted by ‘We, the people of India…’. Thus, the people are themselves the makers of their own destinies, and democracy is the instrument that people have used for shaping their present and their future. More than five decades since the Constitution was drafted, we have fought over many matters, we have seen that the courts and the governments have disagreed on many interpretations, the centre and the States have many differences of opinion, and political parties have fought bitterly. As you will study next year, our politics has been full of problems and shortcomings. And yet, if you asked the politician or the common citizen, you will find that
every one continues to share in that famous vision embodied in the Constitution: we want to live together and prosper together on the basis of the principles of equality, liberty and fraternity. This sharing in the vision or the philosophy of the Constitution is the valuable outcome of the working of the Constitution. In 1950, making of this Constitution was a great achievement. Today, keeping alive the philosophical vision of that Constitution may be our important achievement.
SARKARIA COMMISSION AND ITS RECOMMENDATIONS
With a view to reviewing the working of the existing arrangements between the Union and the States in the changed socio-economic scenario, the Government constituted a Commission vide Ministry of Home Affairs Notification No.IV/11017/1/83-CSR dated June 9, 1983 under the Chairmanship of Justice R.S.Sarkaria with Shri B.Sivaraman and Dr.S.R.Sen as its members. The terms of reference of the Commission as enunciated in this notification were as under :-
“The Commission will examine and review the working of the existing arrangements between the Union and States in regard to powers, functions and responsibilities in all spheres and recommend such changes or other measures as may be appropriate”.
"In examining and reviewing the working of the existing arrangements between the Union and the States and making recommendations as to the changes and measures needed, the commission will keep in view the social and economic developments that have taken place over the years and have due regard to the scheme and framework of the Constitution which the founding fathers have so sedulously designed to protect the independence and ensure the unity and integrity of the country which is of paramount importance for promoting the welfare of the people."
The Commission after conducting several studies, eliciting information, holding discussions and after detailed deliberations submitted its report in January, 1988. The report contains 247 recommendations spreading over 19 Chapters.
The summary of Sarkaria Commission's recommendations is as follows:-
SUMMARY OF RECOMMENDATIONS OF THE COMMISSION ON CENTRE-STATE RELATIONS
S.No. Para No. Recommendation in the Report
LEGISLATIVE RELATIONS
1. 2.43.01 Residuary powers of legislation in regard to taxation matters should continue to remain exclusively in the competence of Parliament, while the residuary field other than that of taxation, should be placed in the Concurrent List. The Constitution may be suitably amended to give effect to this recommendation (Para 2.6.18)
2. 2.43.02 (i) The enforcement of Union laws particularly those relating to the Concurrent sphere, is secured through the machinery of the States. Coordination of policy and action in all areas of concurrent or overlapping jurisdiction through a process of mutual consultation and cooperation is, therefore, a pre-requisite of smooth and harmonious working of the dual system. To secure uniformity on the basic issues of national policy with respect to the subject of a proposed legislation, consultation may be carried out with the State Governments individually, and collectively at the forum of the proposed Inter-Governmental Council. (para 2.14.01)
(ii) It is not necessary to make the proposed consultation a constitutional obligation. This will make the process needlessly rigid. The advantage of a convention or rule of practice is that it preserves the flexibility of the system and enables it to met the challenge of an extreme urgency or on unforeseen contingency. This convention as to consultation with the State Governments, individually, as well as collectively, should be strictly adhered to except in rare and exceptional cases of extreme urgency or emergency. (Para 2.14.03)
3. 2.43.03 The best way of working Union-State relations in the sphere of education would be that the norms and standards of performance are determined by the Union and professional bodies such as the UGC set up under Central Enactments but the actual implementation is left to the States. By the same token a system of monitoring would have to be established by the Union. The basis pre-requisites of successful working of such professional bodies are -
(i) that their composition, functioning and mode of operation should be so professional and objective that their opinion, advice or directive commands implicit confidence and
(ii) this objective cannot be achieved without close concert, collaboration and cooperation between the Union and the States (paras 2.17.16 and 2.17.17)
4. 2.43.04 There is a potential for misuse by the two levels of government of the powers available by virtue of Entry 45 of List III. However, the mere fact that this power is capable of being misused, is no ground for amending the constitution. There is a case for providing appropriate safeguards against the misuse of this power, in the commissions of Inquiry Act, itself. such safeguards can be :-
(i) that no Commission of inquiry against an incumbent or former Minister of a State Government on charges of abuse of power or misconduct shall be appointed by the Union Government unless both Houses of Parliament, by resolution passed by the majority of members present and voting require the Union Government to appoint such a Commission or, the Minister or Ministers concerned request in writing for the appointment of such a Commission; and
(ii) No Commission of inquiry shall be appointed to inquire into the conduct of a Minister (incumbent or former) of a State Government with respect to a matter of public importance touching his conduct while in office, unless the proposal is first placed before the Inter-Governmental Council (recommended to be established under Article 263) and has been cleared by it.
(iii) Appropriate safeguard on the lines indicated above, be provided in the Commissions of Inquiry Act, 1952, itself, against the possible misuse of this power, while appointing a commission to inquire into the conduct of a Minister or ministers of a State Government. (Paras 2.22.25 to 2.22.27)
5. 2.43.05 Ordinarily, the Union should occupy only that much field of a Concurrent subject on which uniformity of policy and action is essential in the larger interest of the nation, leaving the rest and details for State action within the broad frame-work of the policy laid down in the Union Law. Further, whenever, the Union proposes to undertake legislation with respect to a matter in the Concurrent List, there should be prior consultation not only with the State Governments, individually, but also, collectively, with the Inter-Governmental Council which as we have recommended, should be established under Article 263. A resume of the views of the State Governments and the comments of the Inter-Governmental Council should accompany the Bill when it is introduced in parliament (para 2.23.05)
6. 2.43.06 (i) Clause (2) of Article 252 may be substituted by a new clause providing that an Act passed by Parliament under clause (1), may be amended or replaced either by Parliament in the manner provided in clause (1) or also by the Legislature of the State to which it applies, provided no such amending or repealing legislation of the State Legislature shall take effect unless, having been reserved for the consideration of the President, it has received his assent.
(ii) Any law passed by Parliament with respect to a matter in List II under clause (1) of Article 252, should not be of perpetual duration but should remain in force for a specific term, not exceeding three years. The Act itself should contain provisions requiring its periodic review before the expiry of the term. If, after such review, it is considered necessary to re-enact the law in its original or modified form, it may be done for a period not exceeding the original term, by following the same procedure as specified in clause (1) of the Article. (Para 2.27.04)
7. 2.43.07 When a Resolution passed by the Legislative Assembly of a State for abolition or creation of a legislative Council in the State is received, the President shall cause the Resolution to be placed, within a reasonable time, before Parliament together with the comments of the Union Government. Parliament may thereupon accept or reject the request contained in the Resolution. If the Resolution is so adopted by Parliament, the Union Government shall introduce the necessary legislation in Parliament for implementation of the same. If necessary, Article 169 may be amended to provide for this procedure. (Para 2.33.06).
8. 2.43.08 In order to remedy the unfortunate situation in which the local bodies find themselves, a comprehensive law (under clause (1) of Article 285 read with the saving clause in Entry 32 of List I), analogous to section 135 of the Railway Act, 1890, and section 3 and 4 of the Railways (Local Authorities Taxation) Act ; 1941 be passed making liable the properties and administrations of all undertakings like Railways, Posts and Telegraphs, Telephones, etc., of the Union at such fair and reasonable rates as may be notified from time to time by the Union Government after taking into consideration the recommendations of a person, who is or has been a judge of a High Court or a District judge. (para 2.35.13)
9. 2.43.09 Cases may arise, particularly in the modern context where States may feel aggrieved on account of taxes imposed by the Union on the trade or business in terms of clause (2) of Article 289. The scheme of the Constitution envisages remedial action under clause (3). Where one or more State Governments feel aggrieved on account of any action of the Union Government covered by clause (2) of Article 289, adequate consultation should be held with the State Governments or the National Economic and Development Council proposed by us and action taken to afford relief in terms of clause (3) of Article 289. (Para 2.36.11)
10. 2.43.10 Before a law is passed by Parliament by virtue of clause (3) of article 286 read with Entries 92A and 92B of List I, the State Governments and the National Economic and Development Council should be consulted and the resume of their comments should be placed before Parliament along with the Bill. (Para 2.37.09)
ADMINISTRATIVE RELATIONS
11. 3.9.01 Articles 256, 257 and 365 are wholesome provisions, designed to secure coordination between the Union and the States for effective implementation of Union laws and the national policies indicated therein. Nonetheless, a direction under Articles 256 and 257 and the application of the sanction under Article 365 in the event of its non-compliance, is a measure of last resort. Before issue of directions to a State or application of sanction under Article 365, utmost caution should be exercised and all possibilities explored for settling points of conflict by all other available means. (Para 3.5.25 and 3.5.27).
12. 3.9.02 Federalism is more a functional arrangement for cooperative action, than a static institutional concept. Article 258 provides a tool, by the liberal use of which, cooperative federalism can be substantially realised in the working of the system. A more extensive and generous use of this tool should be made, than has hither-to been done, for progressive decentralisation of powers to the Governments of the States and/or their officers and authorities. (para 3.7.10).
ROLE OF THE GOVERNOR
13. 4.16.01 A person to be appointed as a Governor should satisfy the following criteria :
(i) He should be eminent in some walk of life.
(ii) He should be a person outside the State.
(iii) He should be a detached figure and not too intimately connected with the local politics of the State; and
(iv) He should be a person who has not taken too great a part in politics generally, and particularly in the recent past.
In selecting a Governor in accordance with the above criteria, persons, belonging to the minority groups should continue to be given a chance as hitherto. (para 4.6.09)
14. 4.16.02 It is desirable that a politician from the ruling party at the Union is not appointed as Governor of a State which is being run by some other party or a combination of other parties. (para 4.6.19).
15. 4.16.03 In order to ensure effective consultation with the State Chief Minister in the selection of a person to be appointed as Governor, the procedure of consultation should be prescribed in the Constitution itself by suitably amending Article 155. (para 4.6.25).
16. 4.16.04 The Vice-President of India and the Speaker of the Lok Sabha may be consulted by the Prime Minister in selecting a Governor. The consultation should be confidential and informal and should not be a matter of constitutional obligation. (para 4.6.33)
17. 4.16.05 The Governor's tenure of office of five years in a State should not be disturbed except very rarely and that too, for some extremely compelling reasons (para 4.7.08).
18. 4.16.06 Save where the President is satisfied that, in the interest of the security of the State, it is not expedient to do so, the Governor whose tenure is proposed to be terminated before the expiry of the normal term of five years, should be informally apprised of the grounds of the proposed action and afforded a reasonable opportunity for showing cause against it. It is desirable that the President (in effect, the Union Council of Ministers) should get the explanation, if any, submitted by the Governor against his proposed removal from office, examined by an Advisory Group consisting of the Vice-President of India and the Speaker of the Lok Sabha or a retired Chief Justice of India. After receiving the recommendation of this Group, the President may pass such orders in the case as he may deem fit. (para 4.8.08).
19. 4.16.07 When before expiry of the normal term of five years, a Governor resigns or is appointed Governor in another State, or has his tenure terminated, the Union Government may lay a statement before both Houses of Parliament explaining the circumstances leading to the ending of the tenure. Where a Governor has been given an opportunity to show cause against the premature termination of his tenure, the statement may also include the explanation given by him, in reply (para 4.8.09).
20. 4.16.08 As a matter of convention, the Governor should not, on demitting his office, be eligible for any other appointment or office of profit under the Union or a State Government except for a second term as Governor or election as Vice-President or President of India. Such a convention should also require that, after quitting or laying down his office, the Governor shall not return to active partisan politics.(para 4.9.04)
21. 4.16.09 A Governor should, at the end of his tenure, irrespective of its duration, be provided reasonable post-retirement benefits for himself and for his surviving spouse. (para 4.10.02).
22. 4.16.10 (a) In choosing a Chief Minister, the Governor should be guided by the following principles, viz. :
(i) The party or combination of parties which commends the widest support in the Legislative Assembly should be called upon to form the Government.
(ii) The Governor's task is to see that a Government is formed and not to try to form a Government which will pursue policies which he approves.
(b) If there is a single party having an absolute majority in the Assembly, the leader of the party should automatically be asked to become the Chief Minister.
If there is no such party, the Governor should select a Chief Minister from among the following parties or group of parties by sounding them, in turn, in the order of preference indicated below:
(i) An alliance of parties that was formed prior to the Elections.
(ii) The largest single party staking a claim to form the Government with the support of others, including 'independents.
(iii) A post-electoral coalition of parties, with all the partners in the coalition joining government.
(iv) A post-electoral alliance of parties, with some of the parties in the alliance forming a Government and the remaining parties, including 'independents supporting the Government from outside.
The Governor while going through the process described above should select a leader who in his (Governor's) judgement is most likely to command a majority in the Assembly.
(c) A Chief Minister, unless he is the leader of a party which has absolute majority in the Assembly, should seek a vote of confidence in the Assembly within 30 days of taking over. This practice should be religiously adhered to with the sanctity of a rule of law. (Paras 4.11.03 to 4.11.06).
23. 4.16.11 The Governor should not risk determining the issue of majority support, on his own, outside the Assembly. The prudent course for him would be to cause the rival claims to be tested on the floor of the House. (para 4.11.07).
24. 4.16.12 The Governor cannot dismiss his Council of Ministers so long as they continue to command a majority in the Legislative Assembly. Conversely, he is bound to dismiss them if they lose the majority but do not resign. (para 4.11.09)
25. 4.16.13 (a) when the Legislative Assembly is in session, the question of majority should be tested on the floor of the House.
(b) If during the period when the Assembly remains prorogued, the Governor receives reliable evidence that the Council of Ministers has lost 'majority' he should not, as a matter of constitutional propriety, dismiss the council unless the Assembly has expressed on the floor of the House its want of confidence in it. He should advise the Chief Minister to summon the Assembly as early as possible so that the 'majority' may be tested.
(c) Generally, it will be reasonable to allow the Chief Minister a period of 30 days for the summoning of the Assembly unless there is very urgent business to be transacted like passing the Budget, in which case, a shorter period may be allowed. In special circumstances, the period may go up to 60 days. (paras 4.11.10, 4.11.11 and 4.11.13).
26. 4.16.14 So long as the Council of Ministers enjoys the confidence of the Legislative Assembly, the advice of the Council of Ministers in regard to summoning and proroguing a House of the Legislature and in dissolving the Legislative Assembly, if such advice is not patently unconstitutional, should be deemed as binding on the Governor. (para 4.11.17).
27. 4.16.15 (a) The Governor may in the exigencies of certain situations, exercise his discretion to summon the Assembly only in order to ensure that the system of responsible Government in the State works in accordance with the norms envisaged in the Constitution.
(b) Then the Chief Minister designedly fails to advise the summoning of the Assembly within six months of its last sitting, or advises its summoning for a date falling beyond this period, the Governor can summon the Assembly within the period of six months specified in article 174 (1).
(c) When a Chief Minister (who is not the leader of the party which has absolute majority in the Assembly), is not prepared to summon the Legislative Assembly within 30 days of the taking over (vide recommendation 4.16.10(c) above) or within 30 days or 60 days, as the case may be, when the Governor finds that the Chief Minister no longer enjoys the confidence of the Assembly (vide recommendation 4.16.13(c) above), the Governor would be within his constitutional right to summon the Assembly for holding the "Floor Test". (paras 4.11.19 and 4.11.20).
28. 4.16.16 If a notice of a no-confidence motion against a Ministry is pending in a House of the Legislature and the motion represents a legitimate challenge from the Opposition, but the Chief Minister advises that the House should be prorogued, the Governor should not straightaway accept the advice. He should advise the Chief Minister to postpone the prorogation and face the motion. (para 4.11.22)
29. 4.16.17 (a) When the advice for dissolving the Assembly is made by a Ministry which has lost or is likely to have lost majority support, the Governor should adopt the course of action as recommended in paras 4.16.12, 4.16.13 and 4.16.15(c) above.
(b) If ultimately a viable Ministry fails to emerge, the Governor should first consider dissolving the Assembly and arranging for fresh elections after consulting the leaders of the political parties concerned and the Chief Election Commissioner.
(c) If the Assembly is to be dissolved and an election can be held early, the Governor should normally ask the outgoing Ministry to continue as a caretaker Government. However, this step would not be proper if the outgoing Ministry has been responsible for serious mal-administration or corruption.
(d) A convention should be adopted that a caretaker Government should not take any major policy decisions.
(e) If the outgoing Ministry cannot be installed as a caretaker Government for the reason indicated in (c) above or if the outgoing Ministry is not prepared to function as a caretaker Government, the Governor, without dissolving the Assembly, should recommend President's rule in the state.
(f) If fresh election cannot be held immediately on account of a national calamity or State-wide disturbances, it should not be proper for the Governor to install a caretaker Government for the long period that must elapse before the next election is held. He should recommend proclamation of President's rule under Article 356 without dissolving the Assembly.
(g) If it is too early to hold fresh election, the Assembly not having run even half its normal duration of five years, the Governor should recommend President's rule under Article 356 without dissolving the Assembly. (paras 4.11.25 to 4.11.30).
30. 4.16.18 The Governor has no discretionary power in the matter of nominations to the Legislative Council or to the Legislative Assembly. If at the time of making a nomination, a Ministry has either not been formed or has resigned or lost majority in the Assembly, the Governor should await the formation of a new Ministry. (Para 4.11.31).
31. 4.16.19 Where a State University Act provides that the Governor, by virtue of his office, shall be the Chancellor of the University and confers powers and duties on him not as Governor of the State but as Chancellor, there is no obligation on the Governor, in this capacity as Chancellor, always to act on Ministerial advice under Article 163 (1). However, there is an obvious advantage in the Governor consulting the Chief Minister or other Ministers concerned, but he would have to form his own individual judgement. In his capacity as Chancellor of a University, the Governor may be required by the University's statute to consult a Minister mentioned in the statute on specified matters. In such cases, the Governor may be well advised to consult the Minister on other important matters also. In either case, there is no legal obligation for him to necessarily act on any advice received by him. (paras 4.11.37 to 4.11.39)
32. 4.16.20 The Governor, while sending ad hoc or fortnightly reports to the President, should normally take his chief Minister into confidence, unless there are over-riding reasons to the contrary. (Para 4.12.06).
33. 4.16.21 The discretionary power of the Governor as provided in Article 163 should be left untouched. (para 4.13.03).
34. 4.16.22 When a Governor finds that it will be constitutionally improper for him to accept the advice of his Council of Ministers, he should make every effort to persuade his Ministers to adopt the correct course. He should exercise his discretionary power only in the last resort. (para 4.13.04).
35. 4.16.23 Certain specific functions have been conferred (or are conferrable) on the Governors of Maharashtra and Gujarat (Article 371(2), Nagaland [First Proviso to Article 371A(1)(b), Article 371A (1)(d) and Article 371A(2)(b) and (f)], Manipur (Article 371C(1), Sikkim [Article 371 F(g)] and Arunachal Pradesh [First Proviso to Article 371H(a)] to be exercised by them in their discretion. In the discharge of these functions, the Governor concerned is not bound to seek or accept the advice of his council of Ministers. However, before taking a final decision in the exercise of his discretion, it is advisable that the Governor should, if feasible, consult his Ministers even in such matters, which relates essentially to the administration of a State. (para 4.14.05).
36. 4.16.24 It would be neither feasible nor desirable to formulate a comprehensive set of guidelines for the exercise of the discretionary powers of the Governor. A Governor should be free to deal with a situation according to his best judgement, keeping in view the Constitution and the law and the conventions of the Parliamentary system outlined in this chapter as well as in Chapter V "Reservation of Bills by Governors for President's consideration" and Chapter VI "Emergency Provisions". (para 4.15.06).
RESERVATION OF BILLS BY GOVERNORS FOR PRESIDENT'S CONSIDERATION, AND PROMULGATION OF ORDINANCES
37. 5.19.01 Normally in the discharge of the functions under Article 200, the Governor must abide by the advice of his council of Ministers. Article 200 does not invest the Governor, expressly or by necessary implication, with a general discretion in the performance of his functions thereunder, including reservation of Bill for the consideration of the President. However, in rare and exceptional cases, he may act in the exercise of his discretion, where he is of opinion that the provisions of the Bill are patently un-constitutional, such as where the subject-matter of the Bill is ex-facie beyond the legislative competence of the State Legislature, or where its provisions manifestly derogate from the scheme and framework of the Constitution so as to endanger the sovereignty, unity and integrity of the nation, or clearly violate Fundamental Rights or transgress other constitutional limitations and provisions. (Paras 5.6.06 and 5.6.13(i))
38. 5.19.02 In dealing with a State Bill presented to him under Article 200, the Governor should not act contrary to the advice of his Council of Ministers merely because, personally, he does not like the policy embodied in the Bill.(Paras 5.6.09 and 5.6.13(ii))
39. 5.19.03 Needless reservation of Bills for President's consideration should be avoided. Bill should be reserved only if required for specific purposes, such as :
a) to secure immunity from the operation or Articles 14 and 19 vide the First Proviso to Article 31A(1) and the proviso to Article 31C.
b) to save a Bill on a concurrent List subject from being invalidated on the ground of repugnancy to the provisions of law made by Parliament or an existing law vide Article 254(2);
c) to ensure validity and effect for a State Legislation imposing tax on water or electricity stored, generated, consumed, distributed or sold by an authority established under a Union law vide Article 288 (2)
d) a bill imposing restrictions on trade or commerce, in respect of which previous sanction of the President had not been obtained, vide Article 304 (b) read with Article 255. (para 5.14.05).
40. 5.19.04 Normally, when a Bill passed by the State Legislature is presented to the Governor with the advice of the Council of Ministers that it be reserved for the consideration of the President, then the Governor should do so forthwith. If, in exceptional circumstances, as indicated in para 5.19.01 above, the Governor thinks it necessary to act and adopt, in the exercise of his discretion, any other course open to him under Article 200, he should do so within a period not exceeding one month from the date on which the Bill is presented to him. (Para 5.16.04)
41. 5.19.05 a) Every reference of a State Bill from the State should be self-contained, setting out precisely the material facts, points for consideration and the ground on which the reference has been made. The relevant provisions of the Constitution should also be indicated.
b) If the reference is made under Article 254 (2), the provisions of the Bill which are considered repugnant to or inconsistent with the specific provisions of a Union Law or an existing Law, should be clearly identified.(Para 5.15.01(i) (ii))
42. 5.19.06 State Governments often consult the Government of India at the drafting stage of a Bill. Generally, high-level officers of the State Government hold discussions on the provisions of the draft Bill with their counterparts at the Union. This is a healthy practice and should continue. (para 5.15.02).
43. 5.19.07 a) As a matter of salutary convention, a Bill reserved for consideration of the President should be disposed of by the President within a period of 4 months from the date on which it is received by the Union Government.
b) If, however, it is considered necessary to seek clarification from the State Government or to return the Bill for consideration by the State Legislature under the Proviso to Article 201, this should be done within two months of the date on which the original reference was received by the Union Government.
c) Any communication for seeking clarification should be self-contained. Seeking clarification piecemeal should be avoided.
d) On receipt of the clarification or the reconsidered Bill from the State under the proviso to Article 201, the matter should be disposed of by the President within 4 months of the date of receipt of the clarification or the back reference on the reconsidered Bill, as the case may be, from the State Government.
e) It is not necessary to incorporate these or any other time-limits in the Constitution. (paras 5.16.03 and 5.7.09).
44. 5.19.08 a) As a matter of convention, the President should not withhold assent only on the consideration of policy differences on matters relating, in pith and substance, to the State List, except on grounds of patent unconstitutionality such as those indicated in the recommendation in paragraph 5.19.01 above. (Para 5.10.06).
b) President's assent should not ordinarily be withheld on the ground that the Union is contemplating a comprehensive law in future on the same subject. (para 5.7.08).
45. 5.19.09 If a State Bill reserved for the consideration of the President under the First Proviso to Article 31A (1) or the Proviso to Article 31C clearly tends to subvert the constitutional system of the State, by reason of its unduly excessive and indiscriminate abridging effect of Fundamental Rights or otherwise, then, consistently with its duty under article 355 to ensure that the government of every State is carried on in accordance with the provisions of the Constitution, the Union Government may advise the President to withhold assent to the Bill. (Para 5.8.06 and 5.8.07).
46. 5.19.10 In cases where the Union Government considers that some amendments to a state Bill are essential before it becomes law, the President may return the Bill through the Governor in terms of the Proviso to Article 201 for reconsideration, with an appropriate message, indicating the suggested amendments. The practice of obtaining the so-called conditional assent should not be followed when a constitutional remedy is available. (Para 5.11.02).
47. 5.19.11 To the extent feasible, the reasons for withholding assent should be communicated to the State Government. (Para 5.17.01).
48. 5.19.12 State Governments should eschew the wrong Practice of mechanical and repeated re-promulgation of an Ordinance without caring to get it replaced by an Act of the legislature.(Para 5.18.12)
49. 5.19.13 In due regard to the requirement of clause (2) of Article 213, whenever the provisions of an Ordinance have to be continued beyond the period for which it can remain in force, the State Government should ensure, by scheduling suitably, the legislative business of the State Legislature, enactment of a law containing those provisions in the next ensuing session. The occasions should be extremely rare when a State Government finds that it is compelled to re-promulgate an Ordinance because the State Legislature has too much legislative business in the current session or the time at the disposal of the Legislature in that session is short. In any case, the question of re-promulgating an Ordinance for a second time should never arise. (Para 5.18.14).
50. 5.19.14 A decision to promulgate or re-promulgate an Ordinance should be taken only on the basis of stated facts necessitating immediate action, and that too, by the State council of Ministers, collectively. (Para 5.18.15).
51. 5.19.15 Suitable conventions should be evolved in the matter of dealing with an Ordinance which is to be re-promulgated by the Governor and which is received by the President for instructions under the Proviso to Article 213 (1). (para 5.18.16)
52. 5.19.16 The President may not withhold instructions in respect of the first re-promulgation of an ordinance, the provisions of which are otherwise in order, but could not be got enacted in an Act because the legislature did not have time to consider its provisions in that session. While conveying the instructions, the Union Government should make it clear to the State Government that another repromulgation of the same ordinance may not be approved by the President, and if it is considered necessary to continue the provisions of the Ordinance for a further period, the State Government should take steps well in time to have the necessary Bill containing those provisions passed by the State Legislature, and if necessary, to obtain the assent of the President of the Bill so passed. (Para 5.18.17).
53. 5.19.17 The recommendations in paras 5.19.01 to 5.19.11 will apply mutatis mutandis to the seeking of instructions from the President for the promulgation of a state ordinance. However, keeping in view the urgent nature of an Ordinance, a proposed Ordinance referred by the Governor to the President for instructions under the Proviso to Article 213 (1) should be disposed by the President urgently and in any case within a fortnight.(Para 5.18.23)
EMERGENCY PROVISIONS
54. 6.8.01 Article 356 should be used very sparingly, in extreme cases, as a measure of last resort, when all available alternatives fail to prevent or rectify a break-down of constitutional machinery in the State. All attempts should be made to resolve the crisis at the State level before taking recourse to the provisions of Article 356. The availability and choice of these alternatives will depend on the nature of the constitutional crisis, its causes and exigencies of the situation. These alternatives may be dispensed with only in cases of extreme urgency where failure on the part of the Union to take immediate action under article 356 will lead to disastrous consequences. (para 6.7.04).
55. 6.8.02 A warning should be issued to the errant State, in specific terms, that it is not carrying on the Government of the State in accordance with the constitution. Before taking action under Article 356, any explanation received from the State should be taken into account. However, this may not be possible in a situation when not taking immediate action would lead to disastrous consequences. (para 6.7.08).
56. 6.8.03 When an external aggression or internal disturbance paralyses the State Administration creating a situation drifting towards a potential breakdown of the Constitutional machinery of the State, all alternative courses available to the Union for discharging its paramount responsibility under Article 355 should be exhausted to contain the situation (para 6.3.17).
57. 6.8.04 (a) In a situation of political breakdown, the Governor should explore all possibilities of having a Government enjoying majority support in the Assembly. If it is not possible for such a government to be installed and if fresh elections can be held without avoidable delay, he should ask the outgoing Ministry, if there is one, to continue as a caretaker government, provided the Ministry was defeated solely on a major policy issue, unconnected with any allegations of mal-administration or corruption and is agreeable to continue. The Governor should then dissolve the Legislative Assembly, leaving the resolution of the constitutional crisis to the electorate. During the interim period, the caretaker government should be allowed to function. As a matter of convention, the caretaker government should merely carry on the day-to-day government and desist from taking any major policy decision. (Para 6.4.08).
(b) If the important ingredients described above are absent, it would not be proper for the Governor to dissolve the Assembly and install a caretaker government. The Governor should recommend proclamation of President's rule without dissolving the Assembly. (para 6.4.09).
58. 6.8.05 Every proclamation should be placed before each House of Parliament at the earliest, in any case before the expiry of the two months' period contemplated in clause (3) of Article 356. (para 6.7.13)
59. 6.8.06 The State Legislative Assembly should not be dissolved either by the Governor or the President before the proclamation issued under Article 356 (1) has been laid before Parliament and it has had an opportunity to consider it. Article 356 should be suitably amended to ensure this. (para 6.6.20)
60. 6.8.07 Safeguards corresponding, in principle, to clauses (7) and (8) of Article 352 should be incorporated in Article 356 to enable Parliament to review continuance in force of a Proclamation (para 6.6.23).
61. 6.8.08 To make the remedy of judicial review on the ground of malafides a little more meaningful, it should be provided, through an appropriate amendment, that, notwithstanding anything in clause (2) of Article 74 of the Constitution, the material facts and grounds on which Article 356 (1) is invoked should be made an integral part of the proclamation issued under that Article. This will also make the control of Parliament over the exercise of this power by the Union Executive, more effective. (Para 6.6.25).
62. 6.8.09 Normally, the President is moved to action under Article 356 on the report of the Governor. The report of the Governor is placed before each House of Parliament. Such a report should be a "speaking document" containing a precise and clear statement of all material facts and grounds on the basis of which the President may satisfy himself as to the existence or otherwise of the situation contemplated in Article 356. (para 6.6.26).
63. 6.8.10 The Governor's report, on the basis of which a proclamation under Article 356 (1) is issued should be given wide publicity in all the media and in full. (Para 6.6.28).
64. 6.8.11 Normally, President's Rule in a State should be proclaimed on the basis of Governor's report under Article 356 (1). (Para 6.6.29).
65. 6.8.12 In clause (5) of Article 356, the word 'and' occurring between sub-clauses (a) and (b) should be substituted by 'or'. (Para 6.7.11).
DEPLOYMENT OF UNION ARMED FORCES IN A STATE FOR PUBLIC ORDER DUTIES
66. 7.12.01 The existing relationship between the Union armed forces and the State civil authorities and the manner of their functioning as prescribed in the relevant Union laws and procedures do not need any change. However, before the Union Government deploys its armed and other forces in a State in aid of the civil power otherwise than on a request from the State Government or declares an area within a State as "disturbed", it is desirable that the State Government should be consulted, wherever feasible, and its cooperation sought, even though prior consultation with the State Government is not obligatory. (paras 7.5.03 and 7.7.22).
67. 7.12.02 (a) Each State Government may work out, in consultation with the Union Government, short-term and long-term arrangements for strengthening its Armed Police. The objective will be to become largely self-reliant in the matter of Armed Police so that the assistance of the Union armed forces will be necessary only in cases of very severe disturbances. (Para 7.10.02).
(b) while advising and, if necessary, assisting a State Government in strengthening its Armed Police force, the Union Government may take into account the following factors :
(i) the degree of confidence that the people of the State (particularly those living in disorder-prone areas) have in the State Police, armed and unarmed ;
(ii) if large-scale public disorders are frequent, the causes therefor, and the steps which the State Government should take on the social, economic and other fronts to prevent disorder. (Mere strengthening of Armed police may not achieve the objective);
(iii) the inadvisability of a State (particularly if it is a small State) expanding its Armed Police, if it cannot fully utilised throughout the year; and
(iv) the feasibility of more efficient utilisation of the State Police. (para 7.10.04).
68. 7.12.03 (a) A group of neighbouring States may, by consensus, have a standing arrangement for the use of the Armed Police of one another in case of need. The Union Government may devise by consensus the regional groupings, keeping in view contiguity and logistics and encourage States to participate fully.
(b) The Zonal Council would be the best forum for achieving consensus of the States within a zone for devising such an arrangement.
(c) The Union Government will under this arrangement, monitor, coordinate and control any inter-State movements of State Armed Police. It is only when it is not possible to meet the requirements of a State from within its group that the Union Government will decide whether to draw from any of its own para-military forces or from Armed Police Battalions belongings to one or more States outside the Group.
(d) A beginning may be made immediately to plan the use of Armed Police inter-State within a region.
(e) This arrangement will be only for meeting special demands for short periods from the State in a Group. Their Armed Police will not merge or get integrated but will remain distinct as hither-to. (Para 7.10.05 and 7.10.06).
69. 7.12.04 The various measures recommended by the National Police Commission in their Seventh Report for improving the effectiveness and morale of State Armed Police are commended for the consideration of State Governments. (para 7.10.07).
70. 7.12.05 The problems of cadre management, mobility, promotion prospects, etc. of police personnel in small states, especially in the north-eastern region, need to be carefully examined by the State Government in consultation with the Union Government. (para 7.10.08).
71. 7.12.06 There should be a system of interchange of the officers of the State Armed Police Forces with those of the Central Reserve Police Force, the Border Security Force and the Union armed forces. They should also have common regional training centres, so as to facilitate better exchange of techniques and information and a more integrated system of operations when the Union armed forces are deployed in aid of the civil power in a State. (para 7.10.09).
72. 7.12.07 (a) Adequate finance will be needed by State Governments for augmenting and strengthening (by way of better equipment, more vehicles, etc.) their Armed Police Battalions. The Union Government may, therefore, examine immediately the question of financial assistance to State Governments for this purpose, after taking into account the grants that are already being made available to them for the mordernisation of their police forces.
a. The extent of Central assistance to be made available to State Governments for the above purpose during the next plan period may be specifically referred to the next Finance Commission. (Para 7.10.10)
73. 7.12.08 It is essential that there should be advance planning of deployment including logistics, of the Union armed forces and State Armed Police Battalions. For this purpose, the Union Government may get an expert study carried out for evolving such a system of planning. (Para 7.11.04).
ALL INDIA SERVICES
74. 8.19.01 (i) The All India Services are as much necessary today as they were when the Constitution was framed and continue to be one of the premier institutions for maintaining the unity of the country. Undoubtedly, the members of the All India Services have shown themselves capable of discharging the roles that the framers of the Constitution envisaged for them
(ii) Any move to disband the All India Services or to permit a State Government to opt out of the scheme must be regarded as retrograde and harmful to the larger interest of the country. Such a step is sure to encourage parochial tendencies and undermine the integrity, cohesion, efficiency and coordination in administration of the country as a whole.
(iii) The All India Services should be further strengthened and greater emphasis given on the role expected to be played by them. This can be achieved through well planned improvements in selection, training, deployment, development and promotion policies and methods. The present accent on generalism should yield place to greater specialisation in one or more areas of public administration. Training and career development policies should be geared to this objective. Disciplinary control should aim at nurturing the best service traditions and relentless weeding out of those who fail to make the grade. Finally, there should be greater coordination and periodical dialogue between the authorities in the Union and the State Governments who are responsible for the management of these services. (paras 8.7.07 to 8.7.10).
75. 8.19.02 (i) There should be an element of compulsion in the matter of deputation of officers of All India Services to the Union. The informal practice followed by the State Governments of obtaining the consent of the officers who are to be sent on deputation should be given up.
(ii) Every All India Service officer, whether he is a direct recruit or a promoted officer, should be required to put in a minimum period under the Union Government and, for this purpose, the minimum numbers of spells of Union deputation should be laid down for direct recruits and promoted officers, separately.
(iii) State Governments should offer officers for Union deputation only after screening them. The Union Government may lay down a screening mechanism and the criteria to be followed for the purpose by every State Government. An officer so offered should not be rejected by the Union Government, except on grounds to be communicated to the State Government concerned.
(iv) Among those on deputation to the Union from a State and among those serving in the State, the number of 'insiders' and 'outsiders' should be almost equal. (para 8.9.03).
76. 8.19.03 It should be ensured, through strict observance of the tenure principle, that the services of the best among All India Service officers are not monopolised by the Union Government but are also readily available to the State Governments to whose cadres they belong.(Para 8.9.04)
77. 8.19.04 The Union Government may dissuade State Governments from using the powers of transfer, promotion, posting and suspension of All India Services officers in order to 'discipline' them.(Para 8.10.06)
78. 8.19.05 While examining an appeal against the suspension of an All India Services officer, the Union Government should invariably consult the Union Public Service Commission and accept its advice unless palpably wrong. Such a provision may be included in the All India Services (Discipline and Appeal) Rules, 1969. (Para 8.10.06).
79. 8.19.06 No change is necessary in the present disciplinary procedures relating to All India Service Officers, except in the matter of suspension as recommended in para 8.19.05 above. (para 8.10.08).
80. 8.19.07 (i) State Governments, with the assistance of the Union Government, may evolve modern and more enlightened systems of incentives for the officers of the All India Service cadres.
(ii) The political authorities in each State should strive to create an atmosphere of mutual trust and cooperation vis-à-vis the civil servants by ensuring fair and just treatment to them and encouraging the qualities of honesty, fearlessness, independence of judgement and dedication to duty.
An efficient, disciplined and contented service assured of its prospects as a result of diligent and honest work in a sine qua non of sound administration under a democratic regime. (Para 8.10.10)
81. 8.19.08 (i) There should be regular consultations on the management of All India Services between the Union and the State Governments. For this purpose, an Advisory Council for personnel administration of the All India Services may be set up.
(ii) The Council may have the Union Cabinet Secretary as its chairman and Union Secretaries in charge of individual All India Services and Chief Secretaries of State Governments as members.
(iii) The Council may be serviced by the Union Department of Personnel and Training. (para 8.10.12 and 8.11.03).
82. 8.19.09 (i) The Advisory Council recommended in para 8.19.08 will advise the Union and the State Governments. It should meet periodically and regularly and suggest solutions to the problems, referred to it by the Union and the State Governments.
(ii) The Union Department of Personnel and Training may take follow-up action on the recommendations of the Council and secure the decisions of the Union Government.
(iii) The Council may set up study teams of experts for examining specific problems.
(iv) Matters which the Advisory Council is unable to resolve may be placed before the inter-Governmental Council. (paras 8.11.04 to 8.11.05).
83. 8.19.10 The Advisory Council may address itself to the problems of the type raised by the Estimates committee and which recently have been referred by the Union Government to a special Committee. (para 8.11.06).
84. 8.19.11 The following cadre management problems should be specially examined by the Advisory council on a priority basis :
(i) More precise criteria have to be evolved for the encadrement of posts which will ensure fair promotional, prospects for the other State services and at the same time prevent undue expansion and consequent dilution of quality of the All India services. (Para 8.12.02).
(ii) Whether a State Government may be given full power to make temporary additions to an All India Service cadre. (para 8.12.04).
(iii) A system of postings and transfers has to be evolved for All India Service officers so that field work keeps alternating with policy-making and advice, till such time as the officers reach the seniormost levels in the State and the Union Governments. Also an officer appointed to a field post should continue in that post for a minimum period to be prescribed. Any deviation from the prescribed period should have the approval of a Committee of the Council of Ministers. (Para 8.13.02)
(iv) Uniform and rational policies have to be drawn up to adequately compensate officers working in difficult areas and for assisting such of them as wish to settle down permanently in the States to whose cadres they belong. (Para 8.14.02).
(v) Promotions at the State and the Union levels of All India Service Officers have to be coordinated and conflicting situations avoided. (para 8.15.02).
(vi) To ensure the All-India character of these services, State-wise reviews have to be prescribed so that "outsider-insider" ratios are maintained at a desirable level. (Para 8.16.01).
(vii) State-wise career development plans for the members of the All India Service cadres which inter-alia offer scope for greater professionalisation have to be evolved. (Para 8.16.01).
(viii) Problems of inadequate promotion and deployment opportunities in small states and formation of multi-State or Zonal cadres to meet these problems need to be examined. (para 8.16.01).
(ix) Periodical review of the system of performance appraisal of members of All India Services should be evolved. (Para 8.16.01).
85. 8.19.12 As recommended by the Estimates Committee, the Union Government may persuade the State Governments to agree to the constitution of the India Service of Engineers, the Indian Medical and Health Service and an All India Service for Education. (para 8.17.01)
86. 8.19.13 To constitute All India Services in sectors like agriculture, cooperation, industry etc.,
(i) To begin with, a pool of officers drawn from the Union and the various State Governments may be created in a sector;
(ii) These officers may be made available for posting for fixed tenures and with attractive special pays in Governments other than their own; and
(iii) after the pool system is worked successfully for a few years, steps may be taken to constitute an All India Service in that sector. (para 8.17.02).
87. 8.19.14 The question whether there should be a uniform age of superannuation for the employees of the Union and the State Governments may be considered, after appropriate studies, by the Inter-Governmental Council recommended in Chapter IX. (para 8.18.03)
INTER GOVERNMENTAL COUNCIL - ARTICLE 263
88. 9.10.01 (a) A permanent Inter-State Council called the Inter-Governmental Council (IGC) should be set up under Article 263.
(b) The IGC should be charged with the duties set out in clauses (b) and (c) of Article 263 other than socio-economic planning and development. (paras 9.3.05,9.3.06 and 9.4.06).
89. 9.10.02 The separate identity of the National Development Council should be maintained. However, its status should be formalised and duties reaffirmed through a Presidential order passed under Article 263 and it should be renamed as the National Economic and Development Council. (Para 9.4.07).
90. 9.10.03 The Inter-Governmental Council will evolve guidelines for identification and selection of issues to be brought before it and will take a care to ensure that only such matters of national importance relating to subjects of common interest are brought up before it as would fall with the ambit or clauses (b) and (c) of Article 263. (para 9.5.01).
91. 9.10.04 (a) The Council will consist of a General Body assisted by a smaller Standing Committee. (Para 9.6.02).
(b) The General Body will consist of :
1. Prime Minister Chairman
2.All Chief Ministers Members
3.All Union Cabinet Ministers Members
(or Union Ministers dealing with subjects of common interest to the Union and States) (Para 9.6.03).
(c)The Standing Committee will consist of :
1.Prime Minister Chairman
2.Six Chief Ministers one from each zone selected annually Members
3.Six Union Cabinet Ministers to be nominated by the Prime Minister Members
(d) The General Body of the IGC will meet at least twice a year. (para 9.6.03).
(e) The Standing Committee should meet at least four times a year. (para 9.6.05).
92. 9.10.05 Every meeting of the General Body will be held in camera and its proceedings will be conducted as in Union Cabinet Meetings. Practices and procedures laid down for Cabinet meetings may be followed by the General Body. (para 9.5.03, 9.5.05, 9.6.03 & 9.7.03)
93. 9.10.06 (a) Matters proposed to be referred to the General Body will first be discussed in the Standing Committee. Normally, such matters only as are referred by the Standing Committee will be taken up for discussion in the General Body. All other matters will normally be considered and disposed of at the level of Standing Committee
(b) Meetings of the Standing Committee will be held in Camera
(c) Any member of the General Body may attend a Standing Committee meeting with permission of the Chairman of the Committee
(d) The Prime Minister may nominate any other Union Cabinet Minister to preside over the Standing committee meetings when (i.e. the Prime Minister) is not present. (Para 9.6.02 & 9.6.05)
94. 9.10.07 The Inter-Governmental Council and its Standing Committee should be able to set up ad-hoc Sub Committees to investigate special matters. (Para 9.6.06)
95. 9.10.08 Procedure adopted for the Standing Committee meetings will, as nearly as may be, be the same as for Cabinet Sub-committee meetings. (para 9.7.03).
96. 9.10.09 There should be a permanent Secretariat of the Council. (para 9.7.02).
97. 9.10.10 (a) The five Zonal Councils which were constituted under the States Reorganisation Act, 1956 should be constituted afresh under Article 263.
(b) The North Eastern Council set up under the North Eastern Council Act should function as the Zonal Council for the North-Eastern States, in addition to its existing functions. (para 9.8.07).
98. 9.10.11 In the case of the five Zonal Councils, a Chief Minister may be elected Chairman annually by rotation. In the case of the North Eastern Council, the existing arrangements should continue. (para 9.8.11).
99. 9.10.12 (a) The Secretariat of each Zonal Council may be located in such State capital of one of the States constituting the Zone as may be decided upon by the IGC in consultation with those State Governments.
(b) The Secretary of the Zonal Council should be in close touch with the Secretary of the IGC for purposes of coordination and consultation in respect of matters which should come up before the IGC. (Para 9.8.10).
100. 9.10.13 The Zonal Councils should provide the first level of discussion of most, if not all, of the regional and inter-State issues. Every endeavour should be made to sort out as many as possible of these issues in the Zonal Councils, thereby reducing the burden of the Inter-Governmental Council. The Inter-Governmental Council may also refer some of the issues directly raised before it to the Zonal Councils. (Para 9.8.11).
101. 9.10.14 (a) The same procedure as in the case of IGC meetings may, as far as possible, be adopted for Zonal Council meetings.
(b) The Zonal Council, may meet at least twice a year, in the State of which the Chief Minister is the Chairman. (para 9.8.09 & 9.8.11)
FINANCIAL RELATIONS
102. 10.11.01 Under the present circumstances, duties on all the items covered by Article 268 do not appear to be a buoyant source of revenue amenable to frequent revisions. Since basic circumstances do not always remain constant, the Union Government should, in consultation with the State Governments, periodically consider and explore the revision or imposition of these duties. The revenue raised from these duties should be separately specified in the budget and other relevant publications.(para 10.5.13)
103. 10.11.02 The monetary limit of ‘Rupees two hundred fifty per annum’ fixed 37 years ago on taxes that can be levied on professions, trades, callings and employments (Entry 60 of List II) should be, in consultation with the States, revised upwards immediately and reviewed periodically. (para10.5.60).
104. 10.11.03 Taxation of agricultural income is a sensitive matter. Both the Union and the State Governments are not inclined at present for a change in the Constitutional provision in regard to Entry 46 of List II. Many problems have been highlighted by the Union and the State Governments in connection with the levy of such a tax. Nonetheless, in view of its potential, the question of raising resources from this source by forging political consensus and the modalities of levying the tax and collection of proceeds, etc., would require an in-depth and comprehensive consideration in the National Economic and Development Council.(Para 10.5.72).
105. 10.11.04 By an appropriate amendment of the Constitution, the net proceeds of Corporation Tax may be made permissibly shareable with the States, if and as Parliament may by law so provide. This would have the advantage of enlarging the base of devolution so that in the revenues of the States there would be greater stability and predictability, in future. Further, being an elastic resource, the States would benefit from its growth.(Para 10.6.16).
106. 10.11.05 Consequent on inclusion of Corporation Tax in the divisible pool, adjustments will have to be carried out by suitably bringing down the shares of States in Income Tax and Union Excise Duties. (para 10.6.18)
107. 10.11.06 The Surcharge on Income Tax should not be levied by the Union Government except for a specific purpose and for a strictly limited period only. (Para 10.6.26)
108. 10.11.07 The organic linkage in policies and measures adopted by different levels of government in resource mobilisation and expenditure must be duly recognised. This indeed, is the crux of Union-State financial relations. An expert Committee with suitable representation from the States, may be appointed by the Union Government to recommend desirable directions of reforms in taxation and inter alia, consider the potential for resource mobilisation by the Union and the States. The report of this Committee should be placed before the standing Finance Committee of the National Economic and Development Council for consideration. (para 10.6.34 and 10.6.36).
109. 10.11.08 Substantial expenditure is incurred by both the Union and the State Governments on such schemes which have come to be known as populist measures. It will be in the best interests of the concerned Governments to take explicitly into account the high opportunity-cost of such schemes and to examine whether any important programmes of development are compromised due to such diversion of scarce resources. (para 10.7.30).
110. 10.11.09 It is necessary that a comprehensive paper on direct, indirect and cross-subsidies, covering both Union and State Governments, is prepared by the Planning Commission every year and brought up before NEDC for discussion, since the increasing burden of subsidies has a direct relevance to the availability of resources for the execution of the plan. (para 10.7.33).
111. 10.11.10 The present division of labour which has developed over the years between the Finance Commission and the Planning Commission is that the former advises on the non-plan revenue requirements and non-plan capital gap. In certain sectors, where the problem is clear and the numbers are reasonably sure, the Finance Commission has recommended capital resource devolution also only to a limited extent. The present division of responsibilities between the two bodies, which has come to be evolved with mutual understanding of their comparative advantage in dealing with various matters in their respective spheres, may continue. (para 10.8.16 and 10.8.17).
112. 10.11.11 The Finance Commission Cell/Division proposed to be located in the Planning commission, should continuously monitor the behaviour of States' finances. It should also estimate annually the deviations from the norms evolved by the Finance Commission. The Planning Commission would then be able to bring before the National Economic and Development Council annual reviews indicating, among other things, the deviations from the forecasts of Finance Commission and the reasons for the same. This would afford an opportunity to the National Economic and Development Council to monitor effectively and evolve consensus on the mobilisation of resource and evolve consensus on the mobilisation of resources and contain the non-developmental expenditure. (Para 10.8.23)
113. 10.11.12 The Finance Commission Division should, in cooperation with the States, organise comprehensive studies on trends in growth of public expenditure in the States in the light of the findings of the previous Finance Commission. The studies conducted by the Finance Commission Division should be available well in time for the use of the next Finance Commission. (para 10.8.25).
114. 10.11.13 There is need to further strengthen the Finance Commission Division. It would result in much closer coordination between the Planning Commission and the Finance Commission if this Division were to work under the general supervision of the Member incharge of financial resources in the Planning Commission. Such an arrangement will also make available to the Planning Commission data and analysis on various parameters relevant for resource discussions for the plan and reviewing of the finances of the Union and the States. (para 10.8.30).
115. 10.11.14 Finance Commission should draw experts for assisting them in their work from various parts of the country. It would be advantageous if suitable experts are drawn from the States also for staffing the Secretariat of the Finance Commission. (para 10.8.34).
116. 10.11.15 The step taken by the Union Government to initiate a process of consultation with the States in finalising the terms of reference of the Finance Commission is in the right direction. Any consultation to be meaningful should be adequate. However, there is no advantage in formalising the same through a change in the Constitutional provisions which would introduce undue rigidity. Nonetheless, it is desirable that this healthy practice of informal consultation with the States in the matter should continue. (Para 10.8.36).
117. 10.11.16 Consideration of adequate flow of funds to the backward regions in the States would necessitate creation of expert bodies like the Finance Commission at state level also. Without such an organisation at the state level to effect regional distribution, skewness will persist in large pockets even in advanced States. State Planning and Finance Boards may be set up at State level to take an objective view of resources to be devolved to the districts. (para 10.8.51).
118. 10.11.17 Since the Sixth Finance Commission, grants for upgradation of levels of administration in the States are being provided. The crucial role of administrative/organisational support in the backward areas is a sine qua non for making the investment effective in consonance with the accepted policy of reducing regional disparities. It may even be desirable to provide in the special terms of reference of the Finance Commission to make available finances, with effective monitoring arrangements, to fill up the inter-State gap in administrative capabilities. This vital aspect should continue to receive due consideration of the Finance Commissions. (para 10.8.52).
119. 10.11.18 It is, indeed, unfortunate that the Eighth Finance Commission's final recommendations were not implemented in 1984-85 which caused serious financial problems in some States. While the recommendations of the Finance Commission are not binding on the Union Government in a technical sense, the expectation is that, as far as possible, these would not be departed from without compelling reasons. It is to be hoped that in future there would be no occasion for such departure. It is necessary that the time-schedule for the completion of the Finance Commission's work is so drawn up that it can reasonably submit its final report 4 to 5 months before the beginning of its period of operation. (para 10.8.58)
120 10.11.19 (i) As much of the information gathered by the Finance Commission as well as the detailed methodology followed by it is of public interest it should be got published, say within six months of the publication of the Report, to enable informed discussion and responsible research in the relevant spheres and better appreciation by the State Governments.
(ii) In addition, it will be a healthy practice if the observations and suggestions made by the Finance Commission on matters other than the terms of reference of the Finance Commission, are also considered expeditiously by the Government and a comprehensive statement placed before Parliament subsequently indicating its views and action taken (para 10.8.59).
121. 10.11.20 It is a matter of serious concern that even after a lapse of about five years no legislation has been brought in for giving effect to the intent of the Constitutional amendment enabling levying of the Consignment Tax. The Union Government should bring in suitable legislation in this regard without further loss of time. (para 10.9.12).
122. 10.11.21 There are complaints that the yield from certain cesses levied along with Union Excise Duties under Special Acts of Parliament have remained outside the divisible pool of resources. While it may become necessary for the Union Government to levy such cesses in view of the special needs, their application should be for limited durations and for specific purposes only. (para 10.09.20 & 10.09.21).
123. 10.11.22 The scope for raising additional resources to any considerable extent on items covered by Article 269 appears to be limited. An Expert Committee should be constituted to enquire into and review from time to time, in consultation with the States the operational feasibility of the scope for levying taxes and duties included in Article 269 and the complementary measures the State Governments would be required to take. (Para 10.9.25 & 10.9.26)
124. 10.11.23 The Constitution should be suitably amended to add the subject of taxation of ‘advertisement’ broadcast by ‘radio or television’ to the present Entry 92, List I and Article 269 (1) (f). (para 10.09.30).
125. 10.11.24 The Union Government should signify its acceptance of the Finance Commission’s recommendation in regard to the grant in lieu of the Railway Passenger Fare Tax also, alongwith other items, while placing the Explanatory Memorandum before Parliament. (para 10.09.34).
126. 10.11.25 The Finance Commissions take into account the expenditure liability of the States with respect to dearness allowance, etc., and make a provision for the same. But inflation increases both outlays and revenues. The permanent secretariat of the Finance Commission should make an annual review of the situation. If in any year the net burden of the States seems unduly heavy, the Planning Commission and the Union Ministry of Finance should jointly evolve appropriate relief measures. (para 10.09.37).
127. 10.11.26 The reviews of royalty rates on minerals, petroleum and natural gas should be made every two years and well in time, as and when they fall due. (para 10.9.40).
128. 10.11.27 A sub-committee of Finance of the Standing Committee of the NEDC may be constituted consisting of Union Finance Secretary and the Finance Secretaries of various States and Union Territories. It will consider all such matters calling for coordination of economic policies as may be entrusted to it by the NEDC or its Standing committee. This Body will report to the Standing Committee of the NEDC. Since Planning Commission would be providing the secretariat support to the NEDC, the same may be extended for this body also. This will ensure expert consideration of various aspects of the problems and adequate consideration of the views of the Union and the States/Union territories. The role of this committee will be deliberative and advisory and helpful in forging a consensus on financial matters. (Para 10.9.50)
129. 10.11.28 The distinction made by the Seventh and the Eighth Finance Commissions in providing a more favourable flow of central assistance for floods, cyclones, etc. vis-à-vis a drought situation, may continue. (para 10.9.66).
130. 10.11.29 (i) The Central Team to assess the damage caused by natural calamities should invariably be headed by the Adviser incharge of that State in the Planning Commission, as was the practice in the past.
(ii) In the event of a natural calamity, relief must be given immediately. A procedure which enables States to expeditiously provide necessary succour and relief to the affected people should be evolved, in consultation with the States, along with suitable norms in regard to the scale of relief. Formulation of standard formats for submission of memoranda by the States will greatly help the Union in dealing with the requests of various States urgently and on a uniform basis. (para 10.9.67 and 10.9.68).
131. 10.11.30 In a calamitous situation, the States should have a reasonable discretion to make inter-district or inter-sectoral adjustments. To allay the apprehension that the expenditure pattern adopted under the stress of urgency may not find approval norms in regard to items of expenditure which are to be incurred immediately, e.g., relief by way of issue of foodgrains, clothing and rebuilding or shelters in the event of floods may be evolved by the Union and communicated to all State Governments. (Para 10.9.69).
132. 10.11.31 Relief assistance should extend beyond the financial year. The assistance required till the next June/July should be decided in the beginning itself so that relief works can be properly planned and executed. (para 10.9.70).
133. 10.11.32 There appears to be tendency to bring in non-productive schemes and programmes under the capital head in order to expand the plan size. In future plans, for reasons of financial propriety this Sector, though small, has to be weeded out of the capital budget and put under the revenue budget. It is better to tackle the situation at this stage whilst the problem is marginal. (Para 10.10.16).
134. 10.11.33 The rationality of transfers from the Union to the States would involve more of revenue transfers to the less developed States with lower repayment capacity and weak financial base. In contrast, keeping in view the needs of development in the advanced States, a suitable mix of budgetary and non-budgetary access to capital resources may be allowed to them. The logic is that such States are in a better position to service commercial borrowings (Para 10.10.34).
135. 10.11.34 The flow of capital fund from various sources to the States and their allocation among them should from part of an integrated plan. This task may be attended to by the Planning Commission in consultation with the Ministry of Finance and the Reserve Bank of India and got approved by the National Economic and Development Council as part of Plan financing. (para 10.10.36).
136. 10.11.35 The Union Government should give its consent freely to States for borrowing from banks and financial institutions for periods less than one year under clause (4) of Article 293. (para 10.10.39).
137. 10.11.36 The Union Government has now allowed the States public sector units to raise funds on merit by floating bonds. In practice, the considerations relating to merit of a State's enterprise should not put them to any disadvantage vis-à-vis the Union Governments' Undertakings. (para 10.10.40).
138. 10.11.37 The system of tax-free municipal bonds should be introduced in this country. (para 10.10.41).
139. 10.11.38 Treatment of small savings loan is a matter of judgement by the Finance Commission in relation to the overall debt burden of the States. As long as small savings keep increasing and there is a surplus every year after repayment of due loans, the Union is not called upon to repay any loan not already covered by the net transfer principal. If and when the position changes in any year, when the outgo is greater than the inflow, the States would be responsible for their share of the net small savings collections. If a formula is adopted for such recoupment of revenue from the States, the recommendations of the Finance Commission will be workable. This aspect will have to be examined by the National Economic and Development Council (para 10.10.44).
140. 10.11.39 Any problems in the working of the arrangements concerning flow of development finance from the financial institutions should be looked into by the sub-committee on Finance of the Standing Committee of NEDC.(Para 10.10.49)
141. 10.11.40 No change in the existing procedure of channelling external aid for projects is suggested. However, much misunderstanding would be avoided if at the time of consideration of the Five Year Plan, all relevant factors taken into consideration in this regard are placed before the National Economic and Development Council. (Para 10.10.53).
142. 10.11.41 The seasonal range of weekly Ways and Means "demand" compared to the prescribed limits should be carefully studied every year for the preceding triennium in the light of price-trends, separately for each state, by the Reserve Bank and taken into account in re-fixing quarterly Ways and Means limits for the State. The period of overdrafts should be extended from 7 to 14 days in view of the prevailing timelag in collecting relevant information from various Treasuries. Simultaneously, steps should be taken to modernise the treasury system. (para 10.10.68).
143. 10.11.42 The following two proposals may be considered by the Union Government :-
(a) Free foreign exchange to the extent of a small fraction of a State's annual budget should be placed at its disposal. This will introduce flexibility which will help reduce much of the present irritation.
(b) In each State capital and in the headquarters of remote but important districts of the bigger States, a designated officer of the State Bank of India (or some other nationalised Bank) should be given powers of Deputy Controller of Foreign Exchange of the Reserve Bank of India, in case an officer of the Reserve Bank itself is not located there. This will go a long way to help the local public especially small and medium businessmen. (para 10.10.71).
144. 10.11.43 It will be useful if the Union Government appoints an Expert Team to look into the special difficulties of the people in remote States and districts in matters like issue of shares, bonds, licences, permits, etc. for which they have now to come to New Delhi, and suggest measures for delegating the powers to some officers or agency under its control at the headquarters of each State and remote but important districts of the bigger states. (Para 10.10.72).
145. 10.11.44 Flow of direct assistance and refinance through cooperatives and other institutions to agriculture and private enterprises in other sectors does not generally fall within the ambit of Union-State financial relations. However, given the overall development and equity considerations, it is too important to be ignored. Undesirable politicisation of the cooperative system, thus leaving untapped substantial institutional finance which could be available for development, has been noted by expert studies. In the context of consideration of institutional finance to the private sector, two aspects become pertinent. One is that scarce capital resources in our country carry a high opportunity-cost. Therefore, their optimum use is a must. The second aspect is that notwithstanding the preferential and concessional finance facility offered, people in the less developed States have not been able to avail of the institutional finance to the desired extent. It is necessary to develop organisational capabilities and enterprise urgently in such States. (para 10.10.73 and 10.10.74).
ECONOMIC AND SOCIAL PLANNING
146. 11.9.01 Taking an over-all view from the conceptual institutional and functional aspects, planning both at the formulation and execution stages has to be a cooperative process of shared action between the Union and the States.
(a) NEDC should be involved in the formulation of the plans right from the beginning. Selection of studies and setting up of various working groups should be done under the guidance of the Standing Committee of the NEDC.
(b) The draft Approach paper should be circulated to the States at least two months in advance of the meeting of the NEDC to consider the same. It should contain all relevant data, alternate strategies etc.
(c) A preparatory meeting should be held by the Planning Commission, with all Deputy Chairman and or secretaries of the States Development Boards two weeks prior to the NEDC to consider the Approach paper/Draft Five Year Plan for identifying the main issues and firming up the agenda for the meeting of the NEDC.
(d) Deliberation in the NEDC should be so structured as to facilitate meaningful discussions on each item of the agenda. Sufficient time should be available for the same, so that, after the general statement by the Prime Minister and Chief Ministers, there is enough time for discussing individual items of the agenda. Minutes of the discussion in the NEDC should be recorded itemwise. It will help provide more time for discussion if prepared general statements of Chief Ministers are circulated before-hand and the Chief Ministers read out only a brief summary. (Para 11.2.04 & 11.5.22).
147. 11.9.02 Close and fullest involvement of the States at all stages of Plan formulation is very essential for the successful implementation of the same.
(a) On the working Groups set up to study sectoral problems in the context of formulation of the Five Year plan, concerning State subject the Deputy Chairman, Planning Commission should appoint a member of a State Planning Board as Chairman and the Secretary of the concerned Union Ministry as Vice-Chairman and an officer of the Planning Commission as Member-Secretary.
(b) Coordinated action between the Central and State Working Groups should be ensured. For this, the Central Working Groups themselves should take the initiative in establishing contact with their counterparts in the States at an early stage.
(c) The draft Approach paper should be circulated to the States at least two months in advance of the meeting of the NEDC to consider the same. It should contain all relevant data alternate strategies, etc. (paras 11.5.10, 11.5.12 & 11.5.22).
148. 11.9.03 For improving the procedure of State Plan, the following are essential :
(i) In the Financial Resources working group, the estimation of plan resources should be realistic, estimates of additional resources to be mobilised by a State, as approved by the Chief Minister, should be available to the Financial Resources Working Group.
(ii) Planning Commission should not try to scrutinise in detail all the individual sectoral schemes in the States plans but concentrate on key ones involving large outlays, foreign exchange component, and inter-sectoral aspects. Most of these belong to the core-sector plan and have their outlays earmarked. Financial provision for these should be ensured.
(iii) The practice of States submitting Plan proposals aggregating to much higher plan-size than that warranted by resources estimated by the Resources working Group, should be firmly discouraged by the Planning Commission. Every effort should be made to consider all resources likely to be available at the stage of discussions in the Resources Working Group itself.
(iv) The meeting between the Deputy Chairman, Planning Commission and State Chief Ministers should concentrate on evaluating the progress made, identification of bottlenecks, review of deviations from plan priorities and the implementation of the programme for the ensuing year. Substantial changes in the size and content of the plan and allocation of outlays should not generally take place in this meeting.
(v) If the Plan-size of a State is agreed to be substantially enhanced at the meeting between Deputy Chairman, Planning Commission and the State Chief Minister on the promise of new resources, this should be regarded as provisional and the feasibility of the same and the priority of allocation of the additional amount should be subsequently gone into by the Adviser (State plans) in consultation with the subject-Divisions in the Planning Commission. (para 11.5.37).
149. 11.9.04 The norms and conditions for prior approval of projects/schemes by the Union Government, Planning Commission and Central Electricity authority should be reviewed every fifth year or earlier, if need be, and got approved by the National Economic and Development Council. (Paragraph 11.5.43)
150. 11.9.05 As the different components of central assistance for the State plans got incorporated at different points of time, a review is over-due. In view of acute over all constraint of resources, a system will have to be evolved which, while ensuring a measure of equity, would at the same time encourage efficiency in the mobilisation and use of resources. The NEDC is the most appropriate forum where such matters should be discussed and national consensus arrived at. (Paragraphs 11.6.07& 11.6.08)
151. 11.9.06 A time has come to review the two-fold loan-grant pattern of Central assistance, 70:30 and 10:90, and replace it by a suitable three or four-fold pattern such as 70:30, 50:50 and 20:80 or 90:10, 60:40, 40:60 and 10:90 respectively, taking into account loan servicing capacity of the States and their per capita State Domestic Product. A decision may be take by the NEDC on this after expert examination by Planning Commission and consideration of various options. (Para 11.6.10).
152 11.9.07 A segmented approach in respect of the channelling of Central assistance for externally aided projects should not be followed. However, it will be desirable that the entire rationale and procedure is explained or clarified for a better understanding to the NEDC. (Paragraph 11.6.13)
153. 11.9.08 A periodic review of the system of earmarking of outlays is desirable and should be discussed and approved by the NEDC alongwith other aspects of the Central assistance mechanism before the beginning of each Five Year Plan. (Paragraph 11.6.16)
154. 11.9.09 The number of Centrally sponsored Schemes should be kept to the minimum. In this regard the criteria laid down by the Rammurti Committee should be adhered to. The need for the Union Government initiating pilot projects even in regard to subjects in the States' sphere, having an inter-State, regional or over-all countrywide significance but carrying high national priority, is recognised, but these should be formulated in prior consultation with the States. Once a programme has passed the pilot stage and has been accepted as desirable for implementation on a larger scale, it should appropriately form part of the State Plans. (para 11.6.25).
155. 11.9.10 The Central assistance towards the centrally sponsored schemes should be kept to a minimum in relation to the Central assistance for the State Plans. The ratio of these recommended by the NEDC from time to time, should be adhered to. (para 11.6.26).
156. 11.9.11 The Centrally Sponsored Schemes should not be normally started during the middle of Five Year Plan. Should it become necessary to initiate any Centrally Sponsored Scheme during the course of Five Year Plan, its approval by the Standing Committee of the NEDC should be obtained. The entire expenditure on such a scheme, at leas till the expiry of that Five Year Plan, should be borne by the Union Government. (Para 11.6.27).
157. 11.9.12 The State Governments should be fully involved in determining the contents and coverage of the Centrally sponsored scheme so that local variations and likely difficulties in their implementation are taken care of. Even after formulation of the schemes sufficient flexibility should be allowed to the States in adapting them to local conditions. The Centrally Sponsored Scheme should be discussed with the States, individually, along with their Five Year Plans and again during the Annual Plan discussions. (Para 11.6.28).
158. 11.9.13 An overall comprehensive review of Centrally Sponsored Scheme should be made periodically by the Planning Commission and it should be placed before the NEDC for consideration. (Para 11.6.30).
159. 11.9.14 The process of decentralisation, in respect of formulation and evaluation of Centrally sponsored Schemes, should be pursued further and differences in local conditions given proper weightage specially with reference to agriculture and poverty alleviation programmes, like IRDP, NREP and RLEGP. (Para 11.6.31).
160. 11.9.15 If the Planning Commission is reconstituted by a statute giving it an autonomous status, divorced from the political executive of the Union, its working will be stymied by legalism, rigidities and technicalities which are inherent in inflexible statutes. The task of Planning Commission are now over-seen by the NDC. This arrangement has well answered our Planning needs.*** The remedy, therefore, lies in reforming these institutions and their working assuring at the same time full and effective consultation with the States at all stages of the Planning process so that they feel that their role in it is not that of a supplicant but of an equal participant. ***If healthy conventions are established in regard to consultation with the Planning Commission and due weight is given to its recommendations, then all apprehensions in regard to domination by the Union and Planning Commission being a limb of the Union Government would disappear. The Planning commission must be consulted in taking all major investment decisions. (paras 11.7.11, 11.7.14, 11.7.15, 11.7.16 and 11.7.17).
161. 11.9.16 To remove any misgivings about Planning Commission's capacity to act objectively, experts with established reputation for professional integrity and calibre should be appointed to its panel for specified term. (para 11.7.19).
162. 11.9.17 The Deputy Chairman should invariably be an eminent expert, who can command the respect of the Union, as well as the State Governments, by his objectivity and stature and should not be seen as a political appointee. (para 11.7.20).
163. 11.9.18 After the report of the Finance Commission, the occasion for a review of the Union and States finances arises in the context of resource exercise for the Annual and Five Year Plans. It is of utmost importance that the complement of non-plan finances of the States is looked into in detail by the Resource Working Group of the Planning Commission. Detailed analysis of any aberrations and significant deviations from the norms of the Finance Commission should be made. (para 11.7.24).
164. 11.9.19 Planning Commission should pay special attention to the efficacy of the monitoring system in the Government by advising on techniques and formats. At the same time, it may continue monitoring of specific programmes and keep itself abreast with the progress in the core and priority sectors. (para 11.7.26).
165. 11.9.20 Besides the general reviews contained in the Annual Plan and the mid-term appraisal, a comprehensive quinquennial review should be brought out by the Planning Commission, which should be taken advantage of in finalising the next Five Year Plan. (para 11.7.27).
166. 11.9.21 The Advisers (State Plans) must visit the States more frequently as they have a key role in bringing about a close relationship between the States and the Planning Commission. They could be permanent invitees to the meetings of the State Planning Boards. (para 11.7.28).
167. 11.9.22 In order to build expertise in the Planning Commission, the officers in senior posts should not only have the desired specialisation and competence, but should also serve in the organisation for sufficiently long periods. Serious attention to this aspect will have to be given by the Planning Commission itself. (para 11.7.29).
168. 11.9.23 As part of a Staff Exchange Programme, officers from the Planning Commission and the State Governments at middle echelons should serve at each other's place for reasonably sufficient periods and suitable incentives and facilities made available to them. (para 11.7.30).
169. 11.9.24 The very concept of Planning postulates cooperative endeavour in the service of the common man. In a large and diverse country like ours, planned development is critically dependent on consensus and commitment at all levels to be objectives and strategies of the Plans formulated and implemented from time to time. The NDC should be made to function more effectively and emerge as the highest political level inter-Governmental body for giving a direction and thrust to planned development of the country. Being the supreme inter-governmental body for all matters related to socio-economic development, it is necessary that NDC should be renamed and reconstituted as national Economic and Development Council (NEDC) by Presidential Order under the provisions of Article 263 so as to have moorings in the Constitution. (para 11.7.41 to 11.7.43).
170. 11.9.25 The NEDC or its Standing Committees should meet regularly to consider important economic issues of national significance in addition to the usual developmental issues. (para 11.7.44).
171. 11.9.26 NEDC should formulate its own procedures to enable it to discharge its responsibilities. (Para 11.7.45).
172. 11.9.27 The Secretary of the Planning Commission shall act as Secretary to the National Economic and Development Council and the Planning Commission shall provide such administrative or other assistance for the work of the council as may be needed. (para 11.7.46).
173. 11.9.28 A Standing Committee of the NEDC should be constituted consisting of the Prime Minister, Finance Minister, three other Union Ministers nominated by the Prime Minister, Deputy Chairman of the Planning Commission and Governor, Reserve Bank of India and six Chief Ministers, one from each zone selected by rotation or consensus. This Standing Committee should also be constituted under article 263 alongwith NEDC. The NEDC may, however, set up other committees or Sub-Committees to advise it or the Standing Committee on special issues. (para 11.7.48).
174. 11.9.29 The State Planning Boards should perform similar functions for the State Governments as the Planning Commission does at the national level. The Chief Minister should be Chairman of the State Planning Board as his active support and involvement will be essential for the success of the State level planning. (Para 11.7.55)
175. 11.9.30 In any negotiation and discussion with the Planning Commission, the Deputy Chairman or some Member or senior officer of the State Planning Board should invariably represent the State Government, except where participation of the Chief Minister is considered necessary. (para 11.7.56).
176. 11.9.31 Consultation with District Planning Boards should be made obligatory for formulating plans at higher levels. (para 11.7.57).
177. 11.9.32 The institutions like Zila Parishads and elected municipal corporations need to be significantly strengthened both financially and functionally. Regular elections and sessions of these institutions is a must and means for ensuring the same in all the States uniformly should be evolved by the Union Government in consultation with National Economic and Development Council. For this purpose, a legislations analogous to Article 172 and 174 of the Constitution, should be undertaken as suggested at para 21.2.09. (para 11.8.07 and 11.8.08).
178. 11.9.33 It is necessary to evolve a mechanism like Finance Commission at the State level to enable the State Government take an objective view of resources to be divolved or transferred to the Districts. The State Planning Boards can conveniently and with advantage be entrusted with this function. This body could then be designated as State Planning and Finance Board. (Para 11.8.09).
INDUSTRY
179. 12.11.01 If Union control of a specific aspect of an industry is considered expedient in the public interest, it would be advisable that the IDR Act is suitably amended to facilitate the Union Government’s regulation of that aspect only. Parliament may have to pass a separate law under Entry 52 of List I... If such new legislation presents any serious difficulty, an alternative may be to replace the present First Schedule of the IDR Act by several Schedules, each of such would specify the purpose for which a particular control was imposed on an industry so that all other areas of Entry 24 of List II remain unoccupied by the Union. The Planning Commission, in consultation with the Ministries of Industry and Law and Justice, should prepare a paper on this subject for the consideration of the NEDC at an early date. (Paragraph 12.5.09)
180. 12.11.02 As a mandatory legal requirement, there should a periodical review, say, every three years, to determine whether in respect of any of the industries the Union’s control should be continued or relaxed or lifted. Such a review may be undertaken by a Committee of Experts on which the State Governments should be represented on a Zonal basis. The result of the review may also be placed before the NEDC. (Paragraph 12.5.10)
181. 12.11.03 It would be desirable to have the representatives of the State Governments on the Central Advisory Council. Recently, the Union Government has provided for observers from the States on the Central Advisory Council on a zonal basis. This is a step in the right direction. But there is a case for raising the status of such representation of the States from that of Observers to Members. (para 12.5.11)
182. 12.11.04 In the context of undue delays in industrial approvals, a useful corrective may be to appoint an ‘Empowered Committee’ for taking a final decision, subject to a sort of "sun-set" rule that if any link or agency does not give its comments by the due date, the Committee will take a decision without waiting for it. (para 12.6.03)
183. 12.11.05 Delegation of powers, to the extent permissible under Section 25 of IDR Act, to the State Governments, would lead to convenience and efficiency in the implementation of the Act, the full enforcement of which, in any case, has to be secured with the cooperation of the machinery of the States. Where delegation of powers to States may not be desirable, greater decentralisation through the Union’s own agencies should be considered. {Para 12.6.10}
184 12.11.06 In a number of cases, not involving large investments, it will be conducive to public convenience, quick disposal and efficiency in administration, if licenses are issued to the entrepreneurs from offices located in the States. The Union Government may consider opening licensing offices not only in four or five metropolitan cities but also in all State capitals and two or three other important towns in big States and vest them with adequate powers. (Paragraphs 12.6.11 and 12.6.12)
185. 12.11.07 In order to reduce the possibility of any misunderstanding on locational decisions, a comprehensive paper be prepared every year for discussion at the NEDC, giving, inter alia, information separately for new large-scale (i) ‘foot-loose’ and (ii) ‘non-foot-loose’ industries in (a) public and (b) private sectors on some key-aspects, e.g. location investment raw-material source, output, employment, assistance expected from local governments and date of start and completion. (Paragraph 12.7.08)
186. 12.11.08 A comprehensive examination of the problems of small-scale, cottage and village industries was carried out in the three reports of the National Committee on the Development of Backward Areas, viz., on Industrial Dispersal, Industrial Organisation and Village and Cottage Industries. Its suggestions should receive the full attention of the Union and State Governments. (Para 12.9.03)
187. 12.11.09 Adequacy or otherwise of criteria for identifying industrially backward areas and suggestions for units below district level, etc. are matters for consideration by the Union Government to which the State Governments can make recommendations. It will be useful if the subject is included in the agenda of the NEDC at least once every three years. (para 12.10.04)
188. 12.11.10 The States will have to take effective steps, in cooperation with other agencies, to develop in areas which are lagging behind, capabilities of local entrepreneurs to avail of the incentives that are being provided. The monitoring of the utilisation of incentives for intended uses is very necessary. The Ministry of Industry has recently started collecting unit-wise information of Central Investment Subsidy and shall be computerising it. Appropriate follow-up action, down to the field level, needs now to be taken. (para 12.10.05 and 12.10.06)
MINES AND MINERALS
189. 13.7.01 Proviso to Section 9 of the MMRD Act should be amended to reduce the period specified therein for revision of royalty rates from four years, to two years. (para 13.5.08).
190. 13.7.02 There should be periodic dialogue between the Union and the States in respect of revision of royality rates under MMRD Act and imposts under entries 49 and 50 of List II. (Para 13.5.12)
191. 13.7.03 A Judicial Tribunal should replace the existing administrative body under Section 30 of the MMRD Act for hearing the revision petitions, etc. (para 13.5.14)
192. 13.7.04 There should be periodic review of the First Schedule to the MMRD Act, in consultation with the Sates, every three years. (para 13.5.15).
193. 13.7.05 Any amendment to the MMRD Act should normally be preceded by consultation in NEDC.(Para 13.5.15)
194. 13.7.06 With reference to the issue raised by Government of Nagaland concerning sub-clause (a) (iv) of Article 371A(1), dialogue and discussions should be carried out between the Union and the State Government in a spirit of give and take and trust, as symbolised by the Sixteen point Agreement between the Government of India and the Naga People's Convention in 1960. The needs of the State and national interest would be best served by adopting a pragmatic approach to the whole issue. (para 13.6.12).
AGRICULTURE
195. 14.10.01 Only those schemes which satisfy the criteria laid down by the Ramamurti Committee and have inter-State regional of national significance, should be included as Centrally Sponsored Schemes. (Para 14.5.06).
196. 14.10.02 The Centrally sponsored schemes should be formulated in consultation with the States, so that they get included not because of the financial tag attached to them but due to common appreciation by both the Union and the States that these are areas of high priority within the framework of the national plan. (para 14.5.09).
197. 14.10.03 The issues like levels of prices and uniformity or otherwise of minimum prices, should best be left for consideration by an expert body like the commission for Agricultural Costs and Prices. Any problem in regard to national policy in the area of fixation of prices could appropriately be considered thereafter by the National Economic and Development Council, if necessary. (para 14.6.05).
198. 14.10.04 There should be an active involvement of the States in planning of fertilizer distribution. (Para 14.7.07)
199. 14.10.05 It is not the enlargement of representation on NABARD that will secure flow of adequate credit to the States, but building up of an efficient organisation to enable the farmers and others to avail of institutional credit. The groundwork in this regard will have to be done by States themselves. Adequate fora in the form of Advisory Council at the national level, Advisory Committees for Technical Schemes and District Consultative Committees exist wherein the States can represent their view-point and sort out operational difficulties, if any. States' representation on the Board of Directors of NABARD need not be enlarged beyond what it is today. (para 14.8.05).
200. 14.10.06 Various committees have drawn attention to the fact that politicisation, malfunctioning of elected bodies and lack of professional competence in management is paralysing the cooperative credit system in some States. Attention has also been drawn to choking of the cooperative system due to heavy arrears. The working of cooperative credit system should be reviewed and periodically by the NEDC in detail and discipline enforced in this regard. (para 14.8.06 and 14.8.07).
201. 14.10.07 In view of underdeveloped state of agricultural research in several States, the Union Government should continue guiding the States in this regard and helping them organise their own research network. There is also need to strengthen the coordination between the field institutions of the ICAR and the States' agencies so that the latter may draw upon their expertise. Staff exchange programmes between the two may also be encouraged to share experience and expertise. (para 14.9.05).
FORESTS
202. 15.5.01 In view of a large number of cases referred under Section 2 of the Forest (Conservation) Act, 1980 having been closed there is need for reviewing them to identify the reasons. A senior officer of the Ministry of Environment, Forests and Wild-life should examine all such cases which have been disposed off as closed, identify the reasons and inform the states. Cases which are required to be followed by the States should be reopened and decided on their merits after discussion with the representatives of the concerned State Governments. (para 15.4.09).
203. 15.5.02 Powers should be delegated to the States to divert, to a small extent, say not exceeding 5 hectares, of reserved forest lands, which are urgently required for specific public purposes. (para 15.4.14).
204. 15.5.03 Conservation and improvement of Forest resources is of utmost importance to the nation. A concerted action by both the Union and the States is imperative. At the same time, it is necessary to ensure that development efforts are not hampered. A bi-annual review of pending cases should be carried out in consultation with each State Government concerned. This occasion should also be utilised for reviewing the sanctions by virtue of powers recommended by us, to be delegated to them. (paras 15.4.15 and 15.4.16).
205. 15.5.04 In the case of large projects involving significant extent of submersion of reserved forests or their diversion to non-forest uses, clearance under Section 2 of the Forest (Conservation Act, 1980) should be given as far as possible simultaneously with the project clearance by the Union Government. Agencies of the Union Government may be associated right from the beginning with the formulation of the project so that adequate measures not only to compensate for the loss of reserved forests but also to improve forest resources, can be built into them ab initio. (Paras 15.4.17 to 15.4.19).
FOOD AND CIVIL SUPPLIES
206. 16.13.01 (i) The existing Advisory Council on Public Distribution System may undertake a periodical review of foodgrains management aspect also. For that purpose, it may be renamed as the Advisory Council on Food-grains Management and Public Distribution.
(ii) In the field of foodgrains management, the Advisory Council proposed above may discuss and arrive at a consensus on matters like.
- Long-range policy on each major aspect of food-grains management; and
- Steps to be taken by the various Governments to implement the above policies.
(iii) For the above purposes and also for examining major problems of food management and Civil supplies operations, as and when they arise, the Council may set up special Task Forces consisting of official and, where necessary, non-official experts. While setting up a task Force for examining problems which concern particular States, the Council should consult those State Governments including their official agencies. (paras 16.5.06 and 16.5.07).
207. 16.13.02 (i) There should be an indepth review of the working of the Essential Commodities Act and other regulatory parliamentary Acts in the field of food and civil supplies and a high level committee should be set up for the purpose. Apart from simplifying the laws in question and the orders made thereunder, the review should aim at identifying the areas where a State Government could be given greater freedom of action, so that they would not have to seek the prior approval of the Union Government in any minor case. (para 16.6.04)
(ii) Apart from simplifying the orders, detecting obsolete ones and providing for greater delegation of powers and functions to State Governments and their officers/authorities, the review should enable the Union Government to bring out a single, self-contained and up-to-date order on each essential commodity or a group of them. This review may be undertaken immediately and thereafter repeated every 5 years. The review should also enable identification of commodities which need no longer be classified as "essential". (para 16.6.05)
(iii) During the interregnum between one quinquennial review and another, changes may continue to be made in the ECAor the Orders issued thereunder, in order to meet the exigencies of an emergent situation. For that purpose, the position in regard to supply and demand of essential commodities may be kept under constant study and review between the Union and the States. (para 16.6.05)
208. 16.13.03 (i) The Union Departments of Food and Civil Supplies may urgently examine in consultation with the State Governments the possibility of enhancing the powers delegated to them. It should be possible to complete this work to the satisfaction of the State Governments within a period of 6 months or so.
(ii) In future, a control order may be issued after consulting State Governments whenever feasible, so that the practical difficulties that they might encounter in implementing the Order can be taken into account. (para 16.7.05)
209. 16.13.04 (i) The Advisory Council and Food Management and Public Distribution recommended in para 16.13.01 above may set up a Task Force for evolving (a) for the use of the States, a prototype of a monitoring system and methodology for monthly planning and (b) for the use of the Union, a scientific system of planning and allocation. Both the monitoring system and planning methodology should be simple and capable of being understood and worked by the functionaries concerned. (para 16.9.11).
(ii) Special schemes which have been undertaken or are proposed to be undertaken by State Governments to make certain essential commodities available to the weaker sections of the society at prices lower than for others, should broadly conform to the national policies laid down by the Union Government for the alleviation of poverty and the welfare and development of the weaker sections. There should be an understanding between the Union and the State Governments in regard to the specific schemes for these purposes and the special allocations of foodgrains, etc. to be made available to the concerned State Governments. (para 16.9.12).
210. 16.13.05 (i) The Union Government may get the measures for improving the working of the public Distribution system (vide para 16.11.03) implemented effectively in all Union Territory Administrations. The working of the PDS in these Territories would then serve as a model for State Governments.
(ii) The Union Department of Civil Supplies should have a well-equipped Research and Intelligence Wing. The Wing should systematically collect data about the good organisational and procedural innovations evolved in the various States and Union Territories and make these details available to all the State and UT Governments. It should also provide expert advice to State Government and agencies on the various aspects of the working of the PDS. Further, in the case of large States, the Wing should provide technical assistance to the State Governments in installing computerised systems for purposes of planning, monitoring etc.
(iii) The Advisory Council on Food Management and PDS recommended in para 16.13.01 above should commission studies on problems such as reduction of transportation/distribution costs, subsidising transportation costs for hilly and far flung areas, forecasting market trends, etc. for the PDS. (para 16.11.04)
211. 16.13.06 The Advisory Council on Food Management and Public Distribution may constitute a Committee to examine the problems faced by the State Governments in the matter of construction and hiring of warehouses and godowns for storage of foodgrains. (para 16.12.02).
INTER-STATE RIVER WATER DISPUTES
212. 17.6.01 Once an application under Section 3 of the Inter-State River Water Disputes Act (33 of 1956) is received from a State, it should be mandatory on the Union Government to constitute a Tribunal within a period not exceeding one year from the date of receipt of the application of any disputant State. The Inter-State River Water Disputes Act may be suitably amended for this purpose.(Para 17.4.11)
213. 17.6.02 The Inter-State Water Disputes Act should be amended to empower the Union Government to appoint a Tribunal, suo-moto, if necessary, when it is satisfied that such a dispute exists in fact.(Para 17.4.14)
214. 17.6.03 There should be a Data Bank and information system at the national level and adequate machinery should be set up for this purpose at the earliest. There should also be a provision in the Inter-State Water Disputes Act that States shall be required to give necessary data for which purpose the Tribunal may be vested with powers of a Court. (Para 17.4.15 & 17.4.16)
215. 17.6.04 The Inter-State Water Disputes Act should be amended to ensure that the award of a Tribunal becomes effective within five years from the date of constitution of a Tribunal. If, however, for some reasons, a Tribunal feels that the five years period has to be extended, the Union Government may on a reference made by the Tribunal extend its term.(Para 17.4.17)
216. 17.6.05 The Inter-State Water Disputes Act, 1956 should be amended so that a Tribunal’s award has the same force and sanction behind it as an order or decree of the Supreme Court to make a Tribunal’s award really binding. (para 17.4.19).
TRADE, COMMERCE AND INTER-COURSE WITHIN THE TERRITORY OF INDIA
217. 18.05.01 Free flow of trade, commerce and inter-course within and across inter-State borders is an important pre-requisite for ensuring economic unity, stability and prosperity of a country having a two-tier polity. Limitations for the common good are inherent in such freedom, lest it should degenerate into a self-defeating license. (para 18.1.01).
218. 18.5.02 Notwithstanding the fact that the word 'reasonable' is not used in Article 302, a law imposing restrictions under Article 302, would be open to judicial review on the ground that it has no reasonable nexus with the public interest alleged. The proposal for insertion of the word 'reasonable' before the word 'restriction' in Article 302 is thus merely of theoretical significance and cannot be supported. (paras 18.3.03, 18.3.04 and 18.3.05).
219. 18.5.03 Intra-State trading activities often have a close and substantial relation to inter-State trade and commerce. State laws though purporting to regulate inter-State trade may have implications for inter-State trade and commerce. These may impose discriminatory taxes or unreasonable restrictions impeding the freedom of inter-State trade and commerce. If clause (b) of Article 304 is deleted, the commercial and economic unity of the country may be broken up by State laws setting up barriers to free flow of trade and intercourse through parochial or discriminatory use of their powers. (para 18.3.13).
220. 18.5.04 The scheme of the Articles in part XIII, considered as a whole, is well balanced. It reconciles the imperative of economic unity of the Nation with interests of State autonomy by carving out in clauses (a) and (b) of Article 304, two exceptions in favour of State legislatures to the freedom guaranteed under Article 301. (para 18.3.14).
221. 18.5.05 The whole field of freedom of trade, commerce and intercourse bristles with complex questions not only in regard to constitutional aspects but also in respect of the working of the arrangements on account of impact of legislation of the Union on the powers of the States and the effect of legislation on both the Union and the States on free conduct of trade, commerce and intercourse. Considering the intricate nature and the need for objective examination of the wide-ranging issue connected with the freedom of trade, commerce and inter-course, it is recommended that an expert authority should be constituted under article 307. Among other things, such an authority may be enabled to :
(a) Survey and bring out periodically a report on the restrictions imposed on intra-State and inter-State trade and commerce by different governments and their agencies ;
(b) recommend measures to rationalise or modify the restrictions imposed to facilitate free trade and commerce;
(c) examine complaints from the public and the trade in this regard; and
(d) suggest reforms in the matter of imposition levying and sharing of taxes for purposes of part XIII of the Constitution.
The ambit of Article 307 is wide enough to bring all matters relevant to freedom and regulation of trade, commerce and intercourse within the purview of such an authority for carrying out the purposes of Artricles 301, 302, 303 and 304. It is entirely left to the judgement of Parliament to clothe the authority under Article 307 with such powers and duties as may be considered necessary. Such an authority may have both an advisory and executive role with decision-making powers. To begin with, such an authority may be assigned an advisory role. In course of time in the light of experience gained, such additional powers as may be found necessary, can be conferred on it. (paras 18.4.04, 18.4.07 and 18.4.08).
MASS MEDIA
222 19.8.01 a) Decentralisation to a reasonable extent in the day-to-day operations of Radio and Television is necessary.
b) The two mass media should constantly strive for a harmonious adjustment between the imperatives of national interest and the varied needs and aspirations of the States and their inhabitants.(Para 19.3.02)
223. 19.8.02 The directive contained in Article 351 should be pursued with imagination, vision and tact by the Union Government. The Hindi language used in broadcasts over the media should be enriched by assimilating common words from Hindustani and the other languages referred to in the Article, so that all people gradually get used to a uniform vocabulary at least for certain common terms all over the country. Steps towards such enrichment of Hindi should be taken on a high priority basis. (para 19.4.05)
224. 19.8.03 The purpose of promoting national integration can only be served through programmes of national importance conveyed in the local languages. (paras 19.6.03 & 19.6.09).
225. 19.8.04 In each region, radio programmes are transmitted by the All India Radio in the local language as also in English and in the other languages of the region. The proposed inter-linking of all radio stations through the INSAT link will enable All India Radio to broadcast programmes of one station to other stations. It is necessary that such linking of radio stations should be made fully operational as quickly as possible. (paras 19.5.01 & 19.5.04).
226. 19.8.05 During the Seventh Five Year Plan, Doordarshan proposes to set up, in each state capital a programme production centre and to link the Centre to the transmitters in the State through microwave circuits or satellites. While implementing this scheme, the highest priority may be accorded to setting up such Centres and linking regional broadcasts from each State capital with those areas in the State which suffer from the maximum handicap in understanding Hindi and English broadcasts. (paras 19.6.04 & 19.6.05).
227. 19.8.06 (a) Every Programme Production Centre should produce sufficient software in the language of the region so as to occupy all the time except that which may be reasonably required for English and Hindi broadcasts. Software development should give special attention to propagation in regional languages of ideas of national integrity and unity.
(b) Early arrangements may be made for the translation of national news broadcasts into regional languages or for the dubbing of such news in regional languages, as may be appropriate, and for simultaneous translation/dubbing and transmission.(Para 19.6.07)
228. 19.8.07 Earmarking of a particular time period for the national programme in English and Hindi should not be uniformally rigid. It should be left to each Station/Kendra to take into account the prime times for the urban and the rural areas falling within its broadcasting range and to decide which programmes should be transmitted and at what time. (para 19.6.10).
229. 19.8.08 It has been proposed that during the Seventh Five Year Plan mobile field units should transmit to broadcasting stations the material required for general broadcasts. This mode of coverage should be extended to news of interest to rural viewers including news on rural development. (para 19.6.11).
230. 19.8.09 The existing restrictions on the broadcasts to be made over the All India Radio and the authority given to the Station Directors to ensure that a proposed broadcast does not contain prohibited items are essential in the larger national interest and should therefore continue. (para 19.7.02).
231. 19.8.10 The Inter-Governmental Council recommended to be established under Article 263, may consider whether any relaxation of the existing Ground Rules for political use of the broadcasting system should be allowed, and, if so, under what conditions. (para 19.7.03)
232. 19.8.11 If a State Government has serious complaints about the use of the media, it can approach the Inter-Governmental Council proposed in Chapter IX. (para 19.7.08).
233. 19.8.12 (a) A Programme Advisory Committee is attached to each All India Radio Station or a Doordarshan Kendra which originates programmes for a duration of not less than five and a half hours every day. A non-political competent non-official may be made Chairman and the Director in charge of the Station or Kendra may be made Deputy Chairman of such a Committee.
(b) All broadcasting stations should have their own programme Advisory Committees.
(c) A specific rule may be introduced that the State Government concerned should be consulted in the selection of non-official members and Chairman of the Programme Advisory Committees in the State. (paras 19.7.04 to 19.7.09).
MISCELLANEOUS MATTERS - LANGUAGE
234. 20.1.31 The command of Article 351 is that, in the process of developing Hindi, it is neither desirable nor necessary to replace commonly understood terms by difficult sanskritised words. The growth of the official language can best be fostered by following the command of Article 351 both in letter and in spirit. It would be against the mandate of the Constitution, if, in the process of developing the Official Language, the forms, styles and expressions of the various regional languages of India, including, English, which have become assimilated in Hindustani are sought to be discarded. (paras 20.1.16, 20.1.17 & 21.1.18).
235. 20.1.32 Service under the Union and State Governments is an important avenue for employment for the educated classes in India. Proficiency in a particular language need not be insisted upon at the time of recruitment to ensure that language is not used as a factor to create difficulties in recruitment or subsequent career in services. A person selected for a job usually acquires requisite knowledge of the language in the course of his work. In this, he can be assisted by imparting suitable instruction and inservice training. (para 20.1.19).
236. 20.1.33 The work of the Government, both Union and States, which involves or affects the local people must be carried on in the local language. This is even more important in a welfare State. It is necessary that all forms, applications, letters, bills notices, etc. are available in the local language as well as the official language. This is of equal relevance to State Governments which have sizeable linguistic minorities concentrated in certain areas. (para 20.1.20)
237. 20.1.34 Effective steps should be taken to implement the three language formula in its true spirit uniformly in all states in the interests of unity and integrity of the country. (para 20.1.21)
238. 20.1.35 The code of conduct evolved to safeguard the interests of linguistic minorities must be strictly implemented. It is a matter of concern that the post of the Commissioner for Linguistic Minorities has been allowed to remain vacant for a long time. This situation needs to be rectified. (paras 20.1.23 and 20.1.24).
239. 20.1.36 The agreement at the Chief Ministers' Conference that, wherever there are a certain number of students having a common mother tongue in a school, a teacher of that language should be provided, is not being compiled with in many places on grounds of non-availability of teachers and financial stringency. The Union Government should consider providing financial assistance and/or maintaining a pool of language teachers to alleviate these difficulties. The Finance Commission should, while recommending fiscal assistance, keep this responsibility of the States in view. (para 20.1.25).
240. 20.1.37 Politicisation of language has often tended to threaten the unity and integrity of the country. There is need for creating appropriate forum at various levels not only to defuse any potentially explosive situation but also for evolving a positive approach. The Inter-Governmental Council and the Zonal Councils can play a very useful role in this connection. (para 20.1.26).
241. 20.1.38 (i) There is a strong case for renaming the Committee of Parliament on official language and the Department of Official language of the Home Ministry and the Directorate General of Hindi or the Ministry of Human Resource Development as Committee of Parliament on Official and Scheduled Languages, Department of Official and Scheduled Languages and Directorate General of Three-Language Programme, respectively with a clear mandate to take measures which would promote enrichment of all these languages.
(ii) The objective of enrichment of all the languages would be considerably helped if some popular books of high quality in different scheduled language are printed in Devanagari (and/or Roman) scripts with the original text on one page and its translation in Hindi (and/or English) on the page facing it. (para 20.1.29).
MISCELLANEOUS MATTERS - UNION TERRITORIES
242. 20.2.21 All matters which need to be sorted out between the Union Government and a Union Territory with Legislature may be discussed by a Standing Committee for the Union Territory. The Committee may have the Union Home Minister as Chairman and the Lt. Governor and Chief Minister of the Union Territory as members when a matter concerning a Union Ministry other than the Ministry of Home Affairs comes up before the Committee, the Union Minister concerned may be co-opted. (para 20.2.19).
243. 20.2.22 The Standing Committee for Union Territory may deal with matters which can appropriately be discussed either in the Zonal Council or in the National Economic and Development Council. (para 20.2.20).
MISCELLANEOUS MATTER - HIGH COURT JUDGES
244. 20.3.18 Article 217 may be amended by inserting in it a clause as under:-
"IA. The President may after consultation with the Chief Justice of India, make rules for giving effect to the provisions of clause (1) of the Article, and in order to ensure that vacancies in the posts of Judges in the High Courts are promptly filled in, these rules may prescribe a time-schedule within which the various functionaries having consultative role in the appointment of judges under this Article, shall complete their part of the process. (para 20.3.13).
245. 20.3.19 The healthy convention that as a principle High Court Judges are not transferred excepting with their consent should continue to be observed. (para 20.3.16).
246. 20.3.20 Advice given by the Chief Justice of India regarding a proposal to transfer a judge, after taking into account the latter's reaction and the difficulties, if any, should, as a rule of prudence, be invariably accepted by the President and seldom departed from.
247. 20.3.21 As a matter of healthy practice, the Chief Justice of India should before formulating an opinion in his individual judgement as to the proposed transfer of a judge from one High Court to another, take into confidence two senior judges of the Supreme Court and ascertain their views. (paras 20.3.17)
CONSTITUTION AS A LIVING DOCUMENT
INTRODUCTION
In this chapter, you will see how the Constitution has worked in the last fifty five years and how India has managed to be governed by the same Constitution. After studying this chapter you will find out that:
�� the Indian Constitution can be amended according to the needs of the time;
�� though many such amendments have already taken place, the Constitution has remained intact and its basic premises have not changed;
�� the judiciary has played an important role in protecting the Constitution and also in interpreting the Constitution; and
�� the Constitution is a document that keeps evolving and responding to changing situations.
ARE CONSTITUTIONS STATIC?
It is not uncommon for nations to rewrite their constitutions in response to changed
circumstances or change of ideas within the society or even due to political upheavals. The Soviet Union had four constitutions in its life of 74 years (1918, 1924, 1936 and 1977). In 1991, the rule of the Communist Party of Soviet Union came to an end and soon the Soviet
federation disintegrated. After this political upheaval, the newly formed Russian federation adopted a new constitution in 1993. But look at India. The Constitution of India was adopted on 26 November 1949. Its implementation formally started from 26 January 1950. More than fifty-five years after that, the same constitution continues to function as the framework
within which the government of our country operates.
Is it that our Constitution is so good that it needs no change? Was it that our Constitution makers were so farsighted and wise that they had foreseen all the changes that would take place in the future? In some sense both the answers are correct. It is true that we have inherited a very robust Constitution. The basic framework of the Constitution is very
much suited to our country. It is also true that the Constitution makers were very farsighted and provided for many solutions for future situations. But no constitution can provide for all
eventualities. No document can be such that it needs no change. France had numerous
constitutions in the last two centuries. After the revolution and during the Napoleonic period, France underwent continuous experimentation about a constitution: The postrevolution
constitution of 1793 is called the period of the first French republic. Then commenced the second French republic in 1848. The third French republic was formed with a new constitution in 1875. In 1946, with a new constitution, the fourth French republic came into being. Finally, in 1958, the fifth French republic came into being with yet another constitution. Then how does the same Constitution continue to serve the country? One of the answers to such questions
is that our Constitution accepts the necessity of modifications according to changing needs of the society. Secondly, in the actual working of the Constitution, there has been enough flexibility of interpretations. Both political practice and judicial rulings have shown maturity
and flexibility in implementing the Constitution. These factors have made our Constitution a living document rather than a closed and static rule book. In any society, those responsible for drafting the constitution at a particular time would face one common challenge: the provisions of the constitution would naturally reflect efforts to tackle the problems that the society is facing at the time of making of the constitution. At the same time, the constitution must be a document that provides the framework of the government for the future as well. Therefore, the constitution has to be able to respond to the challenges that may arise in the future. In this sense, the constitution will always have something that is contemporary and something that has a more durable importance. At the same time, a constitution is not a frozen and unalterable document. It is a document made by human beings and may need revisions, changes and reexamination. It is true that the constitution reflects the dreams and aspirations of the concerned society. It must also be kept in mind that the constitution is a framework for the democratic governance of the society. In this sense, it is an instrument that societies create for themselves. This dual role of the constitution always leads to difficult questions about the status of the constitution: is it so sacred that nobody ever can change it? Alternatively, is it so ordinary an instrument that it can be modified just like any other ordinary law? The makers of the Indian Constitution were aware of this problem and sought to strike a balance. They placed
the Constitution above ordinary law and expected that the future generations will respect this document. At the same time, they recognised that in the future, this document may require
modifications. Even at the time of writing the Constitution, they were aware that on many matters there were differences of opinion. Whenever society would veer toward any particular opinion, a change in the constitutional provisions would be required. Thus, the Indian
Constitution is a combination of both the approaches mentioned above: that the constitution is a sacred document and that it is an instrument that may require changes from time to time. In other words, our Constitution is not a static document, it is not the final word about everything; it is not unalterable.
HOW TO AMEND THE CONSTITUTION?
Article 368:
…Parliament may in exercise of its constituent power amend by way of addition, variation or
repeal any provision of this Constitution in accordance with the procedure laid down in this
article.
We have already seen that the makers of our Constitution wanted to strike a balance. The Constitution must be amended if so required. But it must be protected from unnecessary and frequent changes. In other words, they wanted the Constitution to be ‘flexible’ and at the
same time ‘rigid’. Flexible means open to changes and rigid means resistant to changes. A constitution that can be very easily changed or modified is often called flexible. In the case of constitutions, which are very difficult to amend, they are described as rigid. The Indian
Constitution combines both these characteristics. The makers of the Constitution were aware of the fact that there may be some faults or mistakes in the Constitution; they knew that the Constitution could not be totally free of errors. Whenever such mistakes would come to light, they wanted the Constitution to be easily amended and to be able to get rid of these mistakes. Then there were some provisions in the Constitution that were of temporary nature and it was decided that these could be altered later on once the new Parliament was elected. But at the same time, the Constitution was framing a federal polity and therefore, the rights and powers of the States could not be changed without the consent of the States. Some other features were so central to the spirit of the Constitution that the Constitution makers were anxious to protect these from change. These provisions had to be made rigid. These considerations led to different
ways of amending the Constitution.
There are many articles in the Constitution, which mention that these articles can be amended by a simple law of the Parliament. No special procedure for amendment is required in such cases and there is no difference at all between an amendment and an ordinary law. These parts
of the Constitution are very flexible. Read carefully the following text of some articles of the Constitution. In both these articles, the wording ‘by law’ indicates that these articles can be modified by the Parliament without recourse to the procedure laid down in Article 368. Many
other articles of the Constitution can be modified by the Parliament in this simple manner.
Article 2: Parliament may by law admit into the union …..new states….
Article 3: Parliament may by law… b) increase the area of any state….
For amending the remaining parts of the Constitution, provision has been made in Article 368 of the Constitution. In this article, there are two methods of amending the Constitution and they apply to two different sets of articles of the Constitution. One method is that amendment can be made by special majority of the two houses of the Parliament. The other method is more difficult: it requires special majority of the Parliament and consent of half of the State legislatures. Note that all amendments to the Constitution are initiated only in the Parliament. Besides the special majority in the Parliament no outside agency— —like a constitution commission or a separate body—is required for amending the Constitution. Similarly, after the passage in the Parliament and in some cases, in State legislatures, no referendum is required for ratification of the amendment. An amendment bill, like all other bills, goes to the President for his assent, but in this case, the President has no powers to send it back for reconsideration.
These details show how rigid and complicated the amending process could have been. Our Constitution avoids these complications. This makes the amendment procedure relatively simple. But more importantly, this process underlines an important principle: only elected representatives of the people are empowered to consider and take final decisions on the question of amendments. Thus, sovereignty of elected representatives (parliamentary sovereignty) is the basis of the amendment procedure.
Special Majority
In the chapters on Election, Executive and Judiciary, we have come across provisions that require ‘special majority’. Let us repeat again what special majority means. Ordinarily, all business of the legislature requires that a motion or resolution or bill should get the support of
a simple majority of the members voting at that time. Suppose that at the time of voting on a bill, 247 members were present in the house and all of them participated in the voting on the bill. Then, the bill would be passed if at least 124 members voted in favour of the bill. Not so in the case of an amendment bill. Amendment to the Constitution requires two different kinds of special majorities: in the first place, those voting in favour of the amendment bill should
constitute at least half of the total strength of that House. Secondly, the supporters of the amendment bill must also constitute two-thirds of those who actually take part in voting. Both Houses of the Parliament must pass the amendment bill separately in this same manner (there is no provision for a joint session). For every amendment bill, this special majority is required.
Can you see the significance of this requirement? In the Lok Sabha there are 545 members. Therefore, any amendment must be supported by a minimum of 273 members. Even if only 300 members are present at the time of voting, the amendment bill must get the support of 273 out of them. But imagine that 400 members of Lok Sabha have voted on an amendment bill. How many members should support the bill to get the bill passed? In addition to this, both the Houses must pass the amendment bill (with special majorities) separately. This means that unless there is sufficient consensus over the proposed amendment, it cannot be passed. If the party in power enjoys very thin majority, it can pass legislation of its choice and can get
budget approved even if the opposition does not agree. But it would need to take at least some opposition parties into confidence, if it wanted to amend the Constitution. So, the basic principle behind the amending procedure is that it should be based on broad support among the political parties and parliamentarians.
Two principles dominate the various procedures of amending the constitutions in most modern
constitutions.
�� One is the principle of special majority. For instance, the constitutions of U.S., South Africa,
Russia, etc. have employed this principle: In the case of constitution of US, it is two-thirds
majority, while in South Africa and Russia, for some amendments, three-fourths majority is
required.
�� The other principle that is popular among many modern constitutions is that of people’s
participation in the process of amending the constitution. In Switzerland, people can even
initiate an amendment. Other examples of countries where people initiate or approve
amendment to the constitution are Russia and Italy, among others.
Ratification by States
For some articles of the Constitution, special majority is not sufficient. When an amendment aims to modify an article related to distribution of powers between the States and the central government, or articles related to representation, it is necessary that the States must be
consulted and that they give their consent. We have studied the federal nature of the Constitution. Federalism means that powers of the States must not be at the mercy of the central government. The Constitution has ensured this by providing that legislatures of half the States have to pass the amendment bill before the amendment comes into effect. Apart from the provisions related to federal structure, provisions about fundamental rights are also protected in this way. We can say that for some parts of the Constitution, greater or wider consensus in the polity is expected. This provision also respects the States and gives them participation in the process of amendment. At the same time, care is taken to keep this procedure somewhat flexible even in its more rigid format: consent of only half the States is required and simple majority of the State legislature is sufficient. Thus, the amendment process is not impracticable even after taking into consideration this more stringent condition.
We may summarise that the Constitution of India can be amended through large-scale consensus and limited participation of the States. The founding fathers took care that Constitution would not be open to easy tampering. And yet, future generations were given the right to amend and modify according to the needs and requirements of the time.
WHY HAVE THERE BEEN SO MANY AMENDMENTS?
On 26 January 2006, the Constitution of India completed 56 years of its existence. In these fifty-six years, it was amended 93 times. Given the relatively difficult method of amending the Constitution, the number of amendments appears quite high. Let us try to find out how it is that so many amendments took place and what it means. Let us first look at the brief history of the amendments:
look carefully at the graphs below.
The same information is presented in two different ways. The first graph depicts the number of constitution amendments made every ten years; the bar indicates the number of amendments in that period. The second graph depicts the time taken for every ten amendments; the bar depicts the years taken for ten amendments. You will notice that the two decades from 1970 to 1990 saw a large number of amendments. On the other hand, the second graph tells one more story:
ten amendments took place between a short span of three years between 1974 and 1976. And again, in just three years, from 2001 to 2003, ten amendments took place. In the political history of our country, these two periods are remarkably different. The first was a period of Congress domination. Congress party had a vastmajority in the Parliament ( it had 352 seats in the Lok Sabha and a majority in most State Assemblies). On the other hand, the period
between 2001 and 2003 was a period marked by coalition politics. It was also a period when different parties were in power in different States. The bitter rivalry between the BJP and its opponents is another feature of this period. And yet, this period saw as many as ten amendments in just three years. So, the incidence of amendments is not dependent merely on the nature of majority of the ruling party alone.
There is always a criticism about the number of amendments. It is said that there have been far too many amendments to the Constitution of India. On the face of it, the fact that ninety-three amendments took place in fifty-five years does seem to be somewhat odd. But the two graphs above suggest that amendments are not only due to political considerations. Barring the first decade after the commencement of the Constitution, every decade has witnessed a steady stream of amendments. This means that irrespective of the nature of politics and the party in power, amendments were required to be made from time to time. Was this because of the inadequacies of the original Constitution? Is the Constitution too flexible? Contents of Amendments made so far Amendments made so far may be classified in three groups. In the first group there are amendments, which are of a technical or administrative nature and were only clarifications, explanations, and minor modifications etc. of the original provisions. They are amendments only in the legal sense, but in matter of fact, they made no substantial difference to the provisions. This is true of the amendment that increased the age of retirement of High Court judges from 60 to 62 years (15th amendment). Similarly, salaries of judges of High Courts and the Supreme Court were increased by an amendment (55th amendment).
We may also take the example of the provision regarding reserved seats in the legislatures for scheduled castes and scheduled tribes. The original provision said that these reservations were for a period of ten years. However, in order to ensure fair representation of these sections, it was necessary to extend this period by ten years. Thus, after every ten years an amendment is made to extend the period by another ten years. This has led to five amendments so far. But these amendments have not made any difference to the original provision. In this sense, it is only a technical amendment.
Do you remember the discussion in chapter four about the role of the President? In the original Constitution, it was assumed that in our parliamentary government, the President would normally abide by the advice of the Council of Ministers. This was only reiterated by a later
amendment when Article 74 (1) was amended to clarify that the advice of the Council of Ministers will be binding on the President (President shall act in accordance with the advice of the Council of Ministers). In reality, this amendment did not make any difference because, that is exactly what has been happening all through. The amendment was only by way of explanation.
Differing Interpretations
A number of amendments are a product of different interpretations of the Constitution given by the judiciary and the government of the day. When these clashed, the Parliament had to insert an amendment underlining one particular interpretation as the authentic one. It is part of the democratic politics that various institutions would interpret the Constitution and particularly the scope of their own powers in a different manner. Many times, the Parliament did not agree with the judicial interpretation and therefore, sought to amend the Constitution to overcome the ruling of the judiciary. In the period between 1970 and 1975 this situation arose frequently. In the chapter on the Judiciary, you have already studied the issues of difference between the Judiciary and the Parliament: one was the relationship between fundamental rights and directive principles, the other was the scope of right to private property and the third was the scope of Parliament’s power to amend the Constitution. In the period 1970-1975, the Parliament repeatedly made amendments to overcome the adverse interpretations by the judiciary. It may be kept in mind that during this period (1970- 75) many political events were unfolding and thus this history of our constitutional development can be fully understood only in the context of the politics of that period. You will know more about these issues in the next year when you study the political history of independent India.
Amendments through Political Consensus
Thirdly, there is another large group of amendments that have been made as a result of the consensus among the political parties. We may say that this consensus made it necessary that some changes had to be made in order to reflect the prevailing political philosophy and aspirations of the society. In fact, many of the amendments of the post-1984 period are instances of this trend. Remember our question above about the peculiarity that even when
there were coalition governments, this period saw so many amendments? The reason is because many of these amendments were based on an evolving consensus on certain issues. Starting with the anti-defection amendment (52nd amendment), this period saw a series of amendments in spite of the political turbulence. Apart from the anti-defection amendments (52nd and 91st) these amendments include the amendment bringing down the minimum age for voting from 21 to 18 years, the 73rd and the 74th amendments, etc. In this same period, there were some amendments clarifying and expanding the scope of reservations in jobs and admissions. After 1992-93, an overall consensus emerged in the country about these measures and therefore, amendments regarding these measures were passed without much difficulty (77th, 81st, and 82nd amendments).
Controversial Amendments
Our discussion so far, should not create an impression that there has never been any controversy over amending the Constitution. In fact, amendments during the period 1970 to 1980 generated a lot of legal and political controversy. The parties that were in opposition during the period 1971-1976, saw many of these amendments as attempts by the ruling party to subvert the Constitution. In particular, the 38th, 39th and 42nd amendments have been the most controversial amendments so far. These three amendments were made in the background of internal emergency declared in the country from June 1975. They sought to make basic
changes in many crucial parts of the Constitution. The 42nd amendment was particularly seen as a wideranging amendment affecting large parts of the Constitution. It was also an attempt to override the ruling of the Supreme Court given in the Kesavananda case. Even the duration of the Lok Sabha was extended from five to six years. In the chapter on Rights, you have read about fundamental duties. They were included in the Constitution by this amendment act. The 42nd amendment also put restrictions on the review powers of the Judiciary. It was said at that time that this amendment was practically a rewriting of many parts of the original Constitution. Do you know that this amendment made changes to the Preamble, t0 the seventh schedule of the Constitution and to 53 articles of the Constitution? Many MPs belonging to the opposition parties were in jail when this amendment was passed in the Parliament. In this backdrop, elections were held in 1977 and the ruling party (Congress) was defeated. The new government thought it necessary to reconsider these controversial
amendments and through the 43rd and 44th amendments, cancelled most of the changes that were effected by the 38th, 39th and the 42nd amendments. The constitutional balance was restored by these amendments.
BASIC STRUCTURE AND EVOLUTION OF THE CONSTITUTION
One thing that has had a long lasting effect on the evolution of the Indian Constitution is the theory of the basic structure of the Constitution. You know already that the Judiciary advanced this theory in the famous case of Kesavananda Bharati. This ruling has contributed to the
evolution of the Constitution in the following ways:
�� It has set specific limits to the Parliament’s power to amend the Constitution. It says that no amendment can violate the basic structure of the Constitution;
�� It allows the Parliament to amend any and all parts of the Constitution (within this limitation); and
�� It places the Judiciary as the final authority in deciding if an amendment violates basic structure and what constitutes the basic structure. The Supreme Court gave the Kesavananda ruling in 1973. In the past three decades, this decision has governed all interpretations of the Constitution and all institutions in the country have accepted the theory of basic structure. In fact, the theory of basic structure is itself an example of a living constitution. There is no
mention of this theory in the Constitution. It has emerged from judicial interpretation. Thus, the Judiciary and its interpretation have practically amended the Constitution without a formal amendment.All living documents evolve in this manner through debates, arguments, competition and practical politics. Since 1973, the Court has, in many cases, elaborated upon this theory of basic structure and given instances of what constitutes the basic structure of the Constitution of India. In a sense, the basic structure doctrine has further consolidated the balance between rigidity and flexibility: by saying that certain parts cannot be amended,
it has underlined the rigid nature while by allowing amendments to all others it has underlined the flexible nature of the amending process.
There are many other examples of how judicial interpretation changed our understanding of the Constitution. In many decisions the Supreme Court had held that reservations in jobs and educational institutions cannot exceed fifty per cent of the total seats. This has now become an accepted principle. Similarly, in the case involving reservations for other backward classes, the
Supreme Court introduced the idea of creamy layer and ruled that persons belonging to this category were not entitled to benefits under reservations. In the same manner, the Judiciary has contributed to an informal amendment by interpreting various provisions concerning
right to education, right to life and liberty and the right to form and manage minority educational institutions. These are instances of how rulings by the Court contribute to the evolution of the Constitution.
Review of the Constitution
In the late nineties, efforts were made to review the entire Constitution. In the year 2000 a commission to review the working of the Constitution was appointed by the Government of India under the chairmanship of a retired Chief Justice of the Supreme Court, Justice Venkatachaliah. Opposition parties and many other organisations boycotted the commission. While a lot of political controversy surrounded this commission, the commission stuck to the
theory of basic structure and did not suggest any measures that would endanger the basic
structure of the Constitution. This shows the significance of the basic structure doctrine
in our constitutional practice.
CONSTITUTION AS A LIVING DOCUMENT
We have described our Constitution as a living document. What does that mean? Almost like a living being, this document keeps responding to the situations and circumstances arising from time to time. Like a living being, the Constitution responds to experience. In fact that is the answer to the riddle we mentioned at the beginning about the durability of the Constitution. Even after so many changes in the society, the Constitution continues to work effectively because of this ability to be dynamic, to be open to interpretations and the ability to
respond to the changing situation. This is a hallmark of a democratic constitution. In a democracy, practices and ideas keep evolving over time and the society engages in experiments according to these. A constitution, which protects democracy and yet allows for evolution
of new practices becomes not only durable but also the object of respect from the citizens. The important point is: has the Constitution been able to protect itself and protect democracy?
In the last fifty five years some very critical situations arose in the politics and constitutional development of the country. We have made a brief reference to some of these in this chapter already. In terms of constitutional-legal issues, the most serious question that came up again and again from 1950 was about the supremacy of the Parliament. In a parliamentary democracy, the Parliament represents the people and therefore, it is expected to have an upper hand over both Executive and Judiciary. At the same time, there is the text of the Constitution and it has given powers to other organs of the government. Therefore, the supremacy of the
Parliament has to operate within this framework. Democracy is not only about votes and people’s representation. It is also about the principle of rule of law. Democracy is also about developing institutions and working through these institutions. All the political institutions must be responsible to the people and maintain a balance with each other.
Contribution of the Judiciary
During the controversy between the Judiciary and the Parliament, the Parliament thought that it had the power and responsibility to make laws (and amendments) for furthering the interests of the poor, backward and the needy. The Judiciary insisted that all this has to take place
within the framework provided by the Constitution and pro-people measures should not bypass legal procedures, because, once you bypass laws even with good intentions, that can give an excuse to the power holders to use their power arbitrarily. And democracy is as much about
checks on arbitrary use of power as it is about the well-being of the people. The success of the working of the Indian Constitution lies in resolving these tensions. The Judiciary, in its
famous Kesavananda ruling found a way out of the existing complications by turning to the spirit of the Constitution rather than its letter. If you read the Constitution, you will not find any mention of the ‘basic structure’ of the Constitution. Nowhere does the Constitution say that such and such are part of the basic structure. In this sense, the ‘basic structure’ theory is the
invention of the Judiciary. How did it invent such a nonexistent thing? And how is it that all other institutions have accepted this during the past three decades? Therein lies the distinction between letter and spirit. The Court came to the conclusion that in reading a text or document, we must respect the intent behind that document. A mere text of the law is less important than
the social circumstances and aspirations that have produced that law or document. The Court was looking at the basic structure as something without which the Constitution cannot be imagined at all. This is an instance of trying to balance the letter and the spirit of the
Constitution.
Maturity of the Political Leadership
Our discussion of the role of Judiciary, in the paragraph above, brings out one more fact. In the background of the fierce controversy that raged between 1967 and 1973, the Parliament and the Executive also realised that a balanced and long term view was necessary. After the Supreme Court gave the ruling in the Kesavananda case some attempts were made to ask the Court to reconsider its ruling. When these failed, the 42nd amendment was made and parliamentary supremacy was asserted. But the Court again repeated its earlier stand in the Minerva Mills case (1980). Therefore, even three decades after the ruling in the Kesavananda case, this ruling has dominated our interpretation of the Constitution. Political parties, political leaders, the government, and the Parliament, accepted the idea of inviolable basic structure. Even when
there was talk about ‘review’ of the Constitution, that exercise could not cross the limits set by the theory of the basic structure.When the Constitution was made, leaders and people
of our country shared a common vision of India. In Nehru’s famous speech at the time of independence, this vision was described as a tryst with destiny. In the Constituent Assembly also, all the leaders mentioned this vision: dignity and freedom of the individual, social and economic equality, well-being of all people, unity based on national integrity. This vision has not disappeared. People and leaders alike hold to the vision and hope to realize it. Therefore, the Constitution, based on this vision, has remained an object of respect and authority even
after half a century. The basic values governing our public imagination remain intact.
Conclusion
There can still be debates about what constitutes basic structure. There is nothing wrong in such debates. We must remember that politics in a democracy is necessarily full of debates and
differences. That is a sign of diversity, liveliness and openness. Democracy welcomes debates. At the same time, our political parties and leadership have shown maturity in setting limits to
these debates. Because, politics is also about compromises and give-and-take. Extreme positions may be theoretically very correct and ideologically very attractive, but politics demands that everyone is prepared to moderate their extreme views, sharp positions and reach a common minimum ground. Only then democratic politics becomes possible. Politicians and the people of India have understood and practised these skills. That has made the experience of working of the democratic Constitution quite successful. Among the different organs of the government, there will always be competition over which one is more important than the others. They will also always fight over what constitutes the welfare of the people. But in the last instance, the final authority lies with the people. People, their freedoms and their
well-being constitute the purpose of democracy and also the outcome of democratic politics.
LOCAL GOVERNMENTS
INTRODUCTION
In a democracy, it is not sufficient to have an elected government at the centre and at the State level. It is also necessary that even at the local level, there should be an elected government to look after local affairs. In this chapter, you will study the structure of local government in our country. You will also study the importance of the local governments and ways to give them independent powers. After studying this chapter, you will know:
�� the importance of local government bodies;
�� the provisions made by the 73rd and 74th amendments; and
�� functions and responsibilities of the local government bodies.
WHY LOCAL GOVERNMENTS?
Geeta Rathore belongs to Jamonia Talab Gram Panchayat, Sehore district, Madhya Pradesh. She was elected Sarpanch in 1995 from a reserved seat; but in 2000, the village people rewarded her for her admirable work by electing her again - this time from a non-reserved
seat. From a housewife, Geeta has grown into a leader displaying political farsightedness - she has harnessed the collective energy of her Panchayat to renovate water tanks, build a school building, construct village roads, fight against domestic violence and atrocities against women, create environmental awareness, and encourage afforestation and water management in her village. —Panchayati Raj Update Vol. XI, No 3 February 2004.
There is another story of yet another woman achiever. She was the President (Sarpanch) of a Gram Panchayat of Vengaivasal village in Tamil Nadu. In 1997, the Tamil Nadu government allotted two hectares of land to 71 government employees. This piece of land fell within the vicinity of this Gram Panchayat. On the instructions of higher authorities the District Collector of Kancheepuram directed the President of the Gram Panchayat to pass a resolution endorsing
the allotment of the said land for the purpose already decided. The President and the Gram Panchayat refused to pass such an order and the Collector issued an order to acquire the land. The Gram Panchayat filed a writ petition in the Madras High Court against the Collector’s action. The single judge bench of the High Court upheld the Collector’s order and ruled that there was no need to take the Panchayat’s consent. The Panchayat appealed to the Division bench against the single judge’s order. In its order, the Division Bench reversed the order of the single judge. The judges held that the government order amounted to not only infringement of the powers of the Panchayats but a gross violation of the constitutional status of the Panchayats. —, Panchayati Raj Update, Vol. 12: Vol. XII, June 2005
Both these stories are not isolated incidents. They are representative of a larger transformation that is taking place across India especially after constitutional status was accorded to local government institutions in 1993.
Local government is government at the village and district level. Local government is about government closest to the common people. Local government is about government that involves the day-to-day life and problems of ordinary citizens. Local government believes that local knowledge and local interest are essential ingredients for democratic decision making. They are also necessary for efficient and people-friendly administration. The advantage of local government is that it is so near the people. It is convenient for the people to approach the
local government for solving their problems both quickly and with minimum cost. In the story of Geeta Rathore, we noticed that she was able to bring about a significant change in Jamonia Talab because of her pro-active role as Sarpanch of the Gram Panchayat. Vengaivasal village
is able to still retain its land and the right to decide what to do with it because of the relentless efforts of its Gram Panchayat President and members. So, local governments can be very effective in protecting the local interests of the people. Democracy is about meaningful participation. It is also about accountability. Strong and vibrant local governments ensure both active participation and purposeful accountability. Geeta Rathore’s story is one of committed participation. Vengaivasal village Gram Panchayat’s relentless efforts to secure its rights over its own land were an example of a mission to ensure accountability. It is at the level of local government that common citizens can be involved in decision making concerning their lives, their needs and above all their development. It is necessary that in a democracy, tasks, which can be performed locally, should be left in the hands of the local people and their representatives. Common people are more familiar with their local government than with
the government at the State or national level. They are also more concerned with what local government does or has failed to do as it has a direct bearing and impact on their day-to-day life. Thus, strengthening local government is like strengthening democratic processes.
GROWTH OF LOCAL GOVERNMENT IN INDIA
Let us now discuss how local government has grown in India and what our Constitution says about it. It is believed that self-governing village communities existed in India from the earliest times in the form of ‘sabhas’ (village assemblies). In the course of time, these village bodies took the shape of Panchayats (an assembly of five persons) and these Panchayats resolved issues at the village level. Their role and functions kept on changing at different points of time.
In modern times, elected local government bodies were created after 1882. Lord Rippon, who was the Viceroy of India at that time, took the initiative in creating these bodies. They were called the local boards. However, due to slow progress in this regard, the Indian National
Congress urged the government to take necessary steps to make all local bodies more effective. Following the Government of India Act 1919, village panchayats were established in a number of provinces. This trend continued after the Government of India Act of 1935. During India’s freedom movement, Mahatma Gandhi had strongly pleaded for decentralisation of economic and political power. He believed that strengthening village panchayats was a means of effective decentralisation. All development initiatives must have local involvement in order to be successful. Panchayats therefore were looked upon as instruments of decentralisation and participatory democracy. Our national movement was concerned about the enormous
concentration of powers in the hands of the Governor General sitting at Delhi. Therefore, for our leaders, independence meant an assurance that there will be decentralisation of decision making, executive and administrative powers. The independence of India should mean the independence of the whole of India…Independence must begin at the bottom. Thus every village will be a republic... It follows therefore that every village has to be self-sustained and
capable of managing its affairs. In this structure composed of innumerable villages, there will be everwidening, ever-ascending circles. Life will be a pyramid with the apex sustained by the bottom - Mahatma Gandhi When the Constitution was prepared, the subject of local government was assigned to the States. It was also mentioned in the Directive Principles as one of the policy directives to all governments in the country. As you have read in Chapter 2, being a part of the Directive Principles of State Policy, this provision of the Constitution
was non-justiciable and primarily advisory in its nature. It is felt that the subject of local government including panchayats did not receive adequate importance in the Constitution. Do you know why this happened? A few reasons can be advanced here. Firstly, the turmoil due to the Partition resulted in a strong unitary inclination in the Constitution. Nehru himself looked upon extreme localism as a threat to unity and integration of the nation. Secondly, there was a powerful voice in the Constituent Assembly led by Dr. B.R. Ambedkar which felt that the faction and caste-ridden nature of rural society would defeat the noble purpose of local government at the rural level. However, nobody denied the importance of people’s participation in development planning. Many members of the Constituent Assembly wanted Village Panchayats to be the basis of democracy in India but they were concerned about factionalism and many other ills present in the villages.
Local Governments in Independent India
Local governments got a fillip after the 73rd and 74th Constitution Amendment Acts. But even before that, some efforts in the direction of developing local government bodies had already taken place. First in the line was the Community Development Programme in 1952, which
sought to promote people’s participation in local development in a range of activities. In this background, a three-tier Panchayati Raj system of local government was recommended for the rural areas. Some States (like Gujarat, Maharashtra) adopted the system of elected local bodies
around 1960. But in many States those local bodies did not have enough powers and functions to look after the local development. They were very much dependent on the State and central governments for financial assistance. Many States did not think it necessary to establish elected
local bodies. In many instances, local bodies were dissolved and the local government was handed over to government officers. Many States had indirect elections to most local bodies. In many States, elections to the local bodies were postponed from time to time. After 1987, a thorough review of the functioning of local government institutions was initiated. In 1989 the P.K.Thungon Committee recommended constitutional recognition for the local government bodies. A constitutional amendment to provide for periodic elections to local government institutions, and enlistment of appropriate functions to them, along with funds, was recommended.
73RD AND 74TH AMENDMENTS
In 1989, the central government introduced two constitutional amendments. These amendments aimed at strengthening local governments and ensuring an element of uniformity in their structureand functioning across the country. Later in 1992, the 73rd and 74th constitutional amendments were passed by the Parliament. The 73rd Amendment is about rural local governments (which are also known as Panchayati Raj Institutions or PRIs) and the 74th amendment made the provisions relating to urban local government (Nagarpalikas). The 73rd and 74th Amendments came into force in 1993. We have noticed earlier that local government is a ‘State subject‘. States are free to make their own laws on this subject. But once the Constitution was amended, the States had to change their laws about local bodies in order to bring these in conformity with the amended Constitution. They were given one year’s time for making necessary changes in their respective State laws in the light of these amendments.
73rd Amendment
Let us now examine the changes brought about by the 73rd amendment in Panchayati Raj institutions.
Three Tier Structure
All States now have a uniform three tier Panchayati Raj structure. At the base is the ‘Gram Panchayat‘. A Gram Panchayat covers a village or group of villages. The intermediary
level is the Mandal (also referred to as Block or Taluka). These bodies are called Mandal or Taluka Panchayats. The intermediary level body need not be constituted in smaller States. At the apex is the Zilla Panchayat covering the entire rural area of the District. The amendment also made a provision for the mandatory creation of the Gram Sabha. The Gram Sabha would comprise of all the adult members registered as voters in the Panchayat area. Its role and functions are decided by State legislation.
Elections
All the three levels of Panchayati Raj institutions are elected directly by the people. The term of each Panchayat body is five years. If the State government dissolves the Panchayat before the end of its five year term, fresh elections must be held within six months of such dissolution. This is an important provision that ensures the existence of elected local bodies. Before the 73rd amendment, in many States, there used to be indirect elections to the district bodies and there was no provision for immediate elections after dissolution.
Reservations
One third of the positions in all panchayat institutions are reserved for women. Reservations for Scheduled Castes and Scheduled Tribes are also provided for at all the three levels, in proportion to their population. If the States find it necessary, they can also provide for reservations for the backward castes (OBCs). It is important to note that these reservations apply not merely to ordinary members in Panchayats but also to the positions of Chairpersons or ‘Adhyakshas‘ at all the three levels. Further, reservation of one-third of the seats for women is not merely in the general category of seats but also within the seats reserved for Scheduled
Castes, Scheduled Tribes and backward castes. This means that a seat may be reserved simultaneously for a woman candidate and one belonging to the Scheduled Castes or Scheduled Tribes. Thus, a Sarpanch would have to be a Dalit woman or an Adivasi woman.
Transfer of Subjects
Twenty-nine subjects, which were earlier in the State list of subjects, are identified and listed in the Eleventh Schedule of the Constitution. These subjects are to be transferred to the Panchayati Raj institutions. These subjects were mostly linked to development and welfare
functions at the local level. The actual transfer of these functions depends upon the State legislation. Each State decides how many of these twenty-nine subjects would be transferred to the local bodies.
Some subjects listed in the eleventh schedule
1. Agriculture, …
3. Minor irrigation, water management and
watershed development.
….
8. Small scale industries, including food
processing industries.
…..
10. Rural housing.
11. Drinking water.
.....
13. Roads, culverts,….
14. Rural electrification,….
.....
16. Poverty alleviation programme.
17. Education, including primary and
secondary schools.
18. Technical training and vocational
education.
19. Adult and non-formal education.
20. Libraries.
21. Cultural activities.
22. Markets and fairs.
23. Health and sanitation, including hospitals,
primary health centres and dispensaries.
24. Family welfare.
25. Women and child development.
26. Social welfare, …
27. Welfare of the weaker sections, and in
particular, of the Scheduled Castes and the
Scheduled Tribes.
28. Public distribution system.
...…
Article 243G. Powers, authority and
responsibilities of Panchayats.—………, the
Legislature of a State may, by law, endow
the Panchayats with such powers and
authority……. …with respect to—…...the
matters listed in the Eleventh Schedule.
The provisions of the 73rd amendment were not made applicable to the areas inhabited by the Adivasi populations in many States of India. In 1996, a separate act was passed extending the provisions of the Panchayat system to these areas. Many Adivasi communities have their traditional customs of managing common resources such as forests and small water reservoirs, etc. Therefore, the new act protects the rights of these communities to manage their resources in ways acceptable to them. For this purpose, more powers are given to the Gram Sabhas
of these areas and elected village panchayats have to get the consent of the Gram Sabha in many respects. The idea behind this act is that local traditions of self government should be protected while introducing modern elected bodies. This is only consistent with the spirit of diversity and decentralisation.
State Election Commissioners
The State government is required to appoint a State Election Commissioner who would be responsible for conducting elections to the Panchayati Raj institutions. Earlier, this task was performed by the State administration which was under the control of the State government. Now, the office of the State Election Commissioner is autonomous like the Election Commissioner of India. However, the State Election Commissioner is an independent officer and is not linked to nor is this officer under the control of the Election Commission of India.
State Finance Commission
The State government is also required to appoint a State Finance Commission once in five years. This Commission would examine the financial position of the local governments in the State. It would also review the distribution of revenues between the State and local governments on the one hand and between rural and urban local governments on the other. This innovation ensures that allocation of funds to the rural local governments will not be a political matter.
74th Amendment
As we mentioned earlier, the 74th amendment dealt with urban local bodies or Nagarpalikas.
What is an urban area? It is very easy to identify a big city like Mumbai or Kolkata, but it is not so easy to say this about some very small urban areas that are somewhere between a village and a town. The Census of India defines an urban area as having: (i) a minimum population of 5000; (ii) at least 75 per cent of male working population engaged in non-agricultural occupations and (iii) a density of population of at least 400 persons per sq. km. As per the 2001 census, nearly 28% of India’s population lives in urban areas. In many ways the 74th amendment is a repetition of the 73rd amendment, except that it applies to urban areas.
All the provisions of the 73rd amendment relating to direct elections, reservations, transfer of subjects, State Election Commission and State Finance Commission are incorporated in the 74th amendment also and thus apply to Nagarpalikas. The Constitution also mandated the
transfer of a list of functions from the State government to the urban local bodies. These functions have been listed in the Eleventh Schedule of the Constitution.
IMPLEMENTATION OF 73RD AND 74TH AMENDMENTS
All States have now passed a legislation to implement the provisions of the 73rd and 74th amendments. During the ten years since these amendments came into force (1994- 2004) most States have had at least two rounds of elections to the local bodies. States like Madhya Pradesh, Rajasthan and a few others have in fact held three elections so far. Today there are nearly 500 Zilla Panchayats, about 6,000 block or intermediary Panchayats, and 2,50,000
Gram Panchayats in rural India and over 100 city Corporations, 1400 town Municipalities and over 2000 Nagar Panchayats in urban India. More than 32 lakh members are elected to these
bodies every five years. Of these, at least 10 lakhs are women. In the State Assemblies and Parliament put together we have less than 5000 elected representatives. With local bodies, the number of elected representatives has increased significantly. The 73rd and 74th amendments have created uniformity in the structures of Panchayati Raj and Nagarpalika institutions
across the country. The presence of these local institutions is by itself a significant achievement and would create an atmosphere and platform for people’s participation in government.
The provision for reservation for women at the Panchayats and Nagarpalikas has ensured the presence of a significant number of women in local bodies. As this reservation is also applicable for the positions of Sarpanch and Adhyaksha, a large number of women elected representatives have come to occupy these positions. There are at least 200 women Adhyakshas in Zilla Panchayats, another 2000 women who are Presidents of the block or taluka panchayats
and more than 80,000 women Sarpanchas in Gram Panchayats. We also have more than 30 women Mayors in Corporations, over 500 women Adhyakshas of Town Municipalities and nearly 650 Nagar Panchayats headed by women. Women have gained more power and
confidence by asserting control over resources. Their presence in these institutions has given many women a greater understanding of the working of politics. In many cases, they have brought a new perspective and a greater sensitivity to discussions at local bodies. In many cases, women were unable to assert their presence or were mere proxies for the male members of their family who sponsored their election. Such instances, however are becoming fewer.
While reservations for Scheduled Castes and Tribes are mandated by the constitutional amendment, most States have also made a provision to reserve seats for Backward Castes. As the Indian population has 16.2 per cent Scheduled Castes and 8.2 per cent Scheduled Tribes, about 6.6 lakh elected members in the urban and local bodies hail from these two communities. This has significantly altered the social profile of local bodies. These bodies have thus become more representative of the social reality they operate within. Sometimes this leads to
tensions. The dominant social groups which controlled the village earlier do not wish to give up their power. This leads to intensification of struggle for power. But tension and struggle is not always bad. Whenever there is an attempt to make democracy more meaningful and give
power to those who did not enjoy it earlier, there is bound to be some conflict and tension in society. The Constitutional amendments assigned as many as 29 subjects to the local governments. All these subjects are related to functions linked to local welfare and development needs. The experience with the functioning of local government in the past decade has shown that local governments in India enjoy limited autonomy to perform the functions assigned to them. Many States have not transferred most of the subjects to the local bodies. This means that the local bodies cannot really function in an effective manner. Therefore, the entire exercise of electing so many representatives becomes somewhat
symbolic. Some people criticise the formation of the local bodies because this has not changed the way in which decisions are taken at the central and the State level. People at the local level do not enjoy much powers of choosing welfare programmes or allocation of resources. So, the law is good but it is mostly on paper.
Bolivia is frequently cited as one of the most successful cases of democratic decentralisation in Latin America. In 1994, the Popular Participation Law decentralised power to the local level,
allowing for the popular election of mayors, dividing the country into municipalities, and crafting a system of automatic fiscal transfers to the new municipalities. Bolivia is divided into 314 municipal governments. These governments in Bolivia are headed by popularly-elected mayors (presidente municipal) and a municipal council (cabildo). Local elections occur nationwide every five years.
Local bodies have very little funds of their own. The dependence of local bodies on the State and central governments for financial support has greatly eroded their capacity to operate effectively. While rural local bodies raise 0.24% of the total revenues collected, they account for 4% of the total expenditure made by the government. So they earn much less than they spend. That makes them dependent on those who give them grants.
Conclusion
This experience suggests that local governments continue to be agencies implementing the welfare and development schemes of the central and State government. Giving more power to local government means that we should be prepared for real decentralisation of power. Ultimately, democracy means that power should be shared by the people; people in the villages
and urban localities must have the power to decide what policies and programmes they want to adopt. As you have studied earlier, democracy means decentralisation of power and giving more and more power to the people. The laws about local governments are an important step in the direction of democratisation. But the true test of democracy is not merely in the legal provisions but in the practice of those provisions. Bolivian local governments have been entrusted with building local health and education facilities, as well as maintenance of this infrastructure. In Bolivia, 20% of nationwide tax collections are distributed among municipalities on a per capita basis. While these municipalities may levy taxes on motor vehicles, urban property, and large agricultural properties, fiscal transfers provide the bulk of the operating budget for these units.
indian Constitution - Chapter 7
INTRODUCTION
Look at the political maps (on next two pages) of India 1947 and 2001. They have changed dramatically over the years. Boundaries of States have changed, names of States have changed, and the number of States has changed. When India became independent, we had a number of provinces that the British government had organised only for administrative convenience. Then a number of princely states merged with the newly independent Indian union. These were joined to the existing provinces. This is what you see in the first map. Since then boundaries of States have been reorganised many times. During this entire period, not only did boundaries of State change, but in some cases, even their names changed according to the wishes of the people of those States. Thus, Mysore changed to Karnataka and Madras became Tamil Nadu. The maps show these large scale changes that have taken place in the span of over fifty years. In
a way, these maps also tell us the story of functioning of federalism in India. After studying this chapter you will be able to understand the following:
�� what is Federalism;
�� the federal provisions in the Indian Constitution;
�� the issues involved in the relations between the centre and the States; and
�� the special provisions for certain States having a distinct composition and historical features.
WHAT IS FEDERALISM?
USSR was one of the world’s super powers, but after 1989 it simply broke up into several independent countries. One of the major reasons for its break up was the excessive centralisation and concentration of power, and the domination of Russia over other regions with independent languages and cultures of their own e.g. Uzbekistan. Some other
countries like Czechoslovakia, Yugoslavia, and Pakistan also had to face a division of the country. Canada came very close to a break up between the English–speaking and the French-speaking regions of that country. Isn’t it a great achievement that India, which emerged as an independent nation-state in 1947 after a painful partition, has remained united over six decades of its independent existence? What accounts for this achievement? Can we attribute it to the federal structure of governance that we in India adopted through our Constitution? All the countries mentioned above, were federations. Yet they could not remain united. Therefore, apart from adopting a federal constitution, the nature of that federal system and the practice of federalism must also be important factors.
Federalism in West Indies
You may have heard about the cricket team of West Indies. But is there a country called West Indies? Like India, West Indies was also colonised by the British. In 1958, the federation of West Indies came into being. It had a weak central government and the economy of each unit
was independent. These features and political competition among the units led to the formal dissolution of the federation in 1962. Later, in 1973 by Treaty of Chiguaramas the independent islands established joint authorities in the form of a common legislature, supreme court, a
common currency, and, to a degree, a common market known as the Caribbean Community. The Caribbean Community has even a common executive, and Heads of the governments of
member countries are members of this executive. Thus, the units could neither live together as one country, nor can they live separately!
India is a land of continental proportions and immense diversities. There are more than 20 major languages and several hundred minor ones. It is the home of several major religions. There are several million indigenous peoples living in different parts of the country. In spite of all these diversities we share a common land mass. We have also participated in a common history, especially, when we fought for independence. We also share many other important features. This has led our national leaders to visualise India as a country where there is unity in
diversity. Sometimes it is described as unity with diversity. Federalism does not consist of a set of fixed principles, which are applied, to different historical situations. Rather, federalism as a principle of government has evolved differently in different situations. American federalism –
one of the first major attempts to build a federal polity – is different from German or Indian federalism. But there are also a few key ideas and concepts associated with federalism.
�� Essentially, federalism is an institutional mechanism to accommodate two sets of polities—one at the regional level and the other at the national level. Each government is autonomous in its own sphere. In some federal countries, there is even a system of dual citizenship. India has only a single citizenship.
�� The people likewise, have two sets of identities and loyalties—they belong to the region as well as the nation, for example we are Gujaratis or Jharkhandis as well as Indians. Each level of the polity has distinct powers and responsibilities and has a separate system of government.
�� The details of this dual system of government are generally spelt out in a written constitution, which is considered to be supreme and which is also the source of the power of both sets of government. Certain subjects, which concern the nation as a whole, for example, defence or currency, are the responsibility of the union or central government. Regional or local matters are the responsibility of the regional or State government.
�� To prevent conflicts between the centre and the State, there is an independent judiciary to settle disputes. The judiciary has the powers to resolve disputes between the central government and the States on legal matters about the division of power. Real politics, culture, ideology and history determine the actual working of a federation. A culture of trust, cooperation, mutual respect and restraint helps federations to function smoothly. Political parties also determine the way a constitution would work. If any single unit or State or linguistic group or ideology comes to dominate the entire federation it could generate a deep resentment among people or its units not sharing the dominant voice. These situations could lead to demands for secession by the aggrieved units or could even result in civil wars. Many countries are embroiled in such conflict situations.
Federalism in Nigeria
If the regions and various communities do not trust each other, even a federal arrangement can fail to produce unity. The example of Nigeria is instructive:
Till 1914, Northern and Southern Nigeria were two separate British colonies. At the Ibadan Constitutional Conference of 1950 Nigerian leaders decided to form a federal constitution. The three major ethnic groups of Nigeria—Yoruba, Ibo and Hausa-Fulani—controlled the regions of the West, the East and the North respectively. Their attempt to spread their influence to other regions led to fears and conflicts. These led to a military regime. In the 1960 constitution, both federal and regional governments jointly controlled the Nigerian police. In the military-supervised constitution of 1979, no state was allowed to have any civil police. Though democracy was restored in Nigeria in 1999, religious differences along with conflicts over who will control revenues from the oil resources continue to present problems before the Nigerian federation. Local ethnic communities resist centralised control of the oil resources. Thus, Nigeria is an example of overlap of religious, ethnic and economic differences among the units.
FEDERALISM IN THE INDIAN CONSTITUTION
Even before Independence, most leaders of our national movement were aware that to govern a large country like ours, it would be necessary to divide the powers between provinces and the central government. There was also awareness that Indian society had regional diversity and
linguistic diversity. This diversity needed recognition. People of different regions and languages had to share power and in each region, people of that region should govern themselves. This was only logical if we wanted a democratic government. The only question was what should be the extent of powers to be enjoyed by the regional governments. In view of the agitation of the Muslim League for greater representation to the Muslims, a compromise formula to give very large powers to the regions was discussed during the negotiations before Partition. Once the decision to partition India was taken, the Constituent Assembly decided to frame a government that would be based on the principles of unity and cooperation between the centre and the States and separate powers to the States. The most important feature of the federal system adopted by the Indian Constitution is the principle that relations between the States and the centre would be based on cooperation. Thus, while recognising diversity, the Constitution emphasised unity.
Do you know for example, that the Constitution of India does not even mention the word federation? This is how the Constitution describes India —
Article 1: (1) India, that is Bharat, shall be a Union of States. (2) The States and the territories
thereof shall be as specified in the First Schedule.
Division of Powers
There are two sets of government created by the Indian Constitution: one for the entire nation called the union government (central government) and one for each unit or State called the State government. Both of these have a constitutional status and clearly identified area of activity. If there is any dispute about which powers come under the control of the union and which under the States, this can be resolved by the Judiciary on the basis of the constitutional provisions. The Constitution clearly demarcates subjects, which are under the exclusive
domain of the Union and those under the States. One of the important aspects of this division of powers is that economic and financial powers are centralised in the hands of the central government by the Constitution. The States have immense responsibilities but very meagre
revenue sources.
FEDERALISM WITH A STRONG CENTRAL GOVERNMENT
It is generally accepted that the Indian Constitution has created a strong central government. India is a country of continental dimensions with immense diversities and social problems. The
framers of the Constitution believed that we required a federal constitution that would accommodate diversities. But they also wanted to create a strong centre to stem disintegration and bring about social and political change. It was necessary for the centre to have such powers because India at the time of independence was not only divided into provinces created by the British; but there were more than 500 princely states which had to be integrated into existing
States or new States had to be created.
Besides the concern for unity, the makers of the Constitution also believed that the socio-economic problems of the country needed to be handled by a strong central government in cooperation with the States. Poverty, illiteracy and inequalities of wealth were some of
the problems that required planning and coordination. Thus, the concerns for unity and development prompted the makers of the Constitution to create a strong central government.
Let us look at the important provisions that create a strong central government:
�� The very existence of a State including its territorial integrity is in the hands of Parliament. The Parliament is empowered to ‘form a new State by separation of territory from any State or by uniting two or more States…’. It can also alter the boundary of any State or even its name. The Constitution provides for some safeguards by way of securing the view of the concerned State legislature.
�� The Constitution has certain very powerful emergency provisions, which can turn our federal polity into a highly centralised system once emergency is declared. During an emergency, power becomes lawfully centralised. Parliament also assumes the power to make laws on subjects within the jurisdiction of the States.
�� Even during normal circumstances, the central government has very effective financial powers and responsibilities. In the first place, items generating revenue are under the control of the central government. Thus, the central government has many revenue sources and the States are mostly dependent on the grants and financial assistance from the centre. Secondly, India adopted planning as the instrument of rapid economic progress and development after
independence. Planning led to considerable centralisation of economic decision making. Planning commission appointed by the union government is the coordinating machinery that controls and supervises the resources management of the States. Besides, the Union government uses its discretion to give grants and loans to States. This distribution of
economic resources is considered lopsided and has led to charges of discrimination against States ruled by an opposition party.
�� As you will study later, the Governor has certain powers to recommend dismissal of the State government and the dissolution of the Assembly. Besides, even in normal circumstances, the Governor has the power to reserve a bill passed by the State legislature, for the assent of the President. This gives the central government an opportunity to delay the State legislation and also to examine such bills and veto them completely.
�� There may be occasions when the situation may demand that the central government needs to legislate on matters from the State list. This is possible if the move is ratified by the Rajya Sabha. The Constitution clearly states that executive powers of the centre are superior to the executive powers of the States. Furthermore, the central government may choose to give instructions to the State government. The following extract from an article of the Constitution
makes this clear.
Article 257 (1): The executive power of every State shall be so exercised as not to impede or
prejudice the exercise of the executive power of the Union, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.
�� You have already studied in the chapter on executive that we have an integrated administrative system. The all-India services are common to the entire territory of India and officers chosen for these services serve in the administration of the States. Thus, an IAS officer
who becomes the collector or an IPS officer who serves as the Commissioner of Police, are under the control of the central government. States cannot take disciplinary action nor can they remove these officers from service.
�� Articles 33 and 34 authorise the Parliament to protect persons in the service of the union or a state in respect of any action taken by them during martial law to maintain or restore order. This provisions further strengthens the powers of the union government. The Armed Forces Special Powers Act has been made on the basis of these provisions. This Act has created tensions between the people and the armed forces on some occasions.
CONFLICTS IN INDIA’S FEDERAL SYSTEM
In the previous section, we have seen that the Constitution has vested very strong powers in the centre. Thus, the Constitution recognises the separate identity of the regions and yet gives more powers to the centre. Once the principle of identity of the State is accepted, it is quite natural that the States would expect a greater role and powers in the governance of the State and the country as a whole. This leads to various demands from the States. From time to time, States have demanded that they should be given more powers and more autonomy. This leads to tensions and conflicts in the relations between the centre and the States. While the legal disputes between the centre and the States (or between States) can be resolved by the judiciary,
demands for autonomy are of political nature and need to be resolved through negotiations.
Centre-State Relations
The Constitution is only a framework or a skeleton, its flesh and blood is provided by the actual processes of politics. Hence federalism in India has to a large extent been influenced by the
changing nature of the political process. In the 1950s and early 1960s the foundation of our federalism was laid under Jawaharlal Nehru. It was also a period of Congress dominance over the centre as well as the States. Except on the issue of formation of new States, the relations
between the centre and the States remained quite normal during this period. The States were hopeful that they would be making progress with the help of the grants-in-aid from the centre. Besides, there was considerable optimism about the policies of socio-economic development designed by the centre. In the middle of the 1960s Congress dominance declined somewhat and in a large number of States opposition parties came to power. It resulted in demands for greater powers and greater autonomy to the States. In fact, these demands were a direct fallout of the fact that different parties were ruling at the centre and in many States. So, the State governments were protesting against what they saw as unnecessary interference in their
governments by the Congress government at the centre. The Congress too, was not very comfortable with the idea of dealing with governments led by opposition parties. This peculiar political context gave birth to a discussion about the concept of autonomy under a federal system. Finally, since the 1990s, Congress dominance has largely ended and we have entered an era of coalition politics especially at the centre. In the States too, different parties, both national and regional, have come to power. This has resulted in a greater say for the States, a respect for diversity and the beginning of a more mature federalism. Thus, it is in the second phase that the issue of autonomy became very potent politically.
Demands for Autonomy
Many States and even many political parties have, from time to time, demanded that States should have more autonomy vis-à-vis the central government. However, ‘autonomy’ refers to different things for different States and parties.
�� Sometimes, these demands expect that the division of powers should be changed in favour of the States and more powers and important powers be assigned to the States. Many States (Tamil Nadu, Punjab, West Bengal,) and many parties (DMK, Akali Dal, CPI-M) have made
demands of autonomy from time to time.
�� Another demand is that States should have independent sources of revenue and greater control over the resources. This is also known as financial autonomy. In 1977 the Left Front Government in West Bengal brought out a document demanding a restructuring of centre-State
relations in India. In the autonomy demands of Tamil Nadu and Punjab also, there was an implicit support to the idea of greater financial powers.
�� The third aspect of the autonomy demands relates to administrative powers of the States. States resent the control of the centre over the administrative machinery.
�� Fourthly, autonomy demands may also be related to cultural and linguistic issues. The opposition to the domination of Hindi (in Tamil Nadu) or demand for advancing the Punjabi language and culture are instances of this. Some States also feel that there is a domination of the Hindi-speaking areas over the others. In fact, during the decade of 1960, there were
agitations in some States against the imposition of the Hindi language.
Role of Governors and President’s Rule
The role of Governors has always been a controversial issue between the States and the central government. The Governor is not an elected office holder. Many Governors have been retired military officers or civil servants or politicians. Besides, the Governor is appointed by the central government and therefore, actions of the Governor are often viewed as interference by the Central government in the functioning of the State government. When two different parties are in power at the centre and the State, the role of the Governor becomes even more
controversial. The Sarkaria Commission that was appointed by the central government
(1983; it submitted its report in 1988) to examine the issues relating to centre-State
relations, recommended that appointments of Governors should be strictly non-partisan.
Powers and role of the Governor become controversial for one more reason. One of the
most controversial articles in the Constitution is Article 356, which provides for President’s rule in any State. This provision is to be applied, when ‘a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this
Constitution.’ It results in the takeover of the State government by the Union government. The President’s proclamation has to be ratified by Parliament. President’s rule can be extended till three years. The Governor has the power to recommend the dismissal of the State government and suspension or dissolution of State assembly. This has led to many conflicts. In some cases, State governments were dismissed even when they had a majority in the legislature, as had
happened in Kerala in 1959 or without testing their majority, as happened in several other States after 1967. Some cases went to the Supreme Court and the Court has ruled that constitutional validity of the decision to impose President’s rule can be examined by the
judiciary. Article 356 was very sparingly used till 1967. After 1967 many States had non-
Congress governments and the Congress was in power at the centre. The centre has often
used this provision to dismiss State governments or has used the office of the Governor to
prevent the majority party or coalition from assuming office. For instance, the central
government removed elected governments in Andhra Pradesh and Jammu and Kashmir in the decade of 1980.
Demands for New States
The other dimension of tension in our federal system has been the demand to create new
States. The national movement not only created a pan-Indian national unity; it also generated
distinct unity around a common language, region and culture. Our national movement was also a movement for democracy. Therefore, in the course of the national movement itself, it was
decided that as far as possible, States would be created on the basis of common cultural and
linguistic identity. This ultimately led to thedemand for the creation of linguistic States after Independence. In 1954, the States Reorganisation Commission was set up and it recommended the creation of linguistic States, at least for the major linguistic groups. In 1956, reorganisation of some States took place. This saw the beginning of the creation of linguistic States and the process is still continuing. Gujarat and Maharashtra were created in 1960; Punjab and Haryana were separated from each other in 1966. Later, the north-east region was reorganised and several new States were created like, Meghalaya, Manipur or Arunachal Pradesh.
In the 1990s, some of the larger States were further divided both to meet the demands for a separate State as well as to meet the need for greater administrative efficiency. Thus Bihar, UP, and Madhya Pradesh were divided to create three new States. They are: Jharkhand, Uttaranchal and Chhattisgarh respectively. Some regions and linguistic groups are still struggling for separate Statehood like Telangana (in AP ) and Vidarbha (in Maharashtra).
Interstate Conflicts
While the States keep fighting with the centre over autonomy and other issues like the share in revenue resources, there have been many instances of disputes between two States or among more than two States. It is true that the judiciary acts as the arbitration mechanism on disputes of a legal nature but these disputes are in reality not just legal. They have political implications and therefore they can best be resolved only through negotiations and mutual understanding.
Broadly, two types of disputes keep recurring. One is the border dispute. States have certain claims over territories belonging to neighbouring States. Though language is the basis of defining boundaries of the States, often border areas would have populations speaking more
than one language. So, it is not easy to resolve this dispute merely on the basis of linguistic majority. One of the longstanding border disputes is the dispute between Maharashtra and Karnataka over the city of Belgaum. Manipur and Nagaland too, have a long-standing border
dispute. The carving out of Haryana from the erstwhile State of Punjab has led to dispute between the two States not only over border areas, but over the capital city of Chandigarh. This city today houses the capital of both these States. In 1985, the then Prime Minister Rajiv
Gandhi reached an understanding with the leadership of Punjab. According to this understanding, Chandigarh was to be handed over to Punjab. But this has not happened yet.
While border disputes are more about sentiment, the disputes over the sharing of river waters are even more serious, because they are related to problems of drinking water and agriculture in the concerned States. You might have heard about the Cauvery water dispute. This is a
major issue between Tamil Nadu and Karnataka. Farmers in both the States are dependent on Cauvery waters. Though there is a river water tribunal to settle water disputes, this dispute has reached the Supreme Court. In another similar dispute Gujarat, Madhya Pradesh and
Maharashtra are battling over sharing the waters of Narmada river. Rivers are a major resource and therefore, disputes over river waters test the patience and cooperative spirit of the States.
SPECIAL PROVISIONS
The most extra-ordinary feature of the federal arrangement created in India is that many States get a differential treatment. We have already noted in the chapter on Legislature that the size and population of each State being different, an asymmetrical representation is provided in
the Rajya Sabha. While ensuring minimum representation to each of the smaller States, this arrangement also ensures that larger States would get more representation. In the case of division of powers, too, the Constitution provides a division of powers that is common to all the States. And yet, the Constitution has some special provisions for some States given their peculiar social and historical circumstances. Most of the special provisions pertain to the north eastern States (Assam, Nagaland, Arunachal Pradesh, Mizoram, etc.) largely due to a sizeable
indigenous tribal population with a distinct history and culture, which they wish to retain (Art 371). However, these provisions have not been able to stem alienation and the insurgency in parts of the region. Special provisions also exist for hilly States like Himachal Pradesh and some other States like Andhra Pradesh, Goa, Gujarat, Maharashtra and Sikkim.
Jammu and Kashmir
The other State which has a special status is Jammu and Kashmir (J&K) (Art. 370). Jammu and Kashmir was one of the large princely states, which had the option of joining India or Pakistan at the time of Independence. Immediately after Independence Pakistan and India fought a war over Kashmir. Under such circumstances the Maharaja of Kashmir acceded to the Indian union.
Most of the Muslim majority States joined Pakistan but J&K was an exception. Under these circumstances, it was given much greater autonomy by the Constitution. According to Article 370, the concurrence of the State is required for making any laws in matters mentioned in the Union and Concurrent lists. This is different from the position of other States. In the case of other States, the division of powers as listed through the three lists automatically applies. In the case of Jammu and Kashmir, the central government has only limited powers and other powers listed in the Union List and Concurrent List can be used only with the consent of the State government. This gives the State of Jammu and Kashmir greater autonomy. In practice, however the autonomy of Jammu and Kashmir is much less than what the language of article 370 may suggest. There is a constitutional provision that allows the President, with the
concurrence of the State government, to specify which parts of the Union List shall apply to the State. The President has issued two Constitutional orders in concurrence with the Government of J&K making large parts of the Constitution applicable to the State. As a result, though J&K has a separate constitution and a flag, the Parliament’s power to make laws on subjects in the Union List now is fully accepted. The remaining differences between the other States and the State of J&K are that no emergency due to internal disturbances can be declared in J&K without the concurrence of the State. The union government cannot impose a financial emergency in the State and the Directive Principles do not apply in J&K. Finally, amendments to the Indian Constitution (under Art. 368) can only apply in concurrence with the government of J&K. Many people believe that a formal and strictly equal division of powers applicable to all units (States) of a federation is adequate. Therefore, whenever such special provisions are created, there is some opposition to them. There is also a fear that such special provisions
may lead to separatism in those areas. Therefore, there are controversies about such special provisions.
Conclusion
Federalism is like a rainbow, where each colour is separate, yet together they make a harmonious pattern. Federalism has to continuously maintain a difficult balance between the centre and the States. No legal or institutional formula can guarantee the smooth functioning of a federal polity. Ultimately, the people and the political process must develop a culture and a set of values and virtues like mutual trust, toleration and a spirit of cooperation. Federalism celebrates both unity as well as diversity. National unity cannot be built by streamlining
differences. Such forced unity only generates greater social strife and alienation and tends finally to destroy unity. A responsive polity sensitive to diversities and to the demands for autonomy can alone be the basis of a cooperative federation.
Indian Constitution - Chapter 6
JUDICIARY
INTRODUCTION
Many times, courts are seen only as arbitrators in disputes between individuals or private parties. But judiciary performs some political functions also. Judiciary is an important organ of the government. The Supreme Court of India is in fact, one of the very powerful courts in the world. Right from 1950 the judiciary has played an important role in interpreting and in protecting the Constitution. In this chapter you will study the role and importance of the judiciary. In the chapter on fundamental rights you have already read that the judiciary is very
important for protecting our rights. After studying this chapter, you would be able to understand
�� the meaning of independence of judiciary;
�� the role of Indian Judiciary in protecting our rights;
�� the role of the Judiciary in interpreting the Constitution; and
�� the relationship between the Judiciary and the Parliament of India.
WHY DO WE NEED AN INDEPENDENT JUDICIARY?
In any society, disputes are bound to arise between individuals, between groups and between individuals or groups and government. All such disputes must be settled by an independent body in accordance with the principle of rule of law. This idea of rule of law implies that all individuals — rich and poor, men or women, forward or backward castes — are subjected to the same law. The principal role of the judiciary is to protect rule of law and ensure supremacy
of law. It safeguards rights of the individual, settles disputes in accordance with the law and ensures that democracy does not give way to individual or group dictatorship. In order to be able to do all this, it is necessary that the judiciary is independent of any political pressures.
What is meant by an independent judiciary? How is this independence ensured?
Independence of Judiciary
Simply stated independence of judiciary means that
�� the other organs of the government like the executive and legislature must not restrain the functioning of the judiciary in such a way that it is unable to do justice.
�� the other organs of the government should not interfere with the decision of the judiciary.
�� judges must be able to perform their functions without fear or favour. Independence of the judiciary does not imply arbitrariness or absence of accountability. Judiciary is a part of the democratic political structure of the country. It is therefore accountable to the Constitution,
to the democratic traditions and to the people of the country.
How can the independence of judiciary be provided and protected?
The Indian Constitution has ensured the independence of the judiciary through a number of
measures. The legislature is not involved in the process of appointment of judges. Thus, it was believed that party politics would not play a role in the process of appointments. In order to be appointed as a judge, a person must have experience as a lawyer and/or must be well versed in law. Political opinions of the person or his/ her political loyalty should not be the criteria for
appointments to judiciary. The judges have a fixed tenure. They hold office till reaching the age of retirement. Only in exceptional cases, judges may be removed. But otherwise, they have security of tenure. Security of tenure ensures that judges could function without fear or favour. The Constitution prescribes a very difficult procedure for removal of judges. The Constitution makers believed that a difficult procedure of removal would provide security of office to
the members of judiciary. The judiciary is not financially dependent on either the executive or legislature. The Constitution provides that the salaries and allowances of the judges are not subjected to the approval of the legislature. The actions and decisions of the judges are immune from personal criticisms. The judiciary has the power to penalise those who are found guilty of contempt of court. This authority of the court is seen as an effective protection to the judges
from unfair criticism. Parliament cannot discuss the conduct of the judges except when the proceeding to remove a judge is being carried out. This gives the judiciary independence to adjudicate without fear of being criticised.
Appointment of Judges
The appointment of judges has never been free from political controversy. It is part of the political process. It makes a difference who serves in the Supreme Court and High Court— a difference in how the Constitution is interpreted. The political philosophy of the judges, their
views about active and assertive judiciary or controlled and committed judiciary have an impact on the fate of the legislations enacted. Council of Ministers, Governors and Chief Ministers and Chief Justice of India — all influence the process of judicial appointment.
As far as the appointment of the Chief Justice of India (CJI) is concerned, over the years, a convention had developed whereby the senior-most judge of the Supreme Court was appointed as the Chief Justice of India. This convention was however broken twice. In 1973 A. N. Ray
was appointed as CJI superseding three senior Judges. Again, Justice M.H. Beg was appointed superseding Justice H.R. Khanna (1975). The other Judges of the Supreme Court and the High
Court are appointed by the President after ‘consulting’ the CJI. This, in effect, meant that the final decisions in matters of appointment rested with the Council of Ministers. What then, was the status of the consultation with the Chief Justice? This matter came up before the Supreme Court again and again between 1982 and 1998. Initially, the court felt that role of the Chief Justice was purely consultative. Then it took the view that the opinion of the Chief Justice
must be followed by the President. Finally, the Supreme Court has come up with a novel procedure: it has suggested that the Chief Justice should recommend names of persons to be appointed in consultation with four senior-most judges of the Court. Thus, the Supreme
Court has established the principle of collegiality in making recommendations for appointments. At the moment therefore, in matters of appointment the decision of the group of senior judges of the Supreme Court carries greater weight. Thus, in matters of appointment to the judiciary, the Supreme Court and the Council of Ministers play an important role.
Removal of Judges
The removal of judges of the Supreme Court and the High Courts is also extremely difficult. A judge of the Supreme Court or High Court can be removed only on the ground of proven misbehaviour or incapacity. A motion containing the charges against the judge must be
approved by special majority in both Houses of the Parliament. Do you remember what special majority means? We have studied this in the chapter on Elections. It is clear from this procedure that removal of a judge is a very difficult procedure and unless there is a general
consensus among Members of the Parliament, a judge cannot be removed. It should also be noted that while in making appointments, the executive plays a crucial role; the legislature has the powers of removal. This has ensured both balance of power and independence of the judiciary. So far, only one case of removal of a judge of the Supreme Court came up for consideration before the Parliament. In that case, though the motion got two-thirds majority, it did not have the support of the majority of the total strength of the House and therefore, the judge was not removed.
Unsuccessful Attempt to Remove a Judge
In 1991 the first-ever motion to remove a Supreme Court Justice was signed by 108 members of Parliament. Justice Ramaswamy, during his tenure as the Chief Justice of the Punjab High Court was accused of misappropriating funds. In 1992, a year after the Parliament had started
the impeachment proceedings, a high-profile inquiry commission consisting of Judges of Supreme Court found Justice V. Ramaswamy “guilty of willful and gross misuses of office . . . and moral turpitude by using public funds for private purposes and reckless disregard of statutory rules” while serving as Chief Justice of Punjab and Haryana. Despite this strong indictment, Ramaswamy survived the parliamentary motion recommending removal. The motion recommending his removal got the required two-third majority among the members who were present and voting, but the Congress party abstained from voting in the House. Therefore, the motion could not get the support of one-half of the total strength of the House.
STRUCTURE OF THE JUDICIARY
The Constitution of India provides for a single integrated judicial system. This means that unlike some other federal countries of the world, India does not have separate State courts. The structure of the judiciary in India is pyramidal with the Supreme Court at the top, High Courts below them and district and subordinate courts at the lowest level . The lower courts function under the direct superintendence of the higher courts.
Supreme Court of India
�� Its decisions are binding on all courts.
�� Can transfer Judges of High Courts.
�� Can move cases from any court to itself.
�� Can transfer cases from one High Court to another.
High Court
�� Can hear appeals from lower courts.
�� Can issue writs for restoring Fundamental Rights.
�� Can deal with cases within the jurisdiction of the State.
�� Exercises superintendence and control over courts below it.
District Court
�� Deals with cases arising in the District.
�� Considers appeals on decisions given by lower courts.
�� Decides cases involving serious criminal offences.
Subordinate Courts
�� Consider cases of civil and criminal nature
Jurisdiction of Supreme Court
The Supreme Court of India is one of the very powerful courts anywhere in the world. However, it functions within the limitations imposed by the Constitution. The functions and responsibilities of the Supreme Court are defined by the Constitution. The Supreme Court has specific jurisdiction or scope of powers.
Original Jurisdiction
Original jurisdiction means cases that can be directly considered by the Supreme Court without going to the lower courts before that. The Original Jurisdiction of the Supreme Court establishes it as an umpire in all disputes regarding federal matters. In any federal country, legal disputes are bound to arise between the Union and the States; and among the States themselves. The power to resolve such cases is entrusted to the Supreme Court of India. It is called original jurisdiction because the Supreme Court alone has the power to deal with such cases. Neither the High Courts nor the lower courts can deal with such cases. In this capacity, the Supreme Court not just settles disputes but also interprets the powers of Union and State government as laid down in the Constitution.
Writ Jurisdiction
As you have already studied in the chapter on fundamental rights, any individual, whose fundamental right has been violated, can directly move the Supreme Court for remedy. The Supreme Court can give special orders in the form of writs. The High Courts can also issue writs, but the persons whose rights are violated have the choice of either approaching the High Court or approaching the Supreme Court directly. Through such writs, the Court can give orders to the executive to act or not to act in a particular way.
Appellate Jurisdiction
The Supreme Court is the highest court of appeal. A person can appeal to the Supreme Court against the decisions of the High Court. However, High Court must certify that the case is fit for appeal, that is to say that it involves a serious matter of interpretation of law or Constitution. In addition, in criminal cases, if the lower court has sentenced a person to death then an appeal can be made to the High Court or Supreme Court. Of course, the Supreme Court holds the powers to decide whether to admit appeals even when appeal is not allowed by the High Court. Appellate jurisdiction means that the Supreme Court will reconsider the case and the legal issues involved in it. If the Court thinks that the law or the Constitution has a different meaning from what the lower courts understood, then the Supreme Court will change the
ruling and along with that also give new interpretation of the provision involved. The High Courts too, have appellate jurisdiction over the decisions given by courts below them.
Advisory Jurisdiction
In addition to original and appellate jurisdiction, the Supreme Court of India possesses advisory jurisdiction also. This means that the President of India can refer any matter that is of public importance or that which involves interpretation of Constitution to Supreme Court for advice. However, the Supreme Court is not bound to give advice on such matters and the President is not bound to accept such an advice. What then is the utility of the advisory powers of the Supreme Court? The utility is two-fold.
In the first place, it allows the government to seek legal opinion on a matter of importance before taking action on it. This may prevent unnecessary litigations later.
Secondly, in the light of the advice of the Supreme Court, the government can make suitable changes in its action or legislations.
Article 137
"…….. the Supreme Court shall have power to review any judgment pronounced or order made by it."
Article 144
"… All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme
Court."
Read the articles quoted above. These articles help us to understand the unified nature of our judiciary and the powers of the Supreme Court. Decisions made by the Supreme Court are binding on all other courts within the territory of India. Orders passed by it are enforceable
throughout the length and breadth of the country. The Supreme Court itself is not bound by its decision and can at any time review it. Besides, if there is a case of contempt of the Supreme Court, then the Supreme Court itself decides such a case.
JUDICIAL ACTIVISM
Have you heard of the term judicial activism? Or, Public Interest Litigation? Both these terms are often used in the discussions about judiciary in recent times. Many people think that
these two things have revolutionised the functioning of judiciary and made it more people-friendly.
The chief instrument through which judicial activism has flourished in India is Public Interest Litigation (PIL) or Social Action Litigation (SAL). What is PIL or SAL? How and when did it emerge? In normal course of law, an individual can approach the courts only if he/she has been personally aggrieved. That is to say, a person whose rights have been violated, or who is involved in a dispute, could move the court of law. This concept underwent a change around 1979. In 1979, the Court set the trend when it decided to hear a case where the case was filed not by the aggrieved persons but by others on their behalf. As this case involved a consideration of an issue of public interest, it and such other cases came to be known as public interest litigations. Around the same time, the Supreme Court also took up the case about rights of prisoners. This opened the gates for large number of cases where public spirited
citizens and voluntary organisations sought judicial intervention for protection of existing rights, betterment of life conditions of the poor, protection of the environment, and many other issues in the interest of the public. PIL has become the most important vehicle of judicial activism. Judiciary, which is an institution that traditionally confined to responding to cases brought before it, began considering many cases merely on the basis of newspaper reports and postal complaints received by the court. Therefore, the term judicial activism became the more
popular description of the role of the judiciary.
Some Early PILs
�� In 1979, newspapers published reports about ‘under trials’. There were many prisoners in
Bihar who had spent long years in jail, longer than what they would have spent if they had
been punished for the offences for which they were arrested. This report prompted an
advocate to file a petition. The Supreme Court heard this case. It became famous as one of
the early Public Interest Litigations (PILs). This was the Hussainara Khatoon vs. Bihar case.
�� In 1980, a prison inmate of the Tihar jail managed to send a scribbled piece of paper to
Justice Krishna Iyer of the Supreme Court narrating physical torture of the prisoners.
The judge got it converted into a petition. Though later on, the Court abandoned the
practice of considering letters, this case, known as Sunil Batra vs. Delhi Administration
(1980) also became one of the pioneers of public interest litigation.
Through the PIL, the court has expanded the idea of rights. Clean air, unpolluted water, decent living etc. are rights for the entire society. Therefore, it was felt by the courts that individuals as parts of the society must have the right to seek justice wherever such rights were violated.
Secondly, through PIL and judicial activism of the post-1980 period, the judiciary has also shown readiness to take into consideration rights of those sections who cannot easily approach the courts. For this purpose, the judiciary allowed public spirited citizens, social organisations and lawyers to file petitions on behalf of the needy and the deprived.
Judicial activism has had manifold impact on the political system. It has democratised the judicial system by giving not just to individuals but also groups access to the courts. It has forced executive accountability. It has also made an attempt to make the electoral system
much more free and fair. The court asked candidates contesting elections to file affidavits indicating their assets and income along with educational qualifications so that the people could elect their representatives based on accurate knowledge. There is however a negative side to the large number of PILs and the idea of a pro-active judiciary. In the first place it has overburdened the courts. Secondly, judicial activism has blurred the line of distinction between the executive and legislature on the one hand and the judiciary on the other. The court has been involved in resolving questions which belong to the executive. Thus, for instance, reducing air or sound pollution or investigating cases of corruption or bringing about electoral reform is not exactly the duty of the Judiciary. These are matters to be handled by the administration under the supervision of the legislatures. Therefore, some people feel that judicial activism has made the balance among the three organs of government very delicate. Democratic government
is based on each organ of government respecting the powers and jurisdiction of the others. Judicial activism may be creating strains on this democratic principle.
JUDICIARY AND RIGHTS
We have already seen that the judiciary is entrusted with the task of protecting rights of individuals. The Constitution provides two ways in which the Supreme Court can remedy the violation of rights.
�� First it can restore fundamental rights by issuing writs of Habeas Corpus; mandamus etc. (article 32). The High Courts also have the power to issue such writs (article 226).
�� Secondly, the Supreme Court can declare the concerned law as unconstitutional and therefore non-operational (article 13).
Together these two provisions of the Constitution establish the Supreme Court as the protector of fundamental rights of the citizen on the one hand and interpreter of Constitution on the other. The second of the two ways mentioned above involves judicial review. Perhaps the most important power of the Supreme Court is the power of judicial review. Judicial Review means the power of the Supreme Court (or High Courts) to examine the constitutionality of any law if the Court arrives at the conclusion that the law is inconsistent with the provisions of the Constitution, such a law is declared as unconstitutional and inapplicable. The term judicial
review is nowhere mentioned in the Constitution. However, the fact that India has a written constitution and the Supreme Court can strike down a law that goes against fundamental rights, implicitly gives the Supreme Court the power of judicial review. Besides, as we saw in the section on jurisdiction of the Supreme Court, in the case of federal relations too, the
Supreme Court can use the review powers if a law is inconsistent with the distribution of powers laid down by the Constitution. Suppose, the central government makes a law, which according to some States, concerns a subject from the State list. Then the States can go to the Supreme Court and if the court agrees with them, it would declare that the law is unconstitutional. In this sense, the review power of the Supreme Court includes power to review legislations on the ground that they violate fundamental rights or on the ground that they violate the federal distribution of powers. The review power extends to the laws passed by State legislatures also. Together, the writ powers and the review power of the Court make judiciary very powerful. In particular, the review power means that the judiciary can interpret the Constitution and the laws passed by the legislature. Many people think that this feature enables the judiciary to protect the Constitution effectively and also to protect the rights of citizens. The practice of entertaining PILs has further added to the powers of the judiciary in protecting rights of citizens.
Do you remember that in the chapter on rights we mentioned the right against exploitation? This right prohibits forced labour, trade in human flesh and prohibits employment of children in hazardous jobs. But the question is: how could those, whose rights were violated, approach the court? PIL and judicial activism made it possible for courts to consider these violations. Thus, the court considered a whole set of cases: the blinding of the jail inmates by the police, inhuman working conditions in stone quarries, sexual exploitation of children, and so on. This trend has made rights really meaningful for the poor and disadvantaged sections.
JUDICIARY AND PARLIAMENT
Apart from taking a very active stand on the matter of rights, the court has been active in seeking to prevent subversion of the Constitution through political practice. Thus, areas that were considered beyond the scope of judicial review such as powers of the President and Governor were brought under the purview of the courts.
There are many other instances in which the Supreme Court actively involved itself in the administration of justice by giving directions to executive agencies. Thus, it gave directions to CBI to initiate investigations against politicians and bureaucrats in the hawala case, the Narasimha Rao case, illegal allotment of petrol pumps case etc. You may have heard about some of these cases. Many of these instances are the products of judicial activism. The Indian Constitution is based on a delicate principle of limited separation of powers and checks and balances. This means that each organ of the government has a clear area of functioning. Thus, the Parliament is supreme in making laws and amending the Constitution, the executive is supreme in implementing them while the judiciary is supreme in settling disputes and deciding whether the laws that have been made are in accordance with the provisions of the Constitution. Despite such clear cut division of power the conflict between the Parliament and judiciary, and executive and the judiciary has remained a recurrent theme in Indian politics.
We have already mentioned the differences that emerged between the Parliament and the judiciary over right to property and the Parliament’s power to amend the Constitution. Let us recapitulate that briefly:
Immediately after the implementation of the Constitution began, a controversy arose over the Parliament’s power to restrict right to property. The Parliament wanted to put some restrictions on the right to hold property so that land reforms could be implemented. The Court held that the Parliament cannot thus restrict fundamental rights. The Parliament then tried to amend the Constitution. But the Court said that even through an amendment, a fundamental right cannot be abridged.
The following issues were at the centre of the controversy between the Parliament and the judiciary.
�� What is the scope of right to private property?
�� What is the scope of the Parliament’s power to curtail, abridge or abrogate fundamental rights?
�� What is the scope of the Parliament’s power to amend the constitution?
�� Can the Parliament make laws that abridge fundamental rights
while enforcing directive principles?
During the period 1967 and 1973, this controversy became very serious. Apart from land reform laws, laws enforcing preventive detention, laws governing reservations in jobs, regulations acquiring private property for public purposes, and laws deciding the compensation for such acquisition of private property were some instances of the conflict between the legislature and the judiciary. In 1973, the Supreme Court gave a decision that has become very important in regulating the relations between the Parliament and the Judiciary since then. This case is famous as the Kesavananda Bharati case. In this case, the Court ruled that there is a basic
structure of the Constitution and nobody—not even the Parliament (through amendment)—can violate the basic structure. The Court did two more things. First, it said that right to property (the disputed issue) was not part of basic structure and therefore could be suitably abridged. Secondly, the Court reserved to itself the right to decide whether various matters are part of the basic structure of the Constitution. This case is perhaps the best example of how judiciary
uses its power to interpret the Constitution. This ruling has changed the nature of conflicts between the legislature and the judiciary. As we studied earlier, the right to property was taken away from the list of fundamental rights in 1979 and this also helped in changing the nature of the relationship between these two organs of government. Some issues still remain a bone of contention between the two — can the judiciary intervene in and regulate the functioning of the legislatures? In the parliamentary system, the legislature has the power to govern itself and
regulate the behaviour of its members. Thus, the legislature can punish a person who the legislature holds guilty of breaching privileges of the legislature. Can a person who is held guilty for breach of parliamentary privileges seek protection of the courts? Can a member of
the legislature against whom the legislature has taken disciplinary action get protection from the court? These issues are unresolved and are matters of potential conflict between the two. Similarly, the Constitution provides that the conduct of judges cannot be discussed in the
Parliament. There have been several instances where the Parliament and State legislatures have cast aspersions on the functioning of the judiciary. Similarly, the judiciary too has criticised the legislatures and issued instructions to the legislatures about the conduct of legislative business. The legislatures see this as violating the principle of parliamentary sovereignty. These issues indicate how delicate the balance between any two organs of the government is and how important it is for each organ of the government in a democracy to
respect the authority of others.
Conclusion
In this chapter, we have studied the role of the judiciary in our democratic structure. In spite of
the tensions that arose from time to time between the judiciary and the executive and the legislature, the prestige of the judiciary has increased considerably. At the same time, there are many more expectations from the judiciary. Ordinary citizens also wonder how it is possible for many people to get easy acquittals and how witnesses change their testimonies to suit the wealthy and the mighty. These are some issues about which our judiciary is concerned too.
You have seen in this chapter that judiciary in India is a very powerful institution. This power
has generated much awe and many hopes from it. Judiciary in India is also known for its
independence. Through various decisions, the judiciary has given new interpretations to the
Constitution and protected the rights of citizens. As we saw in this chapter, democracy hinges
on the delicate balance of power between the judiciary and the Parliament and both institutions have to function within the limitations set by the Constitution.
Indian Constitution - Chapter 5
LEGISLATURE
INTRODUCTION
You have already studied the importance of elections and the method of election adopted in India. Legislatures are elected by the people and work on behalf of the people. In this chapter you would study how elected legislatures function and help in maintaining democratic government. You will also learn about the composition and functioning of the parliament and State legislatures in India and their importance in democratic government. After reading this chapter you would know
�� the importance of the legislature;
�� the functions and powers of the Parliament of India;
�� the law making procedure;
�� how the Parliament controls the executive; and
�� how the Parliament regulates itself.
WHY DO WE NEED A PARLIAMENT?
Legislature is not merely a law making body. Lawmaking is but one of the functions of the legislature. It is the centre of all democratic political process. It is packed with action; walkouts, protests, demonstration, unanimity, concern and co-operation. All these serve
very vital purposes. Indeed, a genuine democracy is inconceivable without a representative, efficient and effective legislature. The legislature also helps people in holding the representatives accountable. This is indeed, the very basis of representative democracy.
Yet, in most democracies, legislatures are losing central place to the executive. In India too, the Cabinet initiates policies, sets the agenda for governance and carries them through. This has led some critics to remark that the Parliament has declined. But even very strong cabinets must retain majority in the legislature. A strong leader has to face the Parliament and answer to the satisfaction of the Parliament. Herein lies the democratic potential of the Parliament. It
is recognised as one of the most democratic and open forum of debate. On account of its composition, it is the most representative of all organs of government. It is above all, vested with the power to choose and dismiss the government.
WHY DO WE NEED TWO HOUSES OF PARLIAMENT?
The term ‘Parliament’ refers to the national legislature. The legislature of the States is described as State legislature. The Parliament in India has two houses. When there are two houses of the legislature, it is called a bicameral legislature. The two Houses of the Indian
Parliament are the Council of States or the Rajya Sabha and the House of People or Lok Sabha. The Constitution has given the States the option of establishing either a unicameral or bicameral legislature. At present only five States have a bicameral legislature.
States having a bicameral legislature:
Bihar,
Jammu and Kashmir,
Karnataka,
Maharashtra,
Uttar Pradesh
Countries with large size and much diversity usually prefer to have two houses of the national legislature to give representation to all sections in the society and to give representation to all geographical regions or parts of the country. A bicameral legislature has one more advantage. A bicameral legislature makes it possible to have every decision reconsidered. Every decision taken by one house goes to the other house for its decision. This means that every bill and policy would be discussed twice. This ensures a double check on every matter. Even if one house takes a decision in haste, that decision will come for discussion in the other house and reconsideration will be possible.
Rajya Sabha
Each of the two Houses of the Parliament has different bases of representation. The Rajya Sabha represents the States of India. It is an indirectly elected body. Residents of the State elect members to State Legislative Assembly. The elected members of State Legislative
Assembly in turn elect the members of Rajya Sabha. We can imagine two different principles of representation in the second chamber. One way is to give equal representation to all the
parts of the country irrespective of their size or population. We may call this as symmetrical representation. On the other hand, parts of the country may be given representation according to their population. This second method means that regions or parts having larger population would have more representatives in the second chamber than regions having less population.
In the U.S.A, every state has equal representation in the Senate. This ensures equality of all the states. But this also means that a small state would have the same representation as the larger states. The system of representation adopted for the Rajya Sabha is different from that in the USA. The number of members to be elected from each State has been fixed by the fourth schedule of the Constitution. What would happen if we were to follow the American system of equality of representation in the Rajya Sabha? Uttar Pradesh with a population of 1718.29 lakhs would get seats equal to that of Sikkim whose population is only 5.71 lakhs. The framers of the Constitution wanted to prevent such discrepancy. States with larger population get more representatives than States with smaller population get. Thus, a more populous State like Uttar Pradesh sends 31 members to Rajya Sabha, while a smaller and less populous State like Sikkim has one seat in the Rajya Sabha. Members of the Rajya Sabha are elected for a term of six years. They can get re-elected. All members of the Rajya Sabha do not complete their terms at the same time. Every two years, one third members of the Rajya Sabha complete their term and elections are held for those one third seats only. Thus, the Rajya Sabha is never fully
dissolved. Therefore, it is called the permanent House of the Parliament. The advantage of this arrangement is that even when the Lok Sabha is dissolved and elections are yet to take place, the meeting of the Rajya Sabha can be called and urgent business can be conducted. Apart from the elected members, Rajya Sabha also has twelve nominated members. The President nominates these members. These nominations are made from among those persons who have made their mark in the fields of literature, arts, social service, science etc.
Bicameralism in Germany
Germany has a bicameral legislature. The two Houses are known as Federal Assembly (Bundestag) and Federal Council (Bundesrat). Assembly is elected by a complex system combining direct and proportional representation for a period of four years. The 16 federal states of Germany are represented in the Federal Council. The 69 seats of the Bundesrat are
divided among states on the basis of a range of populations. These members are generally
the ministers in the governments at the state level and are appointed, not elected, by the governments of the federal states. According to the German law, all the members from one state have to vote as a bloc as per the instructions of the state governments. Sometimes due to coalition government at the state level, they fail to reach an agreement and may have to abstain. The Bundesrat does not vote on all legislative initiatives but all the policy areas on
which the federal states have concurrent powers and are responsible for federal regulations must be passed by it. It can also veto such legislation. Lok Sabha The Lok Sabha and the State Legislative Assemblies are directly elected by the people. For the purpose of election, the entire country (State, in case of State Legislative Assembly) is divided into territorial constituencies of roughly equal population. One representative is elected from each constituency through universal, adult suffrage where the value of vote of every individual would be equal to another. At present there are 543 constituencies. This number has not changed since 1971. The Lok Sabha is elected for a period of five years. This is the maximum. We have seen in the chapter on the executive that before the completion of five years, the Lok Sabha can be dissolved if no party or coalition can form the government or if the Prime Minister advices the President to dissolve the Lok Sabha and hold fresh elections.
WHAT DOES THE PARLIAMENT DO?
What is the function of the legislature? Do both Houses of the Parliament have similar functions? Is there a difference in the powers of the two Houses? Apart from law making, the Parliament is engaged in many other functions. Let us list the functions of the Parliament.:
�� Legislative Function: The Parliament enacts legislations for the country. Despite being the chief law making body, the Parliament often merely approves legislations. The actual task of drafting the bill is performed by the bureaucracy under the supervision of the minister concerned. The substance and even the timing of the bill are decided by the Cabinet. No major bill is introduced in the Parliament without the approval of the Cabinet. Members other than ministers can also introduce bills but these have no chance of being passed without the support of the government.
�� Control of Executive and ensuring its accountability: Perhaps the most vital function of the Parliament is to ensure that the executive does not overstep its authority and remains responsible to the people who have elected them. We shall discuss this function in greater detail later in this chapter.
�� Financial Function: Government is about spending a lot of money on various matters. Where does this money come from? Every government raises resources through taxation. However, in a democracy, legislature controls taxation and the way in which money is used by the government. If the Government of India proposes to introduce any new tax, it has to get the approval of the Lok Sabha. The Financial powers of the Parliament, involve grant of resources to the government to implement its programmes. The government has to give an account to the
Legislature about the money it has spent and resources that it wishes to raise. The legislature also ensures that the government does not misspend or overspend. This is done through the budget and annual financial statements.
�� Representation: Parliament represents the divergent views of members from different regional, social, economic, religious groups of different parts of the country.
�� Debating Function: The Parliament is the highest forum of debate in the country. There is no limitation on its power of discussion. Members are free to speak on any matter without fear. This makes it possible for the Parliament to analyse any or every issue that faces the nation.
These discussions constitute the heart of democratic decision making.
�� Constituent Function: The Parliament has the power of discussing and enacting changes to the Constitution. The constituent powers of both the houses are similar. All constitutional amendments have to be approved by a special majority of both Houses.
�� Electoral functions: The Parliament also performs some electoral functions. It elects the President and Vice President of India.
�� Judicial functions: The judicial functions of the Parliament include considering the proposals for removal of President, Vice-President and Judges of High Courts and Supreme Court.
Powers of Rajya Sabha
We discussed above, the functions that are performed by the Parliament in general. However, in a bicameral legislature, there is some difference between the powers of the two Houses. Look at the charts showing the powers of Lok Sabha and Rajya Sabha.
Powers of Rajya Sabha
�� Considers and approves non money bills and suggests amendments to money bills.
�� Approves constitutional amendments.
�� Exercises control over executive by asking questions, introducing motions and resolutions.
�� Participates in the election and removal of the President, Vice President, Judges of Supreme
Court and High Court.It can alone initiate the procedure for removal of Vice President.
�� Can give the Union parliament power to make laws on matters included in the State list.
Powers of the Lok Sabha
�� Makes Laws on matters included in Union List and Concurrent List. Can introduce and enact money and non money bills.
�� Approves proposals for taxation, budgets and annual financial statements.
�� Controls the executive by asking questions, supplementary questions, resolutions and motions and through no confidence motion.
�� Amends the Constitution.
�� Approves the Proclamation of emergency.
�� Elects the President and Vice President and removes Judges of Supreme Court and High Court.
�� Establishes committees and commissions and considers their reports.
Special Powers of Rajya Sabha
As you know, the Rajya Sabha is an institutional mechanism to provide representation to the States. Its purpose is to protect the powers of the States. Therefore, any matter that affects the States must be referred to it for its consent and approval. Thus, if the Union Parliament
wishes to remove a matter from the State list (over which only the State Legislature can make law) to either the Union List or Concurrent List in the interest of the nation, the approval of the Rajya Sabha is necessary. This provision adds to the strength of the Rajya Sabha. However,
experience shows that the members of the Rajya Sabha represent their parties more than they represent their States.
Powers exercised only by the Lok Sabha:
Then, there are powers that only the Lok Sabha exercises.
The Rajya Sabha cannot initiate, reject or amend money bills. The Council of Ministers is responsible to the Lok Sabha and not Rajya Sabha. Therefore, Rajya Sabha can criticise the
government but cannot remove it.
Can you explain why? The Rajya Sabha is elected by the MLAs and not directly by the people. Therefore, the Constitution stopped short of giving certain powers to the Rajya Sabha. In a democratic form as adopted by our Constitution, the people are the final authority. By this
logic, the representatives, directly elected by the people, should have the crucial powers of removing a government and controlling the finances.
In all other spheres, including passing of non-money bills, constitutional amendments, and impeaching the President and removing the Vice President the powers of Lok Sabha and Rajya Sabha are co-equal.
HOW DOES THE PARLIAMENT MAKE LAWS?
The basic function of any legislature is to make laws for its people. A definite procedure is followed in the process of making law. Some of the procedures of law making are mentioned in the Constitution, while some have evolved from conventions. Follow a bill through the legislative process and you will clearly see that the law making process is technical and even tedious.
A bill is a draft of the proposed law. There can be different types of bills. When a non-minister proposes a bill, it is called private member’s Bill. A bill proposed by a minister is described as Government Bill. Let us now see the different stages in the life of a bill. Even before a bill is introduced in the Parliament there may be a lot of debate on the need for introducing such a bill. A political party may pressurise the government to initiate a bill in order to fulfil its
election promises or to improve its chances of winning forthcoming elections. Interest groups, media and citizens’ forums may also persuade the government for a particular legislation. Law making is thus not merely a legal procedure but also a political course of action. The preparation of a bill itself involves many considerations such as resources required to implement the law, the support or opposition that the bill is likely to produce, the impact that the law may have on the electoral prospect of the ruling party etc. In the era of coalition
politics especially, a bill proposed by the government has to be acceptable to all the partners of the coalition. Such practical considerations can hardly be ignored. The Cabinet considers all these before arriving at a decision to enact a law. Once the Cabinet approves the policy behind the legislation, the task of drafting the legislation begins. The draft of any bill is prepared by the concerned ministry. For instance a bill raising the marriageable age of girls from 18 to 21 will be prepared by the law ministry. The ministry of women and child welfare may also be involved in it. Within the Parliament, a bill may be introduced in the Lok Sabha or Rajya Sabha by a member of the House (but often a minister responsible for the subject introduces the bill). A money bill can be introduced only in Lok Sabha. Once passed there, it is sent to the Rajya Sabha. A large part of the discussion on the bills takes place in the committees. The recommendation of the committee is then sent to the House. That is why committees are referred to as miniature legislatures. This is the second stage in the law making process. In the third and final stage, the bill is voted upon. If a non-money bill is passed by one House, it is sent to the other House where it goes through exactly the same procedure. As you know, a bill has to be passed by both Houses for enactment. If there is disagreement between the two Houses on the proposed bill, attempt is made to resolve it through Joint Session of Parliament. In the few instances when joint sessions of the parliament were called to resolve a deadlock, the decision has always gone in favour of the Lok Sabha. If it is a money bill, the Rajya Sabha can either approve the bill or suggest changes but cannot reject it. If it takes no action within 14 days the bill is deemed to have been passed. Amendments to the bill, suggested by Rajya Sabha, may or may not be accepted by the Lok Sabha.
When a bill is passed by both Houses, it is sent to the President for his assent. The assent of the President results in the enactment of a bill into a law.
HOW DOES THE PARLIAMENT CONTROL THE EXECUTIVE?
In a parliamentary democracy, the executive is drawn from the party or a coalition of parties that has a majority in Lok Sabha. It is not difficult for the executive to exercise unlimited and arbitrary powers with the support of the majority party. In such a situation, parliamentary democracy may slip into Cabinet dictatorship, where the Cabinet leads and the House merely follows. Only if the Parliament is active and vigilant, can it keep regular and effective check on the executive. There are many ways in which the Parliament can control the executive. But basic to them all is the power and freedom of the legislators as people’s representatives to work effectively and fearlessly. For instance, no action can be taken against a member for
whatever the member may have said in the legislature. This is known as parliamentary privilege. The presiding officer of the legislature has the final powers in deciding matters of breach of privilege. The main purpose of such privileges is to enable the members of the legislature to represent the people and exercise effective control over the executive. How does the Parliament exercise such control? What are the means available at its disposal? Is parliamentary control successful in curbing executive excesses?
Instruments of Parliamentary Control
The legislature in parliamentary system ensures executive accountability at various stages: policy making,implementation of law or policy and during and postimplementation
stage. The legislature does this through the use of a variety of devices:
�� Deliberation and discussion
�� Approval or Refusal of laws
�� Financial control
�� No confidence motion
Deliberation and discussion: During the law making process, members of the legislature get an opportunity to deliberate on the policy direction of the executive and the ways in which policies are implemented. Apart from deliberating on bills, control may also be exercised during the general discussions in the House. The Question Hour, which is held every day during the sessions of Parliament, where Ministers have to respond to searching questions raised by the members; Zero Hour where members are free to raise any matter that they think is important
(though the ministers are not bound to reply), half-an – hour discussion on matters of public importance, adjournment motion etc. are some instruments of exercising control. Perhaps the question hour is the most effective method of keeping vigil on the executive and the administrative agencies of the government. Members of Parliament have shown great interest in question hour and maximum attendance is recorded during this time. Most of the questions aim at eliciting information from the government on issues of public interest such as, price rise, availability of food grains, atrocities on weaker sections of the society, riots, black-marketing etc. This gives the members an opportunity to criticise the government, and represent the
problems of their constituencies. The discussions during the question hour are so heated that it is not uncommon to see members raise their voice, walk to the well of the house or walk out in protest to make their point. This results in considerable loss of legislative time. At the same
time, we must remember that many of these actions are political techniques to gain concessions from government and in the process force executive accountability.
Approval and ratification of laws: Parliamentary control is also exercised through its power of ratification. A bill can become a law only with the approval of the Parliament. A government that has the support of a disciplined majority may not find it difficult to get the approval of the Legislature. Such approvals however, cannot be taken for granted. They are the products of
intense bargaining and negotiations amongst the members of ruling party or coalition of parties and even government and opposition. If the government has majority in Lok Sabha but not in the Rajya Sabha, as has happened during the Janata Party rule in 1977 and N.D.A
rule in 2000, the government will be forced to make substantial concessions to gain the approval of both the Houses. Many bills, such as the Lok Pal Bill have failed enactment, Prevention of Terrorism bill (2002) was rejected by the Rajya Sabha.
Financial control: As mentioned earlier, financial resources to implement the programmes of the government are granted through the budget. Preparation and presentation of budget for the approval of the legislature is constitutional obligation of the government. This obligation allows the legislature to exercise control over the purse strings of the government. The legislature may refuse to grant resources to the government. This seldom happens because
the government ordinarily enjoys support of the majority in the parliamentary system. Nevertheless, before granting money the Lok Sabha can discuss the reasons for which the government requires money. It can enquire into cases of misuse of funds on the basis of
the report of the Comptroller and Auditor General and Public Accounts committees. But the legislative control is not only aimed at financial propriety. The legislature is concerned about the policies of the government that are reflected in the budget. Through financial control, the legislature controls the policy of the government.
No Confidence Motion: The most powerful weapon that enables the Parliament to ensure executive accountability is the no-confidence motion. As long as the government has the support of its party or coalition of parties that have a majority in the Lok Sabha, the power of the House to dismiss the government is fictional rather than real. However, after 1989, several governments have been forced to resign due to lack of confidence of the house. Each of these governments lost the confidence of the Lok Sabha because they failed to retain the support of their coalition partners.
Thus, the Parliament can effectively control the executive and ensure a more responsive government. It is however important for this purpose, that there is adequate time at the disposal of the House, the members are interested in discussion and participate effectively
and there is willingness to compromise amongst the government and the opposition. In the last two decades, there has been a gradual decline in sessions of the Lok Sabha and State Legislative Assemblies and time spent on debates. Moreover, the Houses of the Parliament have been plagued by absence of quorum, boycott of sessions by members of opposition which deprive the house the power to control the executive through discussion.
WHAT DO THE COMMITTEES OF PARLIAMENT DO?
A significant feature of the legislative process is the appointment of committees for various
legislative purposes. These committees play a vital role not merely in law making, but also in
the day-to-day business of the House. Since the Parliament meets only during sessions, it has very limited time at its disposal. The making of law for instance requires in-depth study of the issue under consideration. This in turn demands more attention and time. Similarly, there are other important functions also, like studying the demands for grants made by various ministries, looking into expenditure incurred by various departments, investigating cases of corruption etc. Parliamentary committees perform such functions. Since 1983, India has developed a system of parliamentary standing committees. There are over twenty such departmentally related committees. Standing Committees supervise the work of various departments, their budget, their expenditure and bills that come up in the house relating to
the department. Apart from standing committees, the Joint Parliamentary Committees have occupied a position of eminence in our country. Joint Parliamentary Committees (JPCs) can be set up for the purpose of discussing a particular bill, like the joint committee to discuss bill, or for the purpose of investigating financial irregularities. Members of these committees are selected from both Houses.
The committee system has reduced the burden on the Parliament. Many important bills have been referred to committees. The Parliament has merely approved the work done in the committees with few occasional alterations. Of course legally speaking, no bill can become law, and no budget will be sanctioned unless approved by the Parliament. But the Parliament rarely rejects the suggestions made by the committees.
HOW DOES THE PARLIAMENT REGULATE ITSELF?
Parliament as mentioned earlier is a debating forum. It is through debates that the parliament performs all its vital functions. Such discussions must be meaningful and orderly so that the functions of the Parliament are carried out smoothly and its dignity is intact. The Constitution
itself has made certain provisions to ensure smooth conduct of business. The presiding officer of the legislature is the final authority in matters of regulating the business of the legislature.
So, the law makers too, are subject to some laws!
There is one more way in which the presiding officers control the behaviour of the members. You may have heard about the anti-defection law. Most of the members of the legislatures are elected on the ticket of some political party. What would happen if they decide to leave the party after getting elected? For many years after independence, this issue was unresolved. Finally there was an agreement among the parties that a legislator who is elected on one
party’s ticket must be restricted from ‘defecting’ to another party. An amendment to the Constitution was made (52nd amendment act) in 1985. This is known as anti-defection
amendment. It has also been subsequently modified by the 91st amendment. The presiding officer of the House is the authority who takes final decisions on all such cases. If it is proved that a member has ‘defected’, then such member loses the membership of the House. Besides, such a person is also disqualified from holding any political office like ministership, etc.
What is defection? If a member remains absent in the House when asked by the party leadership to remain present or votes against the instructions of the party or voluntarily leaves the membership of the party, it is deemed as defection. Experience of the past twenty years shows that the anti-defection amendment has not been able to curb defections, but it has given
additional powers to the party leadership and the presiding officers of the legislatures over the members.
Conclusion
Have you watched the live telecast of the proceeding of the Parliament? You will find that our Parliament is truly a rainbow of colourful dresses symbolising different regions of the country.
Members speak different languages in the course of the proceedings. They come from various castes, religions and sects. They often fight bitterly. Many times an impression is created
that they are wasting the time and money of the nation. But we have seen in this chapter that these same parliamentarians can effectively control the executive. They can express the interests of various sections of our society. On account of its composition, Legislature is the most representative of all organs of government. The sheer presence of members of diverse social backgrounds makes the legislatures more representative and potentially more responsive to people’s expectations. In a parliamentary democracy, legislature, as a body representing the wishes of the people occupies a high position of power and responsibility. Herein lies the democratic potential of the Parliament.
Exercises
1. Alok thinks that a country needs an efficient government that looks after the welfare of the people. So, if we simply elected our Prime Minister and Ministers and left to them the task of government, we will not need a legislature. Do you agree? Give reasons for your answer.
2. A class was debating the merits of a bicameral system. The following points were made during the discussion. Read the arguments and say if you agree or disagree with each of them, giving reasons.
√ Neha said that bicameral legislature does not serve any purpose.
√ Shama argued that experts should be nominated in the second chamber.
√ Tridib said that if a country is not a federation, then there is no need to have a second chamber.
3. Why can the Lok Sabha control the executive more effectively than the Rajya Sabha can?
4. Rather than effective control of the executive, the Lok Sabha is a platform for the expression of popular sentiments and people’s expectations. Do you agree? Give reasons.
5. The following are some proposals for making the Parliament more effective. State if you agree or disagree with each of them and give your reasons. Explain what would be the effect if these suggestions were accepted.
√ Parliament should work for longer period.
√ Attendance should be made compulsory for members of
Parliament.
√ Speakers should be empowered to penalise members for
interrupting the proceedings of the House.
6. Arif wanted to know that if ministers propose most of the important bills and if the majority party often gets the government bills passed, what is the role of the Parliament in the law making process? What answer would you give him?
7. Which of the following statements you agree with the most? Give your reasons.
√ Legislators must be free to join any party they want.
√ Anti-defection law has contributed to the domination of the party
leaders over the legislators.
√ Defection is always for selfish purposes and therefore, a legislator who wants to join another party must be disqualified from being a minister for the next two years.
8. Dolly and Sudha are debating about the efficiency and effectiveness of the Parliament in recent times. Dolly believed that the decline of Indian Parliament is evident in the less time spent on debate and discussion and increase in the disturbances of the functioning of the House and walkouts etc. Sudha contends that the fall of different governments on the floor of Lok Sabha is a proof of its vibrancy. What other arguments can you provide to support or oppose the positions of Dolly and Sudha?
9. Arrange the different stages of passing of a bill into a law in their correct sequence:.
√ A resolution is passed to admit the bill for discussion
√ The bill is referred to the President of India – write what happens
next if s/he does not sign it
√ The bill is referred to other House and is passed
√ The bill is passed in the house in which it was proposed
√ The bill is read clause by clause and each is voted upon
√ The bill is referred to the subcommittee – the committee makes
some changes and sends it back to the house for discussion
√ The concerned minister proposes the need for a bill
√ Legislative department in ministry of law, drafts a bill
10. How has the system of parliamentary committee affected the overseeing and appraisal of legislation by the Parliament?
Indian Constitution-Chapter 4
Chapter 4
EXECUTIVE
INTRODUCTION
Legislature, executive and judiciary are the three organs of government. Together, they perform the functions of the government, maintain law and order and look after the welfare of the people. The Constitution ensures that they work in coordination with each other and maintain a balance among themselves. In a parliamentary system, executive and the legislature are interdependent: the legislature controls the executive, and, in turn, is controlled by the executive. In this chapter we shall discuss the composition, structure and function of the executive organ of the government. This chapter will also tell you about the changes that have occurred in recent times due to political practice. After reading this chapter, you will be able to
�� make a distinction between the parliamentary and the presidential executive;
�� understand the constitutional position of the President of India;
�� know the composition and functioning of the Council of Ministers and the importance of the Prime Minister; and
�� understand the importance and functioning of the administrative machinery.
WHAT IS AN EXECUTIVE?
Who is in charge of the administration of your school?Who takes important decisions in a school or a university? In any organisation, some office holder has to take decisions and implement those decisions. We call this activity administration or management. But administration requires a body at the top that will take policy decisions or the big decisions and supervise and coordinate the routine administrative functioning. You may have heard about the executives of big companies, banks or industrial units. Every formal group has a body of those who function as the chief administrators or the executives of that organisation. Some office holders decide the policies and rules and regulations and then some office holders implement those decisions in actual day-to-day functioning of the organisation. The word executive means a body of persons that looks after the implementation of rules and regulations in actual practice. In the case of government also, one body may take policy decisions and decide about rules and regulations, while the other one would be in charge of implementing those rules. The organ of government that primarily looks after the function of implementation and administration is called the executive.
What are the principal functions of the executive?
Executive is the branch of government responsible for the implementation of laws and policies adopted by the legislature. The executive is often involved in framing of policy. The official designations of the executive vary from country to country. Some countries have presidents, while others have chancellors. The executive branch is not just about presidents, prime ministers and ministers. It also extends to the administrative machinery (civil servants). While the heads of government and their ministers, saddled with the overall responsibility of government policy, are together known as the political executive, those
responsible for day to day administration are called the permanent executive.
WHAT ARE THE DIFFERENT TYPES OF EXECUTIVE?
Every country may not have the same type of executive. You may have heard about the President of the USA and the Queen of England. But the powers and functions of the President of the USA are very different from the powers of the President of India. Similarly, the powers of the Queen of England are different from the powers of the King of Nepal. Both India and France have prime ministers, but their roles are different from each other. Why is this so? To answer this question we will briefly outline the nature of executive existing in some of these countries. The USA has a presidential system and executive powers are in the hands of the president. Canada has a parliamentary democracy with a constitutional monarchy where Queen Elizabeth II is the formal chief of state and the prime minister is the head of government. In France, both the president and the prime minister are a part of the semi presidential system. The president appoints the prime minister as well as the ministers but cannot dismiss them as they are responsible to the parliament. Japan has a parliamentary system with the Emperor as the head of the state and the prime minister as the head of government. Italy has a parliamentary system with the president as the formal head of state and the prime minister as the head of government. Russia has a semi-presidential system where president
is the head of state and prime minister, who is appointed by the president, is the head of government. Germany has a parliamentary system in which president is the ceremonial head of state and the chancellor is the head of government.
In a presidential system, the president is the Head of state as well as head of government. In this system the office of president is very powerful, both in theory and practice. Countries with such a system include the United States, Brazil and most nations in Latin America.
In a parliamentary system, the prime minister is the head of government. Most parliamentary systems have a president or a monarch who is the nominal Head of state. In such a system, the role of president or monarch is primarily ceremonial and prime minister along with the cabinet wields effective power. Countries with such system include Germany, Italy, Japan, United Kingdom as well as Portugal. A semi-presidential system has both a president and a prime minister but unlike the parliamentary system the president may possess significant day-to-day powers. In this system, it is possible that sometimes the president and the prime minister may
belong to the same party and at times they may belong to two different parties and thus, would be opposed to each other. Countries with such a system include France, Russia, Sri Lanka, etc.
PARLIAMENTARY EXECUTIVE IN INDIA
When the Constitution of India was written, India already had some experience of running the parliamentary system under the Acts of 1919 and 1935. This experience had shown that in the parliamentary system, the executive can be effectively controlled by the representatives of the
people. The makers of the Indian Constitution wanted to ensure that the government would be sensitive to public expectations and would be responsible and accountable. The other alternative to the parliamentary executive was the presidential form of government. But the presidential executive puts much emphasis on the president as the chief executive and as source of all executive power. There is always the danger of personality cult in presidential executive. The makers of the Indian Constitution wanted a government that would have a strong executive branch, but at the same time, enough safeguards should be there to check against the personality cult. In the parliamentary form there are many mechanisms that ensure that the
executive will be answerable to and controlled by the legislature or people’s representatives. So the Constitution adopted the parliamentary system of executive for the governments both at the national and State levels. According to this system, there is a President who is the formal Head of the state of India and the Prime Minister and the Council of Ministers, which run the government at the national level. At the State level, the executive comprises the Governor
and the Chief Minister and Council of Ministers. The Constitution of India vests the executive power of the Union formally in the President. In reality, the President exercises these powers
through the Council of Ministers headed by the Prime Minister. The President is elected for a period of five years. But there is no direct election by the people for the office of President. The President is elected indirectly. This means that the president is elected not by the ordinary
citizens but by the elected MLAs and MPs. This election takes place in accordance with the principle of proportional representation with single transferable vote. The President can be removed from office only by Parliament by following the procedure for impeachment. This procedure requires a special majority as explained in the last chapter. The only ground
for impeachment is violation of the Constitution.
Power and position of President
Article 74 (1): There shall be a Council of Ministers with the Prime Minister at the head
to aid and advise the President who shall in the exercise of his functions, act in accordance with such advice. Provided that the President may require the Council of Ministers to reconsider such advice….., and the President shall act in accordance with the advice tendered after such reconsideration.
Do you know what the word shall means here? It indicates that the advice is binding on the President. In view of the controversy about the scope of the President’s powers, a specific mention was made in the Constitution by an amendment that the advice of the Council of
Ministers will be binding on the President. By another amendment made later, it was decided that the President can ask the Council of Ministers to reconsider its advice but, has to accept the reconsidered advice of the Council of Ministers.
We have already seen that President is the formal head of the government. In this formal sense, the President has wide ranging executive, legislative, judicial and emergency powers. In a parliamentary system, these powers are in reality used by the President only on the advice of the Council of Ministers. The Prime Minister and the Council of Ministers have support of the majority in the Lok Sabha and they are the real executive. In most of the cases, the President has to follow the advice of the Council of Ministers.
Discretionary Powers of the President
On the basis of the above discussion can we infer that the President has no discretionary power under any circumstances? This will be an incorrect assessment. Constitutionally, the President has a right to be informed of all important matters and deliberations of the Council of Ministers. The Prime Minister is obliged to furnish all the information that the President may call for. The President often writes to the Prime Minister and expresses his views on matters confronting the country. Besides this, there are at least three situations where the President can exercise the powers using his or her own discretion. In the first place, we have already noted that the President can send back the advice given by the Council of Ministers and ask the Council to reconsider the decision. In doing this, the President acts on his (or her) own discretion. When the President thinks that the advice has certain flaws or legal lacunae, or that it is not in the best interests of the country, the President can ask the Council to reconsider the decision. Although, the Council can still send back the same advice and the President would then be bound by that advice, such a request by the President to reconsider the decision, would
naturally carry a lot of weight. So, this is one way in which the president can act in his own discretion. Secondly, the President also has veto power by which he can withhold or refuse to give assent to Bills (other than Money Bill) passed by the Parliament. Every bill passed by the Parliament goes to the President for his assent before it becomes a law. The President can send
the bill back to the Parliament asking it to reconsider the bill. This ‘veto’ power is limited because, if the Parliament passes the same bill again and sends it back to the President, then, the President has to give assent to that bill. However, there is no mention in the Constitution about the time limit within which the President must send the bill back for reconsideration. This means that the President can just keep the bill pending with him without any time limit. This gives the President an informal power to use the veto in a very effective manner. This is sometimes referred to as ‘pocket veto’. Then, the third kind of discretion arises more out of political circumstances. Formally, the President appoints the Prime Minister. Normally, in the parliamentary system, a leader who has the support of the majority in the Lok Sabha would be appointed as Prime Minister and the question of discretion would not arise. But imagine
a situation when after an election, no leader has a clear majority in the Lok Sabha. Imagine further that after attempts to forge alliances, two or three leaders are claiming that they have the support of the majority in the house. Now, the President has to decide whom to appoint as the Prime Minister. In such a situation, the President has to use his own discretion in judging who really may have the support of the majority or who can actually form and run the government. Since 1989 major political changes have considerably increased the importance of the presidential office. In the four parliamentary elections held from 1989 to 1998, no single party or coalition attained a majority in the Lok Sabha. These situations demanded presidential intervention either in order to constitute governments or to grant a request for dissolution of Lok Sabha by a Prime Minister who could not prove majority in the House. It may thus be said that presidential discretion is related to political conditions. There is greater scope for presidential assertiveness when governments are not stable and coalitions occupy power.
For the most part, the President is a formal power holder and a ceremonial head of the nation. You may wonder why then do we need a President? In a parliamentary system, the Council of Ministers is dependent on the support of the majority in the legislature. This also means that the Council of Ministers may be removed at any time and a new Council of Ministers will have to be put in place. Such a situation requires a Head of the state who has a fixed term, who may be empowered to appoint the Prime Minister and who may symbolically represent the entire country. This is exactly the role of the President in ordinary circumstances. Besides, when no party has a clear majority, the President has the additional responsibility of making a choice and appointing the Prime Minister to run the government of the country.
The Vice President of India
The Vice President is elected for five years. His election method is similar to that of the President, the only difference is that members of State legislatures are not part of the electoral college. The Vice President may be removed from his office by a resolution of the Rajya Sabha passed by a majority and agreed to by the Lok Sabha. The Vice President acts as the exofficio
Chairman of the Rajya Sabha and takes over the office of the President when there is a vacancy by reasons of death, resignation, removal by impeachment or otherwise. The Vice President acts as the President only until a new President is elected. B. D. Jatti acted as President on the death of Fakhruddin Ali Ahmed until a new President was elected.
PRIME MINISTER AND COUNCIL OF MINISTERS
No discussion of government or politics in India, would normally take place without mentioning one office: the Prime Minister of India. Can you imagine why this is so?
We have already seen earlier in this chapter that the President exercises his powers only on the advice of the Council of Ministers. The Council of Ministers is headed by the Prime Minister. Therefore, as head of the Council of Ministers, the Prime Minister becomes the most important functionary of the government in our country. In the parliamentary form of executive, it is essential that the Prime Minister has the support of the majority in the Lok Sabha. This support by the majority also makes the Prime Minister very powerful. The moment this support of the majority is lost, the Prime Minister loses the office. For many years after independence, the Congress party had the majority in the Lok Sabha and its leader
would become the Prime Minister. Since 1989, there have been many occasions when
no party had majority in the Lok Sabha. Various political parties have come together
and formed a coalition that has majority in the House. In such situations, a leader who
is acceptable to most partners of the coalition becomes the Prime Minister. Formally, a leader who has the support of the majority is appointed by the President as Prime Minister. The Prime Minister then decides who will be the ministers in the Council of Ministers. The Prime Minister allocates ranks and portfolios to the ministers. Depending upon the seniority and political importance, the ministers are given the ranks of cabinet minister, minister of State or deputy minister. In the same manner, Chief Ministers of the States choose ministers from their own party or coalition. The Prime Minister and all the ministers have to be members of the Parliament. If someone becomes a minister or Prime Minister without being an MP, such a person has to get elected to the Parliament within six months.
Size of the Council of Ministers
Before the 91st Amendment Act (2003), the size of the Council of Ministers was determined according to exigencies of time and requirements of the situation. But this led to very large size of the Council of Ministers. Besides, when no party had a clear majority, there was a temptation to win over the support of the members of the Parliament by giving them ministerial positions
as there was no restriction on the number of the members of the Council of Ministers. This was happening in many States also. Therefore, an amendment was made that the Council of Ministers shall not exceed 15 percent of total number of members of the House of People (or Assembly, in the case of the States).
In the chapter on the legislature, you will study in detail the various mechanisms through which the Parliament controls the executive. But remember that the most important feature of parliamentary executive is that the executive is routinely under the control and supervision of the legislature. The Council of Ministers is collectively responsible to the Lok Sabha. This provision means that a Ministry which loses confidence of the Lok Sabha is obliged to resign. The principle indicates that the ministry is an executive committee of the Parliament and it collectively governs on behalf of the Parliament. Collective responsibility is based on the
principle of the solidarity of the cabinet. It implies that a vote of no confidence even against a single minister leads to the resignation of the entire Council of Ministers. It also indicates that if a minister does not agree with a policy or decision of the cabinet, he or she must either accept the decision or resign. It is binding on all ministers to pursue or agree to a policy for which there is collective responsibility. In India, the Prime Minister enjoys a pre-eminent place
in the government. The Council of Ministers cannot exist without the Prime Minister. The Council comes into existence only after the Prime Minister has taken the oath of office. The death or resignation of the Prime Minister automatically brings about the dissolution of the Council of Ministers but the demise, dismissal or resignation of a minister only creates a ministerial vacancy. The Prime Minister acts as a link between the Council of Ministers
on the one hand and the President as well as the Parliament on the other. It is this role of the Prime Minister which led Pt. Nehru to describe him as ‘the linchpin of Government’. It is also the constitutional obligation of the Prime Minister to communicate to the President all decisions of the Council of Ministers relating to the administration of the affairs of the Union and proposals for legislation. The Prime Minister is involved in all crucial decisions of the
government and decides on the policies of the government. Thus, the power wielded by the Prime Minister flows from various sources: control over the Council of Ministers, leadership of the Lok Sabha, command over the bureaucratic machine, access to media, projection of
personalities during elections, projection as national leader during international summitry as well as foreign visits. Is it that a person becomes Prime Minister because he/she is powerful or is it that you become powerful once you have become the Prime Minister? However, the power which the Prime Minister wields and actually puts into use depends upon the prevailing political conditions. The position of the Prime Minister and Council of Ministers has been
unassailable whenever a single political party has secured majority in the Lok Sabha. However, this has not been the case when governments have been led by coalitions of political parties. Since 1989, we have witnessed many coalition governments in India. Many of these governments could not remain in power for the full term of the Lok Sabha. They were
either removed or they resigned due to loss of support of the majority. These developments have affected the working of the parliamentary executive. In the first place, these developments
have resulted in a growing discretionary role of the President in the selection of Prime Ministers. Secondly, the coalitional nature of Indian politics in this period has necessitated much more consultation between political partners, leading to erosion of prime ministerial authority. Thirdly, it has also brought restrictions on various prerogatives of the Prime Minister like choosing the ministers and deciding their ranks and portfolios. Fourthly, even the policies and programmes of the government cannot be decided by the Prime
Minister alone. Political parties of different ideologies come together both as pre-poll and post-poll allies to form a government. Policies are framed after a lot of negotiations and compromises among the allies. In this entire process, the Prime Minister has to act more as a
negotiator than as leader of the government. At the State level, a similar parliamentary executive exists, though with some variations. The most important variation is that there is a
Governor of the State appointed by the President (on the advice of the central government). Though the Chief Minister, like the Prime Minister is the leader of the majority party in the Assembly, the Governor has more discretionary powers. However, the main principles of parliamentary system operate at the State level too.
PERMANENT EXECUTIVE: BUREAUCRACY
Who implements the decisions of the ministers? The Executive organ of the government includes the Prime Minister, the ministers and a large organisation called the bureaucracy or the administrative machinery. To underline the difference between this machinery and the military service, it is described as civil service. Trained and skilled officers who work as
permanent employees of the government are assigned the task of assisting the ministers in formulating policies and implementing these policies. In a democracy, the elected representatives and the ministers are in charge of government and the administration is under their control and supervision. In the parliamentary system, the legislature also exercises control over the administration. The administrative officers cannot act in violation of the policies adopted by the legislature. It is the responsibility of the ministers to retain political control over the administration. India has established professional administrative
machinery. At the same time, this machinery is made politically accountable. The bureaucracy is also expected to be politically neutral. This means that the bureaucracy will not take any political position on policy matters. In a democracy, it is always possible that a party is defeated in elections and the new government wants to opt for new policies in the place of policies of the previous government. In such a situation, it is the responsibility of the
administrative machinery to faithfully and efficiently participate in drafting the policy and in its
implementation. The Indian bureaucracy today is an enormously complex system. It consists of the All-India services, State services, employees of the local governments, and technical and managerial staff running public sector undertakings. Makers of our Constitution were aware of
the importance of the non-partisan and professional bureaucracy. They also wanted the members of the civil services or bureaucracy to be impartially selected on the basis of merit. So, the Union Public Service Commission has been entrusted with the task of conducting the process of recruitment of the civil servants for the government of India. Similar public service commissions are provided for the States also. Members of the Public Service Commissions
are appointed for a fixed term. Their removal or suspension is subject to a thorough enquiry made by a judge of the Supreme Court. While efficiency and merit are the norms for recruitment, the Constitution also ensures that all sections of the society including the weaker sections have an opportunity to be part of the public bureaucracy. For this purpose, the
Constitution has provided for reservation of jobs for the Dalits and Adivasis. Subsequently, reservations have also been provided for women and other backward classes. These provisions ensure that the bureaucracy would be more representative and social inequalities will not come
in the way of recruitment to the civil service.
Persons selected by the UPSC for Indian Administrative Service and Indian Police Service constitute the backbone of the higher level bureaucracy in the States. You may know that the collector of a district is the most important officer of the government at the district level.
Do you know that the collector is normally an IAS officer and that the officer is governed by the service conditions laid down by the central government? An IAS or IPS officer is assigned to a particular State, where he or she works under the supervision of the State government. However, the IAS or IPS officers are appointed by the central government, they can go back into the service of the central government and most importantly, only the central government can take disciplinary action against them. This means that the key administrative officers of the States are under the supervision and control of the central government. Apart from the IAS and the IPS officers appointed by the UPSC, the administration of the State is looked after by officers appointed through the State Public Service Commissions. As we shall study later in the chapter on federalism, this feature of the bureaucracy strengthens the control of the central
government over the administration of the States. The bureaucracy is an instrument through which welfare policies of the government must reach the people. But most often, it is so
powerful that people are afraid of approaching a government officer. It is a common experience of the people that bureaucracy is insensitive to the demands and expectations of the ordinary citizen. Only if the democratically elected government controls the bureaucracy, some of these problems can be effectively handled. On the other hand, too much political interference turns the bureaucracy into an instrument in the hands of the politician. Though the Constitution has created independent machinery for recruitment, many people think that there is no provision for protecting the civil servants from political interference in the performance of their duties.
It is also felt that enough provisions are not there to ensure the accountability of the bureaucracy to the citizen. There is an expectation that measures like the Right to Information may make the bureaucracy a little more responsive and accountable.
Conclusion
The modern executive is a very powerful institution of government. The executive enjoys greater powers compared to other organs of the government. This generates a greater need
to have democratic control over the executive. The makers of our Constitution thought with foresight that the executive must be put firmly under regular supervision and control. Thus, a
parliamentary executive was chosen. Periodic elections, constitutional limits over the exercise of powers and democratic politics have ensured that executive organ cannot become unresponsive.
Indian Constitution - Chapter 3
ELECTION AND REPRESENTATION
INTRODUCTION
Have you ever played chess? What would happen if the black knight suddenly started moving straight rather than two and a half squares? Or, what would happen if in a game of cricket, there were no umpires? In any sport, we need to follow certain rules. Change the rules and the outcome of the game would be very different. Similarly a game needs an impartial umpire whose decision is accepted by all the players. The rules and the umpire have to be agreed upon before we begin to play a game. What is true of a game is also true of elections.There are different rules or systems of conducting elections. The outcome of the election depends on the rules we have adopted. We need some machinery to conduct the elections in an impartial manner. Since these two decisions need to be taken before the game of electoral politics can begin, these cannot be left to any government. That is why these basic decisions about elections are written down in the constitution of a democratic country. In this chapter we shall study the constitutional provisions regarding elections and representation. We shall focus on the importance of the method of election chosen in our Constitution and the implications of the constitutional provisions
regarding impartial machinery for conducting elections. We shall also look at some suggestions for amending the constitutional provisions in this respect. After reading this chapter, you would understand:
�� different methods of election;
�� the characteristics of the system of election adopted in our country;
�� the importance of the provisions for free and fair elections; and
�� the debate on electoral reforms.
ELECTIONS AND DEMOCRACY
Let us begin by asking ourselves two simple questions about elections and democracy.
�� Can we have democracy without holding elections?
�� Can we hold elections without having democracy?
Let us have a discussion in the classroom on both these questions by using examples from whatever we have learnt so far in the previous classes. The first question reminds us of the necessity of representation in a large democracy. All citizens cannot
take direct part in making every decision. Therefore, representatives are elected by the people. This is how elections become important. Whenever we think of India as a democracy, our mind invariably turns to the last elections. Elections have today
become the most visible symbol of the democratic process. We often distinguish between direct and indirect democracy. A direct democracy is one where the citizens directly participate in the day-to-day decision making and in the running of the government. The ancient city-states in Greece were considered examples of direct democracy. Many would consider local governments, especially gram sabhas, to be the closest examples of direct democracy. But this kind of direct democracy cannot be practiced when a decision has to be taken by lakhs and crores of people. That is why rule by the people usually
means rule by people’s representatives. In such an arrangement citizens choose their representatives who, in turn, are actively involved in governing and administering the country. The method followed to choose these representatives is referred to as
an election. Thus, the citizens have a limited role in taking major decisions and in running the administration. They are not very actively involved in making of the policies. Citizens are involved only indirectly, through their elected representatives. In this arrangement, where all major decisions are taken by elected representatives, the method by which people elect their representatives becomes very important.
The second question reminds us of the fact that not all elections are democratic. A large number of nondemocratic countries also hold elections. In fact nondemocratic rulers are very keen to present themselves as democratic. They do so by holding election in such a way that it does not threaten their rule. Can you think of some examples of such non-democratic elections? What do you think would distinguish a democratic from a nondemocratic election? What can be done to ensure that elections in a country would be conducted in a democratic way? This is where constitution comes in. The constitution of a democratic country lays down some basic rules about elections. The details are usually left to be worked out by laws passed by the legislatures. These basic rules are usually about
�� Who is eligible to vote?
�� Who is eligible to contest?
�� Who is to supervise elections?
�� How do the voters choose their representatives?
�� How are the votes to be counted and representatives elected?
Like most democratic constitutions, the Constitution of India answers all these questions. As you can see, the first three questions are about ensuring that elections are free and fair and can thus be called democratic. The last two questions are about ensuring a fair representation. In this chapter you will consider both these aspects of the Constitutional provisions about elections.
ELECTION SYSTEM IN INDIA
You may have noted above a reference to different methods or the systems of elections. You may have wondered what these were all about. You may have seen or read about different methods of electioneering or campaigning in the elections. But what are different methods of elections? There is a system of conducting elections. There are authorities and rules about do’s and don’ts. Is that what election system is all about? You may have wondered why the constitution needs to write down how the votes are to be counted and representatives elected. Isn’t that very obvious? People go and vote. The candidate who gets highest votes gets elected. That is what elections are all over the world. Why do we need to think about it?We need to, because this question is not as simple as it appears to us. We have got so used to our system of elections that we think that there cannot be any other way. In a democratic election, people vote and their preference decides who will win the contest. But there
can be very different ways in which people make their choices and very different ways in which their preferences can be counted. These different rules of the game can make a difference to who the winner of the game will be. Some rules can favour bigger parties; some rules can help the smaller players. Some rules can favour the majority community, others can protect the minorities. Let us look at one dramatic instance to see how this happens.
Activity
Hold mock elections in your class to elect four class
representatives. Hold the election in three different ways:
�� Each student can give one vote. The four highest vote getters
are elected.
�� Each student has four votes and can give them all to one
candidate or split the votes among different candidates. The
four highest vote getters are elected.
�� Each voter gives a preference ranking to candidates and the
counting follows the method of election of Rajya Sabha
members described below.
Did the same four persons win the election in each of these
methods? If not, what was the difference? Why?
Activity
Collect newspaper clippings about elections in India land any other country. Classify the clippings in the following categories:
a. System of representation
b. Voter eligibility
c. Role of the Election Commission.
If you have access to internet, visit the website of the project Election Process Information Collection (www.epicproject.org) and collect the information mentioned above for at least four countries
In the Lok Sabha elections of 1984, the Congress party came to power winning 415 of the 543 Lok Sabha seats – more than 80% of the seats. Such a victory was never achieved by any party in the Lok Sabha. What did this election show? The Congress party won four-fifths of the seats. Does it mean that four out of five Indian voters voted for the Congress party? Actually not. Take a look at the enclosed table. The Congress party got 48% of the votes. This means that only 48% of those who voted, voted in favour of the candidates put up by the Congress party, but the party still managed to win more than 80% of the seats in the Lok Sabha. Look at the performance of other parties. The BJP got 7.4 per cent votes but less than one per cent seats.
How did that happen? Less than 50 per cent votes and more than 80 per cent seats! Isn’t that unfair? How could our Constitution makers accept such an unfair system? This happened because in our country we follow a special method of elections. Under this system:
�� The entire country is divided into 543 constituencies;
�� Each constituency elects one representative; and
�� The candidate who secures the highest number of votes in that constituency is declared elected.
It is important to note that in this system whoever has more votes than all other candidates, is declared elected. The winning candidate need not secure a majority of the votes. This method is called the First Past the Post (FPTP) system. In the electoral race, the candidate who is ahead of others, who crosses the winning post first of all, is the winner. This method is also called the Plurality System. This is the method of election prescribed by the Constitution. Let us now go back to our example. The Congress party won greater share of seats than its share of votes because in many of the constituencies in which its
candidates won, they secured less than 50% of the votes. If there are several candidates, the winning candidate often
gets much less than 50% of the votes. The votes that go to all the losing candidates go ‘waste’, for those candidates or parties get no seat from those votes. Suppose a party gets only 25 per cent of the votes in every constituency, but everyone else gets even less votes. In that case, the party could win all the seats with only 25 per cent votes or even less.
Proportional Representation
Let us compare this to how elections take place in Israel that follows a very different system of elections. In Israel once the votes are counted, each party is allotted the share of seats in the parliament in proportion to its share of votes . Each party fills its quota of seats by picking
those many of its nominees from a preference list that has been declared before the elections. This system of elections is called the Proportional Representation (PR) system. In this system a party gets the same proportion of seats as its proportion of votes. In the PR system there could be two variations. In some countries, like Israel or Netherlands, the entire country is treated as one constituency and seats are allocated to each party according to its share of votes in the national election. The other method is when the country is divided into several multi-member
constituencies as in Argentina and Portugal. Each party prepares a list of candidates for each constituency, depending on how many have to be elected from that constituency. In both these variations, voters exercise their preference for a party and not a candidate. The seats in a constituency are distributed on the basis of votes polled by a party. Thus, representatives from a constituency, would and do belong to different parties. In India, we have adopted PR system
on a limited scale for indirect elections. The Constitution prescribes a third and complex variation of the PR system for the election of President, Vice President, and for the election to the Rajya Sabha and Vidhan Parishads.
Proportional Representation in Israel
Israel follows proportional representation system of election. Elections to the legislature (Knesset) take place every four years. Every party declares a list of its candidates, but voters vote for the party and not for the candidates. A party gets seats in the legislature in proportion to the votes polled by it. This allows even smaller parties with very small support base to get representation in the legislature. (A party must get a minimum of 1.5 per cent votes in order to be eligible to get seats in the legislature.) This often leads to a multi-party coalition government.
Why did India adopt the FPTP system?
The answer is not very difficult to guess. If you have carefully read the box explaining the Rajya Sabha elections, you would have noticed that it is a complicated system which may work in a small country, but would be difficult to work in a sub-continental country like India. The reason for the popularity and success of the FPTP system is its simplicity. The entire election system is extremely simple to understand even for common voters who may have no specialised knowledge about politics and elections. There is also a clear choice presented to the voters at the time of elections. Voters have to simply endorse a candidate or a party while voting. Depending on the nature of actual politics, voters may either give greater importance to the party or to the candidate or balance the two. The FPTP system offers voters a choice not simply between parties but specific candidates. In other electoral systems, especially PR systems, voters are often asked to choose a party and the representatives are elected on the
basis of party lists. As a result, there is no one representative who represents and is responsible for one locality. In constituency based system like the FPTP, the voters know who their own representative is and can hold him or her accountable. More importantly, the makers of our Constitution also felt that PR based election may not be suitable for giving a stable government in a parliamentary system. We shall study the nature of parliamentary system of executive in the next chapter. This system requires that the executive has majority in the legislature. You will notice that the PR system may not produce a clear majority because seats in the legislature would be divided on the basis of share of votes. The FPTP system generally gives the largest party or coalition some extra bonus seats, more than their share of votes would allow. Thus this system makes it possible for parliamentary government to function smoothly and effectively by facilitating the formation of a stable government. Finally, the FTPT system encourages voters from different social groups to come together to win an election in a locality. In a diverse country like India, a PR system would encourage each community to form its own nation-wide party. This may also have been at the back of the mind of our constitution makers. The experience of the working of the Constitution has confirmed the expectation of the constitution makers. The FPTP system has proved to be simple and familiar to ordinary voters. It has helped larger parties to win clear majorities at the centre and the State level. The system has also discouraged political parties that get all their votes only from one caste or community. Normally, the working of the FPTP system results in a two-party system. This means that
there are two major competitors for power and power is often shared by these two parties alternately. It is difficult for new parties or the third party to enter the competition and share power. In this respect, the experience of FPTP in India is slightly different. After independence, though we adopted the FPTP system, there emerged a one party dominance and along with it, there existed many smaller parties. After 1989, India is witnessing the functioning of the multiparty coalitions. At the same time, gradually, in many States, a two party competition is emerging. But the distinguishing feature of India’s party system is that the rise of coalitions has made it possible for new and smaller parties to enter into electoral competition in spite of the FPTP system.
RESERVATION OF CONSTITUENCIES
We have noticed that in the FPTP election system, the candidate who secures the highest votes in a particular constituency is declared elected. This often works to the disadvantage of the smaller social groups. This is even more significant in the Indian social context. We have had a history of caste based discrimination. In such a social system, the FPTP electoral system can mean that the dominant social groups and castes can win everywhere and the oppressed social
groups may continue to remain unrepresented. Our Constitution makers were aware of this difficulty and the need to provide a way to ensure fair and just representation to the oppressed social groups. This issue was debated even before independence and the British government had introduced ‘separate electorates’. This system meant that for electing a representative from a particular community, only those voters would be eligible who belong to that community. In the constituent assembly, many members expressed a fear that this will not suit our purposes. Therefore, it was decided to adopt the system of reserved constituencies. In this system, all voters in a constituency are eligible to vote but the candidates must belong to only a particular community or social section for which the seat is reserved. There are certain social groups which may be spread across the country. In a particular constituency, their numbers may not be sufficient to be able to influence a victory of a candidate. However, taken across the country they are a significantly sizeable group. To ensure their proper representation, a system of reservation becomes necessary. The Constitution provides for reservation of seats in the
Lok Sabha and State Legislative Assemblies for the Scheduled Castes and Scheduled Tribes. This provision was made initially for a period of 10 years and as a result of successive constitutional amendments, has been extended up to 2010. The Parliament can take a decision
to further extend it, when the period of reservation expires. The number of seats reserved for both of these groups is in proportion to their share in the population of India. Today, of the 543 elected seats in the Lok Sabha, 79 are reserved for Scheduled Castes and 41 are reserved for Scheduled Tribes.
Who decides which constituency is to be reserved? On what basis is this decision taken? This decision is taken by an independent body called the Delimitation Commission. The Delimitation Commission is appointed by the President of India and works in collaboration with the Election Commission of India. It is appointed for the purpose of drawing up the boundaries of constituencies all over the country. A quota of constituencies to be reserved in each State is fixed depending on the proportion of SC or ST in that State. After drawing
the boundaries, the Delimitation Commission looks at the composition of population in each constituency. Those constituencies that have the highest proportion of Scheduled Tribe population are reserved for ST. In the case of Scheduled Castes, the Delimitation Commission looks at two things. It picks constituencies that have higher proportion of Scheduled Caste population. But it also spreads these constituencies in different regions of the State. This is done because the Scheduled Caste population is generally spread evenly throughout the country. These reserved constituencies can be rotated each time the Delimitation exercise is undertaken. The Constitution does not make similar reservation for other disadvantaged groups. Of late there has been a strong demand seeking reservation of seats in the Lok Sabha and State Assemblies for women. Given the fact that very few women are elected to representative bodies, the demand for reserving one-third seats for women is increasingly being articulated. Reservation of seats for women has been provided for in rural and urban local bodies. We shall discuss this in the chapter on Local Governments. A similar provision for Lok Sabha and Vidhan Sabhas would require an amendment to the Constitution. Such an amendment has been proposed several times in the Parliament but has not yet been passed.
FREE AND FAIR ELECTIONS
The true test of any election system is its ability to ensure a free and fair electoral process. If we want democracy to be translated into reality on the ground, it is important that the election system is impartial and transparent. The system of election must also allow the aspirations of the voter to find legitimate expression through the electoral results.
Universal franchise and right to contest
Apart from laying down a method of elections, the Constitution answers two basic questions about elections:
Who are the voters?
Who can contest elections?
In both these respects our Constitution follows the well established democratic practices. You already know that democratic elections require that all adult citizens of the country must be eligible to vote in the elections. This is known as universal adult franchise. In many countries, citizens had to fight long battles with the rulers to get this right. In many countries, women could get this right very late and only after struggle. One of the important decisions of the framers of the Indian Constitution was to guarantee every adult citizen in India, the right to vote. Till 1989, an adult Indian meant an Indian citizen above the age of 21. An amendment to the Constitution in 1989, reduced the eligibility age to 18. Adult franchise ensures that all citizens are able to participate in the process of selecting their representative. This is consistent with the principle of equality and non-discrimination that we studied in the chapter on rights. Many people thought and many think so today that giving the right to vote to
everyone irrespective of educational qualification was not right. But our Constitution makers had a firm belief in the ability and worth of all adult citizens as equals in the matter of deciding what is good for the society, the country and for their own constituencies. What is true of the right to vote is also true of right to contest election. All citizens have the right to stand for election and become the representative of the people. However, there are different minimum age requirements for contesting elections. For example, in order to stand for Lok Sabha
or Assembly election, a candidate must be at least 25 years old. There are some other restrictions also. For instance, there is a legal provision that a person who has undergone imprisonment for two or more years for some offence is disqualified from contesting
elections. But there are no restrictions of income, education or class or gender on the right to
contest elections. In this sense, our system of election is open to all citizens.
Independent Election Commission
Several efforts have been made in India to ensure the free and fair election system and process. The most important among these is the creation of an independent Election Commission to ‘supervise and conduct‘ elections. Do you know that in many countries, there is an absence of an independent mechanism for conducting elections? Article 324 of the Indian Constitution provides for an independent Election Commission for the ‘superintendence, direction and control of the electoral roll and the conduct of elections’ in India. These words in the Constitution are very important, for they give the Election Commission a decisive role in virtually everything to do with elections. The Supreme Court has agreed with this interpretation of the Constitution. To assist the Election Commission of India there is a Chief Electoral Officer in every state. The Election Commission is not responsible for the conduct of local body elections. As we shall study in the chapter on Local Government, the State Election Commissioners work independently of the Election Commission of India and each has its own sphere of operation. The Election Commission of India can either be a single member or a multi-member body. Till 1989, the Election Commission was single member. Just before the 1989 general elections, two Election Commissioners were appointed, making the body multi-member. Soon after the elections, the Commission reverted to its single member status. In 1993, two Election Commissioners were once again appointed and the Commission became multi-member and has remained multi-member since then. Initially there were many apprehensions about a multi-member Commission. There was a sharp difference of opinion between the then Chief Election Commissioner and the other Commissioners about who had how much power. The matter had to be settled by the Supreme Court. Now there is a general consensus that a multi-member Election Commission is more appropriate as power is shared and there is greater accountability. The Chief Election Commissioner (CEC) presides over the Election Commission, but does not have more powers than the other Election Commissioners. The CEC and the two Election Commissioners have equal powers to take
all decisions relating to elections as a collective body. They are appointed by the President of India on the advice of the Council of Ministers. It is therefore possible for a ruling party to appoint a partisan person to the Commission who might favour them in the elections. This fear has led many to suggest that this procedure should be changed. Many persons have suggested that a different method should be followed that makes consultation with the leader of opposition and the Chief Justice of India necessary for the appointment of CEC and Election Commissioners.The Constitution ensures the security of the tenure of the CEC and Election Commissioners. They are appointed for a six year term or continue till the age of 65, whichever
is earlier. The CEC can be removed before the expiry of the term, by the President if both Houses of Parliament make such a recommendation with a special majority. This is done to ensure that a ruling party cannot remove a CEC who refuses to favour it in elections. The Election Commissioners can be removed by the President of India. The Election Commission of India has a wide range of functions.
�� It supervises the preparation of up-to-date voters’ list. It makes every effort to ensure that the voters’ list is free of errors like nonexistence of names of registered voters or existence of names of those non-eligible or non-existent.
�� It also determines the timing of elections and prepares the election schedule. The election schedule includes the notification of elections, date from which nominations can be filed, last date for filing nominations, last date of scrutiny, last date of withdrawal, date of polling and date of counting and declaration of results.
�� During this entire process, the Election Commission has the power to take decisions to ensure a free and fair poll. It can postpone or cancel the election in the entire country or a specific State or constituency on the grounds that the atmosphere is vitiated and therefore, a free and fair election may not be possible. The Commission also implements a model code of conduct for parties and candidates. It can order a re-poll in a specific constituency.
It can also order a recount of votes when it feels that the counting process has not been fully fair and just.
�� The Election Commission accords recognition to political parties and allots symbols to each of them. The Election Commission has very limited staff of its own. It conducts the elections with the help of the administrative machinery. However, once the election process has begun, the commission has control over the administration as far as election related work is concerned. During the election process, the administrative officers of the State and central governments are assigned election related duty and in this respect, the Election Commission has full control over them. The EC can transfer the officers, or stop their transfers; it can
take action against them for failing to act in a non-partisan manner. Over the years, the Election Commission of India has emerged as an independent authority which has asserted its powers to ensure fairness in the election process. It has acted in an impartial and unbiased manner in order to protect the sanctity of the electoral process. The record of Election Commission also shows that every improvement in the functioning of institutions does not require legal or constitutional change. It is widely agreed that the Election Commission is more independent and assertive now than it was till twenty years ago. This is not because the powers and constitutional protection of the Election Commission have increased. The Election
Commission has started using more effectively the powers it always had in the Constitution.
In the past fifty five years, fourteen Lok Sabha elections have been held. Many more State
assembly elections and bye elections have been conducted bythe Election Commission. The EC
has faced many difficult situations such as holding elections in militancy affected areas like Assam, Punjab or Jammu and Kashmir. It has also faced the difficult situation of having to postpone the election process mid-way in 1991 when the ex-Prime Minister Rajiv Gandhi was assassinated during campaigning. In 2002, the Election Commission faced another critical situation when the Gujarat Assembly was dissolved and elections had to be conducted. But the Election Commission found that unprecedented violence in that State had made it impossible to hold free and fair elections immediately. The Election Commission decided to postpone
elections to the State Assembly by a few months. The Supreme Court upheld this decision of the Election Commission.
The government cannot remove the Chief Election Commissioner.
The Commission can cancel an election if it thinks that it was not fair.
ELECTORAL REFORMS
No system of election can ever be perfect. And in actual election process, there are bound to be many flaws and limitations. Any democratic society has to keep searching for mechanisms to make elections free and fair to the maximum. With the acceptance of adult suffrage, freedom
to contest elections, and the establishment of an independent Election Commission, India has tried to make its election process free and fair. However, the experience of the last fifty five years has given rise to many suggestions for reforming our election system. The Election
Commission, political parties, various independent groups, and many scholars have come up with proposals for electoral reform. Some of these suggestions are about changing the constitutional provisions discussed in this Chapter:
�� Our system of elections should be changed from the FPTP to some variant of the PR system. This would ensure that parties get seats, as far as possible, in proportion to the votes they get.
�� There should be a special provision to ensure that at least one-third women are elected to the parliament and assemblies.
�� There should be stricter provisions to control the role of money in electoral politics. The
elections expenses should be paid by the government out of a special fund.
�� Candidates with any criminal case should be barred from contesting elections, even if their
appeal is pending before a court.
�� There should be complete ban on the use of caste and religious appeals in the campaign.
�� There should be a law to regulate the functioning of political parties and to ensure that they function in a transparent and democratic manner.
These are but a few suggestions. There is no consensus about these suggestions. Even if there was a consensus, there are limits to what the laws and formal provisions can do. Free and fair
elections can be held only if the candidates, the parties and those involved in the election
process agree to abide by the spirit of democratic competition. Apart from legal reforms, there are two other ways of ensuring that elections reflect the expectations and democratic aspirations of the people. One is, of course, that people themselves have to be more vigilant, more actively involved in political activities. But there are limits to the extent to which ordinary people can engage in politics on a regular basis. Therefore, it is necessary that various political institutions and voluntary organisations are developed and are active in functioning as watchdog for ensuring free and fair elections.
Conclusion
In countries where representative democracy is practiced, elections and the representative character of those elections are crucial factors in making democracy effective and trustworthy. The success of India’s election system can be gauged from a number of factors.
�� Our election system has allowed the voters not only to freely choose representatives, but also to change governments peacefully both at the State and national level.
�� Secondly, voters have consistently taken a keen interest in the election process and participated in it. The number of candidates and parties that contest elections is on the rise.
�� Thirdly, the system of election has proved to be accommodative and inclusive. The social composition of our representatives has changed gradually. Now our representatives come from many different social sections, though the number of women legislators has not increased satisfactorily.
�� Fourthly, the election outcome in most parts of the country does not reflect electoral malpractices and rigging. Of course, many attempts at rigging do take place. You must have read about violence, about complaints that voters’ names disappear from the voters’ list, about intimidation, and so on. Yet, such instances rarely directly affect the outcome of the election.
�� Finally and most importantly, elections have become a part and parcel of our democratic life. No one can imagine a situation where a government would disrespect the verdict of an election. Similarly, no one can imagine that a government would be formed without holding elections. In fact, regularity and periodicity of elections has earned fame for India as a great
democratic experiment.
All these factors have earned for our election system a respect within and outside the country. The voter in India has gained confidence. The legitimacy of the Election Commission
has increased in the eyes of the people. This vindicates the basic decisions taken by our Constitution makers. If the election process becomes more flawless, we as voters and citizens would be able to share more effectively in this carnival of democracy and make it more meaningful.
Chapter Two
RIGHTS IN THE INDIAN CONSTITUTION
INTRODUCTION
A constitution is not only about the composition of the various organs of government and the relations among them. As we studied in the last chapter, the constitution is a document that sets limits on the powers of the government and ensures a democratic system in which all persons enjoy certain rights. In this chapter, we shall study the Fundamental Rights contained in the Indian Constitution. Part three of the Constitution of India lists the Fundamental Rights and also mentions the limits on these rights. In the past fifty years, the scope of rights has changed and in some respects, expanded. After studying this chapter, you would know
�� what are the various Fundamental Rights listed in the Constitution of India;
�� how these rights are protected;
�� what role the judiciary has played in protecting and interpreting these rights;
and
�� what is the difference between the Fundamental Rights and the Directive
Principles of State Policy.
THE IMPORTANCE OF RIGHTS
In 1982 during the construction work for Asian Games the government engaged a few contractors. These contractors employed a large number of very poor construction workers from different parts of the country to build the flyovers and stadiums. These workers were kept in poor working conditions and were paid less than the minimum wages decided by the government. A team of social scientists studied their poor condition and petitioned the Supreme Court. They argued that employing a person to work for less than the minimum prescribed wage amounts to begar or forced labour, which is a violation of the Fundamental Right against exploitation. The court accepted this plea and directed the government to ensure that thousands of workers get the prescribed wages for their work.
Machal Lalung was 23 when he was arrested. A resident of Chuburi village of Morigaon district of Assam, Machal was charged of causing grievous injuries. He was found mentally too unstable to stand trial and was sent as under trial to Lok Priya Gopinath Bordoloi Mental Hospital in Tejpur for treatment. Machal was treated successfully and doctors wrote twice to jail authorities in 1967 and 1996 that he was fit to stand trial. But no one paid any attention. Machal Lalung remained in “judicial custody.’’ Machal Lalung was released in July 2005. He was 77 then. He
spent 54 years under custody during which his case never came up for hearing. He was freed when a team appointed by the National Human Rights Commission intervened after an inspection of undertrials in the State. Machal’s entire life was wasted because a proper trial
against him never took place.
Our Constitution gives every citizen the right to ‘life and liberty’: this means that every citizen must also have the right to fair and speedy trial. Machal’s case shows what happens when rights granted by the Constitution are not available in practice. In the case of the first instance also there was violation of rights provided in the Constitution. But it was challenged in the court. As a result, workers could get what was due to them in the form of their rightful wages. The constitutional guarantee of the right against exploitation ensured justice to these workers.
Bill of Rights
Both these examples show the importance of having rights and of the actual implementation of these rights. A democracy must ensure that individuals have certain rights and that the government will always recognise these rights. Therefore it is often a practice in most democratic countries to list the rights of the citizens in the constitution itself. Such a list of rights mentioned and protected by the constitution is called the ‘bill of rights’. A bill of rights prohibits government from thus acting against the rights of the individuals and ensures a remedy in case there is violation of these rights. From whom does a constitution protect the rights of the individual? The rights of a person may be threatened by another person or private organisation. In such a situation, the individual would need the protection of the government. So, it is necessary that the government is bound to protect the rights of the individual. On the other
hand, the organs of the government (the legislature, executive, bureaucracy or even the judiciary), in the course of their functioning, may violate the rights of the person.
FUNDAMENTAL RIGHTS IN THE INDIAN CONSTITUTION
During our freedom struggle, the leaders of the freedom movement had realised the importance of rights and demanded that the British rulers should respect rights of the people. The Motilal Nehru committee had demanded a bill of rights as far back as in 1928. It was therefore, natural that when India became independent and the Constitution was being prepared, there were no
two opinions on the inclusion and protection of rights in the Constitution. The Constitution
listed the rights that would be specially protected and called them ‘fundamental rights’. The word fundamental suggests that these rights are so important that the Constitution has separately listed them and made special provisions for their protection. The Fundamental
Rights are so important that the Constitution itself ensures that they are not violated by the
government. Fundamental Rights are different from other rights available to us. While ordinary
legal rights are protected and enforced by ordinary law, Fundamental Rights are protected and guaranteed by the constitution of the country. Ordinary rights may be changed by the legislature by ordinary process of law making, but a fundamental right may only be changed by amending the Constitution itself. Besides this, no organ of the government can act in a manner that violates them. As we shall study below in this chapter, judiciary has the powers and responsibility to protect the fundamental rights from violations by actions of the government. Executive as well as legislative actions can be declared illegal by the judiciary if these violate the fundamental rights or restrict them in an unreasonable manner. However, fundamental
rights are not absolute or unlimited rights. Government can put reasonable restrictions on the exercise of our fundamental rights.
Bill of rights in the South AfricanConstitution
The South African Constitution wasinaugurated in December 1996. Its creation and promulgation tookplace at a time when South Africastill faced the threat of a civil warafter the dissolution of the Apartheid government. The South African Constitution says that its “Bill of Rights is a cornerstone of democracyin South Africa”. It forbids discrimination on the grounds of“race, gender, pregnancy, maritalstatus, ethnic or social origin,colour, age, disability, religion,conscience, belief, culture, languageand birth”. It grants perhaps themost extensive range of rights to thecitizens. A special constitutional court enforces the rights enshrined in the constitution.Some of the Rights included in the constitution of South Africa include:
�� Right to Dignity
�� Right to Privacy
�� Right to fair labour practices
�� Right to healthy environmentand right to protection of environment
�� Right to adequate housing
�� Right to health care, food, waterand social security
�� Children’s rights
�� Right to basic and higher education
�� Right of cultural, religious and linguistic communities
�� Right to information
RIGHT TO EQUALITY
Consider the following two situations. These are imaginary situations. But similar things do happen and can happen. Do you think they involve violation of fundamental rights?
�� Swadesh Kumar is visiting his village. He is accompanied by one of his friends. They decided to have a cup of tea at the village roadside hotel. The shopkeeper knew Swadesh Kumar but asked the name of his friend to know his caste. After this the shopkeeper served tea to Swadesh Kumar in a nice mug while his friend was given tea in an earthen cup because he was dalit.
�� An order is served to four newsreaders of a television channel that they would no longer read the news on screen. They are all women. The reason given is that they are above the age of forty-five. Two male newsreaders above the same age are not barred from presenting the news.
Article 16 (4): Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the
opinion of the State, is not adequately represented in the services under the State.
These are examples of clear discrimination. In one instance the discrimination is based on caste and in another it is based on gender. Do you think that such discrimination is justified? Right to equality tries to do away with such and other discriminations. It provides for equal access to public places like shops, hotels, places of entertainment, wells, bathing ghats and places of worship. There cannot be any discrimination in this access on the basis of caste, creed, colour, sex, religion, or place of birth. It also prohibits any discrimination in public employment on any
of the above mentioned basis. This right is very important because our society did not practice equal access in the past. The practice of untouchability is one of the crudest manifestations of inequality. This has been abolished under the right to equality. The same right also provides
that the state shall confer no title on a person except those who excel themselves in military or academic field. Thus right to equality strives to make India a true democracy by ensuring a sense of equality of dignity and status among all its citizens. Have you read the Preamble to our Constitution? How does it describe equality? You will find that the Preamble mentions two things about equality: equality of status and equality of opportunity. Equality of opportunity means that all sections of the society enjoy equal opportunities. But in a society where there are various kinds of social inequalities, what does equal opportunity mean? The Constitution clarifies that the government can implement special schemes and measures for improving the conditions of certain sections of society: children, women, and the socially and educationally backward classes. You may have heard about ‘reservations’ in jobs, and in admissions. You would have wondered why there are reservations if we follow the principle of equality. In fact Article 16(4) of the constitution explicitly clarifies that a policy like reservation will not be seen as a violation of right to equality. If you see the spirit of the Constitution, this is required for the fulfilment of the right to equality of opportunity.
YOU ARE THE JUDGE
You have received a post card from Hadibandhu, who identifies himself as a “member of the dalit community” in Puri district in Orissa. Men from this community refused to follow a custom that required them to wash the feet of the groom and guests of the ‘upper caste’ during marriage
ceremonies. In revenge, four women from this community were beaten up and another was paraded naked. The post card writer says “Our children are educated and they are not willing to do the customary job of washing the feet of upper caste men, clear the left-overs after the marriage feast and wash the utensils.” Assuming that the facts given above are correct, you have to decide:
Does this case involve violation of Fundamental Rights?
What would you order the government to do in this case?
RIGHT TO FREEDOM
Equality and freedom or liberty, are the two rights that are most essential to a democracy. It is not possible to think of the one without thinking of the other. Liberty means freedom of thought, expression and action. However it does not mean freedom to do anything that one desires or likes. If that were to be permitted then a large number of people will not be able to enjoy their freedom. Therefore, freedoms are defined in such a manner that every person will enjoy her freedom without threatening freedom of others and without endangering the law and order
situation.
Right to life and personal liberty
The foremost right among rights to freedom is the right to life and personal liberty. No citizen can be denied his or her life except by procedure as laid down under the law. Similarly no one can be denied his/her personal liberty. That means no one can be arrested without being told
the grounds for such an arrest. If arrested, the person has the right to defend himself by a lawyer of his choice. Also, it is mandatory for the police to take that person to the nearest magistrate within 24 hours. The magistrate, who is not part of the police, will decide whether the arrest is justified or not. This right is not just confined to a guarantee against taking away of an individual’s life but has wider application. Various judgments of Supreme Court have expanded the scope of this right. The Supreme Court has ruled that this right also includes right to live with human dignity, free from exploitation. The court has held that right to shelter and livelihood is also included in the right to life because no person can live without the means of living, that is, the means of livelihood.
Article 21: Protection of life and personalliberty—No person shall be deprived of hislife or personal liberty except accordingto procedure established by law.
Preventive detention
Ordinarily, a person would be arrested after he or she has reportedly committed some offence. However there are exceptions to this. Sometimes a person can be arrested simply out of an apprehension that he or she is likely to engage in unlawful activity and imprisoned for some time without following the above mentioned procedure. This is known as preventive detention. It means that if the government feels that a person can be a threat to law and order or to the peace
and security of the nation, it can detain or arrest that person. This preventive detention can be extended only for three months. After three months such a case is brought before an advisory board for review. On the face of it, preventive detention looks like an effective tool in the hands of the government to deal with anti-social elements or subversives. But this provision has often been misused by the government. Many people think that there must be greater safeguards
in this law so that it may not be misused against people for reasons other than that which are really justified. In fact, there is a clear tension between right to life and personal liberty and the provision for preventive detention.
Other freedoms
You can see that under the right to freedom there are some other rights as well. These rights however are not absolute. Each of these is subject to restrictions imposed by the government.
For example right to freedom of speech and expression is subject to restrictions such as public order, peace and morality etc. Freedom to assemble too is to be exercised peacefully and without arms. The government may impose restrictions in certain areas declaring the assembly of five or more persons as unlawful. Such powers can be easily misused by the administration. The genuine protest against an act or policy of government by the people may be denied
permission. However, if the people are aware and vigilant in regard to their rights and choose to protest against such acts of administration such misuse becomes rare. In the Constituent
Assembly itself, some members had expressed their dissatisfaction about restrictions on rights.
Rights of accused
Our Constitution ensures that persons accused of various offences would also get sufficient protection. We often tend to believe that anyone who is charged with some offence is guilty. However, no one is guilty unless the court has found that person guilty of an offence. It is also necessary that a person accused of any crime should get adequate opportunity to defend herself or himself. To ensure a fair trial in courts, the Constitution has provided three rights:
�� no person would be punished for the same offence more than once,
�� no law shall declare any action as illegal from a backdate,
and
�� no person shall be asked to give evidence against himself or
herself.
I feel that many of these fundamental rights have been framed from the point of view of
a police Constable… you will find that very minimum rights have been conceded and are almost invariably followed by a proviso. Almost every article is followed by a proviso which takes away the right almost completely,..…What should be our conception of fundamental rights ?....We want to incorporate every one of those rights which our people want to get.
RIGHT AGAINST EXPLOITATION
In our country there are millions of people who are underprivileged and deprived. They may be subjected to exploitation by their fellow human beings. One such form of exploitation in our country has been begar or forced labour without payment. Another closely related form of exploitation is buying and selling of human beings and using them as slaves. Both of these are
prohibited under the Constitution. Forced labour was imposed by landlords, money lenders and other wealthy persons in the past. Some form of bonded labour still continues in the country, specially in brick kiln work. It has now been declared a crime and it is punishable.
Check your progress
Do you think that the following situations demand restrictions on right to freedom? Give reasons to support your answer.
a. People have assembled for a peace march after communal riots in the city.
b. Dalits are denied entry in a temple. A march is being organised to forcibly enter the temple.
c. Hundreds of tribals armed with their traditional weapons bows arrows and axes have blocked the road. They are demanding that the surplus land taken for an industry be returned to them.
d. A caste panchayat is meeting to decide the punishment to a young couple for marrying outside
their caste.
The Constitution also forbids employment of children below the age of 14 years in dangerous jobs like factories and mines. With child labour being made illegal and right to education becoming a fundamental right for children, this right against exploitation has
become more meaningful.
RIGHT TO FREEDOM OF RELIGION
According to our Constitution, everyone enjoys the right to follow the religion of his or her choice. This freedom is considered as a hallmark of democracy. Historically, there were rulers and emperors in different parts of the world who did not allow residents of their countries to enjoy the right to freedom of religion. Persons following a religion different from that of the ruler were either persecuted or forced to convert to the official religion of the rulers. Therefore, democracy has always incorporated the freedom to follow the religion of one’s choice as one of its basic principles.
Freedom of faith and worship
In India, everyone is free to choose a religion and practice that religion. Freedom of religion also includes the freedom of conscience. This means that a person may choose any religion or may choose not to follow any religion. Freedom of religion includes the freedom to profess, follow and propagate any religion. Freedom of religion is subject to certain limitations. The government can impose restrictions on the practice of freedom of religion in order to protect public order, morality and health. This means that the freedom of religion is not an unlimited right. The government can interfere in religious matters for rooting out certain social evils. For example in the past, the government has taken steps banning practices like sati, bigamy or human sacrifice. Such restrictions cannot be opposed in the name of interference in right to freedom of religion. The limitations on the right to freedom of religion always produce tensions between followers of various religions and the government. When the government seeks to restrict some activities of any religious group, people of that religion feel that this is interference in their religion. Freedom of religion becomes a matter of political controversy for yet another reason. The Constitution has guaranteed the right to propagate one’s religion. This includes persuading people to convert from one religion to another. However, some people resent conversions on the ground that these are based on intimidation or inducement. The Constitution does not allow forcible conversions. It only gives us the right to spread information about our religion and thus attract others to it.
Equality of all religions
Being a country which is home to several religions, it is necessary that the government must extend equal treatment to different religions. Negatively, it means that government will not favour any particular religion. India does not have any official religion. We don’t have to belong to any particular religion in order to be a prime minister or president or judge or any other public official. We have also seen that under the right to equality, there is a guarantee that
government will not discriminate on the basis of religion in giving employment. The institutions run by the state will not preach any religion or give religious education nor will they favour persons of any religion. The objective of these provisions is to sustain and nurture the principle of secularism.
Activity
Make a list of public religious activities that take place in your village or city. Which of these involve an exercise of right to religious freedom? Discuss what could have happened if this right was not available to people in your locality.
CULTURAL AND EDUCATIONAL RIGHTS
When we talk of the Indian society, the image of diversity comes before our minds. India is not made up of a monolithic society. We are a society that has vast diversity. In such a society that is full of diversity, there would be social sections which are small in numbers compared to some other groups. If a group is in minority, will it have to adopt the culture of the majority? Our Constitution believes that diversity is our strength. Therefore, one of the fundamental rights is the right of the minorities to maintain their culture. This minority status is not dependent only
upon religion. Linguistic and cultural minorities are also included in this provision. Minorities are groups that have common language or religion and in a particular pa t of the country or in the country as a whole, they are outnumbered by some other social section. Such communities have a culture, language and a script of their own, and have the right to conserve and develop these.
All minorities, religious or linguistic, can set up their own educational institutions. By doing so, they can preserve and develop their own culture. The government will not, while granting aid to
educational institutions, discriminate against any educational institution on the basis that it is under the management of minority community.
RIGHT TO CONSTITUTIONAL REMEDIES
One would agree that our Constitution contains a very impressive list of Fundamental Rights. But merely writing down a list of rights is not enough. There has to be a way through which they could be realised in practice and defended against any attack on these rights. Right to constitutional remedies is the means through which this is to be achieved. Dr. Ambedkar considered the right to constitutional remedies as ‘heart and soul of the constitution’. It is so because this right gives a citizen the right to approach a High Court or the Supreme Court
to get any of the fundamental rights restored in case of their violation. The Supreme Court and the High Courts can issue orders and give directives to the government for the enforcement of rights. The courts can issue various special orders known as writs.
�� Habeas corpus: A writ of habeas corpus means that the court orders that the arrested person
should be presented before it. It can also order to set free an arrested person if the manner or
grounds of arrest are not lawful or satisfactory.
�� Mandamus: This writ is issued when the court finds that a particular office holder is not doing
legal duty and thereby is infringing on the right of an individual.
�� Prohibition: This writ is issued by a higher court (High Court or Supreme Court) when a lower court has considered a case going beyond its jurisdiction.
�� Quo Warranto: If the court finds that a person is holding office but is not entitled to hold that office, it issues the writ of quo warranto and restricts that person from acting as an office holder.
�� Certiorari: Under this writ, the court orders a lower court or another authority to transfer a
matter pending before it to the higher authority or court.
Apart from the judiciary, many other mechanisms ave been created in later years for the protection of ights. You may have heard about the National Commission on Minorities, the National Commission on Women, the National Commission on Scheduled Castes,etc. These institutions protect the rights of women, minorities or Dalits. Besides, the National Human Rights Commission has also been established by law to protect the fundamental and other kinds
of rights.
Human Rights Commission
The real test of the rights given by any constitution is in their actual implementation. The poor, illiterate and the deprived sections of the society must be able to exercise their rights. Independent organisations like the People’s Union for Civil Liberties (PUCL) or People’s Union for Democratic Rights (PUDR) have been working as watchdogs against the violations of rights. In this background, the government has established in 2000 an institution, the National Human Rights Commission. The National Human Rights Commission (NHRC) is composed of a former chief justice of the Supreme Court of India, a former judge of the Supreme Court, a former
chief justice of a High Court and two other members who have knowledge and practical experience in matters relating to human rights. The commission’s functions include inquiry at its own initiative or on a petition presented to it by a victim into complaint of violation of human rights; visit to jails to study the condition of the inmates; undertaking and promoting research in the field of human rights etc. The commission receives complaints in thousands every year. These relate to custodial death, custodial rape, disappearances, police excesses, failure in taking action, indignity to women etc. Its most significant intervention has been on disappeared youth in Punjab and investigation and trial of Gujarat riot cases where its intervention proved effective. The commission does not have the power of prosecution. It can merely make recommendations to the government or recommend to the courts to initiate proceedings based on the inquiry that it conducts.
DIRECTIVE PRINCIPLES OF STATE POLICY
The makers of our Constitution knew that independent India was going to face many challenges. Foremost among these was the challenge to bring about equality and well-being of all citizens. They also thought that certain policy direction was required for handling these problems. At the same time, the Constitution did not want future governments to be bound by certain policy decisions. Therefore, some guidelines were incorporated in the Constitution but they were not made legally enforceable: this means that if a government did not implement a particular guideline, we cannot go to the court asking the court to instruct the government to implement
that policy. Thus, these guidelines are ‘non-justiciable’ i.e., parts of the Constitution that cannot be enforced by the judiciary. Those who framed our Constitution thought that the moral force behind these guidelines would ensure that the government would take them seriously. Besides, they expected that the people would also hold the governments responsible for implementing these directives. So, a separate list of policy guidelines is included in the Constitution. The list of these guidelines is called the Directive Principles of State Policy.
What do the Directive Principles contain?
The chapter on Directive Principles lists mainly three things:
�� the goals and objectives that we as a society should adopt;
�� certain rights that individuals should enjoy apart from the Fundamental Rights; and
�� certain policies that the government should adopt.
You may get some idea of the vision of makers of our Constitution by looking at some of the Directive Principles shown below. The governments from time to time tried to give effect to some Directive Principles of State Policy. They passed several zamindari abolition bills, nationalised banks, enacted numerous factory laws, fixed minimum wages, cottage and small industries were promoted and provisions for reservation for the uplift of the scheduled castes
and scheduled tribes were made. Such efforts to give effect to the Directive Principles include the right to education, formation of panchayati raj institutions all over the country, partial right to work under employment guarantee programme and the mid-day meal scheme etc.
DIRECTIVE PRINCIPLES
Goals
Welfare of the people;Social, economic and political justice; Raising the standard of
living; equitable distribution of resources; promotion of international peace
Non-justiciable rights
Adequate livelihood equal pay for equal work (for men and women); Right against economic
Exploitation.Right to work; Right of children to free and compulsory education
Policies
Uniform civil code;Prohibition of consumption of alcoholic liquor; Promotion of cottage industries; Prevention of slaughter of useful cattle; Promotion of village panchayats.
Fundamental Duties of citizens
�� In 1976, the 42nd amendment to the Constitution was passed. Among other things, this amendment inserted a list of Fundamental Duties of Citizens. In all, ten duties were enumerated. However, the Constitution does not say anything about enforcing these duties.
�� As citizens, we must abide by the Constitution, defend our country, promote harmony among all citizens, protect the environment.
�� However, it must be noted that our Constitution does not make the enjoyment of rights dependent or conditional upon fulfilment of duties. In this sense, the inclusion of fundamental duties has not changed the status of our fundamental rights.
RELATIONSHIP BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES
It is possible to see both Fundamental Rights and Directive Principles as complementary to each other. Fundamental Rights restrain the government from doing certain things while Directive
Principles exhort the government to do certain things. Fundamental Rights mainly protect the rights of individuals while directive principles ensure the well-being of the entire society.
However, at times, when government intends to implement Directive Principles of State Policy, it can come in conflict with the Fundamental Rights of the citizen. This problem arose when the government sought to pass laws to abolish zamindari system. These measures were opposed on the ground that they violated right to property. However, keeping in mind the societal needs that are greater than the individual interests, the government amended the Constitution to give effect to the Directive Principles of State Policy. This led to a long legal battle. The executive
and the judiciary took different positions. The government claimed that rights can be abridged for giving effect to Directive Principles. This argument assumed that rights were a hindrance to welfare of the people. On the other hand, the court held the view that Fundamental Rights were so important and sacred that they cannot be limited even for purposes of implementing Directive Principles.
Right to Property
Behind the controversy about the relationship between rights and directive principles, there was one important reason: in the Constitution, originally, there was a fundamental right to ‘acquire, possess and maintain’ property. But the Constitution made it clear that property could be taken away by the government for public welfare. Since 1950, government made many laws that limited this right to property. This right was at the centre of the long debate over the relationship between rights and directive principles. Finally, in 1973, the Supreme Court gave a decision that the right to property was not part of the basic structure of the Constitution and therefore, parliament had power to abridge this right by an amendment. In 1978, the 44th amendment to the Constitution removed the right to property from the list of Fundamental Rights and converted it into a simple legal right. What difference, do you think, this change of status makes to the right to property?
This generated another complicated debate. This related to the amendment of the Constitution. The government was saying that Parliament can amend any part of the Constitution. The court was saying that Parliament cannot make an amendment that violated Fundamental Rights. This controversy was settled by an important decision of the Supreme Court in Kesavananda Bharati case. In this case, the court said that there are certain basic features of the Constitution and these cannot be changed by Parliament. We shall discuss this in greater detail in Chapter 9 on ‘Constitution as a Living Document’.
Conclusion
In the writings of Jotirao Phuley (1827-1890), a radical social reformer from Maharashtra, we find one of the earliest expressions of the view that rights include both freedom and equality. During the national movement, this idea of rights was further sharpened and expanded to constitutional rights. Our Constitution reflected this long tradition and listed the fundamental rights. Since 1950, the judiciary has functioned as an important protector of rights. Judicial interpretations have expanded the scope of rights in many respects. The government and administration of our country function within this overall framework. Rights enforce limitations on the functioning of the government and ensure democratic governance of the country.
Chapter One
CONSTITUTION:WHY AND HOW?
INTRODUCTION
This book is about the working of the Indian Constitution. In the chapters that
follow, you will read information about various aspects of the working of our
Constitution. You will learn about the various institutions of the government in
our country and their relationship with each other.
But before you begin to read about elections, governments, and presidents
and prime ministers, it is necessary to understand that the entire structure of the
government and the various principles that bind the institutions of government
have their origin in the Constitution of India.
After studying this chapter, you will learn:
�� what a constitution means;
�� what a constitution does to the society;
�� how constitutions govern the allocation of power in society; and
�� what was the way in which the Constitution of India was made.
WHY DO WE NEED A CONSTITUTION?
What is a constitution? What are its functions? What role does it perform for a society? How does a constitution relate to our daily existence? Answering these questions is not as difficult as you might think.
Constitution allows coordination and assurance
Imagine yourself to be a member of a reasonably large group. Further imagine that this group has the following characteristics. The members of this group are diverse in various ways. They have different religious allegiances: some are Hindus, some are Muslims, some Christians and some perhaps
profess no religion at all. They are also varied in many different respects: they pursue different professions, have different abilities, have different hobbies, different tastes in
everything from films to books. Some are rich and some are poor.Some are old, some young.
Imagine further that members of this group are likely to have disputes over various aspects
of life: How much property should one be allowed to own? Should it be compulsory that every child be sent to school or should the parents be allowed to decide? How much should this group spend on its safety and security? Or should it build more parks instead? Should the group be
allowed to discriminate against some of its members? Every question will elicit a variety of answers from different people. But, for all their diversity, this group has to live
together. They are dependent upon each other in various ways. They require the cooperation of each other. What will enable the group to live together peacefully? One may say that perhaps members of this group can live together if they can agree on some basic rules. Why will the group need certain basic rules? Think of what would happen in the absence of some basic rules. Every individual would be insecure simply because they would not know what members of this group could do to each other, who could claim rights over what. Any group will need some basic rules that are publicly promulgated and known to all members of that group to achieve a minimal degree of coordination. But these rules must not only be known, they must also be enforceable. If citizens have no assurance that others will follow these rules, they will themselves have no reason to follow these rules. Saying that the rules are legally enforceable gives an assurance to everybody that others will follow these, for if they do not do so, they will be punished. The first function of a constitution is to provide a set of basic rules that allow for minimal coordination amongst members of a society.
Specification of decision making powers
A constitution is a body of fundamental principles according to which a state is constituted or governed. But what should these fundamental rules be? And what makes them fundamental? Well, the first question you will have to decide is who gets to decide what the laws governing the society should be? You may want rule X, but others may want rule Y. How do we decide whose rules or preferences should govern us? You may think the rules you want everyone to live by are the best; but others think that their rules are the best. How do we resolve this dispute? So even before you decide what rules should govern this group you have to decide: Who gets to decide? The constitution has to provide an answer to this question. Itspecifies the basic allocation of power in a society. It decides who gets to decide what the laws will be. In principle, this question, who gets to decide, can be answered in many ways: in a monarchical constitution, a monarch decides; in some constitutions like the old Soviet Union, one single party was given the power to decide. But in democratic constitutions, broadly speaking, the people get to decide. But this matter is not so simple. Because even if you answer that the people should decide, it will not answer the question: how should the people decide? For something to be law, should everyone agree to it? Should the people directly vote on each matter as the ancient Greeks did? Or should the people express their preferences by electing representatives? But if the people act through their representatives, how should these representatives be elected? How many should there be?
In the Indian Constitution for example, it is specified that in most instances, Parliament gets to decide laws and policies, and that Parliament itself be organised in a particular manner. Before
identifying what the law in any given society is, you have to identify who has the authority to enact it. If Parliament has the authority to enact laws, there must be a law that bestows this authority on Parliament in the first place. This is the function of the constitution. It is an
authority that constitutes government in the first place. The second function of a constitution is to specify who has the power to make decisions in a society. It decides how the government will be constituted.
Limitations on the powers of government
But this is clearly not enough. Suppose you decided who had the authority to make decisions. But then this authority passed laws that you thought were patently unfair. It prohibited you from practising your religion for instance. Or it enjoined that clothes of a certain colour were prohibited, or that you were not free to sing certain songs or that people who belonged to a
particular group (caste or religion) would always have to serve others and would not be allowed to retain any property. Or that government could arbitrarily arrest someone, or that only people of a certain skin colour would be allowed to draw water from wells. You would obviously think these laws were unjust and unfair. And even though they were passed by a government that had come into existence based on certain procedures there would be something obviously unjust about that government enacting these laws. So the third function of a constitution is to set some limits on what a government can impose on its citizens. These limits are fundamental in the sense that government may never trespass them. Constitutions limit the power 0f government in many ways. The most common way of limiting the power of government is to specify certain fundamental rights that all of us possess as citizens and which no government can ever be allowed to violate. The exact content and interpretation of these rights varies from constitution to constitution. But most constitutions will protect a basic cluster of rights. Citizens will be protected from being arrested arbitrarily and for no reason. This is one basic limitation upon the power of government. Citizens will normally have the right to some basic liberties: to freedom of speech, freedom of conscience, freedom of association,freedom to conduct a trade or business etc. In practice, these rights can be limited during times of national emergency and the constitution specifies the circumstances under which these rights may be withdrawn.
Aspirations and goals of a society
Most of the older constitutions limited themselves largely to allocating decision-making power and setting some limits to government power. But many twentieth century constitutions, of which the Indian Constitution is the finest example, also provide an enabling framework for
the government to do certain positive things, to express the aspirations and goals of society. The Indian Constitution was particularly innovative in this respect. Societies with deep entrenched inequalities of various kinds, will not only have to set limits on the power of government, they will also have to enable and empower the government to take positive measures to overcome
forms of inequality or deprivation.For example, India aspires to be a society that is free of caste
discrimination. If this is our society’s aspiration, the government will have to be enabled or empowered to take all the necessary steps to achieve this goal. In a country like South Africa, which had a deep history of racial discrimination, its new constitution had to enable the government to end racial discrimination. More positively, a constitution may enshrine the aspirations of a society. The framers of the Indian Constitution, for example, thought that each
individual in society should have all that is necessary for them to lead a life of minimal dignity and social self-respect — minimum material well being, education etc. The Indian Constitution
enables the government to take positive welfare measures some of which are legally enforceable. As we go on studying the Indian Constitution, we shall find that such enabling provisions have the support of the Preamble to our Constitution, and these provisions are found in the section
on Fundamental Rights. The Directive Principles of State of Policy also enjoin government to fulfil certain aspirations of the people. The fourth function of a constitution is to enable
the government to fulfil the aspirations of a society and create conditions for a just society.
Enabling provisions of the Constitution
Constitutions are not only rules and regulations controlling the powers of the government. They also give powers to the government for pursuing collective good of the society.
�� Constitution of South Africa assigns many responsibilities to the government: it wants
the government to take measures to promote conservation of nature, make efforts to protect
persons or groups subjected to unfair discrimination, and provides that the government must progressively ensure adequate housing to all, health care, etc.
�� In the case of Indonesia also, the government is enjoined to establish and conduct national
education system. The Indonesian Constitution ensures that the poor and destitute children
will be looked after by the government.
Fundamental identity of a people
Finally, and perhaps even most importantly, a constitution expresses the fundamental identity of a people. This means the people as a collective entity come into being only through the basic constitution. It is by agreeing to a basic set of norms about how one should be governed, and who should be governed that one forms a collective identity. One has many sets of identities that exist prior to a constitution. But by agreeing to certain basic norms and principles one
constitutes one’s basic political identity. Second, constitutional norms are the overarching
framework within which one pursues individual aspirations, goals and freedoms. The constitution sets authoritative constraints upon what one may or may not do. It defines the fundamental values that we may not trespass. So the constitution also gives one a moral identity. Third and finally, it may be the case that many basic political and moral values are now shared across different constitutional traditions. If one looks at constitutions around the world, they differ in many respects — in the form of government they enjoin in many procedural details. But they also share a good deal. Most modern constitutions create a form of government that is democratic in some respects, most claim to protect certain basic rights. But constitutions are different in the way they embody conceptions of natural identity. Most nations are an amalgamation of a complex set of historical traditions; they weave together the diverse groups that reside within the nation in different ways. For example, German identity was constituted by
being ethnically German. The constitution gave expression to this identity. The Indian Constitution, on the other hand, does not make ethnic identity a criterion for citizenship. Different nations embody different conceptions of what the relationship between the different regions of a nation and the central government should be. This relationship constitutes the national identity of a country.
THE AUTHORITY OF A CONSTITUTION
We have outlined some of the functions a constitution performs. These functions explain why most societies have a constitution. But there are three further questions we can ask about constitutions:
a) What is a constitution?
b) How effective is a constitution?
c) Is a constitution just?
In most countries, ‘Constitution’ is a compact document that comprises a number of articles about the state, specifying how the state is to be constituted and what norms it should follow. When we ask for the constitution of a country we are usually referring to this document. But some countries, the United Kingdom for instance, do not have one single document that can be
called the Constitution. Rather they have a series of documents and decisions that, taken collectively, are referred to as the constitution. So, we can say that constitution is the document or set of documents that seeks to perform the functions that we mentioned above.
But many constitutions around the world exist only on paper; they are mere words existing on a parchment. The crucial question is: how effective is a constitution? What makes it effective? What ensures that it has a real impact on the lives of people? Making a constitution effective depends upon many factors.
Mode of promulgation
This refers to how a constitution comes into being. Who crafted the constitution and how much authority did they have? In many countries constitutions remain defunct because they are crafted by military leaders or leaders who are not popular and do not have the ability to carry
the people with them. The most successful constitutions, like India, South Africa and the United States, are constitutions which were created in the aftermath of popular national movements. Although India’s Constitution was formally created by a Constituent Assembly between December 1946 and November 1949, it drew upon a long history of the nationalist movement that had a remarkable ability to take along different sections of Indian society together. The
Constitution drew enormous legitimacy from the fact that it was drawn up by people who enjoyed immense public credibility, who had the capacity to negotiate and command the respect of a wide cross-section of society, and who were able to convince the people that the constitution was not an instrument for the aggrandisement of their personal power. The final document reflected the broad national consensus at the time. Some countries have subjected their constitution to a full-fledged referendum, where all the people vote on the desirability of a
constitution. The Indian Constitution was never subject to such a referendum, but nevertheless carried enormous public authority, because it had the consensus and backing of leaders who were themselves popular. Although the Constitution itself was not subjected to a referendum, the people adopted it as their own by abiding by its provisions. Therefore, the authority of people who enact the constitution helps determine in part its prospects for success. The substantive provisions of a constitution It is the hallmark of a successful constitution that it gives everyone in society some reason to go along with its provisions. A constitution that, for instance, allowed permanent majorities to oppress minority groups within society would give minorities no reason to go along with the provision of the constitution. Or a constitution that systematically privileged some members at the expense of others, or that systematically entrenched the power of small groups in society, would cease to command allegiance. If any group feels their identity
is being stifled, they will have no reason to abide by the constitution. No constitution by itself achieves perfect justice. But it has to convince people that it provides the framework for pursuing basic justice. The more a constitution preserves the freedom and equality of
all its members, the more likely it is to succeed. Does the Indian Constitution, broadly speaking, give everyone a reason to go along with its broad outlines? After studying this book, one should be able to answer this question in the affirmative.
Balanced institutional design
Constitutions are often subverted, not by the people, but by small groups, who wish to enhance their own power. Well crafted constitutions fragment power in society intelligently so that no single group can subvert the constitution. One way of such intelligent designing of a constitution is to ensure that no single institution acquires monopoly of power. This is often done by fragmenting power across different institutions. The Indian Constitution, for example,
horizontally fragments power across different institutions like the Legislature, Executive and the Judiciary and even independent statutory bodies like the Election Commission. This ensures that even if one institution wants to subvert the Constitution, others can check its transgressions. An intelligent system of checks and balances has facilitated the success of the Indian Constitution. Another important aspect of intelligent institutional design is: that a constitution must strike the right balance between certain values, norms and procedures as authoritative, and at the same time allow enough flexibility in its operations to adapt to changing
needs and circumstances. Too rigid a constitution is likely to break under the weight of change; a constitution that is, on the other hand, too flexible, will give no security, predictability or identity to a people. Successful constitutions strike the right balance between preserving core values and
adapting them to new circumstances. You will notice the wisdom of makers of the Indian Constitution in the chapter on the Constitution as a living document .The Indian Constitution is described as ‘a living’ document. By striking a balance between the possibility to change the
provisions and the limits on such changes, the Constitution has ensured that it will survive as a document respected by people. This arrangement also ensures that no section or group can, on its own, subvert the Constitution. Therefore in determining whether a constitution has authority you can ask yourself three questions:
�� Were the people who enacted the constitution credible? This question will be answered in the remaining part of this chapter.
�� Secondly, did the constitution ensure that power was intelligently organised so that it was not easy for any group to subvert the constitution? And, most importantly, does the constitution give everyone some reason to go along with it? Most of this book is about this question.
�� Also, is the constitution the locus of people’s hopes and aspiration? The ability of the constitution to command voluntary allegiance of the people depends to a certain extent upon whether the constitution is just. What are the principles of justice underlying the Indian Constitution? The last chapter of this book will answer this question.
How was the Indian Constitution made?
Let us find out how the Indian Constitution was made. Formally, the Constitution was made by the Constituent Assembly which had been elected for undivided India. It held its first sitting on
9 December1946 and re-assembled as Constituent Assembly for divided India on 14 August 1947. Its members were elected by indirect election by the members of the Provisional Legislative Assemblies that had been established in 1935. The Constituent Assembly was composed roughly along the lines suggested by the plan proposed by the committee of the British cabinet, known as the Cabinet Mission. According to this plan:
�� Each Province and each Princely State or group of States were allotted seats proportional to their respective population roughly in the ratio of 1:10,00,000. As a result the Provinces (that were under direct British rule) were to elect 292 members while the Princely States were allotted a minimum of 93 seats.
�� The seats in each Province were distributed among the three main communities, Muslims, Sikhs and general, in proportion to their respective populations.
�� Members of each community in the Provisional Legislative Assembly elected their own representatives by the method of proportional representation with single transferable vote.
�� The method of selection in the case of representatives of Princely States was to be determined by consultation.
The previous section discusses the three factors that make a constitution effective and respectable. How far does the Indian Constitution pass this test?
Composition of the Constituent Assembly
As a consequence of the Partition under the plan of 3 June 1947 those members who were elected from territories which fell under Pakistan ceased to be members of the Constituent Assembly. The numbers in the Assembly were reduced to 299 of which 284 were actually present on 26 November 1949 and appended their signature to the Constitution as finally passed. The Constitution was thus framed against the backdrop of the horrendous violence that the Partition unleashed on the sub-continent. But it is a tribute to the fortitude of the framers that they were not only able to draft a constitution under immense pressure, but also learnt the
right lessons from the unimaginable violence that accompanied Partition. The Constitution was committed to a new conception of citizenship, where not only would minorities be secure, but religious identity would have no bearing on citizenship rights. But this account of the composition of the Constituent Assembly that drafted the Constitution touches upon only the surface of how our Constitution was made. Although, the members of the Assembly were not elected by universal suffrage, there was a serious attempt to make the Assembly a representative body. Members of all religions were given representation under the scheme described above; in addition, the Assembly had twentysix members from what were then known as the Scheduled Classes. In terms of political parties, the Congress dominated the Assembly occupying as many
as eighty-two per cent of the seats in the assembly after the Partition. The Congress itself was such a diverse party that it managed to accommodate almost all shades of opinion within it.
The Principle of Deliberation
The authority of the Constituent Assembly does not come only from the fact that it was broadly, though not perfectly, representative. It comes from the procedures it adopted to frame the Constitution and the values its members brought to their deliberations. While in any assembly that claims to be representative, it is desirable that diverse sections of society participate, it is equally important that they participate not only as representatives of their own identity or
community. Each member deliberated upon the Constitution with the interests of the whole nation in mind. There were often disagreements amongst members, but few of these disagreements could be traced to members protecting their own interests. There were legitimate differences of principle. And the differences were many: should India adopt a centralised or decentralised system of government? What should be the relations between the States and the centre? What should be the powers of the judiciary? Should the Constitution protect property rights? Almost every issue that lies at the foundation of a modern state was discussed with great sophistication. Only one provision of the Constitution was passed without virtually any debate: the introduction of universal suffrage (meaning that all citizens reaching a certain age, would be entitled to be voters irrespective of religion, caste, education, gender or income). So, while the members felt no need at all to discuss the issue of who should have the right to vote, every other matter was seriously discussed and debated. Nothing can be a better testament to the democratic commitment of this Assembly. The Constitution drew its authority from the fact that members of the Constituent Assembly engaged in what one might call public
reason. The members of the Assembly placed a great emphasis on discussion and reasoned argument. They did not simply advance their own interests, but gave principled reasons to other members for their positions. The very act of giving reasons to others makes you move away from simply a narrow consideration of your own interest because you have to give reasons to others to make them go along with your view point. The voluminous debates in the 18
Indian Constitution at Work Constituent Assembly, where each clause of the Constitution was
subjected to scrutiny and debate, is a tribute to public reason at its best. These debates deserved to be memorialised as one of the most significant chapters in the history of constitution making, equal in mportance to the French and American revolutions.
Procedures
The importance of public reason as emphasised in the mundane procedures of the Assembly as well. The Constituent Assembly had eight major Committees on different subjects. Usually, Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, Maulana Azad or Ambedkar chaired these Committees. These were not men who agreed with each other on many things. Ambedkar
had been a bitter critic of the Congress and Gandhi, accusing them of not doing enough for the
upliftment of Scheduled Castes. Patel and Nehru disagreed on many issues. Nevertheless, they all worked together. Each Committee usually drafted particular provisions of the Constitution
which were then subjected to debate by the entire Assembly. Usually an attempt was made to
reach a consensus with the belief that provisions agreed to by all, would not be detrimental to any particular interests. Some provisions were subject to the vote. But in each instance every single argument, query or concern was responded to with great care and in writing. The Assembly met for one hundred and sixty six days, spread over two years and eleven months. Its
sessions were open to the press and the public alike.
Inheritance of the nationalist movement
But no constitution is simply a product of the Assembly that produces it. An Assembly as diverse as the Constituent Assembly of India could not have functioned if there was no background consensus on the main principles the Constitution should enshrine. These principles were forged during the long struggle for freedom. In a way, the Constituent Assembly was giving concrete shape and form to the principles it had inherited from the nationalist movement. For decades preceding the promulgation of the Constitution, the nationalist movement had debated many questions that were relevant to the making of the constitution — the shape and form of government India should have, the values it should uphold, the inequalities it should overcome.
Answers forged in those debates were given their final form in the Constitution. Perhaps the best summary of the principles that the nationalist movement brought to the Constituent
Assembly is the Objectives Resolution (the resolution that defined the aims of the Assembly) moved by Nehru in 1946. This resolution encapsulated the aspirations and values behind the Constitution. What the previous section terms as substantive provisions of the constitution is
inspired by and summed up by the values incorporated in the Objectives Resolution. Based on this resolution, our Constitution gave institutional expression to these fundamental commitments: equality, liberty, democracy, sovereignty and a cosmopolitan identity. Thus, our
Constitution is not merely a maze of rules and procedures, but a moral commitment to establish a government that will fulfil the many promises that the nationalist movement held before the people.
Main points of the Objectives Resolution
√ India is an independent, sovereign, republic;
√ India shall be a Union of erstwhile British Indian territories, Indian States, and other parts outside British India and Indian States as are willing to be a part of the Union;
√ Territories forming the Union shall be autonomous units and exercise all powers and functions of the Government and administration, except those assigned to or vested in the Union;
√ All powers and authority of sovereign and independent India and its constitution shall flow from the people;
√ All people of India shall be guaranteed and secured social, economic and political justice; equality of status and opportunities and equality before law; and fundamental freedoms - of speech, expression, belief, faith, worship, vocation, association and action - subject to law and public morality;
√ The minorities, backward and tribal areas, depressed and other backward classes shall be provided adequate safeguards;
√ The territorial integrity of the Republic and its sovereign rights on land, sea and air shall be maintained according to justice and law of civilized nations;
√ The land would make full and willing contribution to the promotion of world peace and welfare of mankind.
Institutional arrangements
The third factor ensuring effectiveness of a constitution is a balanced arrangement of the institutions of government. The basic principle is that government must be democratic and committed to the welfare of the people. The Constituent Assembly spent a lot of time on
evolving the right balance among the various institutions like the executive, the legislature and the judiciary. This led to the adoption of the parliamentary form and the federal arrangement,
which would distribute governmental powers between the legislature and the executive on the one hand and between the States and the central government on the other hand. While evolving the most balanced governmental arrangements, the makers of our Constitution did not hesitate to learn from experiments and experiences of other countries. Thus, the framers of the constitution were not averse to borrowing from other constitutional traditions. Indeed, it is a testament to their wide learning that they could lay their hands upon any intellectual argument, or historical example that was necessary for fulfilling the task at hand. So they borrowed a number of provisions from different countries. But borrowing these ideas was not slavish imitation. Far from it. Each provision of the Constitution had to be defended on grounds that it was suited to Indian problems and aspirations. India was extremely lucky to have an Assembly that instead of being parochial in its outlook could take the best available everywhere in the world and make it their own. Was it a borrowed constitution then? Why could we not have a constitution that does not borrow anything from anywhere else?
Provisions borrowed from constitutions of different countries
British Constitution
1.First Past the Post
2.Parliamentary Form of Government
3.The idea of the rule of law
4.Institution of the Speaker and his role
5.Lawmaking procedure
United States Constitution
1.Charter of Fundamental Rights,
2.Power of Judicial Review and independence of the judiciary
Irish Constitution
1.Directive Principles of State Policy
French Constitution
1.Principles of Liberty, Equality and Fraternity
Canadian Constitution
1.A quasi-federal form of government (a federal system with a strong central
government)
2.The idea of Residual Powers
Conclusion
It is a tribute to the wisdom and foresight of the makers of the Constitution that they presented to the nation a document that enshrined fundamental values and highest aspirations shared
by the people. This is one of the reasons why this most intricately crafted document has not only survived but become a living reality, when so many other constitutions have perished with
the paper they were first written on. India’s Constitution is a unique document which in turn
became an exemplar for many other constitutions, most notably South Africa. The main purpose behind the long search that went on for almost three years was to strike the right balance
so that institutions created by the Constitution would not be haphazard or tentative arrangements but would be able to accommodate the aspirations of the people of India for a long
time to come. You will know more about these arrangements through the study of the remaining chapters in this book.
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