--- title: "Complete Book 0" book: "MA Pol.Sc 104 Final" category: "MA" publisher: "Ratan Prakashan Mandir Pvt. Ltd." type: "Educational Material" ---  According to Latest Syllabus Read For Sure SuccessIn University Examination RATAN TEXT BOOK INDIAN POLITICS I : POLITICAL INSTITUTIONS M.A.Political Science (Sem-I) Dr. Mukesh Upadhyay Published by Ratan Prakashan Mandir Pvt. Ltd. 2nd Floor, Centre Plaza, Parinay Kunj, Lajpat Kunj Marg, Agra-282002 Copyright Authors & Publishers Published by Ratan Prakashan Mandir Pvt. Ltd. 2nd Floor, Centre Plaza, Parinay Kunj, Lajpat Kunj Marg, Agra-282002 ISBN :978-81-69604-38-3 Price 346.00 only Printed at : KIDS INTERNATIONAL PVT. LTD. C-60, 61, 62, 63, EPIP, Shastripuram, Agra - 282007 Ph. : +91 9719004921 SYLLABUS Semester-I Course Code: POLS 104 Indian Politics I: Political Institutions Objectives: The objective of the course is to make students familiar with the process of making of Indian constitution along with colonial legacy and ideological moorings. They will be able to understand the office and functions of the three organs of the government and will develop a critical sight to understand the federal structure of the Indian constitution with a strong centre. Knowing about the election commission of India, electoral reforms, constitutional bodies and various commissions they will be able to develop a rational knowledge of Indian politics and political institutions. Outcome: The students are expected to gain practical knowledge and skills about the functioning of different political institutions and the processes at regional, state and local level. UNIT-I 1.    Making of the Indian Constitution: Colonial Legacy and the Contribution of Indian National Movement to the Making of the Indian Constitution 2.    Constituent Assembly: Composition, Ideological Moorings: Constitutional Debates. 3.    Philosophy of the Constitution: Preamble, Fundamental Rights, Directive Principles of State Policy. UNIT-II 1.    Union Executive: President, Prime Minister and Council of Ministers 2.    Union Parliament: Structure, Role and Functions. 3.    Judiciary: Supreme Court, High Court, Judicial Review, Judicial Activism. UNIT-III 1.    Federalism in India: Strong Centre Framework 2.    Asymmetrical Federal Provision: Article 370, Article 371, V and VI Schedule. 3.    Intergovernmental Bodies: NITI Aayog, Inter-State Council, Finance Commission, National Integration Council. UNIT-IV 1.    Election Commission of India, Electoral Reforms. 2.    Constitutional Bodies: National Commission for SC and National Commission for ST. 3.    Statutory Bodies: National Commission for Human Rights, National Commission for Women. Suggested Readings: Austin, Grenville, Indian Constitution: The Cornerstone of a Nation, New York: Oxford University Press, 1972. 1)    Bakshi, P.M., The Constitution of India, Universal Law Publishing Co., 2004. 2)    Basu, Durga Das, Commentary on the Constitution of India, New Delhi: N.M Tripathi Private Ltd., 1952. 3)    Basu, Durga Das, Introduction to the Constitution of India, New Delhi: N.M Tripathi Private Ltd., 1962. 4)    Bhargava, Rajeev, Politics and Ethics of the Indian Constitutions, Oxford University Press, 2009. 5)    Chakraverty, Vidyut and Pandey, Rajendra Kumar, Indian Government and Politics, New Delhi: Sage, 2008. 6)    Chaudhary Sujit, Khosla, Madhav and Mehta, Pratap Bhanu, The Oxford Handbook of Indian Constitution, New Delhi: Oxford, 2016. 7)    Chauhan, Ramesh K., Punjab and Nationality Question in India, New Delhi: Deep and Deep Publications, 1995. 8)    Grover, Verinder (ed.), Federal System, State Autonomy and Center-State Relations in India, Vol. 1-4, New Delhi: Deep and Deep Publications, 2003. 9)    Khosla, Madhav, India‘s Founding Moment, The Constitution of a Most Surprising Democracy, New Delhi: Oxford, 2020. 10)    Jayal, NirajaGopal, Democracy and the State, Oxford University Press, 1999. 11)    Jayal, NirajaGopal, Prakash, Amit and Sharma, Pradeep K. (ed.), Local Governance in India: Decentralization and Beyond, Oxford University Press, 2007. 12)    Jennings, Sir Ivor, Some Characteristics of the Indian Constitution, Oxford University Press 1953. 13)    Jones, Miorris, The Government and Politics in India,London: Hutchinson University Library, 1967. Joshi, G.N., Aspects of Indian Constitutional Law,Bombay: 14)    PC Manaktala and Sons Private Ltd., 1964. Kashyap, Subhash, Citizens and Constitution, Publication Division, 1997. 15)    Narang, A.S., Indian Government and Politics, Orient Longman, 2010. Pandey, J.N., Constitutional Law of India, Allahabad: Central Law Agency, 2000. 16)    Retzlaff, Ralph H., Village Government in India: A Case Study, Bombay, Delhi: Asia Publishing House, 2011. 17)    Sen, Sirdar D.K., A Comparative Study of Indian Constitution, New Delhi: Orient Longman, 1960. 18)    Thakur, Harish K., Alienation and Integration in Jammu and Kashmir,Jairpur: Alekh, 2000. 19)    Thakur, Harish K., Globalization and Human Rights, New Delhi: Radha Publication, 2008. 20)    Thakur, Harish K.,Ladakh: The Individuality vs. State, New Delhi: Manas Publications, 2014. 21)    Tillin, Louise, Indian Federalism,New Delhi: Oxford University Press, 2019. 22)    Wheare, K.C., Modern Constitution, Oxford University Press, 1966. UNIT-1 ROLE OF COLONIAL LEGACY AND CONTRIBUTION OF INDIAN NATIONAL MOVEMENT IN THE MAKING OF INDIAN CONSTITUTION Structure 1.1    Introduction 1.2    Learning Objectives 1.3    Colonial Legacy in the Making of Indian Constitution 1.3.1    Parliamentary Government is a British Colonial Legacy 1.3.2    Indian Federal System Contribution of 1935 Act 1.3.3    Provision of the Constituent Assembly 1.3.4    Civil Services is a Colonial Legacy 1.3.5    Creation of Schedule Castes and Scheduled Tribes as Categories for Reservation 1.3.6    Provision of Electoral Process is the Legacy of Colonial Rule Self- Check Exercise-1 1.4    Contribution of National Movement in the Making of Indian Constitution Self -Check Exercise-2 1.5    Mahatma Gandhi‗s Contribution Self -Check Exercise-3 1.6    Impact of Subhash Radical Leadership Self -Check Exercise-4 1.7    Impact of Partition of India Self- Check Exercise-5 1.8    Summary 1.9    Glossary 1.10    Answers to Self- Check Exercise 1.11    References /Suggested Readings 1.12    Terminal Questions 1.1    Introduction History plays a very crucial role in the determination of the political system and constitution of a country. In the context of India, colonial history and rule of the British has played a very significant role which has to be understood by the students to develop their proper understanding regarding the Indian constitution. 1.2    Learning Objectives This unit will help students in gaining the proper historical understanding of the historical origin of the Indian constitution. Although it has to be mentioned that the present Indian constitution also inherits its democracy from the great ancient and civilizational traits of India, but the present unit specifically deals with the British Colonial rule and its impact on the constitution making. 1.3    Colonial Legacy in the Making of Indian Constitution British colonial rule has shaped the making of the Indian constitution and this has happened gradually during the 200 years of colonial rule. The British played an important role in establishing parliamentary government, federal system, independent judiciary and administrative officials. 1.3.1    Parliamentary Government is a British Colonial Legacy Britain is the home of parliamentary democracy in the world and with its unique historical circumstances it has the world's first liberal democratic system. The historical roots of the long constitutional process of evolution were the result of the British blueprint and demand of Indians for self-governance. It can be traced from the rule of the East India Company and subsequently from Government of India Act 1858 , Indian Council Acts of 1861, ,1871, 1892 ,India Council Act of 1909 ( Morley Minto Reforms, 1919 and 1935. All these acts were the precursor of the future Parliamentary government enshrined in the Indian constitution.Government of India Act 1858 ended the rule of East India Company India came under the direct control of the British Parliament. The post of Secretary of State for India was created by the British government to manage Indian affairs. Indian Council Act 1861 was the first step in the creation of legislative assemblies in the states. Acts of 1871 and 1892 subsequently widened the representation and membership in Legislative assemblies in India and principle of election was started for being chosen into legislatures. But still the numbers of nominated members were larger as compared to the elected members within the assemblies. The Minto- Morley Act of 1909 increased the size of the Central Legislative Assembly and of states legislative assembly of Bengal, Madras, Bombay, United Province, Punjab, Burma and Assam. Elected members of the legislative assemblies were elected indirectly through the members of local bodies and the members of legislative assemblies elected the elected members of the Central Legislative assembly. The procedure of a separate electorate was started for Muslims and in such constituencies only Muslims could vote for Muslims. The Act of 1919 made provision for creating a responsible form of governing mechanism for Indians. This act adopted the principle of Diarchy for Provinces where legislative power was divided into two lists: Transferred List and Reserved List. Legislative and rule making powers in the Transferred List were given to the elected governments of the provinces and they were made responsible towards their respective Legislative assemblies. Two houses were created in the Central Assembly. Legislative assembly was the forerunner of Lok Sabha and Council of State became the future Rajya Sabha. After Independence, India adopted the parliamentary traditions and customs from the British parliamentary system. 1.3.2    Indian Federal System is a Contribution of 1935 Act The Govt. of India Act 1935 divided the power between centre and the states which subsequently became a step towards creating a federal government. Even the present Indian constitution has broadly the same three lists for the division of legislative powers between the center and the states. The Federal assembly and Council of states were formally constituted at the center. A Federal Court was established to settle the disputes between the centre and the states. 1.3.3    Provision of the Constituent Assembly Indian constitution reflects the ethos of the constitutional assembly and we can say philosophy of Indian Constitution the culmination of debates of the Constituent Assembly. This very concept was given traction by the British Colonial government. During the Second World War the British wanted to gain the support of the Indian public therefore they gave the August Offer to Indians in which the Viceroy Linlithgow recognized the right of Indians to formulate Constituent assembly. Cabinet Mission provided the basic framework for the creation of the Constituent Assembly. Subsequently, partition of India impacted on the future growth of constitution making in India. The Constituent Assembly has been elected through the use of the direct elections of the Assemblies of the different states. This election became virtually the direct elections of the constituent assembly because both Indian National Congress and Muslim League campaigned to nationalize these elections. The League claimed that their victory would ensure the protection of Muslim interests in Hindu dominated India while Congress claimed to represent the future modern, secular and democratic India. 1.3.4    Civil Services is a Colonial Legacy Present Indian constitution in article 309(1) provides for the recruitment and conditions of service for public servants. It was the British colonial rule in which Indian Civil Services was for the first time established. These administrative services played a fundamental role in running the British Colonial rule in India. After independence Indian leadership decided to retain these services by giving them a palace within the Indian Constitution. Similar provisions were retained within the Constitution regarding the provincial administrative constitution. This helped in establishing the state apparatus after independence in India after independence and carried out the developmental work.But this also became the continuity of colonial administration even after independence. 1.3.5    Creation of Schedule Castes and Scheduled Tribes as Categories for Reservation Although it was the 1931 Census in which different castes and communities were categorized into Scheduled Caste, Schedule Tribe and Backward Community. Communal Award given by the British government granted provision of separate electorate to India for Muslims, Buddhists, Sikhs, Christians and Depressed classes. Communal electorate was abolished after the partition of India but Scheduled Caste, Schedule Tribe and Backward Community has been institutionalized. The Indian constitution has now provision for the reservation of seats of SC and ST candidates through the joint electorate system. Similarly there is the provision of reservations for SCs, STs and OBCs is still enshrined in the constitution. Article 15 and Article 16 of the Indian Constitution provides for the reservations in jobs and education for the SC, ST and OBCs. Schedule 5 and 6 of Indian constitution which deals with the tribal areas and governance is the direct import of the British Colonial legislations. 1.3.6    Provision of Electoral Process is the Legacy of Colonial Rule The Indian electoral process has its historical roots in the British Colonial rule which gradually started establishing representative institutions. These representative institutions were initially very elitist in nature but gradually voting rights for these councils was increased. These elections gradually sensitize the Indian elite to the potential of the modern electoral process for legitimization of the political parties. Even the creation of Indian National Congress (INC) has been the creation of A.O.Hume who was a British colonial officer and he believed that there should be a native Indian organization which should function as a mediator between the masses and the rulers. This laid the foundation of the modern democratic and electoral process in India. Self Check Exercise-1 Q.1. Which country is the home of the Parliamentary Government? Q.2. What was the contribution of different legislations passed by the Britishers? 1.4    Contribution of National Movement in the Making of Indian Constitution All the acts which the British have legislated had some unique background and impact of different movements has direct bearing upon the legislation made by the Colonial power. Rebellion of 1857 had a direct impact upon the legislation of 1858 act which ended the company rule in India. The Indian council act 1861 was passed with the intention of increasing the participation of the Indians in the legislation making and subsequently this representation process was increased in 1882 and 1892. These steps were taken to avoid the fear of facing another rebellion like 1857 and create a sense of legitimacy of British rule in the educated sections of Indian. In other words, the implementation of the Safety Valve theory of A.O Hume in which involvement of natives will ensure legitimacy and longevity of British rule was the result of rising rebellions and movements against British rule. Impact of the Bang-Bhang Movement of 1905 and the subsequent Surat split between the radical and liberal Congress party in Congress provided the British opportunity to legislate in the 1909 act. In this act they tried to placate the Liberal faction of Congress and besides propping up Muslim separatist identity through communal electorate to challenge the Congress claim of representing the Indians. The Ghadar Movement started predominantly by Punjabi patriots living in the USA was suppressed but it once again points out the possibility of armed rebellion against the British during the First World War. The Home Rule League movement helped in popularizing and giving traction to the demand of Dominion Status among the Indian intellectuals and middle classes. The Britshers needed the support of Indian soldiers during the First World War and therefore they promised a representative government in India after the end of the war. Contribution of Indian soldiers in World War-I also led to pressure on the British to establish a responsible government for Indians. This culminated into the 1919 Montagu Chelmsford Act which led to the creation of a partially responsible government for Indians and establishment of bicameral legislation at the center. Self -Check Exercise -2 Q.1. Which Act did end the East India company rule in India? 1.5    Mahatma Gandhi‘s Contribution Rise of Mahatma Gandhi on the stage of national freedom struggle had a transformational impact on the history of Indian freedom struggle. Gandhi demanded the establishment of a representative government in India from the British. Gandhi started the Non-cooperation Movement for the establishment of self -rule in India within the British Suzerainty. It mobilized the peasantry and women in the cause of attaining self -government. But failure of this movement disenchanted the youth and they drifted towards revolutionary and communist politics. These churning within India nation forced the British to hurry up with the formation of the Commission to Review the Working of Constitutional Reforms in India. This Commission was popularly known as the Simon Commission. This commission did not have any single Indian member in it. This led to protests against this commission and Lala Laj Path gave up his life in Lahore during these protests. The Congress party decided to formulate its own counter report to the Simon Commission which is known as the Nehru Report. The Nehru Report became the challenge to the British that Indians themselves are capable of creating their own Constitution. This constant pressure forced the British to carry on with the Round Table Conference to discuss the Simon Commission. Gandhi started the Civil Disobedience Movement to challenge the unjust salt laws by starting the Dandi March in 1930. This Gandhian movement had a direct impact upon the scheme of constitution making and hastened the formulation of Communal award and subsequently the implementation of Govt of India Act 1935. The Communal Award gave the depressed classes a separate electorate like Muslims & Sikhs and this point was opposed by Mahatma Gandhi on the ground that scheme representation will separate the depressed classes from the fold of Hinduism forever.Gandhi believed that it will further balkanize the Indian civilization like separate electorate has entrenched separate identity among the muslims in India. Gandhi opposed it by going on fast unto death and finally Dr. Ambedkar decided to search for a compromise because he didn't want the touchables as a community and he as an individual to be blamed for the death of Gandhi.The Poona Pact between Gandhi and Ambedkar was signed and this played a seminal role in the establishing Joint electorate for the election of reserved seats for Depressed Classes. This is a method of elections to the reserved seats in the present Indian constitution. It also provided the political legitimacy to constitutional provisions of reservations in the Indian constitution.Although Congress under the leadership of Nehru in 1936 rejected Govt of India Act 1935 because this constitutional design was imposed by the British on them rather than giving India's right to formulate their own constitution. But still congress decided to contest elections to the various state assemblies and formed governments in many states. Self -Check Exercise - 3 Q.1.What is the contribution of Mahatma Gandhi‘s in the growth of Indian Constitution? Q.2.What was the purpose of the Simon Commission? 1.6    Impact of Subhash Radical Leadership The leadership of Congress under Subhash Chander Bose before the Second World War sent an indirect message to the British that without concrete assurance on Indian independence it will be very difficult to regain Indian support in the War against Axis Powers. Subhash was clear that Indians should go all out against the British and seek help from enemies of the British to liberate India, although the Old Guard of Congress did not support it. Subhash had to leave India and he took up the leadership of Azad Hind Fauj in a valiant effort to liberate India militarily. In 1942 Singapore fell to the Japanese army and threat to India became imminent and they were also afraid of Indian troops who had joined hands with Japan to liberate India. In such a context the Cripps Mission was sent to India in 1942 which promised formation of a constitutional assembly to determine the future of India. Subhash formed in 1943 the Free Indian Government in Singapore and 11 countries gave recognition to that government. Indian National Congress rejected the Cripps mission on the ground that it once again seeks to gain the support of Indians during the world war without giving freedom to India. Indian National Congress under Gandhiji launched Quit India movement in 1942 to attain complete independence and the British suppressed this movement swiftly by capturing the entire congress leadership. But masses reacted violently in many places and the British had to use more violence and brutality to finally suppress the movement. US pressure on the British was gradually mounting to liberate India. Indian National Army trials (INA trials) between 1945 and May 1946 started creating a sense of resentment among the army and naval officials. The British lost the loyalty of the British Indian army because Netaji and INA ignited the spirit of nationalism in Indian officers and soldiers. All these factors led to the formation of the Cabinet Mission Plan which led to the formation of Constituent assembly for future free India. Self Check Exercise-4 Q.1. What was the impact of leadership of Subhash Chander Bose in making of Indian Constitution? 1.7    Impact of Partition of India The Cabinet mission became the final step in the formation of a constitutional government in free India. Direct action of Muslim league and complicity of the British (Cold War - need of Islamic state to stop Communist expansion)- and failure of Congress leadership led to partition of India. Partition of India and the carnage of human lives which it brought on the Indian sub-continent had a direct impact on the Indian constitution making process. This background became the reason for the unitary nature of governance as compared to federal governance structure being adopted by the constitutional assembly. This is the reason that the emergency powers of the president were adopted by the constitutional assembly so that India could not face future balkanization. This was the reason why the Indian constitution rejected the communal electorate as the model of representation. Self- Check Exercise-5 Q1.What was the impact of partition on the Indian Constitution? 1.8    Summary The colonial lagecy played a pivotal role in the making of Indian Constitution.The Constitution of India is the product of the Constitution Assembly. Indian national movement too contributed a great deal in the foundation of a solid ideological base and principles. 1.9    Glossary •    Constitution - Constitution is the supreme document which lays down the foundation of governance of a country. •    Colonial - is the situation of rule by the foreign country in another country. 1.10 . Answers to Self -Check ExerciseSelf Check Exercise-1 Ans.1 See Sub-Section 1.3.1 Ans.2. See Sub-Section 1.3.1 & 1.3.2 Self Check Exercise-2 Ans1. See Section 1.4 Self Check Exercise-3 Ans.1. See Section 1.5 Ans.2. See Section 1.5 Self Check Exercise-4 Ans.1. See Section 1.6 Self Check Exercise-5 Ans.1. See Section 1.7 1.11    References /Suggested Readings •    Constituent Assembly Legislative Debates, Parliament Digital Library. •    Indian Kanoon, indiankanoon.org •    M.Laxmikant (2021), Indian Polity, Mcgraw Hill Publication. •    M.V.Paylee (2009), India’s Constitution, S.Chand Publication, New Delhi. •   Granville Austin (1972), The Indian Constitution: Cornerstone of a Nation, OUP India. •   Durga Das Basu , Commentary on the Constitution of India, New Delhi: N.M Tripathi Private Ltd., 1952. •    Durga Das Basu , Introduction to the Constitution of India, New Delhi: N.M Tripathi Private Ltd., 1962. 1.12    Terminal Questions 1.    What is Constitution? What is the role of Colonial Legacy in the Making of Indian Constitution? 2.    Write an essay on the contribution of Indian National Movement in the making of Indian Constitution? UNIT-2CONSTITUENT ASSEMBLY: COMPOSITION, IDEOLOGICAL MOORINGS AND CONSTITUTIONAL DEBATES Structure 2.1    Introduction 2.2    Learning Objectives 2.3    The Constituent Assembly 2.1.1    Composition of the Constituent Assembly of India 2.1.2    Committees of the Constituent Assembly 2.1.3    Ideological Moorings Self Check Exercise-1 2.4    The Constituent Assembly Debates Self -Check Exercise-2 2.5    Preamble- The Philosophy of Indian Constitution Self -Check Exercise-3 2.6    Summary 2.7    Glossary 2.8    Answers to Self -Check Exercise 2.9    References /Suggested Readings 2.10    Terminal Questions 2.2    Introduction Dear students, The Constitution is the most fundamental document and law of a democratic and liberal country. If that constitution has to gain legitimacy then it is very important that the Constitution should be formulated by a Constituent Assembly elected by the people. If the constitutional assembly becomes broadly representative of the nation then the process of constitution making becomes more legitimate. The Indian constitution making process also reached its culmination in the formulation and making of the constitution. 2.3    Learning Objectives After the study of this unit students will understand the historical background of the formation of the Indian constituent assembly. They will also understand the role of constituent assembly in the making of the Indian constitution and will also be acquainted with the philosophy of the Indian constitution. 2.4    The Constituent Assembly The Constituent Assembly is a body of elected or nominated people for the purpose of formation of the constitution. America in modern history presents the biggest example of convening the constitutional assembly. Constituent assembly gives legitimacy to the democratic form of the people and justifies the sovereignty of the people. The constituent assembly is the construct of modern times which believes in the equality of every human being, because in modern times superiority of birth, divine basis of authority or racial superiority cannot justify political authority. 2.4.1    Composition of the Constituent Assembly of India In September 1945 Viceroy Lord Wavell announced elections to the provincial assemblies and Central Legislature. The Constitution Making body was to be elected after the completion of assembly elections. These assembly elections became significant to the entire nation because these assemblies will have the right to choose the members of the future Constitution making body of India. The Muslim League was successful in making these elections as a plebiscite on the issue of creating the sacred homeland of Muslims and they got overwhelming support from the community, while the Congress was representing Indian nationalism and the dream to create a modern, democratic country. The Cabinet Mission Plan of 1946 envisaged election of the constituent assembly by provincial assemblies on the method of single, transferable proportional representation system to formulate the constitution of India.Total membership of the constitution making body was 389 out of which 292 were representing the provincial assemblies and 93 members were representing the princely states. There were four representatives from the chief commissioner provinces of Delhi, Ajmer -Merwara, Coorg and Baluchistan (British Controlled). Elections of 292 plus 4 seats of the British Provinces and chief commissioner provinces in the Constituent Assembly were completed by August 1946. Congress won 208, Muslim League 73, Others 15 and Princely states 93.The Muslim League started politics of non-cooperation and subsequent violence led to partition. After partition the strength of the Constitutional assembly was reduced. Congress party became the most predominant force within the Constitutional Assembly. 2.4.2    Committees of the Constituent Assembly The Constitutional assembly created 22 committees to streamline its functioning. Out of 22, 10 were procedural in nature and 12 were substantive in nature. Steering Committee, Rules of Procedure Committee, Committee on the effect of Indian Independence Act of 1947, Orders of Business Committee Credentials Committee, House Committee, Hindi translation, Urdu translation committee, Finance and Staff Committee and Press Gallery Committee were the procedural committees. While Ad hoc Committee on the National Flag , Advisory Committee on Fundamental Rights, Committee on the Functions of the Constituent Assembly , Committee on Minorities and Tribal and Excluded Areas, Special Committee to Examine the Draft of Constitution, Provincial Constitution Committee, Drafting Committee, Excluded and Partially Excluded Areas SubCommittee, Fundamental Rights Sub Committee, House Committee, Minorities Sub-Committee, North -East- Frontier Tribal Areas and Assam , Excluded Areas Sub-Committee, States Committee, Union Constitution Committee, Union Powers Committee and Steering Committee were the substantive committees . The Constituent Assembly had eight major committees-Rules, Steering, Advisory, Drafting, Union Subjects, Union Constitution, Provincial Constitution, and States-with a total membership of approximately three dozen. J.L Nehru, Sardar Patel or Rajendra Prasad, Abul Kalam Azad chaired each of these committees. With seven other assembly members, these leaders constituted an inner circle in the Assembly‘s committees 2.3.3 Ideological Moorings Ideological mooring of the constitutional assembly has been broadly liberal and constitutional. They have complete faith in the democratic process and rule of law. Drafting was one of the main committees in the creation of the constitution and initially all the eight members of this committee had legal background. Lawyers by virtue of their education and profession had faith in the legal system. Perhaps that is one of the reasons for the lengthy nature of the Indian constitution. Majority of the members of the constitutional assembly were highly educated and many of them were legal luminaries of high stature. Ideologically, modernity, steeped leadership wished to create a constitution for Britain and America of their own which would transform India into a modern nation. Constitutional advisor to the Constitutional assembly of India Sir B. N. Rao was a jurist of par excellence and dedicated many years of life in the Reforms Office of the Government of India on drafting various provisions for constitutional evolution of India. He was responsible for preparing the general draft of the Indian constitution which was subsequently debated, revised and adopted under the guidance of the Drafting committee of Indian constitution. Rau prepared this draft after traveling to the US, Canada, Ireland and the UK where he took the advice of different constitutional experts, judges, and constitutional scholars. Rau presented his draft and it was accepted by the constitutional assembly members for deliberation. This is the direct proof of the Liberal, Democratic and Modernity oriented ideological background tilt of the assembly. Self-Check Exercise-1 Q1. How does the constituent assembly give legitimacy to political power? Q2. What was the cabinet mission? 2.4    The Constituent Assembly Debates Constituent Assembly debates are the evidence of deliberation which happened during adopting the Constitutions. These debates point out various challenges and reservations which constituent assembly members witnessed why adopting different parts and clauses of the India constitution. Record of these debates is a great source of knowledge and learning for constitutional experts and young scholars which can help them in understanding the diverse perspective of the Constituent Assembly members on various contentious issues. Recently the Supreme Court of India has started citing these debates while giving judgments on various issues. Issue of adoption of Parliamentary and Presidential form of Government was debated in the constitutional assembly. We will take two examples to understand their relevance - Prof. K.T Shah touched this issue while discussing article 40 and he demanded that a new article 40 A which the world stressed on the need to ensure complete separation of power between the three organs of the State, viz, the Legislative, the Executive and the Judicial. He asserted that many modern states had paid a very heavy price for not separating the three powers and they are adopting a Presidential government which ensures complete separation of three organs of the state. He asserted that British Parliamentary success cannot be easily copied in India because this success is based on the conventions and traditions of the British people. He asserted that the Legislature in the democratic assembly is bound to be influenced by Party reasons. Parties, according to him, stand for mundane things rather than defending the Principles of democracy. K T Shah stressed that the influence of the Executive on the Judiciary proved to be mis-influencing. The Judiciary will fail in the twin tasks of interpreting the constitution in the right spirit and guarding civil liberties. K.T. Shah‗s reservations regarding the potential threat of authoritarianism arising out of Parliamentary government and failure in separation of power proved true during the Emergency period when both House of the Parliament stood with party discipline at the cost of democratic values and Judiciary submitted in front of all powerful Executive due to the greed or fear of losing better opportunities. Taj Mul Hussain, Damodar Swarup Seth and H.C. Mookherjee (Christian) pointed out that if India is a secular state then recognition of religious minorities seems implausible. Mr. Tajamul Husain spoke on this issue that reservation of any seats in any form and for any community is not right. It is based on the wrong principle and I being a Muslim speak for Muslim community. He asserted that there is no civilized country on this earth where seats have been reserved for the minority community. Reservations are nothing but concessions for the weak, concession will do more harm in the long run to the community. Reservation is forcing candidates on unwilling electorates. The majority community will naturally feel that we are encroaching upon their rights. Separate electorate has done great harm to this country and it was invented by the British. We want to merge in the nation and desire to stand on our own legs. This discourse is still relevant today in India where now secularism has become coterminous with the appeasement of the minority communities. Constitutional recognition and support to the religious minority community has created a counter-mobilization in the majority community. Perhaps reading such debates can help in the regaining new perspective towards present challenges which our nation is facing today. Self-Check Exercise -2 Q1. What is the importance of reading Constituent Assembly debates? 2.5    Preamble- The Philosophy of Indian Constitution The Preamble of the Indian constitution declares that the nature of the Indian state will be liberal and the Constitution will guarantee fundamental rights to its citizens. Freedom of association and expression are the proof of Liberal philosophy of the Indian constitution. Equality of opportunity and equal protection law (without the discrimination on the basis of sex, ideology, faith and profession) are also traits of the Liberal philosophy in the Indian constitution. Chapter three of the constitution justifies this Lockean philosophy of limitation on the government due to the rights of individuals. ―We the people of India‘‘ mentioned in the Preamble, is the sign of the Republican philosophy which traces the source of sovereignty from the people. Adoption of the democratic form of governance in which every person‘s (irrespective of status) vote will determine who will rule the country and also has republicanism at its root. The Directive Principles of State‘s Policy enshrined in the constitution is the proof of socialist philosophy. This socialist philosophy was practically implemented by Nehru in the form of the Planning Commission and large scale nationalization of private enterprises like Railways, Insurance companies, Coal mines and other mineral resources. After the economic reforms of 1991 philosophy of socialism receded very rapidly from India and since 1991 philosophy of welfare state has taken the place of socialist ideology in India. Now this welfare state philosophy is reflected in schemes like Right to Education , Direct Benefit Transfer through JAM (Jan Dhan Yojana, Aadhaar and Mobile number) , trinity to poor , PM- Kisan Samman Nidhi , Ayushman Bharat cards. The Pacifist philosophy is visible in the Indian constitution where it exhorts the Indian state to settle disputes at international level with peaceful means. This philosophy was materialized by Nehru in the formulation of the NonAlignment Movement. The Constitution also represents Ancient India philosophy of ―ekam sat viprah bahudha vadanti'' that truth is one but has been interpreted by different versions. Democracy, freedom of expression, freedom of faith and association gives different versions of truth to be expressed. Nand Lal Bose the official painter of the Constituent assembly painted a picture of Ram, Sita and Laxman returning from Lanka on the Third Chapter of the Constitution which reflects the victory of the Dharma. First page of Chapter 2 (Citizenship) depicts Vedic Gurukul which is the symbol of learning. Protection of milch Animals from atrocities is a clear mark of Indian civilization philosophy. The Indian constitution tries to develop a balance between Unitarism and Federalism. Philosophy of the Indian constitution cannot be clearly categorized as Unitary or Federal. Unitary nature of the Indian constitution is based on the philosophy of National Integration. National Integration became one of the main basis of Constitution philosophy after the partition of India on sectarian lines. After partition constitutional makers were not ready to compromise on the philosophy of national integration and for these emergency powers of the President were created. Although it cannot be denied that in the past seven decades Indian polity has witnessed the growth in the philosophy of federalism and Indian constitutional values are now reflecting it. Indian constitution wields the philosophy of Parliamentary government which it traces from the West Ministerial form of Government of the United Kingdom. In such a system Parliament functions as the very center of the entire polity. India had to adopt various conventions and norms from the United Kingdom‘s parliamentary tradition. Rise in the powers of the Prime Minister is the consequence of following the philosophy of Parliamentary democracy. Self- Check Exercise -3 Q.1. What is the Philosophy of the Constitution? Q.2. Does the Indian constitution has a welfarist philosophy? 2.6    Summary The Indian Constitution making process has been the result of a long legacy of colonial rule and the national struggle for independence. The Constitution making process has been influenced by the ideals and morals of the national leadership of that time. Debates in the Constituent Assembly were the proof of deliberation which happened at the time of constitution making of India. Every citizen of India must go through these debates to understand the greatness of our constitution. These debates can also indirectly point out the inbuilt flaws of our constitution making. 2.7    Glossary •    Preamble: this is the preface of the constitution which clearly depicts the philosophical tenets of the constitution. •    Republic: is that form of government which is headed by the elected head and people representing the highest source of the constitutional power within that government. 2.8 . Answers to Self- Check ExerciseSelf-Check Exercise -1 Ans.1.See Section 2.3 Ans.2.See Sub- Section 2.3.1 Self -Check Exercise -2 Ans.1. See Section 2.4 Self -Check Exercise -3 Ans.1. See Section 2.5 Ans.2. See Section 2.5 2.9    References /Suggested Readings •    Constituent Assembly Legislative Debates, Parliament Digital Library. •    Indian Kanoon, indiankanoon.org •  M.Laxmikant (2021), Indian Polity, Mcgraw Hill Publication. •    M.V.Paylee (2009), India’s Constitution, S.Chand Publication, New Delhi. •    Granville Austin (1972), The Indian Constitution: Cornerstone of a Nation, OUP India. 2.10    Terminal Questions 1.    What is the Constituent Assembly? What was the composition of the Constituent Assembly? 2.    What were the Ideological Moorings of the Constitutional Assembly? 3.    Explain in detail about the Philosophy of Indian Constitution. UNIT-3FUNDAMENTAL RIGHTS Structure 3.1    Introduction 3.2    Learning Objectives 3.3    Types of Fundamentals Rights 3.3.1    Right to Equality- Articles 14-18 3.3.2    Right to Freedom- Articles 19-22 3.3.3    Right against Exploitation- Articles 23-24 3.3.4    Right to Freedom of Religion- Articles 25-28 3.3.5    Cultural and Educational Rights-Articles 29-30 3.3.6    Right to Constitutional Remedies- Article 32 Self -Check Exercise-1 3.4    Criticism Self -Check Exercise-2 3.5    Significance Self- Check Exercise-3 3.6    Summary 3.7    Glossary 3.8    Answers to Self- Check Exercise 3.9    References / Suggested Readings 3.10    Terminal Questions 3.1    Introduction Dear students, Fundamental Rights are given in the third part of our Constitution and these rights are given to individuals and communities. Fundamental Rights define the meaning of the State and then bind all those institutions to accept the supremacy of fundamental rights of people and communities. The very existence of fundamental rights in our constitution is a guarantee of the democratic nature of our state and limitations on the power of government. Our constitution makers believed that these fundamental rights are essential for the growth and prosperity of Indian citizens. Although fundamental rights are not of absolutist nature the same chapter provides the rational restriction on all the fundamental rights. Rationality of restrictions imposed by the state on fundamental rights is ultimately determined by the courts. There are many fundamental rights which are available to foreigners and legal persons like companies along with citizens but there are certain rights which are available to citizens only. Provision of Fundamental Rights in the Indian constitution has been inspired from the US constitution. 3.2    Learning Objectives After going through this unit the students will be able to understand the concept of fundamental rights and various types of fundamental rights enshrined in the Indian constitution. 3.3 Types of Fundamental Rights In the Indian constitution, the fundamental rights have been enshrined in part III from article 12 to 35. But main fundamental rights have been mentioned from article 14 to 32. Article 12 defines the term ‗state‘ for the purpose of Part III. Article 13 declares that all laws that are inconsistent with or in derogation of any of the fundamental rights shall be void. This article indirectly provides power of judicial review to the judiciary. Originally there were seven fundamental rights in the constitution, but the right to property was deleted from the list of Fundamental rights by the 44th Amendment Act, 1978. At present there are six types of Fundamental Rights in the constitution. These are as under: 3.3.1    Right to Equality – Articles 14-18 Article 14 provides equality before law and equal protection of law to all individuals residing on the territory of India. The state shall not deny any person equality before the law or the equal protection of law within the territory of India. The Supreme Court has held that the ‗Rule of Law‘ as embodied in the Article 14 is a ‗basic feature‘ of the Indian constitution. It cannot be destroyed even by an amendment. The right to equality before law is not an absolute right. There are certain limitations imposed upon it by the constitution and the Courts. One of them being the provision of ―protection of president and governors‖ made under Article 361 of the Constitution. Article 15 provides that(i) the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth;(ii) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability ,liability, restriction or condition with regard to-(a) access to shops, public restraints, hotels and places of public entertainment; or (b) the use of wells ,tanks, bathing, ghats, roads and places of public resort maintained wholly or partly out of state funds or dedicated to use of general public.‖ It is to be mentioned here nothing in this article shall prevent the State from making any special provision for women and children; nothing in this article shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Article 16 provides that the State shall provide equality of opportunity for all citizens in the matter of employment or appointment to any office under the State. No citizen can be discriminated against or to be ineligible for any employment or office under the State on grounds of only religion, race, caste, sex, descent, place of birth or residence. There are some exceptions to this right to equal opportunity in public employment as i) the Parliament can prescribe residence as a condition for certain employment or appointment in a state or union territory or local authority; ii) the State can provide for reservation of appointments or posts in favor of any backward class that is not adequately represented in the state services; iii) a law can provide that the incumbent of an office related to religious or denominational institution or a member of its governing body should belong to the particular religion or denomination. Article 17 abolishes ‗untouchability‘ and forbids its practice in any form. If practiced, it shall be treated as an offense punishable in accordance with law. The objective of this article was to end the inhuman practice of treating certain fellow human beings as dirty and untouchable by reason of taking birth in certain cast+es. The Parliament is authorized to make a law prescribing the punishment for this offense, and, in exercise of this power, the Parliament has enacted the Untouchability ( Offences) Act,1955, which has been amended and renamed in 1976 as the Protection of Civil Rights Act,1955.Under this Act the offenses committed on the ground of untouchability are punishable either by imprisonment up to six months or by fine up to rupees 500 or both. A person convicted of the offense of ‗untouchability‘ is disqualified for election to the Parliament or state legislature. Article 18 prohibits the State to confer titles on anybody, whether an Indian citizen or a foreign national. An exemption has however been made in case of Military and academic distinctions. This article prohibits the state from conferring any title (except a military or academic distinction) on anybody, whether a citizen or a foreigner. It prohibits a citizen of India from accepting any title from any foreign state. A foreigner holding any office of profit or trust under the state cannot accept any title from any foreign state without the consent of the President. No citizen or foreigner holding any office of profit or trust under the State is to accept any present, emolument or office from or under any foreign State without the consent of the President. Hereditary titles of nobility like Maharaja, Rai Bahadur, Rai Sahb, Dewan Bahadur etc, which were conferred by the British colonial power and the princely states are banned by this Article. The fundamental rights under article 14 and 15 are available to all the residents (citizens and foreigners) while other articles are relevant in the context of citizens. Equality of opportunity had exceptions for the individuals belonging to the SC and ST community in order to provide equal representation in the public services. Subsequently this same provision of reservation was extended to individuals belonging to the OBC community. Recently this same provision was extended to the individuals belonging to Economically Weaker Section families. 3.3.2    Right to Freedom – Articles 19-22 Protection of Six Rights Article 19 specifically guarantees to the citizens of India six basic freedoms, a)    Right to freedom of speech and expression .It implies that every citizen has the right to express his/her views, opinions, beliefs and convictions freely orally, write, print, picture or any other manner. The State can impose reasonable restrictions on the exercise of the freedom of speech and expression on the grounds of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, and incitement to an offense. b)    Right to assemble peaceably and without arms. It includes the right to hold public meetings, demonstrations and take out processions. This freedom can be exercised only on public land and the assembly must be peaceful and unarmed. This provision does not protect violent, disorderly, riotous assemblies, or one that involves arms. The State can impose reasonable restrictions on this right namely, sovereignty and integrity of India and public order including the maintenance of traffic in the area concerned. c)    Right to form associations or unions or co-operative societies. It indirectly includes the right to form political parties, companies, partnership firms, societies, clubs, organizations, trade unions etc. Reasonable restrictions can be imposed by the State, ―in the interests of the sovereignty and integrity of India or public order or morality‖. d) . Right to move freely throughout the territory of India. Every citizen can move freely from one state to another or from one place to another within a state. This right underlines the unity of India and it has the purpose of promoting national feeling among the citizens of India. Two types of reasonable restrictions can be imposed on the exercise of this right, i.e. i) the interests of general public, ii) and the protection of interest of any scheduled tribe. The entry of outsiders in tribal areas is restricted to protect the distinctive culture, customs, language, manners of scheduled tribes and protect their traditional vocation and properties against exploitation. e) . Right to reside and settle in any part of the territory of India .This right too has the purpose of removing internal barriers within the nation or between its units. This promotes a feeling of nationalism among the citizens of the country and avoids narrow thinking. The State can impose reasonable restrictions on this write on the basis of the interest of general public and the protection of interests of any scheduled tribe. f) . Right to practice any profession or to carry on any occupation, trade or business. This right covers all the means of earning of livelihood. The state can impose reasonable restrictions on this right in the interest of the general public. This right does not give the right to carry on a profession or business or trade or occupation that is immoral, illegal and dangerous. Article 19 is the very soul of political and civil liberty in India without these rights there is no possibility of democracy in India. These rights are exclusively available to the citizens of India only. This also gives freedom to propagate any political ideology and found any political party. This article also indirectly protects the freedom of press and media. Provided any of these rights do not violate public decency and safety of other people. Article 20 - Protection in Respect of Conviction for Offenses- This article provides safety to individuals from ex-post-facto law which includes two conditions. No person will be convicted for any offense which was not defined by the law enforced at the time of committing that act. Secondly no person should be subjected to a penalty greater than which is prescribed in the law enforced at that time. Double jeopardy principle will not be adopted in India and no person will be punished for the same offense twice. No person should not be forced to self -incriminate or to give witness against himself. Article 21 - Protection of Life and Personal Liberty- No person shall be deprived of his life or personal liberty except according to procedure established by law. This right is available to both citizens and non- citizens. The Supreme Court has defined Article 21 very differently in Gopalan case (1950) and Menaka case (1978) .In Gopalan case Supreme Court gives protection against the arbitrary actions of the executive government while excluding the laws from the purview of article 21. In the Menaka Gandhi case the supreme court also adopted the principle of ―Due Process of Law‖ which puts restrictions even on law legislated by parliament which violates Right to life and personal liberty. The Supreme Court of India has defined the right to life as the right to live with dignity. Article 21A - Right to Education - State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the state may determine. This article was added into the constitution though the 86th Constitutional Amendment Act 2002. Parliament subsequently legislated the Right of Children to Free and Compulsory Education (RTE) Act, 2009. Article 22- Protection against Arrest and Detention- This article provides protection against two types of arrest - Punitive and Preventive. There are certain rights for people arrested under ordinary or punitive law; i) right to be informed of the grounds of arrest; ii) right to consult and have lawyer; iii) right to be presented in front of magistrate within 24 hours (excluding the time taken for travel); iv) right to be released after 24 hours except if the magistrate orders for further detention. In Preventive Detention a person has been detained in advance to stop them from potential or possible harm to the national interests and security without prior orders of the court. Preventive Detention is applicable on criminal or quasi-criminal acts and actions which are dangerous for public security. The detention of a person cannot exceed three months unless an advisory board reports sufficient cause for extended detention. The Advisory board will consist of Judges to give legal advice. The detention should be communicated to the detained person. The person should be given an opportunity to make his or her representation against detention orders in front of the advisory board. The preventive detention laws made by the Parliament are, Preventive Detention Act,1950(expired in 1969),Maintenance of Internal Security Act( MISA), 1971( Repealed in 1978), Conservation of Foreign Exchange and Prevention of Smuggling Activities Act(COFEPOSA), 1974, National Security Act(NASA) ,1980, Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act(PBMSECA), 1980, Terrorist and Disruptive Activities(Prevention) Act(TADA), 1985( repealed in 1995), Prevention in Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act(PITNDPSA), 1988, Prevention of Terrorism Act( POTA), 2002(repealed in 2004). 3.3.3    Right against Exploitation – Articles 23-24 Article 23 -Prohibition of Traffic in Human Beings and Forced Labour The Indian constitution completely prohibits trading of men, women and children for work or for prostitution. Because practices like slavery, devadasis and prostitution are inimical to the republican spirit of India state. Immoral Traffic (Prevention) Act, 1956 was passed to legally ban such inhumane practices. Although the presence of brothels in cities clearly points out the illegal trafficking of girls for prostitution, it cannot be denied that in the past 70 years there has been improvement on these fronts. Forced Labour like ‗begar’ (compulsory work for free) was practiced by rulers and ‗zamindars’. The Bonded Labour System (Abolition) Act was passed to legally ban this practice in 1976. Article 24- Prohibition of Employment of Children in Factories, etc. This article prohibits the employment of children below the age of 14 years in any hazardous activities in factories or mines. But they can be employed in less harmful work. The Child Labour (Prohibition and Regulation) Act 1986 is foundation law in this regard. The Indian state has taken a most positive step in this direction by adopting the Legal conception of Child Rights. In 2005 Indian Parliament made the Commissions for Protection of Child Rights Act which has led to the creation of National and State level commissions for the protection of child rights and child courts for the purpose of speedy justice. 3.3.4    Right to Freedom of Religion – Articles 25-28 Article 25 provides Freedom of Conscience and Free Profession, Practice and Propagation of Religion. The Indian constitution guarantees to its citizens and foreigners residing in Indian Territory to have freedom of conscience. Relationship between Individual and God is very personal and state or society has no role in this. Individuals can profess their religion openly and freely in the society. They can practice their religion by organizing ceremonies and exhibition of beliefs through rituals. Individuals and communities will have the right to propagate their religious belief among others. Enjoyment of all these rights given in this article is subject to the condition that no practice, belief and propagation will harm the rights of others. Freedom to Manage Religious Affairs- Article 26 This article gives religious communities or sects the right to establish and maintain religious palaces. Every religious community has the right to manage their own affairs. They have the right to own, acquire and administer movable and immovable property. Rights to manage religious affairs of a religious denomination are subject to restrictions if rule of law and principle of justice are violated. For example Triple Talaq practice of the Muslim community was abolished with legislation while All Muslim Personal Law Board (AMPLB) had not abolished this law, because this practice was violating the rights of the Muslim women. Article 27 -Freedom from Taxation for Promotion of a Religion In India the state will not impose taxation on people for the promotion of any religion or religious institution. This act clearly prohibits the state from using public money for the promotion of any particular religion over others. During Delhi Sultanate and Mughal period Jizya tax was imposed on the non-Muslim by the Islamic state and Muslims citizens were legally bound to give Zakat to the state as their religious obligation. Presently ironically Indian states are withdrawing millions of rupees of Hindu temples and using that money for secular developmental purposes. While neither Mosques nor Churches have been taxed by the secular Indian state, the Free Hindu Temples movement is being initiated by the Hindu community to liberate their temples from the control of secular governments. Article 28 - Freedom from Attending Religious Instruction No religious instructions shall be provided in educational institutions which are totally funded by the state. However, this provision shall not apply to an educational institution administered by the State but established under any endowment or trust, requiring imparting of religious instructions in such institution. No person attending any educational institution recognized by the State or receiving aid out of State funds shall be required to attend religious instruction or worship in that institution without his/her consent. The consent of his/her guardian is needed if the former is a minor. 3.3.5    Cultural and Educational Rights- Articles 29-30 Article 29 - Protection of Interests of Minorities- (applicable for Community and Individuals respectively) .In India any section or group of people residing in any part of India who have distinct culture, language and script should have the right to preserve and conserve that. No person shall be denied admission into any educational institution administered by the state or which receives aid from the state. Article 30 - Right of Minorities to Establish and Administer Educational Institutions Although the term minority has not been defined clearly in the constitution, on that basis, sects within the religion or religious or linguistic minorities will be determined at the state or national level. This article provides that minorities shall have the right to establish and run educational institutions of their choice. The existence of these institutions will be maintained at the time of public acquisition of that land. In granting aid Indian states shall not be discriminated against with any institution simply because it is being run by the minorities. The right under this article also includes the right of a minority to impart education to its children in its own language. Article 31 Right to Property has been repealed by the 44th constitutional amendment. This right is now a legal right enshrined in the article 300(A) of the constitution. 3.3.6    Article 32 - Right to Constitutional Remedies This right is most important for the implementation of fundamental rights because it vests in Supreme Court constitutional authority to issue writs jurisdiction. Dr. Bhim Rao Ambedkar asserted that article 32 is the soul of the Constitution. The Supreme Court has ruled that where relief through high court is available under article 226, the aggrieved person or party should first go to the high court.The Supreme Court and High Courts can issue five types of Writs as under: Writ of Habeas Corpus Habeas Corpus is a Latin word which means ―to have the body‖. This Writ can be issued against both public authority and private individuals to safeguard the lives of individuals. In this writ court orders the accused person or the (State) Police to produce the body of that person. Court has that right to look into the very legality of that detention. Historically powerful people and state officials have used their arbitrary power to trample individual lives by using brutal force and detention. Writ of Mandamus Mandamus means ―We Command‖ and this writ is issued when a public official refuses to do his or her official duties. But this order cannot be issued for the discretionary duties of the public officials. Definitions of public officials include any public institution, a private corporation, lower court and officer etc. Mandamus is positive in nature which exhorts officials to take action which is necessary. Writ of Prohibition Prohibition is negative in nature and it means ―to prohibit‖. In this writ, higher court orders lower courts or tribunals not to exceed its jurisdiction. This writ is issued against only the judiciary or tribunal. Writ of Certiorari Meaning of Certiorari is to be certified or to be informed. This writ is issued by a higher court to the lower court or tribunal to transfer a case to higher court or quash its decision given in this case. It is issued on the grounds of excess of jurisdiction or error of law. Certiorari is both curative and preventive in nature. Subsequently the Supreme Court has extended its jurisdiction to include administrative bodies affecting rights of individuals. Quo- Warranto Quo- Warranto literally means ―by what authority or warrant‖ and it is used in the context of inquiry of a person‘s claim to public office. This writ debars the usurpation of the public office by non- non-eligible persons. This writ is applicable only in the context of public offices which are constitutional and statutory in nature. Article 33 of the Constitution allows Parliament to restrict or abrogate the fundamental rights of the members of armed forces, paramilitary forces ,police forces and intelligence agencies like RAW, IB etc. for the performance of their duties towards national security. Article 34 empowers Parliament to impose restrictions on fundamental laws in areas where Martial Law has been imposed. Article 35 empowers only Parliament to pass laws for the implementation and restricts of Fundamental Rights. Self- Check Exercise-1 Q1. What is the Right to life mentioned in the Indian Constitution? Q2. What is Quo- Warranto? 3.4    Criticism The Fundamental Rights enshrined in the constitution of India have been criticized by the critics. Their arguments are as under: Critics have argued that these Fundamental Rights are subject to innumerable exceptions, restrictions, qualifications .Hence; the critics remarked that the constitution grants fundamental rights with one hand and takes them away with the other. Some critics have gone to the extent of saying that the chapter dealing with fundamental rights should be renamed as ‗Limitations on Fundamental Rights and Limitations Thereon‘. According to the critics the list of fundamental rights is not comprehensive as it mainly consists of political rights. There is lack of provision of important social and economic rights such as right to social security, right to work, right to rest, and so on. These rights have been given to the citizens of advanced democratic countries. Even the socialist countries like China have provided such rights. Critics believe that the fundamental rights have been stated in an indefinite, vague and ambiguous manner. Phrases like ‗public order;‘ ‗minorities‘, ‗reasonable restriction‘, ‗public interest‘ used in the chapter of Fundamental Rights are not clearly defined. The language used to describe them is too complicated which the common man cannot understand. It is alleged that the Indian Constitution was made by the lawyers for the lawyers. These rights can be curtailed or suspended by the parliament which makes these rights non sacrosanct. For example Right to Property was abolished from the chapter of Fundamental Rights. Most of the fundamental rights can be suspended during the period of emergency. Hence, these rights are at the mercy of the central government and the parliament. The doctrine of basic structure is the only limitation on the authority of Parliament to curtail or abolish the fundamental rights. The responsibility of defending and protecting rights against the interference of the legislatures and executives has been vested in the judiciary. But the judicial process is too expensive and hinders the common man from getting his/her rights enforced through courts. The provision for preventive detention takes away the spirit and substance of Fundamental Rights. Notably, no democratic country in the world has made preventive detention as an integral part of their constitution as has been enshrined in our constitution. According to some critics the chapter on Fundamental Rights does not belong to any particular philosophical principle. This creates difficulty for the judiciary in interpreting the fundamental rights. Self- Check Exercise-2 Q.1. What is the criticism of the Fundamental Rights? 3.5    Significance Despite shortcomings and criticism the fundamental rights are significant as they constitute the bedrock of democratic system of our nation. They provide necessary conditions for the material and moral protection of citizens of the nation. These rights serve as a formidable bulwark of liberty for individuals. They facilitate the establishment of rule of law in the nation; protect the interests of minorities and weaker sections of society. They strengthen the secular fabric of India and check the absoluteness of the authority of the government. They ensure the dignity of individuals and lay down the foundation of social equality and social justice; facilitate the participation of people in the political and administrative process. Self -Check Exercise-3 Q.1 What is the significance of the fundamental rights? 3.6    Summary The Fundamental Rights are the foundation of political democracy of India and without their negative constraints upon the parliamentary democracy there is the danger of India becoming dictatorial. Concept of the basic structure of the Indian Constitution was developed by the Indian judiciary to put limits on the power of the elected majority government. The fundamental rights are composition of both negative and positive rights. 3.7    Glossary •    Untouchability: a prohibited social practice of discrimination with people on the basis of their birth. •    Martial Law: is the rule under the military. •   Double–jeopardy: is a term used for the two time conviction for the same offense. 3.8    Answers to Self Check ExerciseSelf -Check Exercise -1 Ans.1.See Sub –Section 3.3.2 Ans.2 See Sub -Section 3.3.6 Self -Check Exercise - 2 Ans.1.See Section 3.4 Self -Check Exercise -3 Ans.1 See Section 3.5 3.9    References/Suggested Readings •    Indian Kanoon, indiankanoon.org •    M.Laxmikant (2021), Indian Polity, McGraw Hill Publication. •    M.V.Paylee (2009), India’s Constitution, S.Chand Publication, New Delhi. •    Constituent Assembly Legislative Debates, Parliament Digital Library. •    Subhash kashyap (1994), our constitution: An Introduction to India’s Constitution and Constitutional Law, National Book Trust, India, New Delhi. •    Durga Das Basu (2013), Introduction to the Constitution of India, LexisNexis Publication, Gurgaon. •    R.N. Trivedi, Dar. Tripti Jain (2008), Indian Government and Politics, Vishvabharti Publications, Jaipur. 3.10    Terminal Questions 1.    What are Fundamental Rights? What are the Fundamental Rights given in the Indian constitution? 2.    Discuss various Fundamental Rights enshrined in the Indian Constitution. What is its significance? 3.    Discuss critically the Fundamental Rights enshrined in the Indian Constitution. UNIT-4DIRECTIVE PRINCIPLES OF STATE POLICY Structure 4.1    Introduction 4.2    Learning Objectives 4.3    Features of the Directive Principles of State Policy Self Check Exercise-1 4.4    Classifications of the Directive Principles of State Policy 4.4.1    Socialistic Principles 4.4.2    Gandhian Principles 4.4.3    Liberal-Intellectual Principles Self -Check Exercise-2 4.5    Amendments in the Directive Principles of State Policy Self- Check Exercise-3 4.6    Implementation of the Directive Principles of State Policy Self -Check Exercise-4 4.7    Criticism of the Directive Principles of State Policy Self -Check Exercise-5 4.8    Relationship between the Fundamental Rights and Directive Principles        Self- Check Exercise-6 4.9    Summary 4.10    Glossary 4.11    Answers to Self Check Exercise 4.12    References/Suggested Readings 4.13    Terminal Questions 4. 1 Introduction Dear students, The Directive Principles of State Policy (DPSP) principles are a kind of ideals for the Indian state and the government while formulating, implementing laws should try to materialize these provisions in the country. This concept has been taken from the Irish Constitution and was part of the Government of India Act of 1935. They were under the heading of Instruments of Instructions. In the Indian constitution they are provided in part IV from Article 36 to 51. Dr. Ambedkar believed that they actually differentiate a Welfare State and a Police State. He further pointed out that sincere implementation of these provisions will create economic democracy in India without which no political democracy is successful. Granville Austin has described Directive Principles and the Fundamental Rights as the ―Conscience of the Constitution‖. 4.2    Learning Objectives This unit helps in understanding the Directive Principles and what role they play in the success of India democracy. This unit will also help in giving the classification of these principles. 4.3    Features of the Directive Principles of State Policy The Directive Principles of State Policy denotes the ideals that the state should keep in mind while formulating policies and enacting laws. These are the instructions or recommendations of the constitution to the State in legislative, executive and administrative issues. These principles resemble the ‗Instrument of Instructions‘ enumerated in the Government in the Government of India Act of 1935. The only difference is that the Instrument of Instructions were issued to the Governor-General and to the Governors of the colonies of India by the British Government whereas the Directive Principles are the constitutional instructions to the legislature and the executive. The Directive Principles constitute a very comprehensive economic, social, and political programme for a modern democratic country of India. They aim at establishing a welfare state in India by realizing the ideals of justice, liberty, equality and fraternity as have been outlined in the Preamble of the constitution .These principles try to establish social and economic democracy in India.Though these principles are nonjusticiable yet they help the judiciary in examining and determining the constitutional validity of a law. Self –Check Exercise-1 Q1.What is the purpose of the Directive Principles of State Policy? Q2. What are the features of the Directive Principles of State Policy? 4.4    Classification of the Directive Principles of State Policy Though the Indian constitution does not provide any classification of the Directive Principles, yet on the basis of their content and direction, they can be classified into four, viz, socialistic, Gandhian, and Liberal-Intellectual. 4.4.1    Socialist Principles These principles reflect the socialist ideology which will help in reducing the economic disparities from the society. This will help in the creation of a more just and equitable society. Article 38: The State shall strive to promote the welfare of the people by securing and protecting a social order by ensuring social, economic and political justice and by minimizing inequalities in income, status, facilities and opportunities. Articles 39: The State shall, in particular, direct its policies towards securing: (a) Right to an adequate means of livelihood to all the citizens (men and women); (b)The ownership and control of material resources of the community shall be organized in a manner to serve the common good ;c)State should organize the economic system in such a manner to avoid concentration of wealth in a few hands ;(d)Equal pay for equal work for both men and women;(e)The health and strength of workers, men and women , and children of tender age should not be abused out of economic necessity ;(f) Children are given opportunities and facilities to develop in a healthy, free and dignified manner .Childhood and youth shall be protected against exploitation. Article 39A: Free legal aid to the poor and promote equal justice in society. Article 41: To secure the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disability. Article 42: The State shall make provisions for securing just and humane conditions of work and for maternity relief. Article 43: The State shall endeavor to secure to all workers a living wage, a decent standard of life and socio-cultural opportunities for all workers. Article 43A: The State shall take steps to secure the participation of workers in the management of industries. Article 47: To raise the level of nutrition and the standard of living of people and to improve public health. 4.4.2    Gandhian Principles These principles are based on the Gandhian ideology of village empowerment, decentralization, ban on slaughter of milch animals and welfare of the weaker sections of India society. These principles include: Article 40: The State shall take steps to organize village panchayats with necessary powers and legality to enable them to function as units of self-government at local level. Article 43: The State shall endeavor to promote cottage industries on an individual or cooperative basis in     rural areas. Article 43B: To promote voluntary formation, autonomous functioning, democratic control and professional management of cooperative societies. Article 46: The State shall promote educational and economic interests of the weaker sections of the people particularly that of the SCs, STs and other weaker sections of the society and to protect them from social injustice and exploitation. Article 47: it is the primary duty of the state to raise the level of nutrition and the standard of living and to improve the public health of its people. The state shall prohibit the consumption of intoxicating drinks and drugs that are injurious to health. Article 48: To ban the slaughter of cows, calves and other milch and draught cattle and to improve their breeds. 4.4.3    Liberal-Intellectual Principles The Directive Principles Included in this category represents the ideology of liberalism. These principles are as under: Article 44: The State shall endeavor to secure for the citizen a Uniform Civil Code throughout the territory of India. This Directive was changed by the 86th amendment act of 2002. Originally, the provision was for free and compulsory education for all children until they complete the age of 14 years. Article 45: To provide early childhood care and education for all children until they complete the age of six years. Article 48: To organize agriculture and animal husbandry on modern and scientific lines. Article 48A: To protect and improve the environment and to safeguard the forests and wildlife of the country. Article 49: It shall be the obligation of the State to protect every monument, place and objects of artistic or historic interest declared to be of national importance. Article 50: The State shall take steps to separate judiciary from the executive in the public services of the State. Article 51: It declares that to establish international peace and security the State shall endeavor to: (a) Promote international peace and security by maintaining just and honorable relations between nations. (b) Maintain just and honorable relations between nations (c) foster respect for international law and treaty obligations, encourage settlement of international disputes by arbitration. Self Check Exercise-2 Q1. What are the socialist principles of the directive principles of state policy? Q.2 Formation of Village Panchayats has been mentioned under which Directive Principles of State Policy? 4.5    Amendments in the Directive Principles of State Policy Many directive principles of state policy have been added subsequently into the constitution by 42nd and 44th and 86th amendments acts. By the 42nd Constitutional Amendment 1976, Articles, 39A, 43A and 48A were added. Article 39A which has the provision to provide free legal aid to the poor; Article 43A directs the State to ensure participation of workers in management of Industries; Article 48A directs the State to protect and improve the environment. By the 44th Amendment Act of 1978 section -2 of the Article 38 was inserted which directs the state to strive to minimize economic inequalities in income and eliminate inequalities in status, facilities and opportunities not amongst individuals but also amongst groups. This article became more powerful with the elimination of the Right to Property from the Fundamental Rights. By the 86th Amendment Act of 2002 the subject-matter of Article 45 was changed as to provide free and compulsory education was a fundamental right under Article 21A.The age for providing free and compulsory education under article 45 was changed to upto six years from the previous 14 years. Self Check Exercise-3 Q.1Which constitutional amendment act made the right to education a fundamental right? 4.6    Implementation of the Directive Principles of State Policy The state started implementation of Directive principles of state policy by constitutionalising reservations for SCs and STs. Policy of land reforms was started and for this parliament implemented constitutional amendment 44th which ended the fundamental right to property .Indian state was successful in ending zamindari and landlordism. Although a larger section of peasants still hold very small landholding and many are still landless. Many acts like the Minimum Wages Act ( 1948) , the Wildlife( Protection) Act(1972), Bonding Labour System Abolition Act( 1976) , the Child Labour Prohibition and Regulation Act ( 1986) , Integrated Rural Development Programme(1978), The 73rd and 74th Amendments (1993), Public Distribution Act, Kissan Credit Card 1998 , Right to Free and Compulsory Education (2002), National Rural Health Mission , Mahatma Gandhi National Rural Employment Guarantee Programme( 2006) , Pradhan Mantri Jan Dhan Yojna(2014), Mudra ( Pradhan Mantri Mudra Yojana) 2015 , Skill India Mission (2015), Ayushman Bharat Pradhan Mantri Yojana (2018) E- Shram Card for accidental insurance (2022) and Pradhan Mantri Shram Yogi Maan-dhan (PM-SYM). After independence, the Nehruivian development model focused on the socialistic pattern of development and he believed that India could grow out of poverty through rapid industrialization.The government started reservation for social justice and land reforms to end the feudal system. Indira Gandhi‘s period of socialism witnessed steps towards bank nationalization and focus on rural credit, green revolution to ensure food security of the country. In 1975 the Integrated Child Development Scheme was launched for mothers and Children below 6 years. Under the influence of the UN Convention on Environment at Stockholm Indian state legislated the Wildlife Protection Act 1972. Project Tiger was launched in 1973 as the flagship programme to protect tigers and their natural habitats. This led to the formation of 23 national parks. The Forest Conservation Act 1980 and the Environment Protection Act 1986 was passed. As the Indian state‘s economic resources have increased in the past 70 years there has been a constant increase in the welfare schemes for the weaker sections. Real churning in the welfare state schemes has come after the adoption of Economic reforms of 1991. It was liberalization and privatization of the Indian economy which also improved the supply of revenue for the state. Schemes like Sarv Shiksha Abhiyan (SSA), Right to Education, Pradhan Mantri Gram Sadak Yojana, National Health Mission, MNREGA and the Kisan Saman Nidhi could be implemented after the reforms of 1991. Even genuine efforts towards decentralization of local government and giving it constitutional status only happened after the 1990s .Centrally sponsored schemes and schemes formed by states themselves for the welfare of citizens became more important in the post -reform era. Self -Check Exercise-4 Q.1 Which are the major policies implemented to realize the goals enshrined in the Directive Principles? 4.7    Criticism of the Directive Principles of State Policy These Directive Principles have been criticized by some members of the Constituent Assembly and other constitutional and political experts. The main criticism of these principles is that they lack legal force as they are non-justiciable in nature.K.T. Shah has called the Directive Principles as ‗pious superfluities‘‘ and has compared them with ‗a check on a bank, payable only when the resources of the bank permit‘. T.T. Krishnamachari has described them as ‗a veritable dustbin of sentiments‘ and Sir Ivor Jennings opined that they are only ‗pious aspirations‘. Secondly, critics point out that these principles are not arranged in a logical manner. The declaration mixes up relatively unimportant issues with the most vital economic and social questions. Critics also opine that these Principles are outdated and conservative. Sir Ivor Jennings reckons that these principles are based on the political philosophy of 19th century England. Another criticism as K.Santhanam has pointed out is that they lead to constitutional conflict between the center and the states; between the President and the Prime Minister and between the governor and the chief minister. K.Santhanam opines the center can give directions to the states with regard to the implementation of these principles, and in case of non- compliance can dismiss the state government. Similarly when the prime minister gets a bill (which violates the Directive Principles) passed by the Parliament, the President can reject the bill on the ground that these principles are fundamental to the governance of the country and hence the government cannot ignore them. The same sort of constitutional conflict may occur between the governor and the chief minister in any state of the Indian union. Further conflict between these Directive Enshrining of these Principles in the constitution has created a confusion among the ruling elites regarding two opposite objectives of Socialistic society and Liberal democracy. These principles can legitimize populist policies and which can lead to the debt crisis. Self Check Exercise-5 Q.1 Which thinker opined directive principles of state policy as ‗pious aspirations‘? 4.8    The Relationship between the Fundamental Rights and the Directive Principles The justiciability of the Fundamental Rights and non-justiciability of the Directive Principles on the one hand and the moral obligation of the State to implement Directive Principles on the other hand have led to a conflict between the two since the commencement of the constitution. In the Champakam Dorairajan case (1951), the Supreme Court ruled that in case of any conflict between the Fundamental Rights and the Directive Principles, the former would prevail. The Supreme Court also held that the Fundamental Rights could be amended by the Parliament acts. Subsequently, the Parliament made the First Amendment Act (1951), the Fourth Amendment Act (1955), and the Seventeenth Amendment Act(1964) to implement some of the Directive Principles. In 1967 in the Golaknath case (1967), the Supreme Court ruled that the Parliament cannot take away or limit any of the Fundamental Rights. In reaction to the Supreme Court‘s judgment in the Golaknath case , the Parliament enacted the 24th Amendment Act(1971) and the 25th Amendment Act(1971).The 24th Amendment declared that the Parliament has the power to abridge or take away any of the Fundamental Rights. The 25th Amendment Act inserted a new article 31(c) which had the provision that ,a) no law which seeks to implement the socialistic Directive Principles specified in Article 39(b),and 39(c) shall be void on the ground of contravention of the Fundamental Rights conferred by Article 14,Article 19 or Article 31 ;b)no law containing a declaration for giving effect to such policy shall be questioned in any court on the ground that it does not give effect to such a policy. Subsequently in 1973, in the Kesavananda bharati case, the Supreme Court declared that the above mentioned second provision of Article 31C as unconstitutional and invalid on the ground that judicial review is a basic feature of the Constitution and Hence cannot be taken away. Thus, the Supreme Court propounded the doctrine of ―Basic structure of the Constitution''. Later, the 42nd Amendment Act(1976), the Parliament accorded the position of legal primacy and the supremacy to the Directive Principles over the Fundamental Rights conferred by Articles 14,19 and 31. But, this extension was declared as unconstitutional and invalid by the Supreme Court in the Minerva Mills case (1980).Directive Principles were once again made subordinate to the Fundamental Rights. But the Fundamental Rights conferred by Article 14 and Article 19 were accepted as subordinate to the Directive Principles specified in Article 39(b) and (c). With regard to the relationship between the Fundamental Rights and the Directive Principles, Dr. B.R. Ambedkar opined that the Fundamental Rights are the principles leading to political democracy, and the directive principles lay the foundation of economic democracy in India. Sir, B.N. Rao who was the constitutional adviser of the constituent assembly of India and one of the chief architects of the Indian constitution had opined that in case of conflict between the fundamental rights and the directive principles, the latter should be made sub- servient. Jawahar Lal laid greater emphasis upon the directive principles. The Supreme Court in Minerva mills case held that "the Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles‖. The harmony and balance between the two is an essential feature of the basic structure of the Constitution. As of now, the Parliament can amend the Fundamental Rights for implementing the Directive Principles, so long as the amendment does not damage or destroy the basic structure of the constitution. The Fundamental Rights and the Directive Principles are complementary and supplementary to each other as the former establishes political democracy and the latter ensures social and economic democracy in India. Self -Check Exercise-6 Q.1.What is the relationship between the Fundamental Rights and Directive Principles? 4.9    Summary Although realization of these principles is very important for the success of Indian political democracy, political equality is a mirage without establishing a substantive economic and social justice system. Initially the constituent assembly did not make these directives justiciable like the Fundamental Rights. But more than seven decades of functioning of Indian democracy has made these directives a reality or a political essential for the victory and survival of the incumbent governments. Observation of Alladi Krishna Swamy Ayyar that, ―no ministry responsible to the people can afford light -heartedly to ignore the provisions in Part IV of the Constitution.‖ Directive Principles of State Policy provides guiding principles for the use of legislative powers of the parliament and legislative assembly of states. But the existence of Fundamental rights is essential for striking a proper balance between Equality and Liberty. If fundamental rights are weakened and the state tilts towards the Directives Principles then it will lead to dictatorship in the name of socialism as happened in the 1970s. If the Directive Principles are weakened then the political elites will become more oligarchical in nature and democracy will lose its substance. 4.10    Glossary •    Maternity leave – leave given to the working women after the birth of the child. •    Arbitration- is the method of peaceful settlement of disputes at the international level. •    Uniform Civil Code – will be the uniform and non-discriminatory civil laws for all the citizens of India which will give equal rights to men, women and children belonging to different religions. 4.11    Answers to Self- Check Exercise Self- Check Exercise-1 Ans.1. See Section 4.3 Ans.2. See Section 4.3 Self -Check Exercise-2 Ans.1. See Sub- Section 4.4.1 Ans.2. See Sub- Section 4.4.2 Self -Check Exercise-3 Ans.1.See Section 4.5 Self- Check Exercise-4 Ans.1. See Section 4.6 Self- Check Exercise-5 Ans.1. See Section 4.7 Self- Check Exercise Ans.1. See Section 4.8 4.12    References/Suggested Reading •    B.L. Fadia (2021), Indian Government and Politics, Sahitya Bhavan Publications. •    Bidyut Chakrabarty & Rajendra Kumar Pandey (2008), Indian Government and Politics, Sage, New Delhi. •    Indian Kanoon, indiankanoon.org •    M.Laxmikant (2021), Indian Polity, Mcgraw Hill Publication. •    M.V.Paylee (2009), India’s Constitution, S.Chand Publication, New Delhi. •    Subhash Kashyap(1994), our constitution: An Introduction to India’s Constitution and Constitutional Law, National Book Trust, India, New Delhi. •    R.N. Trivedi, Dar. Tripti Jain (2008), Indian Government and Politics, Vishva Bharati Publications,Jaipur. 4.13    Terminal Questions 1.    What are the different types of Directive Principles enshrined in chapter IV of the Indian Constitution? 2.    What is the relationship between the Directive Principles of State Policy and the Fundamental Rights? 3.    ―Directive Principles although not justiciable has gradually gained more importance in the political system of India‖. Discuss. UNIT-5 FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES OF STATE POLICY IN THE ERA OF LIBERALISATION AND PRIVATISATION Structure 5.1    Introduction 5.2    Learning Objectives 5.3    Fundamental Rights and Impact of Liberalisation 5.3.1    Right to Life - Redefined in the Liberalisation Era Self- Check Exercise-1 5.4    Directive Principles of State Policy and Liberalisation 5.4.1    Socialist Directive Principles of State Policy in the Era of Liberalisation 5.4.2    Legal Aid in the Liberalising State 5.4.3    Gandhian Principles in the Era of Liberalisation 5.4.4    Liberal Principles in the Era of Liberalisation Self- Check Exercise -2 5.5    Summary 5.6    Glossary 5.7    Answers to Self- Check Exercise 5.8 References/Suggested Readings 5.9    Terminal Questions. 5.1    Introduction Liberalisation has fundamentally transformed the very nature of the state in India and this change in nature has had a direct impact upon the Fundamental Rights and Directive Principles. 5.2    Learning Objectives Objective of this unit is to sensitise the students about the changing nature of state in India after 1991 reforms and the changes this has brought about in the interpretation and implementation of the Fundamental rights and Directive principles of the foreign policy. 5.3    Fundamental Rights and Impact of Liberalisation The Indian economy embarked on the path of liberalisation and privatisation in the 1990s in which the state is withdrawing from the public sphere and new private actors are given more responsibility to perform the public tasks. Therefore the question arises what is the impact of liberalization on the fundamental rights and directive principles of state policy. This chapter tries to draw the attention of students on this fundamental transformation in the functioning and nature of the Indian state. Fundamental rights try to ensure equality of treatment and respect towards each individual in all the institutions which are part of the state or institution regulated by the state. When more and more private institutions will regulate and govern people‘s life then it will become the responsibility of the state to regulate and ensure fundamental rights of the people within such institutions. These private corporations and institutions should ensure equality of opportunity, employment and access to individuals without any kind of bias towards any gender, caste or religion. Power of finance and being an employer gives an unparalleled power over the lives of the employees and poor people. There is emasculation of the rights of people employed in the private sector or informal sector which hampers them from exercising the article 19 enshrined in the Indian constitution. They fail to express their opinion at their workplace because of the fear of losing their job. For example many domestic maids face sexual and emotional harassment at the hands of their employers. Article 20 and 22, deals with special protection in case of arrest and conviction. Indian criminal justice presently failed in giving justice to especially the majority of its people and particularly the weaker sections of the society. This failure is the sole responsibility of the state and private sector cannot be blamed for it. But in the era of liberalisation, private law firms and companies can help in reducing the cumbersome functioning and slothful pace of justice delivery system in India. But the state will have to first formulate a border policy framework, set incentives and goals of this sector in order to create a conducive atmosphere for such change. 5.3.1    Right to Life and Other Rights are being Redefined in the Liberalisation Era Article 21 deals with the right to live a dignified life. When the state withdraws from the economy and the majority of people are forced to live by minimum wages then it can put a question mark on the exercise of the right to life under article 21. Although it is not possible for the state to employ all the people especially when the entire world is moving towards liberalisation and privatisation in the economic sphere.But if citizens of India are to ensure article 21 ( right to dignified life) then the state will have to play a proactive role in ensuring better wages , welfare and humane conditions of the work of those working in the liberalised economy. Article 21A right to education till fourteen years of age is facing substantive challenges when there is a difference between the quality of education provided to students in the government schools and private schools. Therefore in the present liberalisation era, the state has an earnest responsibility to ensure quality education to the children belonging to the weaker sections of the society. But in the present society when higher education and technical education has become more and more privatised, time has come to extend the right to higher education to poor students who show special talent and interests in these studies. Presently medical education is a perfect example of control of the richer section of society where private seats are purchased by the wealthy by paying money and government subsidized seats are captured by paying coaching institutions to prepare wealthy students to prepare for competitive NEET tests. This puts students from rural and economically weaker families at disadvantage even before the actual conduction of the NEET examination. State has the moral responsibility to correct this anomaly in the medical education of India and guide medical colleges (both government & private) towards achieving the aim enshrined in the Constitution. Provision of safe drinking water is an essential part of living a dignified life but poor families of India are suffering from fluoride & arsenic contamination which poses a serious threat to the health and wellbeing of Indian citizens . If the state itself is not capable enough to tackle this problem then it must guide private enterprise in this direction to fulfill this aim. Article 23 and 24 in this era of liberalisation cannot be realised only by relying on government efforts but rather inclusion of NGOs and role of corporate sector social responsibility could be tapped in the attainment of these two fundamental rights. These non-state actors can help in establishing boarding schools for trafficked children or orphans where their education and employability skills can be enhanced. Religious freedom given in the fundamental rights will not be realized within national boundaries because many religious places of different religions lie in the other countries. Therefore establishment of transactional relations with such counties is essential for ensuring the safety of pilgrimes. Globalisation and liberalisation has given more impetus to this process. After the adoption of liberalisation transfer of funds for religious congregation, propagation and conversion related matters have also increased. This has increased the responsibility of the state to facilitate such religious activities and at the same time keep watch on the subversive activities in the name of such kinds of activities. Article 29 and 30 should also be reinterpreted in the context of changing the nature of the state in the path of liberalization and privatisation. State can promote study of various religious texts to promote a better understanding of minority religion in the society. Various private universities and institutions can be guided to promote the study of minority and majority religious texts. Minority educational institutions can establish collaboration with the corporate and private educational institutions. Article 32 mainly deals with the power of supreme courts and high courts to issue orders or judicial orders to state and its officials. As the new private institutions take hold over the lives of the citizens of India there will be a need to extend reach of these writs over the private institutions and their way of functioning if it affects arbitrarily lives of people working under it. Self -Check Exercise- 1 1.    How fundamental rights are being impacted by the adoption of liberalisation by the Indian state? 2.    How has the meaning of Article 21 of the Indian Constitution been redefined over the years? 5.4 Directive Principles of State Policy and Liberalisation Directive principles of state policy exhort the state to envision and implement its policy for the establishment of a welfare state in India. Indians after independence adopted the path of centralised planning for economic and industrial development of the country; this was the inherent result of the socialistic ideological tilt of the Indian state after the independence. This path of economic planning defined the broader framework of policy formulation by the central and state governments. But this policy of planned economy and heavy industrialisation based on the vision of import substitution started to fail and its negative consequences started to manifest. Increasing import bills, rising debt,and falling exports led to the failure of the Indian economy and this forced India to adopt the path of economic liberalisation and privatisation. This ideological and economic shift in the broader policy framework of the state had a significant impact on the very nature of the Indian state. 5.4.1    Socialist Directive Principles of State Policy in the Era of Liberalisation Socialist directive principles of state policy have faced decimation at the theoretical level after the 1990s in Indian politics although the political class has kept giving lip services to the ideals of socialism. Article 38 & article 39 of the constitution to establish a socialism and welfare oriented society .Ensuring of economic, political and social justice to all the individuals need not to be called defined socialist rather it can be defined as an ideal of liberal-welfare state and by minimizing inequalities in income, status, facilities and opportunities. Reduction of income equality and status seems to be emanating from socialist mode of development which is antithetical to capitalist mode of development which exhorts wealth creation for the wealthy sections of society because their wealth is supposed to be percolate to the larger society and foster the spirit of competition in the society. The reduction in inequality of opportunity and facilities can be ensured for all citizens within the liberalised economy. Equality of opportunity and facilities can also be ensured with the help of private entities. Article 39 exhorts the state to provide adequate means of livelihood to all the citizens now this has to be interpreted in terms of providing employment in , private,non-government and self - employment oriented opportunities. This article of state policy cannot be limited to government jobs and MNREGA types employment opportunities. After the adoption of liberalization and economic reforms, the Indian economy witnessed a boom in the economy and it also led to an increase in the overall taxes and resources of the state. This has led to exponential increase in the expenditure on welfare schemes after 1991. Schemes like Sarva Siksha Abhiyaan , Pardhan mantri Gram Sadak Yojna , Kisan Credit Card, MNREGA and Ayushman Scheme were devised and implemented after 1991 reforms. Self-Help-Groups (SHG)for womens were also created after the continuous growth in the policy of liberalisation. Promotion of cooperative societies and farmers producers organizations are also being organized after the reforms of 1991. States in the liberalised economy cannot directly stop the concentration of wealth in a few hands. What it can do is tax the rich on a rational basis. Because in the 1950s ,60s and 1970s during the hay days for socialism in India taxes of the rich were very high and due to which the rich started leaving the country or stopped investment in the economy. This led to disincentivisation of the economy by killing the investment and competition in the Indian economy. What the state can do is to ensure an equal playing field for all the entrepreneurs and especially for the new ones so that wealth cycle and growth is captured by the few families by wrong means. State has ensured equal pay for equal work in its formal employment but in the marketplace males get more wages for physical work than women due to their superior physical strength. Technological innovation and mechanisation can play a much larger role in bridging this gap. Health and strength of the workers, women and children cannot be protected by the state itself; rather it needs active participation of community, private companies and nongovernmental organisations. This will ensure a much wider network of entities to protect them from falling prey to abuses out of economic necessity. 5.4.2    Legal Aid in the Liberalising State Article 39A of promoting free legal aid to the poor and promoting equal justice in society should not be the sole responsibility of the state. State can now use civil society, corporations and technology to hasten the delivery of justice to the needy. State can form a partnership in providing employment and educational opportunities with corporates and private entities; this can leverage the effectiveness of the state's action in these spheres. Assistance in case of unemployment, old age, sickness and disability is presently leveraging the services of non-governmental organisations, local communities and private corporations. State has never been the largest employer of the labor force in India and since 1991 this trend has taken more impetus. Therefore the state needs real dialogue and engagement with the employers be they corporations, small businessmen or landlords. This demands sensitisation of employers towards the rights and moral responsibility to ensure just and humane conditions of work to the labor force. This further demands tax reduction and other incentivisation from the state to give further impetus to this process. Indian has failed in ensuring till now ensuring maternity relief for the womens working the unorganised sector of its labor force which constitute more than 85 percent of Indian workforce. It requires comprehensive partnership between state, employers and non-governmental organizations to widen the facility of maternity leave in the true sense. 5.4.3    Gandhian Principles in the Era of Liberalisation Gandhian principles like formation and strengthening of village local self governments has been done after 1991 reforms and subsequent increase in the revenue of the Centre and state governments. This increase in revenue, especially of the Union government, has led to substantial transfer of funds for the implementation of various welfare schemes to the Panchayati Raj Institutions. They have become basic units for the implementation of the Centrally Sponsored Schemes (CSS), and this has increased the significance of the PRIs at the local level. Liberalisation can also provide opportunities for collaboration between local self-governments and non-state actors like non-governmental organisations and corporations. State has been given the responsibility to promote formation of cottage industries on an individual and cooperative basis. Initially this promotion was dependent on state funding and funding from the state owned banks. Now the state can help the entrepreneurs and cooperative societies to take funding from the market and crowdfunding type sources. Now the state has issued Geographical Indicators to the products of cottage industries existing in any specific geographical area of the country. The has been given the responsibility to promote and economic interests of the weak sections like the SCs ,STs and other weaker sections of the society. In the era of liberalisation the state can exhort private institutions and non-government organisations to promote the economic interests in their functioning. State can seek corporate sector social responsibility to collaborate with these actors to increase prosperity among the weaker sections of the society. State has the responsibility to increase the level of nutrition and public health of the people. In the liberalization era, the state is collaborating with private health providers and nutritional experts. Role of community and traditional knowledge of nutrition can also help the state in fulfilling this task. State has been given the responsibility to prohibit consumption of intoxicating drinks and drugs. This is usually thought in terms of legally banning the sale and purchase of the alcohol and psychotropic drugs.In present age more and more studies have come to illustrate that legal banning drugs by passing draconian laws with good intentions can become worse than cure. Present Indian law NDPS is a perfect example of failure of this approach. Therefore in a liberalized economy spreading awareness and providing alternatives to drugs in terms of sports, meditation, yoga and community engagement should be provided to the youths. In this task society, state and non-governmental organisations can come together. Ban on the slaughter of cows and other milch cattle will not be sufficient to solve this problem. State needs help of Hindu community and Jains in creating sanctuaries for the protection of old and sick animals. Promotions of the ethic of Ahimsa has to be taught to the society and benefits of living a vegetarian lifestyle.This has to be combined with environmental activists, organic farm movement and animal rights lovers. 5.4.4    Liberal Principles in the Era of Liberalisation Liberal directive principles of state like implementation of uniform civil code for all its citizens also need to be rethought in the light of freedom and choice with provision of equal rights for both man and woman. Uniformity cannot be imposed by erasing the unique features of different religions and there should be a search for reforming the existing civil laws of different communities. Protection of forests, wildlife and environment has been entrusted upon the state but it cannot be denied there are many more stakeholders in this task. Liberalisation has opened up the space for other nonstate actors to participate in the management of public affairs. Civil society, local community, non-government organisations and corporations are important stakeholders in the protection of the environment. Preservation of monuments of national historical importance has to be protected under article 49 has now been expanded to include private companies in the task of this preservation. In the era of globalisation and liberalisation, conduction of foreign policy is not now the sole responsibility of the state.Now the state uses influences of their business leadership, civil society and thinktanks to provide new dynamics to their relationship with other countries. Financial globalisation has forced states to sign different treaty obligations and this led to complex interdependence between different countries of the world. It has also increased the role of international arbitration courts and helped in affirming international law. Self -Check Exercise -2 Q.1. What is the fate of Socialist ideals in the liberalised economy? 5.5    Summary Now students of the Indian constitution should try to factor in the impact of liberalisation on the Fundamental Rights and Directive Principles of state policy, because they are now being redefined and reinterpreted according to the ideology of liberal political economy and philosophy. This will help young students to understand the positive and negative impact of the liberalisation process upon these two important chapters of Indian politics. 5.6    Glossary •    Liberalisation - the process of adopting a pro-market and competition oriented economy. •    Socialism - is an ideology which focuses on nationalisation of all financial resources so that they could be used for the welfare of the entire society. 5.7    Answers to Self -Check ExerciseSelf -Check Exercise 1 Ans.1- See Section 5.3 Ans.2- See Sub- Section 5.3.1 Self -Check Exercise - 2 Ans.1- See Sub -Section 5.4.1 5.8    References/Suggested Readings •    Suhasini Joshi , The Need for defining the State in the Wake of Liberalization, The New Jurist, International Law Magazine.( 2015) •    Prateek Singh , ―The Directive Principles of State Policy and the role of State in economic development‖ ,iPleaders Blog , 23 February ,2021 5.9    Terminal Questions 1.    What is the impact of liberalization & privatisation on the nature of Fundamental Rights? 2.    How are the Directive Principles of State Policy being redefined and implemented in the era of liberalisation? 3.    How Privatisation has imposed new challenges for the enjoyment of Human rights? UNIT- 6UNION EXECUTIVE- PRESIDENT Structure 6.1    Introduction     6.2 Learning Objectives 6.3    President of India. 6.3.1    Election, Immunities, Removal and Provision in case of Vacancy of the President‘s office Self -Check Exercise-1 6.4    Powers of the President 6.4.1    Executive Powers 6.4.2    Legislative Powers 6.4.3    Financial Powers 6.4.4    Judicial Powers 6.4.5    Diplomatic Powers 6.4.6    Emergency Powers 6.4.7    The Veto Powers Self- Check Exercise-2 6.5    Position of the President Self -Check Exercise-3 6.6    Summary 6.7    Glossary 6.8    Answers to Self -Check Exercise 6.9    Reference/Suggested Readings 6.10    Terminal Questions 6.1    Introduction Dear students, The Union Executive consists of the President, Vice-President, Prime Minister, Council of Ministers and Attorney -General of India. Post of the President was created as a substitute for a republican Parliamentary government to perform the role of the Constitutional Monarch. The President is the highest ceremonial head of the Indian Union and he/she is elected by both Parliament and State Legislatures. Most of the powers are ceremonial in nature except in some peculiar circumstances where the President can use his own rationality. 6.2    Learning Objectives This unit deals with the President of India and role of this institution in Indian Parliamentary system. 6.3    President of India Indian Constitution under article 74(1) exhorts the President to act according to the advice and aid of the Council of Ministers. The Indian President is the head of the state and he/she is also called the first citizen of India. He/she is a part of the Union Executive, provisions of which are dealt with in Article 52-78 including articles related to the President specifically (Article 52-62). Under these articles, information on how a President is elected, his/her powers and functions, and also his impeachment process is given. Qualification for Becoming President of India i.       He/she should be an Indian Citizen. ii.      His/her age should be a minimum of 35 years. iii. He/she should qualify the conditions to be elected as a member of the Lok Sabha iv. He/she should not hold any office of profit under the central government, state government, or any public authority. 6.3.1    Election, Immunities and Removal and Provision in case of Vacancy of the President’s office There is an electoral college for the election of the President which is composed of elected members of the LoK Sabha and Rajya Sabha, All the Legislative Assemblies of the States and Legislative assemblies of the NCT Delhi and Union territory of Puducherry. The importance of each of these votes is different. Even the value of vote of an MLA of a different state is different. The value of an MP's vote is 700. At the same time, the value of the vote of MLAs depends on the population of that state and the number of seats. Electoral College is the sum total of the value of votes of MPs and MLAs. In both the candidates, the one who gets 51 percent of the votes of this Electoral College will be the winner. The value of an MLA's vote is determined by a simple formula. First of all, take the population of that state according to the 1971 census. After this, multiply the number of MLAs of that state by thousand. The number obtained when multiplied is divided by the total population. The result that comes is the value of the vote of an MLA of that state. For example, according to 1971 the total population of Uttar Pradesh was 8,38,49,905. There are a total 403 assembly seats in the state. Multiplying total seats by 1000 we get 403000. Now we divide 8, 38, 49,905 by 403000 then we get 208.06. Votes cannot be in decimal therefore the value of vote of an MLA of Uttar Pradesh is 208. The value of the vote of an MLA of a state legislature is decided by - Total population of the state Total seats of the MLAs (the elected) of the Legislative assembly / Multiplied by 1000 Value of Vote of a MP - The vote value of all the MLAs is added to arrive at the value of the vote of the MPs. The number that comes when added is divided by the total number of MPs of Rajya Sabha and Lok Sabha. That is the value of the vote of an MP. For example, the total value of votes of 403 MLAs of Uttar Pradesh is 208*403 i.e. 83,824. Similarly votes of all the MLAs of the assemblies will be calculated and then collectively these votes will be divided by the total elected members of the Parliament. Total value of Votes of all the MLAs of the States / (divided by) Total number of the Elected Members of Parliament. Electoral Quota of winning the Election Total Number of the Valid vote polled + 1 1+1= (2) Method of Election is Proportional Representation within means of a single transferable vote. It is a secret ballot system of voting. Each member of the Electoral College is provided only one ballot paper. The voter, while casting his /her vote, is required to indicate his preferences by marking 1,2,3,4 etc., against the names of candidates. The voter can indicate as many preferences as there are candidates in the fray. In the first preference, votes are counted. In case a candidate secures the required quota in this phase, he/she is declared elected. Otherwise, the process of transfer of votes is set in motion. The ballots of the candidate securing the least number of the first preference votes are canceled and his second preference votes are transferred to the first preference votes of other candidates. This process continues till a candidate secures the required quota. Any dispute regarding the election of the President and Vice- President will be adjudicated by the Supreme Court of India whose decision is final. The election of a person as President cannot be challenged on the ground that the electoral college was incomplete(due to vacancy among the members of the electoral college).Some members of the Constituent Assembly criticized the indirect method of election of the President. They opined that this type of election method is undemocratic and proposed the idea of direct election. But the Constituent Assembly adopted the indirect election as it believed a) the indirect election of the President is in harmony with the Parliamentary system of government of the nation. Under this form of government, the President is only a nominal executive and real powers are exercised by the council of ministers headed by the Prime Minister. It would have been anomalous to have the President elected directly by the people and not give him/her real powers; b) The direct election of the President would have been costly and timeconsuming due to the vast size of the electorate. The Indian constitution puts no limitation on the incumbent President from contesting the election for the post of the President. In the past more than seventy years working on the Indian constitution only the first president of the union Dr. Rajender Prasad was able to successfully contest the election. Immunities to the post of President- He/ she should not hold any office of profit a.     For his residence, Rashtrapati Bhavan is provided to him without the payment of rent. b.     Parliament decides his emoluments, allowances and privileges. c.     Parliament cannot diminish his emoluments and allowances during his term of office. d.     He/she is given immunity from any criminal proceedings, even in respect of his personal acts. e.     Arrest or imprisonment of the President cannot take place. Only civil proceedings can be initiated for his personal acts that too after giving two months‘ of prior notice. Impeachment Article 61 of the Indian Constitution provides for the impeachment process of the President. The ‗violation of the constitution‘ is the sole ground for the initiation of the quasijudicial process of impeachment. Indian Constitution although never defined the term ‗violation of the constitution‘ anywhere. The Impeachment process can be initiated by any house but the second House will have to function like a house of inquiry. In the first house when charges are being laid against the President that proposal should be signed by one- fourth members of the House and a 14 days' advance notice should be given to the President before the initiation of this process. If this resolution is passed by a majority of two-thirds of total membership of that house, it is sent to the other House, which investigates the charges. In such a quasi-judicial inquiry the President will have the right to appear or to be represented in the house during such investigation. If the other House sustains such charges and passes the impeachment resolution with the two-third majority of the total strength of the house, then the President will be removed from his office from the date on which this resolution is passed. But two things should be noted :a) the nominated members of either House of the Parliament who don‘t participate in the election of the President, can participate in the impeachment process; b) the elected members of the legislative assemblies of states and the Union Territories of Delhi and Puducherry do not participate in the impeachment process though they participate in his/her election. Provisions in case of Vacancy of the President‘s office Possible situations which could lead to vacancy of President‘s office in the following ways: 1.    When the President of India completes his term of five years in the office 2.    If the President resigns by putting forward his resignation to the Vice-President of India 3.    If Lok Sabha/Rajya Sabha initiates an impeachment charge and they stand valid, he is removed. 4.    If he dies in the office 5.    If the Supreme Court declares his election invalid Post of the Vice-President has been created in the constitution of India to discharge the duties as President; if the latter‘s office falls vacant in the circumstances mentioned above, except by the expiry of the term. As per the President‘s Act 1969; if the VicePresident office is vacant too, Chief Justice of India (CJI) (or in his absence); Supreme Court‘s senior-most judge, discharges the functions of the President (till new President is elected.) Self-Check Exercise -1 Q.1 Who is the electorate of the President? Q.2 What is Impeachment? 6.4    Powers of the President The President has been vested with a number of powers and functions as head of the state. These powers and functions are as under: 6.4.1    Executive Powers All the executive action of the Indian government will be taken on the name of the President. Under Article 53, all the executive powers of the union are vested in the office of the President. The President is the Supreme Commander of the Armed Forces of India under Article 53(2). The President appoints the attorney general of India as the official legal representative of the government of India. The Comptroller and Auditor General of India (CAG) of India is also appointed by the President. The Chairman and members of the Union Public Service Commission are appointed by the President. For the conduction of free and secure elections the Chief Election Commissioner and other Election Commissioners are appointed by the President. Governor and Lieutenant Governors are also appointed by the president for the functioning of state governments. Formation of the Finance Commission, its chairman and its terms of reference is determined by the president. The President seeks administrative information from the Union government. The President has the power to inquire from the Prime Minister about the functioning of the Parliament. The National Commissions of Scheduled Castes Commission for Scheduled Tribe and Other Backward Classes are also formed by the President. Federal institution of the inter-state council is also appointed by the President of India. Declaration of any area as a scheduled area is also the power of the President. The President can include and exclude any caste or community from the Scheduled Caste list. The President has powers with respect to the administration of scheduled areas and tribal areas. 6.4.2    Legislative Powers The President is an integral part of the Parliament of India under Article 79 of the Indian Constitution. Thus he/ she enjoys vast legislative powers .He/she has the power to summon and prorogues Parliament and dissolve the Lok Sabha on the advice of the Prime Minister. He summons a joint sitting of Lok Sabha and Rajya Sabha in case of deadlock on ordinary bills. He/she addresses the Indian Parliament at the commencement of the first session after every general election He/she appoints speaker, deputy speaker of Lok Sabha, and chairman/deputy chairman of Rajya Sabha when the seats fall vacant. The President was used to nominate two members from the Anglo-Indian community in the Lok Sabha under Article 331, but this nomination provision has been done away by the 104th Constitutional Amendment Act. He/she has the power to nominate 12 members into the Rajya Sabha for different fields like arts, theater, sports and social service. He/she consults the Election Commission of India on questions of disqualifications of MPs whenever question regarding their illegibility arises. When a bill is sent to the President after it has passed by the Parliament, he/ she can, a) give his/her assent to the bill, or, b) withhold his/her assent to the bill, or c) return the bill( if it is not a money bill) for reconsideration of the Parliament. But, if the bill is passed again by the Parliament, with or without amendments, the President has to give his/her assent to the bill. He/she has the responsibility to introduce the Budget in the Lok Sabha for which he/she gives prior permission. Under Article 123 the President has the power to promulgate ordinance in case Parliament is not in session. These ordinances must be approved by the Parliament within six weeks from its reassembly. He/she can also withdraw an ordinance any time. The President is responsible for presenting the reports of the Comptroller and Auditor General, the Union Public Service Commission and Finance Commission in the Parliament. He/she can make regulations for the peace, progress and good government of the Andaman and Nicobar Islands, Lakshadweep, Dadra and Nagar Haveli and Daman and Diu. In the case of Puducherry also, the President can legislate by making regulations but only when its legislative assembly is suspended or dissolved. 6.4.3    Financial Powers The President has the prerogative to introduce the money bill and the finance minister introduces the money bill with his/her prior consent in the Lok Sabha. He/causes to be laid before the Parliament the annual financial statement(i.e, budget).The demands for grant can be made only with the prior permission of the President. The Contingency Fund of India is under the control of the President of India. Under article 280 the President has the mandate to constitute the Finance Commission for the distribution of resources between the Centre and states. 6.4.4    Judicial Powers The President has the power to appoint the Chief Justice and other Supreme Court/High Court Judges. Although the presidential power to appoint judges has been curtailed by the Second Judge case which makes the advice of Judges binding upon the President, Presidential power in the appointment of judges has been taken over by the Collegium system.He/she can seek advice from the Supreme Court on any question of law or fact. However, the advice tendered by the Supreme Court is not binding on the President. Under article 72 the President has the power to grant pardon against punishment for an offense against union law, punishment by a martial court, or death sentence. Pardon grant of complete amnesty to both convicted and the person who is serving the sentence. Commutation has the capacity to change the very nature of the punishment into a lighter nature. Remission reduces the term of the imprisonment. Respite is used to award lesser punishment than original punishment due to the special condition of a convict. Reprieve has the capacity to temporarily halt the execution of the awarded sentence. 6.4.5 Diplomatic Powers International agreements and treaties negotiated by the Prime minister and other ministers are done on the behest of the President. However, they are subject to the approval of the Parliament. The President visits different countries as the highest Official and Ambassador of the Union of India. All the major Indian Ambassadors and High Commissioners to the other countries are appointed by the President. 6.4.6    Emergency Powers The President becomes the symbol of the Union of India during the application of Emergency powers to save the nation. National Emergency article 352 is applied in case of War or armed rebellion against the Union of India. President‘s rule under article 356 and 365 is applicable when the constitutional missionary of the state fails or the state fails to comply with the direction given by the Union which could be deleterious for national and security of that particular state. The Financial Emergency under Article 360 will be imposed when the financial health of any state or of the Union becomes precarious. 6.4.7    The Veto Power The President is the essential component of the institution of Parliament because for a bill to become act must after getting the passed from the both houses need to get the assent of the President under article 111. In the context of Constitutional Amendment the 24th Constitutional Amendment has made it obligatory for the President to give his assent to constitutional amendments. India presidents enjoy three types of vetoes - Absolute veto, Suspensive Veto and Pocket Veto. The absolute veto is used in the context of private member bills and with respect to the government bills when the cabinet has resigned. Suspensive Veto is that veto in which the president can resend the bill for the reconsideration of the Parliament and if the both houses repass that bill then that will override the presidential veto. Pocket Veto is the power of the president to keep a bill pending for an indefinite period of time. The Indian President can use this power because the constitution has not prescribed any time limit within which he has to give his assent on the bills. Self -Check Exercise -2 Q.1. Which are the prominent commissions constituted by the President of India? Q.2. When was the representation of the Anglo-Indian Community in the Lok Sabha abolished? 6.5    Position of the President In the Westminster Model, the constitutional head has a very limited independent role and the majority of Presidential work is only to implement that advice which the real executive the Prime Minister and his Council gives. His/her powers are really exercised by the Ministers in the real sense and they also have the real responsibility to the country towards the actions of the government. Presidential role is above the squabbles of party politics within the political system. But the veto powers are proof that the President can caution the government against the unconstitutional and hasty legislation. For example, if the former President during the 1975‗s declaration of Internal Emergency has had the courage to defer or reconsider that implementation then it would have bolstered the institution of Indian President as the guardian of the Indian constitution. The constitution has given the constitutional mandate to the President to protect the constitution of India. In case of a hung parliament the President has the power to determine which party can form the government, though gradually use of this power has also been properly delineated. Despite having a titular nature, the President is the center of government in India rather the President represents the spirit of the Indian republic. Self Check Exercise-3 Q.1. What is the position of the President in Indian political system? 6.6    Summary The President of India is the highest constitutional post in India and she/he is the ceremonial head of the Indian state. His /Her electoral process itself is the proof that the president represents the Union (Combined union of Centre and States). The President has the constitutional duty to protect and defend the spirit of the Indian constitution. The President has the highest power of constitutional morality with her or him. 6.7    Glossary •    Impeachment: is the term used to define the quasi-judicial procedure of presidential trial for not performing the constitutionally defined duties. •  Quorum: is the minimum number of strengthening which is needed for any house to function. •    Veto: is the legislative power of the President to override the legislation of the house. 6.8 Answers to Self Check Exercise Self -Check Exercise-1 Ans.1 See Sub-Section 6.3.1 Ans. 2 See Sub-Section 6.3.1 Self - Check Exercise-2 Ans.1 See Sub -Section 6.4.1 Ans.2. See Sub- Section 6.4.2 Self-Check Exercise- 3 Ans.1-See Section 6.5 6.9 References /Suggested Readings •    B.L. Fadia(2021), Indian Government and Politics , Sahitya Bhavan Publications. •    Bidyut Chakrabarty & Rajendra Kumar Pandey (2008), Indian Government and Politics, Sage, New Delhi. •    P.M. Bakshi(2004), The Constitution of India, Universal Law Publishing Co. •    R.N. Trivedi, Dar. Tripti Jain (2008), Indian Government and Politics, Vishvabharti Publications,Jaipur. •    M.Laxmikant (2021), Indian Polity, Mcgraw Hill Publication. 6.9 Terminal Questions 1.    Write down the Electoral process of an Indian President in detail. What are the different powers of the President of India? 2.    What are the powers of the President of India? What is his/her position in the Parliamentary system? UNIT-7PRIME MINISTER AND COUNCIL OF MINISTERS- POWERS AND FUNCTIONS OF PRIME MINISTER Structure 7.1    Introduction 7.2    Learning Objectives 7.3    Prime Minister of India 7.3.1    Constitutional Provisions 7.3.2    Powers and Functions of the Prime Minister 7.3.3    Evaluation and Position of the Prime Minister Self Check Exercise-1 7.4    Council of Ministers 7.4.1    Different Types of Ministers 7.4.2    The Principle of Collective Responsibility of the Council of Ministers 7.4.3    Role and Significance of the Council of Ministers Self Check Exercise-2 7.5    Summary 7.6    Glossary 7.7    Answers to Self -Check Exercise 7.8    References/Suggested Readings 7.9 Terminal Questions 7.1    Introduction Dear students, The Prime Minister is the very centre of the government and governance in India.This institution has been a gift of the colonial rule of the British which initiated the Parliamentary form of government. Prime minister is the real executive head of the government in India who bears the moral and legal responsibility to govern the country. The Prime Minister represents the political leadership of the country and he is the leader of the House in Lok Sabha. 7.2    Learning Objectives This unit deals with the institution of the Prime Minister and Council of Ministers. It also illustrates their powers and role in the functioning Indian democracy. 7.3    Prime Minister of India7.3.1    Constitutional Provisions Article 74(1) says that there shall be a Council of Ministers with a Prime Minister at the head to aid and advice the President. The President is required to exercise his powers in accordance with the advice of the PM and his/her council. Although the President can require the council of ministers to reconsider the advice, Article 74(2) keeps such advice secret which cannot be inquired in any court. Although the Supreme Court in the S.R. Bommai vs Union of India (1994) case decision has made the facts and proofs upon which the council of ministers exhorted the President to a particular action investigable in the court. Article 75 (1): mentions that the Prime Minister shall be appointed by the President and other Ministers shall be appointed by the President on the advice of the Prime Minister. This article clearly defines the dominant role of the Prime Minister in the formation of the Union Executive. Without the Prime Minister there is no existence and possibility of creating the Council of Ministers. It is the prerogative of the Prime minister to distribute portfolios among the ministers. The constitution does not specify the qualifications for becoming the Prime Minister of India except being a member of parliament. Practically the Prime ministerial candidate is usually the most prominent leader of the winning political party. He/she has led the electoral campaign in the parliamentary elections and paved the way to majority for his party in the national elections. Another way of choosing the Prime ministerial candidate is to choose a more trustworthy and docile leader of the party and usually this decision is taken by the senior leaders of the party. Selection of Lal Bahadur Shastri and Indira Gandhi was done by the group of more senior leaders. To become an Indian prime minister one has to be •    A citizen of India. •    A member of either Rajya Sabha or Lok Sabha •    He should have completed his 30 years if he is a member of the Rajya Sabha or can be 25 years of age if he is a member of the Lok Sabha. Article 75(2): The Minister shall hold office during the pleasure of the President. This article in practice means the Prime Minister will determine the fate of the ministers of the council and while the fate of the PM hangs with the numbers in the Lok Sabha. Article 75(3): The Council of Ministers shall be collectively responsible to the House of the People. The Principle of Collective Responsibility is the core of the Prime ministerial form of government and it ensures that the entire council of ministers stands together to survive the challenges in the lower house. Article 75(4): Ministers take the oath of office and of secrecy before taking charge of their offices. They are expected constitutionally to conduct their actions by the oath and keep the official policy decisions in secrecy until they are not publicly disclosed by the Council of Ministers. Article 75(5): A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be a Minister. Article 75(6): The salaries and allowances of Ministers shall be such as Parliament may from time to time by law determine and, until Parliament so determine, shall be as specified in the Second Schedule. According to Article 78 it is the duty of the Prime Minister to keep the President informed of all decisions relating to administration and legislation, to furnish such information in these matters as the President may call for and to place before the Council of Ministers, if so desired by the President, any matter on which a decision might have been taken by a minister. 7.3.2    Powers and Functions of Prime Minister The Prime Minister of India is the Head of the Government of India. His leadership gives direction to the policy formulation and implementation within the government. J.L.Nehru‘s (the first Prime Minister of India) tilt towards the Socialist model of development created the all-powerful extra-constitutional institution of the Planning Commission. This Institution has been at the center of the developmental model of India for more than four decades after independence. Nehru‘s ideology of Non-Alignment became the main template of Indian foreign policy. Lal Bahadur Shastri in the 1965-66 represented the spirit of national resistance during the twin onslaughts of Pakistan and Drought. He popularized the slogan of Jai Jawan and Jai Kisan. Indira Gandhi diplomatically supported the war of Bangladesh liberation and to formulate alliance with the USSR. P.V.Narshima Rao has performed yeoman service by giving Mahmohan Singh as the finance minister license to initiate the economic reforms. These reforms became foundational steps in the transformation of India‘s economy. Vijpayee has taken the courage to go for the Nuclear Deterrence event at the price of facing the American sanctions. He initiated the Prime minister Gram Sadak Yojna and Sarva Sikha Adhiyan to transform the lives of the poor people. Manmohan Singh government has launched the Mahatma Gandhi National Rozgar Yojana and National Rural Health Mission. Narendra Modi as the Prime Minister has made digital India as his trademark of economic forms and now India has become the largest online payment using country. The Prime Minister has the authority to assign portfolios to the Ministers. Article 75 clearly states that the President will appoint ministers according to the advice of the Prime Minister. Decision of choosing Manmohan as the finance minister was the political risk which P.V. Narshima Rao took power in a socialist dominated congress party in 1991. Recently P.M.Modi has chosen the former diplomat S.J. Shanker as the foreign minister. In case of the genuine coalition governments many important ministerial posts are bargained between the different coalition partners. If the Prime minister is not the de facto leader of his /her party then party leadership can play a more important role in the distribution of portfolios. The Prime Minister presides over the meetings of the Cabinet which is the internal group of the Council of Ministers. His decision is the last and final within the meeting of Cabinet. He/her can collapse the council of ministers by resigning from the office. Posts like the National Security Advisor (NSA), Attorney General and Chief Economic Advisor are also filled by the president with his consultation. During the UPA 1 and 2 governments the National Advisory Council (NAC) became a powerful body that initiated and proposed different social welfare legislations. This became possible because the Prime minister accepted the dominance of the party chairperson Mrs Sonia Gandhi who headed this body. According to article 78 it is the duty of the Prime Minister to make the President aware of the proceedings of the Cabinet and their policies within the house. The Prime Minister acts as the link between the President and cabinet. He communicates all decisions of the Cabinet to the President which are related to the administration of the affairs of the Union and proposals for legislation. The Prime Minister can advise the President to dissolve the Parliament if he feels that the ruling party has lost the majority of the Lok Sabha. The Prime Minister is the head of the Nuclear Command Authority because he is the head statesman of the nation and the final person to take decisions on the security of the nation. NITI Aayog and before this the Planning Commission and National Development Council were headed by the Prime Minister of India because these institutions make fundamental contributions to transforming the economy of the country. Appointments Committee of the Cabinet, Department of Atomic Energy, Department of Space and Ministry of Personnel, Public Grievances and Pensions. The real political executive, and the head of the administration. He/she is the leader of the Lok Sabha, and determines to a very large extent both its legislative output, as well as its parliamentary functions .He/she controls the party through his/her pre-eminent position. He/she is the link between the real and nominal executives. He /she is also a link between the union government and the state governments. He is the head of the NITI Ayog, a policy making and think tank institution. The first Prime Minister Pandit Jawaharlal Nehru had really strengthened the position of the Prime Minister. His dominance was based on his commanding position in the Cabinet coupled with the fact that he was the leader of the dominant party of that time, Congress. Nehru‘s stature as the charismatic leader of the freedom struggle boosted his position. This Nehruvian legacy further strengthened the position of Prime Minister. After the death of Nehru the circumstances changed and the new Prime Minister Lal Bahadur Shastri was not the leader of the party and his existence depended upon the party leadership. In such a situation the post of the Prime Minister becomes more of ―the first among the equal‖. Same was the case with the appointment of Indra Gandhi initially but she rapidly captured power within the party by dividing the party in1969. Indira Gandhi became so dominant gradually within the party and government that she even went on to challenge the democracy itself. Since the advent of Coalition politics (1989) at the center level the position of the Prime Minister has declined. P.V. Narasimha Rao, despite being a leader of the minority government, took the decision to liberalize the economy. The NDA government under Vajpayee also saw a leadership based on discussion and dialogue. The UPA governments for ten years saw two power centers in the union government. The Prime Ministerial post became weaker in front of the Party president who headed an advisory council which wielded virtual veto over the policy decisions of the Prime Ministers and his council. Since 2014 the rise of a strong Bjp government under Prime Minister Modi has once again boosted the institution of the Prime Minister. The death or resignation of the Prime Minister automatically brings about the dissolution of the Council of Ministers. It generates a vacuum. The demise, resignation or dismissal of a Minister creates only a vacancy 7.3.3    Evaluation and Position of the Prime Minister As we have already discussed, the Prime Minister has very wide powers. He /she is the head of which the Prime Minister may or may not like to fill. The Government cannot function without a Prime Minister but the absence of a Minister can be easily compensated. The powers of the Prime Minister are so vast that there is danger of his/her becoming a dictator. But there are many reasons that acts as constraints on powers of his/her powers, a) the Prime Minister has to face the Lok Sabha constantly and frequently and answer all questions, explain all the actions of his/her government to the House; b) His/her cabinet colleagues also act as an inhibiting factor on any misuse of power. All the decisions of the cabinet are collective decisions thus must be discussed and decided upon collectively; c) his /her own party is also a very effective check on any misuse of power by the Prime Minister as he/she cannot ignore the feedback and instructions of the party; d) the existence of governments of other parties in the states also work as check on the powers of the Prime Minister; e)the need to keep the President informed and the necessity to be advised by him or her are very effective in keeping the Prime minister under check. The President has the right to warn the Prime Minister about a situation which he feels can cause problems later on,; f)The presence of the opposition in the Lok Sabha is a very effective constraint on the power of the Prime Minister; g) The judiciary and the power of judicial review which has been vested in it by the constitution is another important check on the powers of the Prime Minister. The most effective check on the Prime Minister is that of public opinion. He/she is under constant public scrutiny and functions in the glare of publicity. The constant glare of the press is a very effective check on the prime minister. The office of the Prime Minister is of great prestige and dignity, having vast powers. He/she is the axis around which the whole governmental system revolves. The qualities of his/her own personality can add many more dimensions to his/her powers and his/her office. The various comments made by the many eminent experts on the role of the Prime Ministers holds good in the Indian context also Lord Morley has described prime minister as ‗primus inter pares ‘(first among the equals).Sir William Vernor Harcourt has described Prime Minister as ‗inter stellas luna minors( a moon among the stars).Jennings says that the Prime Minister, ― is ,rather a sun around which planets revolve‖. Laski described the Prime Minister as ―the pivot around which the entire governmental machinery revolves‖. Munro has called the Prime Minister as ―the captain of the ship of the state‖. Self-Check Exercise -1 Q.1 What are the basic qualifications for becoming Prime Minister? Q.2 What is the method of appointment of the Prime Minister and other ministers? 7.4    Council of Ministers Indian Constitution mentions the institution of Council of Ministers in the article 74 and 75 of the constitution. The first article 74 mentions that the council will be headed by the Prime Minister of India, by forming an umbilical bond between the Council of ministers and the Prime Minister. The President is supposed to take the advice and aid of this team and the collective message of the Council of ministers will be conveyed by the Prime Minister. The Article 75 mentions the following things: •    They are appointed by the President on the advice of the Prime Minister. This clause is the proof of the dominant and the first position of the Prime Minister within the Parliament. •    They along with the Prime Minister of India form 15% of the total strength of the lower house i.e. Lok Sabha. (The number cannot exceed 15%). It was done to stop the formation of the Jombo council of ministers and which was a drain on the public money. •    91st Amendment Act provided for the disqualification of the minister when he stands disqualified as a Member of Parliament. •    A Minister ceases to exist as one if he is not a member of either house of Parliament for six consecutive months. This condition is the essential feature of the Parliamentary form of governance in which the executive originates within the parliament. •    Parliament decides the salary and allowances of the council of ministers. 7.4.1    Different Types of Ministers The Indian Constitution does not categorize ministers into ranks but in practice there are seen four types of ministers: 1.    Cabinet Ministers— Cabinet is the innermost circle within the council of ministers and is composed of the most important ministries. Cabinet meetings are far more frequent as compared to the Council of Ministers. 2.    Minister of State with independent charge—He/she is a Minister of State who does not work under a Cabinet Minister. When any matter concerning his/her Department is on the agenda of the Cabinet, he/she is invited to attend the meeting. 3.    Minister of State—He/she is a Minister who does not have independent charge of any Department and works under a Cabinet Minister. The work to such a Minister is allotted by his/her Cabinet Minister. This kind of minister plays the secondary fiddle to the senior partner. 4.    Deputy Minister—He is a Minister who works under a Cabinet Minister or a Minister of State with independent charge. His work is allotted by the Minister under whom he is working. They are not given the independent charge of the department. 7.4.2    The Principle of Collective Responsibility of the Council of Ministers India has adopted the principle of collective responsibility from the West Ministerial Government which originated due to circumstance and conventions. The principle of collective responsibility is given in the Article 75(3) which mentions that the Council of Ministers shall be collectively responsible to the Lok Sabha. The Lok Sabha can check the responsibility of the Council of Ministers by asking the questions and by bringing the different resolutions or motions against the Council of Ministers. If the Council of Ministers fails in defending its individual minister or entire council then they have to resign. This means that a Ministry which loses confidence in the Lok Sabha is obliged to resign. The loss of confidence is expressed by rejecting a Money Bill or Finance Bill or any other important policy measure or by passing a motion of no-confidence or rejecting a motion expressing confidence in the Ministry. When a Ministry loses the confidence of the Lok Sabha the whole of the Ministry has to resign including those Ministers who are from the Rajya Sabha. The fate of the Ministers is tied together. If the Council of Ministers loses the confidence of the Lok Sabha then the Council can advise the President to dissolve Lok Sabha and call for fresh elections. 7.4.3    Role and Significance of the Council of Ministers The Council of Ministers with the Prime Minister as its head forms the very basis of the Executive in India. They are the team with which the real executive of the Indian Union is supposed to discuss, design and implement the policies for which they have won the mandate of the people. The Prime Minister, despite being all-powerful, needs a team of dedicated leaders who will implement the spirit of the Prime Ministerial vision in the different aspects of the economy and polity. Visionary ministers like Man Mohan Singh ( finance minister), Shanta Kumar as Consumer Affairs and Public Distribution and now Nitin Gadkari as the minister of Transport and Highways have helped in transforming the quality of governance in their respective sectors which has helped in uplifting the performance of the government as a whole. Council of ministers provides a discussion and analysis forum for the government where they can plan the legislations and policies before giving them the concrete shape. Self -Check Exercise 2 Q.1. What are different types of ministers in a council of ministers? Q.2 .What do you mean by the principle of Collective Responsibility? 7.5    Summary Council of ministers and Cabinet are the real political executives of the Indian state. The President is constitutionally bound to follow their advice on policy matters. This institution is led by the Prime Minister who is the political head of the nation and government. This political executive has the responsibility to seek the mandate of the people in the elections and give practical implementation to that mandate. 7.6    Glossary •    Mandate: The authority to carry out a policy,regarded as given by the electorate to a party or candidate that wins an election. •    Collective Responsibility: Collective responsibility is the convention whereby individual members of the government are held accountable for the actions and decisions of the government as a whole. 7.7    Answers to Self- Check ExerciseSelf-Check Exercise - 1 Ans.1 See Sub- Section 7.3.1 Ans.2 See Sub- Section 7.3.1 Self-Check Exercise- 2 Ans.1 See Sub -Section 7.4.1 Ans.2 See Sub -Section 7.4.2 7.8    References /Suggested Readings •    B.L. Fadia(2021), Indian Government and Politics , Sahitya Bhavan Publications. □ Bidyut Chakrabarty & Rajendra Kumar Pandey, Indian Government and Politics. •    P.M. Bakshi(2004), The Constitution of India, Universal Law Publishing Co. •    Dr. R.N. Trivedi, Dar. Tripti Jain (2008), Indian Government and Politics, Vishvabharti Publications,Jaipur. •    Subhash Kashyap(1994), our constitution: An Introduction to India’s Constitution and Constitutional Law, National Book Trust, India, New Delhi. •    M.Laxmikant (2021), Indian Polity, Mcgraw Hill Publication. 7.9    Terminal Questions 1.    Which powers of the Prime Minister make him/her the biggest leader of the Nation? 2.    What are different types of ministers in the Council of Ministers? What do you mean by Collective responsibility and Individual responsibility of the ministers? 3.    What are the powers of the Prime Minister? Why does the Prime Minister call the First among the Equals? UNIT-8THE PARLIAMENT Structure 8.1    Introduction 8.2    Learning Objectives 8.3    The Parliament of India 8.3.1    Composition of the Parliament 8.3.2    Disqualifications, Parliamentary Sessions and Parliamentary Committees Self-Check Exercise-1 8.4    Powers and Functions of the Parliament 8.4.1    Law- Making Powers and Functions 8.4.2    Executive Powers and Functions 8.4.3    Financial Powers and Functions 8.4.4    Constitution Amending Powers and Functions 8.4.5    Judicial Powers 8.4.6    Electoral Powers and Functions 8.4.7    Miscellaneous Powers and Functions Self Check Exercise-2 8.5    Decline of Parliament as an Institution Self Check Exercise-3 8.6    Summary 8.7    Glossary 8.8    Answers to Self -Check Exercise 8.9    References/Suggested Readings 8.10    Terminal Questions 8.1    Introduction During British colonial rule they established the Imperial Legislative Council in 1861 which gradually developed into the modern Indian Parliament. Reform acts of 1891, 1909, 1919 and 1935 were the acts which gradually shaped the modern institution of Parliament. Following independence, the Constituent Assembly of India was elected to write the Constitution of India, its members serving as the nation's first parliament. In 1950 after the constitution came into force, the Constituent Assembly of India was disbanded and succeeded by the Parliament of India, which is active to this day. India has adopted the parliamentary form of government in which the institution of Parliament is the central organ around which the executive performs its tasks. Without the election of the lower house formation of the executive is not possible. Task of the parliament is to legislate and formulate new rules for the centre and for the entire nation in many cases. The Upper house Rajya Sabha (Council of States) represents the states of the Indian Union and the Lok Sabha represents the People of India through the territorially defined Constituencies. Third essential part of the institution of Parliament is the President as defined in the article 79 of the Constitution of India. The President as the head of state has the power to summon and prorogue both houses of the Parliament and has the power to dissolve the Lok Sabha. The constitution has clearly mentioned that all these powers of the president will be exercised upon the advice of the Council of Ministers. The members of the Lok Sabha are directly elected by the people from the territorially defined single-member constituencies and method of election is first-past the -post system. The Rajya Sabha members are elected by the members of all state legislative assemblies by the method of proportional representation system. The Parliament has a sanctioned strength of 543 in the Lok Sabha and 245 in the Rajya Sabha including 12 nominees from the expertise of different fields of literature, art, science, and social service. The Central Vista Redevelopment Project launched in 2019 for the creation of a new Parliamentary Body because the present old building is not adequate to fulfill the needs of the changing circumstances. Although a committee to suggest alternatives to the current building was set up by then Lok Sabha Speaker in 2012. There is a very imminent possibility that with the deepening of democracy the Indian Union will have to create many new states and the cap of the 1971 census on the seats of Parliament now seems very undemocratic and less- representative. 8.2    Learning Objectives This unit deals with the institutions of Parliament and possibility of improvement in this institution. It also illustrates the role of the Parliamentary Committees. 8.3    The Parliament of India8.3.1    Composition of the Parliament President The President of India takes the oath under the Article 60 to defend the constitution of India and the Indian constitution requires the President to perform the task of initiator in the functioning of the parliamentary democracy. Article 111 of the constitution it is the president's responsibility to ensure that laws passed by the Parliament are in accordance with the constitutional mandate and that the stipulated procedure is followed before according his or her approval to the bills. He/she represents the Union which is composed of the Centre and the states. Therefore the President became the natural leader to command and preside over the functioning of the two houses. Lok Sabha The Lok Sabha (House of the People) or the lower house has 543 members. Members are directly elected by citizens of India on the basis of universal adult franchise representing parliamentary constituencies across the country. As per the order issued by the Delimitation Commission in 2008, there are 84 seats reserved for the SCs and 47 seats for STs in the Lok Sabha. In 2020 tradition of nominating two additional members of the Anglo- Indian community was abolished in January 2020 by the 104th Constitutional Amendment Act, 2019. The total elective membership is distributed among the states according to the populations of the different states. Number of seats of Lok Sabha has been fixed according to the 1971 census which will be reformulated in 2027.The constitution provides that the maximum strength of the House be 550 members. It has a term of five years. The Speaker of the Lok Sabha is elected from the house with help of the pro-tem speaker after the fresh elections of Lok Sabha. Eligibility to become member of Lok Sabha •    He/she must be a citizen of India. •    must be 25 years of age or older. •    Members should be mentally sound and should not be declared bankrupt. •    Member should not be criminally convicted Rajya Sabha The Rajya Sabha (Council of States) is the house which represents the different states of the India Union. The Vice -President of India is the ex-officio chairperson of the house. This house is referred to as the upper house of the Parliament. Because this house represents the states of the Union of India therefore the Rajya Sabha is a permanent house. One third of the members retire every second year, and are replaced by newly elected members. Each member is elected for a term of six years. Its members are indirectly elected by members of legislative bodies of the states. The Rajya Sabha can have a maximum of 250 members. It currently has a sanctioned strength of 245 members, of which 233 are elected from states and union territories and 12 are nominated by the president. The number of members from a state depends on its population. The minimum age for a person to become a member of the Rajya Sabha is 30 years. 8.3.2    Disqualifications, Parliamentary Sessions and Parliamentary Committees Article 102 deals with the provisions regarding the disqualification of its members. A person shall be disqualified for being elected as a member of Parliament- □ If he holds any office of profit under the Union or the state government •    Unsound of mind and declared as insolvent •    If he is not citizen of India •    If disqualified under the law made by the parliament The MP can be disqualified under the various grounds laid under the Representation of People Act. In this context the President will consult the election commission regarding the nature of violation and disqualification, upon which she/he will act. MPs can be disqualified under the Ground of Defection. Under this the decision of the Speaker of the house will be final although there are instances when such decisions have been challenged in the court of law. The period during which the House meets to conduct its business is called a session. The president has the power to summon each house at such intervals that there should not be more than a sixmonth gap between the two sessions. Hence the Parliament must meet at least twice a year. Three sessions of Parliament - •    Budget session: January/February to May - This is the longest session of the parliament in a year. Budget of the entire fiscal year is discussed and voted upon in this session. Budget is divided into two components -Finance Bill and Money Bill •    Monsoon session: July to August/September. •   Winter session: November to December. Parliamentary committees are formed to deliberate specific matters at length. These committees are dealt with in Article 118 (1) of the Indian Constitution. Need for the creation of Parliamentary committees arose out of the fact that the modern welfare state has expanded the domain of legislation. The rise of competitive party politics has also contributed to the decline of the efficiency of Parliament. Very often precious parliamentary time is wasted on boycotts and adjournments due to the failure of MPs belonging to different parties to develop a culture of cooperation in the house. Loyalty to the party has become more important than the task of Legislation. Therefore Parliamentary committees are created to fill in the gaps in the functioning of the house. There are two kinds: ad hoc committees and standing committees. Standing committees are permanent committees constituted from time to time in pursuance of the provisions of an act of Parliament or rules of procedure and conduct of business in Parliament. The work of these committees is of a continuing nature. Ad hoc committees are appointed for a specific purpose and they cease to exist when they finish the task assigned to them and submit a report. Parliamentary Committee in India- Public Accounts Committee Estimates Committee Committee on Public Undertakings Departmental Standing Committees - Departmental committees are performing the task of scrutinizing and vetting the bills proposed by their concerned ministers with the help of experts and discussions. Since their formation in the 1990s they have had parliamentary surveillance upon the registration process. The task of legislation has become more and more complex which is becoming difficult for MPs to understand. This committee helps in institutionalizing the scrutiny mechanism and the committee's power of taking help of experts and power to call out any authority to be present in front of it helps in this. Presently there are 24 department related committees which focus on legislation related to their own departments. For example Committee on Agriculture, Committee on Information Technology, Committee on Defence, Committee on Energy and Committee on External Affairs. Committees to Scrutinize and Control Committee on Government Assurances, Committee on Subordinate Legislation, and Committee on Papers Laid on the Table, Committee on Welfare of SCs and STs, Committee on Empowerment of Women and Joint Committee on Offices of Profit Ad Hoc Committees- There are two types of Ad Hoc committees in the house. Advisory Committees and Inquiry Committees are the two types. Self-Check Exercise-1 Q.1 What is the composition of Lok Sabha? Q.2Which article belongs to the disqualifications of the members of the Parliament? 8.4 . Powers and Functions of the Parliament The Parliament occupies a central position in the Indian politico-administrative system‘. It enjoys extensive powers and performs various functions. Its powers and functions can be classified as under: 8.4.1    Law- Making Powers and Functions Legislative function is the primary function of the Parliament. It has exclusive powers to make laws on the subjects enumerated in the Union List(which has 100 subjects).and the residuary subjects (which are not mentioned in any of the three lists).With regard to the Concurrent List(Which has 52 subjects),the Parliament has overriding powers, that is, the law of Parliament prevails over the law of the state legislature in case of conflict between the two. The constitution also give powers to the Parliament to make laws on the subjects mentioned in the State List (which has 61 subjects)A) when Rajya Sabha passes a resolution to that effect; b) when a proclamation of National Emergency is in operation; c) when two or more states make a joint request to the Parliament D)when necessary to give effect to international agreements ,treaties and conventions; e)when President‘s Rule is in operation in the state. Legislative proposals are brought before either house of the Parliament in the form of a bill. A bill is the draft of a legislative proposal and this proposal has to go through three stages of reading. First reading of a bill is Introductory in nature and the second stage of reading is the most important stage of reading in a house in which usually the bill is sent to the committee for further vetting. After attaining the support of the house in the third reading a bill is sent to the next house. When passed by both houses of Parliament and assented to by the president, it becomes an Act. Money bills must originate in the Lok Sabha. The Council of states has to pass such bills within 14 days. While in the case of Constitutional amendment both the house shares the equal powers. Every constitutional amendment must be passed separately from both houses of the Parliament. In case of the Ordinary Bills both houses have the same powers but if a deadlock comes up between the both houses then the Joint session of the parliament decides the fate of such Ordinary bill. Article 123 gives the power to the President to pass Ordinances as Temporary laws for the period when the both houses of the parliament are not in session to deal with the circumstances which arises .But Ordinances are constitutionally mandated to be ratified by the parliament within the five weeks after the start of a session. 8.4.2    Executive Powers and Functions The Indian Constitution has established a parliamentary form of government in which the Executive is responsible to the Parliament for its policies and actions. Hence,the Parliament controls over the Executive through question-hour, zero- hour, half-an-hour discussion, short duration discussion, call attention motion, adjournment motion ,censure motion, no-confidence motion and other modes. It also supervises the activities of the Executive with the help of its various committees. Ministers are collectively responsible to the Parliament in general and to the Lok Sabha in particular. They are also individually responsible for the efficient administration of the ministry under their charge. They continue in office so long as they enjoy the confidence of the majority members in the Lok Sabha. The Lok Sabha can express lack of confidence in the government ;a) by not passing a motion of thanks on the President‘s inaugural address; b) by rejecting a bill ; c) by passing a censure motion or an adjournment motion ;d) by defeating the government on a vital issue ;e) by passing a cut motion. 8.4.3    Financial Powers and Functions At the beginning of every financial year, the President has the responsibility of causing, to be laid before both the Houses of Parliament, a budget which is known as the Annual Financial Statement (Art.112). It contains a statement of the estimated receipts and expenditure of the Government of India. The enactment of the budget by the Parliament legalizes the receipts and expenditure of the government for the ensuing financial year. The Parliament also scrutinizes government spending and financial performance with the help of its financial committees namely public accounts committee, estimates committee and committee on public undertakings. They bring out the cases of illegal, irregular, unauthorized, improper usage and wastage and extravagance in public expenditure. 8.4.4    Constitution Amending Powers and Functions The Parliament has been vested with the powers of amend the constitution. The major part of the Constitution can be amended by the Parliament with a special majority (that is, more than 50 per cent) of the total membership of each House and a majority of not less than two-thirds of the members present and voting in each House. Some other provisions of the Constitution can be amended by the Parliament with simple majority, that is, a majority of the members present and voting in each House of Parliament. A few provisions of the Constitution can be amended by the Parliament (by special majority) and with the consent of at least half of the state Legislatures (by simple majority). However, the power to initiate the process of the amendment of the Constitution lies in the hands of the Parliament. The constituent power of the Parliament is subject to the ‗basic structure‘ of the Constitution. This was ruled by the Supreme Court in the Keshvananda Bharti case in 1973 which was reaffirmed in the Minerva Mills case (1980). 8.4.5    Judicial Powers The parliament can impeach the President for the violation of the Constitution. It can remove the Vice- President from his/her office. It can recommend the removal of judges (including chief justice) of the Supreme Court and the high courts, chief election commissioner, comptroller and auditor general to the President. It can also punish its members or outsiders for the breach of its privileges or its contempt. 8.4.6    Electoral Powers and Functions Parliament along with the state legislatures constitutes the Electoral College for the election of the President of India. The Parliament also elects the Vice-President. The Lok Sabha elects its Speaker and Deputy Speaker, while the Rajya Sabha elects its Deputy Chairman. The parliament is also authorized to make laws to regulate the elections to the offices of President and Vice- President, to both the Houses of Parliament and to both the Houses of state legislature. Accordingly, the Parliament enacted the Presidential and Vice- Presidential Act (1952), the Representation of People Act (1950), the Representation of People Act (1951),etc. 8.4.7    Miscellaneous Powers and Functions The Parliament serves as the highest deliberative body of India. It discusses various issues of national and international significance. It approves all the three types of emergencies (national, state and financial) proclaimed by the President. The Parliament can create or abolish the state legislative councils on the recommendations of the concerned state legislative assemblies. It can also regulate the organization and jurisdiction of the Supreme Court and high courts for two or more states. Self Check Exercise -2 Q.1 What are three lists which determine types of parliamentary legislative powers? Q.2. What is Annual Financial Statement? 8.5    Decline of Parliament as an Institution There are many factors for the decline of the parliament as the institution of Legislation. These factors are also stopping this institution from keeping a check on the Executive. Practical level Parliament has been reduced to the rubber stamp of the executive either because the Ruling party has the majority in the lower house or coalition partners ( different parties) have struck a deal outside the parliament and now their MPs will function like robots by doing what their party whip orders them to do. Parliament has become an institution where partisan or party centric debates take place. No MP or Legislator has the courage to speak his mind which does not follow the dotted lines of the party bosses. Delegated Legislation has become a necessity of the modern times. Delegated legislation has become the most dominant legislation of laws which govern human lives. These laws are made by the high government officials and administrators. This delegation of power is happening by the creation of different sector specific law-making bodies. Bodies like Securities and Exchange Bureau of India (SEBI), Telecom Regulatory Authority of India (TRAI), Insurance Regulatory and Development Agency (IRDA), Competition Commission of India (CCI) and many more have become sectoral legislative bodies. Parliament can technically check and if finds certain violation of the powers delegated to these bodies can stop such authorities But in reality most of the times stakeholders who are not satisfied with the laws of these bodies know the doors of judiciary while the parliament has failed in developing its own accountability mechanism of these administrative bodies which legislate on its behalf. Presently the parliamentary committees can only give suggestions but the government is not bound to obey them. Governments with their majority in the houses are not bound to include and accept their suggestions. Committee should be given the power to hold the government accountable to the negligence of its suggestions if negation of those suggestions has brought the feared consequences on the nation. Defection is another issue in Indian politics.Anti- Defection of Law was passed to deal with the menace of floor-crossing. This solution gradually becomes worse than the cure. Because this led to empowering the party bosses and snuffed the last hope of inner party democracy and dissent. Party whip and party discipline has led to the decline of debate in the houses and no MP tries to cross the party line in the debate. This really led to the decline of debates in the houses. While the UK loosened the party discipline on the MPs in regard to their freedom of expression and dissent within the house even against the party lines. Their freedom of voting is restricted only in the context of noconfidence vote and confidence motion, where the existence of the government could be threatened. This has led to the genuine improvement in level of debate in the houses of the UK parliament. Time has come to reform the Anti- Defection Law so that the freedom of MPs in the debates and voting in the house. Lack of Inner Party Democracy is also a big issue in the Indian political system. Parliament is the most sacred institution of democracy but the parties which control and send their elected MPs in the houses are themselves not democratic in their inner functioning. There is no constitutionally mandated provision for the inner party elections; neither does it exist within the constitution of parties. Time has come that India should institutionalize inner party democratization through regular elections. In 1993 when the 73th and 74th constitutional amendment was being passed and these institutions were destined to emerge as the major institutions of development in the grassroot level. The MPLADS was launched to secure the source of political patronage for the members of parliament in their Constituencies. This scheme transforms MPs into Executives who can perform developmental tasks at the constituency. The main problem this has generated is that the MPs have started behaving like executives. They are competing with the elected members of the Panchayati Raj Institutions for getting their scheme approved and implemented. This has led to abdication of their primary task of legislation and their responsibility of keeping a check on the budgeted amounts and delegated legislations. This scheme also hampers the growth of the PRIs in becoming the dominant mode of development at the grassroots level. Use of Money and Criminalization of Politics is a big concern in the Indian political system. Presently, the role of money has increased in the elections and without money victory in the Lok Sabha election is becoming very difficult. Over the period of time many MPs of criminal backgrounds are being elected into the parliament. Use of money and criminal power is hampering the process of democracy in India. Entry of such MPs really lowers the dignity and standard of parliamentary debates. Usually since 1989 political parties failed in gaining the majority till the arrival of the Modi government in 2014. There was political instability and a lack of decisiveness in the decision making. Many times parliament was dissolved without even completing the tenure and the country had to face midterm elections. This created a debate on the issue of switching to the Presidential form of government for establishing a more stable government. But with the creation of the National Democratic Alliance and the United Progressive Alliance the problem of creating a politically stable coalition government was solved. There was also a demand to include Germany's provision that an incumbent government can be dislodged only if the opposition is able to provide the alternative government or otherwise the incumbent government will complete its term. In practice 2014 and 2019 elections of Lok Sabha have become Presidential in nature because Narender Modi won the mandate for the BJP. Electorate Voted for Prime Ministerial Ship of Modi not for their local MPs. These two elections virtually became Presidential. The 91st Constitutional Amendment Act has extended the 25 year old freeze on the total number of seats in Lok Sabha till the year 2026. As the year 2026 is reaching there is bound to be a conflict between the states (where population has become stable) and the Union. Because states like Tamil Nadu, Kerala, Karnataka, Andhra Pradesh which have been successful in curbing population growth will not witness an increase in their seats according to their present proportion of seats in Lok Sabha. The increase in the parliamentary seats according to census 2021 will increase the political weightage of the states which have much bigger populations. The present representation in both houses is decided by the proportion of the population. Even in the case of Rajya Sabha representation of the states is determined according to their population. One plausible solution for the India union will remain to give an equal number of representations to states in the Rajya Sabha. Because this house represents states not their population which is represented in the Lok Sabha. Power of Rajya in defending the fiscal and revenue interests of states should be increased so that small states do not feel disempowered in protecting their legitimate interests. Self Check Exercise-3 Q.1. What is the role of delegated legislation in the decline of Indian Parliament? Q.2 Which Constitutional Amendment Act extended the 25 year old freeze on the total number of seats in Lok Sabha till the year 2026? 8.6    Summary Parliament is the highest law making body of India which makes laws on the national issues. Two houses of the Parliament are the essential component of this institution along with the final signatory power of the president. Parliament is dependent on the President for the initiation of the legislative process within both houses. There has been a secular decline in the status and role of the parliament as an effective legislative institution. Anti- Defection Law, party dictatorship and Weak position of the Rajya Sabha are few factors which led to the decline of India parliament. 8.7    Glossary •    Anti- Defection Law: has been legislated to prohibit the practice of floorcrossing by the Constitutional Amendment. •    Ad hoc Committees: are of temporary nature. •    DRSCs: (Department Related Standing Committees) are standing or permanent committees of the house. 8.8    Answers to Self -Check ExerciseSelf-Check Exercise 1 Ans.1 See Sub -Section 8.3.1 Ans.2 See Sub- Section 8.3.2 Self- Check Exercise 2 Ans.1 See Sub-Section 8.4.1 Ans.2 See Sub-Section 8.4.3 Self Check Exercise-3 Ans.1 See Section 8.5 Ans.2 See Section 8.5 8.9    References/Suggested Readings •    B.L. Fadia(2021), Indian Government and Politics , Sahitya Bhavan Publications. •    Bidyut Chakrabarty & Rajendra Kumar Pandey (2008), Indian Government and Politics, Sage, New Delhi. •    P.M. Bakshi(2004) The Constitution of India, Universal Law Publishing Co. •    Subhash Kashyap(1994), our constitution: An Introduction to India’s Constitution and Constitutional Law, National Book Trust, India, New Delhi. □ M.Laxmikant (2021), Indian Polity, Mcgraw Hill Publication. 8.10    Terminal Questions 1.    Discuss the composition and powers of the Parliament. 2.    What is the role of Parliamentary committees in the functioning of the Parliament? 3.    How does the Parliament and Lok Sabha in particular keep a check on the government? 4.    What is Delegated Legislation? How it originated and what is the impact of delegated legislation on parliament? UNIT -9 ROLE OF POLITICAL PARTIES IN THE DECLINE OF PARLIAMENT – CRITICAL ANALYSIS Structure 9.1    Introduction 9.2    Learning Objectives 9.3    Parliament and Political Parties Self- Check Exercise -1 9.4    Anti- Defection Law & its Impact on Parliamentary Functioning Self Check Exercise- 2 9.5    Major Recommendations 9.5.1    Recommendations of the National Law Commission 9.5.2    The Law Commission Recommendation on Election Finance 9.5.3    Proportional Representation 9.5.4    National Commission to Review the Working of the Constitution Self Check Exercise-3 9.6    Summary 9.7    Glossary 9.8    Answers to Self -Check Exercise 9.9    References/Suggested Readings 9.10    Terminal Questions 9.1    Introduction Political parties are the blood of the constitutional structure of a country and without them no democratic political system can function. Parties are inherently power capturing machines and they try to penetrate into every single sacred institution of the country. Parliament is the institution which is at the core of their legal and constitutional basis of power. Majority in the Lok Sabha builds their power and provides its stability. The question arises what has been the impact of the political parties on the functioning of the Parliament? 9.2    Learning Objectives In this unit students will be able to understand about the impact of political parties on the functioning of the Indian parliamentary system. Although, political parties are not mentioned directly in the constitution of India, their functioning has a very significant impact upon the parliamentary system. Any flaws in the functioning political parties directly reflect in the functioning of the parliament and the parliamentary government in general. Present flaws in the functioning of the political parties have contributed to the decline of Indian Parliament. 9.3    Parliament and Political Parties Parliament is very often taught to students and young minds as an awe inspiring institution which performs the task of deliberation and formulation of different types of legislations related to national importance. They are taught the entire gamut of articles dealing with formation of parliament, its various committees and parliamentary rules enshrined in the constitution or evolved over the times. But we fail in understanding how the nature and functioning of political parties impacts the functioning in the Parliament. It cannot be denied that it is the political parties that provide vitality to the functioning of parliament because the parties bring with them the mandate and support of the people. But presently India's parliament is suffering from the undemocratic organizational structures and functioning of the political parties which their elected Member of Parliament (MPs) reflect within the Parliament. Despite being the biggest democracy of the world, India has failed in democratizing the nature of its political parties.This does not mean that Indian political parties are not representing different ideologies , castes and regions existing within the society. Democratic deficit of Indian political parties lies in the mode of selection of its leadership, lack of internal elections within political parties, freedom of expression within political parties , substitution of party discipline with the dictatorship of the party bosses. This has resulted in the emergence of the family oriented political parties in India in which blood ties become a direct ticket to leadership rather than personal qualities. Parties like DMK , TDP , SP and many more are centered around a particular family and within national parties in India this trend is also visible. Parties are dominated by a particular family or group of leaders who ensure complete submission of their members to the dictates of the central leadership or to the supreme leader. Political culture of political parties is such in India that differences of opinion on various policies of the party is not appreciated. Self Check Exercise-1 Q.1. How the nature and functioning of political parties impacts the functioning in the Parliament? 9.4    Anti- Defection Law & its Impact on Parliamentary Functioning Anti-Defection-Law passed through the 52 Constitutional Amendment Act has indirectly contributed in increasing the party leadership‘s power upon its Members of Parliament in the name of stopping the evil practice of floor crossing. This amendment enables parties to control the MPs of their parties by issuing whip on various matters related to the functioning of two houses and if a MP fails to pass the official whip of the party on any legislative matter then he or she is issued a notice of discipline. If any MP decides to vote according to his or her conscience which is not in sync with the official party line then they can be disqualified for disobeying the official party line. This possible six years ban from active politics is enough deterrence for most of the MPs to apply their own mind towards different issues discussed on the floor of the house and they start to follow the party line without evaluating the real merits and demerits of one‘s own party‘s stand. Anti-Defection Law has challenged the very foundation of Indian Democracy because it negatively impacts the representation task of the MPs , his/her democratic responsibility to ensure the accountability of government towards the society. This is one of the reasons for the decline of debates in parliament both in terms of quality and volume and most of the time discussion of the houses are reduced to the act of sloganeering. The lack of bipartisanship consensus among the MPs is proof that our MPs are not able to deliberate over the different legislations without being enchained by the official party stands. The United Kingdom has reformulated their parliamentary system and allowed the MPs to express their independent opinion on issues being debated in the house and they can vote against their official parties line on different legislations of national importance. An MP is an important constitutional position which sets the balance between the Executive and Legislature of a county; this becomes far more true in the context of the Parliamentary form of government. AntiDefection Law has forced MPs to betray their duties as parliamentarians on the altar of party loyalties. Anti-Defection Law empowers the Speaker as the decision maker in the cases of antidefection but Speakers are usually elected from the party which formulate the government in the lower house. There is a very serious question mark on the neutrality and impartiality of the Speaker and it would have been far more better if the Election Commission could have given the task of judging antidefection cases.Law Commission (A.P.Shah commission) has recommended to give decision making power in case of Anti-Defection Law to the President or Governor ( in case of state) who shall decide such cases on the recommendation of the Election Commission of India. Before taking any anti-defection law related disciplinary actions it should be remembered that in Parliamentary democracy asking questions to ministers in the Parliament, presenting critical inputs on government proposed legislation is a great service to the nation if any MP is penalized for such activities because such actions transgress party loyalty will not be good for the nation. AntiDefection law is presently hampering the common citizens from holding their elected representatives accountable.Voters can check the performance of their MP on the basis of questions and points he or she raised which directly or indirectly impacted the fortunes of his or her electorate. Self-Check Exercise- 2 Q.1 What is the impact of Anti-Defection Law on the freedom of MPs in the Parliament? Q.2 Why was the Anti-Defection Law passed? 9.5    Major Recommendations9.5.1    Recommendations of the National Law Commission National Law Commission of India (Chairperson; Justice A.P.Shah) report on Electoral Reforms submitted to the government in 2015. The commission in its 170th report has asserted that there is the need to insert sections 29J to 29 Q which will deal with the internal democracy, constitution of the party, party organisation, internal elections, candidate selection , voting procedures and the commission should also recommend de-registering of a party in case of non-compliance on the above mentioned criteria. The Commission recommends to increase the overall powers and responsibilities of the Election Commision of India without which the commission feels electoral reforms will not be possible. The Commission asserts that the first step is to bestow equal constitutional status and protection to all members of the Election Commission of India in terms of their removal from the post ,their appointments and equal consultation power. These reforms should also be backed by creating an independent Secretariat for the ECI so that it can get a dedicated and necessary workforce. On the issue of appointment of the Election Commissioners it is recommended that there should be a three -member collegium consisting of the Prime Minister, Leader of Opposition in Lok Sabha and Chief Justice of India. Promotion within the commission should be on the basis of seniority or by the recommendation of the appointing committee. 9.5.2    The Law Commission Recommendation on Election Finance The law commission has asserted that transparency in electoral finance can help in improving the quality of democracy in India. The Commission asserts that the Representation of People‘s Act should be amended to include the following steps. Section 77 of the RPA which regulates election expenses done by candidates and their election agents currently starts from the date of nomination to the date of results and should be extended to the date of notification of the elections. The commission recommends that section 182(1) of the Companies Act,2013 should be amended to require the passing of the resolution which authorizes the contribution form the company‘s fund to a political party at the company‘s Annual General Meeting ( AGM) instead of its Board of Directors. RPA act needs to be amended to instruct candidates to keep not only their electoral expenditure account but also keep the account of donors and their identity proofs for increasing transparency in the electoral funding. The law commission further expresses the need to make the account of expenditure submitted by the candidates public. Political parties should be asked to maintain and submit annual accounts which should be duly signed by a chartered accountant from a panel of such accountants maintained for the purpose by the Comptroller and Auditor General to the ECI every year. This should also be open for public inspection. 9.5.3    Proportional Representation The law commission asserts that India needs a combination of both the First -Past the Post system and the Proportional Representation system.Because the FPTP system is more stable while the Proportional system is more representative in nature therefore combining the advantages of the both system will be far better for India. The Law Commission points out that ‗paid news‘ and political advertisements should be regulated in the Representation of the People Act ( RPA). Punishment should be so stringent and if the candidates themselves are found to be guilty they should be disqualified. There should be efforts to curb the practice of disguised political advertisement and there should be provision for mandatory disclosure of real financiers of every advertisement. In the context of opinion polls the credentials of the organizations conducting the polls should be made public so that the public is aware about their credentials. Methods and techniques applied in the conducted the opinion polls should be made public and the public should also be made aware about the limitations of the methods applied. Public should be made aware that opinion polls are only for forecast or prediction purposes. 9.5.4    National Commission to Review the Working of the Constitution The National Commission to Review the Working of the Constitution ( NCRWC) asserts that there is a need for special legislation governing political parties. This legislation should provide conditions for the constitution of political parties , for their recognition and registration and deregistration. Presently the Election Commission of India recognise and register political parties only for the purpose of issuing them symbols but it does not regulate the functioning of the political parties once the party has been established. New law should make registration of political parties compulsory and any party to be registered in India must declare its allegiance to India and respect its integrity. The legislation should also make it mandatory for political parties to abide by the spirit of democracy in its internal management of party by conducting the regular inner party election and this should be conducted once in three years. It should be made compulsory for all political parties to provide at least 30 percent of their party positions to women. Parties should be legally forced to maintain accounts about the receipts of funds and expenditures in a systematic way. This account of receipts of funds and expenditure should be evaluated by an independent body of auditors. These accounts of political parties should be open for public inspection so that they know about the financial resources and conditions of political parties. The commission asserted that the new law should make it compulsory for the political parties to ensure the declaration of assets and liabilities by their candidates at the time of filling the nomination before the returning officer. It offers a new approach towards cutting down the expenditure incurred in holding public rallies and large scale demonstrations. The commission asserts that with the availability of high tech electronic media and now social media, huge expenditures in spreading the political messaging can be cut down and it will also reduce the inconvenience caused to the public by such events. This will also reduce the dependence of parties on illegitimate or black money to meet the huge burden caused by organizing large scale rallies and campaigns. The commission asserted that criminalization of politics is a great threat to Indian democracy. There should be a law to legally ban such criminal candidates from entering politics but it is the moral responsibility of the political parties to ensure no such persons with record of criminal conviction or if criminal charges are framed by any court get tickets from them. The law should make sure that persons with criminal reputation could not get tickets from recognized political parties. In case if any person is convicted then he or she should be barred for six years. In case a party doesn't follow this rule then such party should be deregistered. Another recommendation is that any person convicted for any heinous crime like rape, murder and other crimes should be permanently banned from contesting in election. Pending criminal cases against politicians in the courts should be disposed of rapidly if required for this Special Courts can be used. Self-Check Exercise-3 Q.1. What were the major recommendations of the National Law Commission of India on the Electoral Reforms submitted to the government in 2015? Q.2. What are the major suggestions given by the National Commission to Review the Working of the Constitution on the regulation of political parties? 9.6    Summary Indian parliament cannot revive itself until the political parties are not democratised in their functioning. Internal elections and amendment in the Anti-defection law is necessary. We will have to follow the example of the UK parliamentary reforms and provide a Member of Parliament freedom to express and vote in the house according to his or her conscience except on NoConfidence Motion. 9.7    Glossary •    FPTP - First Past the Post System is a single -winner system of positional voting. •    RPA: the Representation of the People Act (RPA) is the act which deals with political parties and elections. •    NCRWC: National Commission to review the Working of the Constitution 9.8    Answers to Self -Check ExerciseSelf-Check Exercise 1 Ans.1-See Section 9.3 Self-Check Exercise-2 Ans.1 See Section 9.4 Ans.2 See Section 9.4 Self-Check Exercise -3 Ans.1 See Sub -Section 9.5.1 Ans.2- See Sub- Section 9.5.4 9.9    References/Suggested Readings- •   https://legalaffairs.gov.in/national-commission-review-working-constitution-ncrwcreport. •   https://prsindia.org/theprsblog/the-anti-defection-law-explained •   India: Reinstating the imperative of inner-party democracy /www.orfonline.org. 9.10    Terminal Questions 1.    How does the lack of internal democracy of political parties affect the functioning of the parliament? 2.    Anti- Defection Law empowered the party's bosses at the cost of inner-party democracy? 3.    Why did the National Commission to review the Working of the Constitution give the recommendation to regulate the political parties? UNIT- 10 SUPREME COURT OF INDIA Structure 10.1    Introduction 10.2    Learning Objectives 10.3 . Appointment, Oath, Qualification, Tenure and Removal of Judges Self Check Exercise-1 10.4 . Powers and Jurisdiction of the Supreme Court 10.4.1    Original Jurisdiction 10.4.2    Writ Jurisdiction 10.4.3    Appellate Jurisdiction 10.4.4    Special Leave 10.4.5    Apex Court of the Land 10.4.6    Advisory Functions 10.4.7    Provision to Extend the Supreme Court‘s Powers 10.4.8    Power of Judicial Review Self Check Exercise-2 10.5    The Basic Structure of the Constitution 10.6    Judicial Review 10.7    Judicial Activism 10.8    The Problem of Judicial Overreach 10.9    The National Legal Services Authority (NALSA) Self Check Exercise-3 10.10    High Courts 10.10.1    Organisation, Appointment, Qualifications, Oath, Tenure and Removal of Judges 10.10.2    Jurisdiction , Powers and Functions Self Check Exercise-4 10.11    Failures of Indian Judiciary Self Check Exercise-5 10.12    Summary 10.13    Glossary 10.14    Answers to Self -Check Exercise 10.15    References /Suggested Readings 10.16    Terminal Questions 10.1    Introduction India has chosen a unitary, integrated and hierarchical form of judicial system. In such a system the supreme court of India is at the highest level while the higher courts come at the second level. District courts come at the lowest level of this hierarchical and integrated system. This kind of judicial system was adopted in the Government of India Act 1935 and in which a Federal Court was established. In the Indian constitution the composition and powers are given in the Articles 124 to 147 in the Part V of Constitution. At present the Supreme Court has 31 judges including one Chief Justice. Parliament has the power to increase the strength of the judges in the Supreme Court. 10.2    Learning Objectives This unit will help in developing the basic understanding among the students regarding the Judiciary in India. This unit also deals with judicial reviews and the role of Indian judiciary. 10.3 . Appointment, Oath, Qualifications, Tenure and Removal of Judges Although originally the Judges were to be appointed by the President after the consultation of the Council of Ministers, but there was also provision that the chief justice is appointed by the president after consultation with such judges of the Supreme Court and High Courts as deemed necessary. The other judges are appointed by the president after consultation with the chief justice and such other judges of the Supreme Court and high courts as he deems necessary. The process of consultation with the chief justice is obligatory in the case of appointment of a judge other than Chief Justice. In the 1970s the Government started misusing this power and the peak of it was reached with the appointment of Justice A N Ray by violating the convention of seniority. In 1977 Justice M.U. Beg was appointed the chief justice by superseding the then senior-most judge. Justice Hans Raj Khanna resigned from the Supreme Court against this partiality of the Indira Gandhi Government. He was the Justice who wrote the dissenting note in the ADM Jabalpur v Shiv Kant Shukla (Habeas Corpus) case and defended article 21 from being aborted during the Emergency. Subsequently the Judiciary started to fight back for independent status from the Government after the humiliation it faced during the emergency. In the First Judges case 1982 the Court equated the consultation with merely exchange of views and in the Second Judges Case (1993) the court changed the meaning of consultation to concurrence. But this advice of the chief justice will be given after consultation with the two seniormost judges of the court. In this judgment it was ruled that only the senior-most judge of the Supreme Court should be appointed to the post of the chief-justice of India. In the Third Judges case (1998), the Court opined that the consultation process to be adopted by the Chief Justice of India will be consultation of plurality of Judges. He should consult a 79ollegiums of four senior most judges of the Supreme Court. Within this Collegium even if two judges don‘t agree with the Chief Justice and the two other judges even then the Chief Justice should not be sent to the president. If the chief justice doesn‘t follow the mandated consultation process then such recommendation will not be binding upon the government. Qualification of Judges •    He/she should be a citizen of India. •    The person should have been a judge of a High Court or high courts for five years / He should have been an advocate of a High court/High Courts. For ten years •    The person should be a distinguished jurist in the opinion of the President. Oath It is the constitutional duty of the president to swear an oath to Judges or the President can appoint another person for this task. Judge takes the oath to bear faith in the constitution of India. The person should have faith in the integrity and sovereignty of India. To perform the duties attached to the post without any partiality. Tenure of Judges The person holds office until the age of 65 years. Parliament has the power to make further changes in these provisions. Judges can resign from office by writing to the President. Judges can be removed from the office by the recommendation of the Parliament. Procedure of Removal of Judges The President can issue the removal order only in the same session in which the Parliament expressed its opinion regarding the removal of a judge on this. This impeachment process begins with the removal motion by the 100 members of Lok Sabha and 50 in case of Rajya Sabha to be given to the speaker or chairperson. Such motion once admitted then the speaker of that house must constitute a three-member committee to investigate the charges. (These three members must be on the judicial background – the chief justice/justice of the Supreme Court, chief justice of a high court and a distinguished jurist.) If such committees find the judge to be guilty of misconduct, then the house can take up such a motion of the house. Such a motion must be supported by the special majority which should consist of a majority of the total membership of that house and a majority of not less than two- thirds of the members of the house present and voting. This motion must also be passed by the special majority of the second house only after that the President can pass the order for the removal of the judge. The appointment of Acting Chief Justice, Ad Hoc Judge and Retired Judges- The President under certain circumstances can appoint the Acting Chief Justice. If the office of Chief Justice is vacant, the Chief Justice of India is temporarily absent and the Chief Justice of India is somehow unable to perform his or her task. The constitution has declared Delhi as the seat of the Supreme Court. The chief justice of India can appoint other places as seats of the Supreme Court. Self-Check Exercise- 1 Q.1 What are the basic qualifications for becoming a supreme court judge? Q.2 How the judges of the supreme courts are removed? 10.4 Powers and Jurisdiction of the Supreme Court Article 129 provides that the Supreme Court shall be a Court of record and shall have all powers of such a Court. Being the highest court of the land, its proceedings, acts and decisions are kept on record for perpetual memory and for presentation as evidence, in support of the law. Being a Court of record it implies that its records can be used as evidence and cannot be questioned for their authenticity in any court. Court of record also means that it can be punished for its own contempt. But this is a summary power, used rarely and under pressing circumstances. It does not restrict genuine and well intentioned criticism of the Court and its functioning. Fair and reasonable criticism of judicial acts in the interest of public good does not constitute contempt. Contempt of court is of two types: Civil and Criminal. Civil contempt means willful disobedience to judgment while Criminal contempt means the publication of any matter or act which lowers the authority of the court. The constitution of India has conferred a very wide jurisdiction and powers to the Supreme Court to perform the guardianship of the constitution. It also performs the task of the federal court of the Indian Union. The Supreme Court has original, appellate and advisory jurisdictions as under: 10.4.1    Original Jurisdiction Original Jurisdiction means the power to hear and determine a dispute in the first instance. The Supreme Court has been given exclusive Original Jurisdiction which extends to disputes Article 131 •    The Centre and one or more states; or •    Between the Centre and states on the one side and on the other side one or more States. •    Conflict between two or more states. In the above federal conflicts the Supreme Court has the exclusive original jurisdiction. But the jurisdiction of the Supreme Court does not extend to following.- 1.    Any dispute arising out of any pre-constitution treaty. 2.    Inter-state water disputes.( Article 262) 3.    Matters referred to the Finance Commission ( Article 280) 4.    Ordinary dispute of Commercial nature between the Centre and the states. 5.    Recovery of damages by a state against the Centre. 6.    The Supreme Court in its original jurisdiction cannot entertain any suits brought by individuals against the Government of India. The dispute relating to the original jurisdiction of the Court must involve a question of law or fact on which the existence of legal right depends. The Supreme Court cannot entertain disputes of political nature. 7.    Adjustment of certain expenses and pensions between the Union and States (Article 290). 10.4.2    Writ Jurisdiction The Constitution has constituted the Supreme Court as the ultimate institutional defender of the fundamental rights of the citizens. The Supreme Court issues writs like Habeas Corpus, Mandamus, Prohibition, Quo- Warrento and Certiorari to protect the human rights of the individuals. Any individual can directly go to the Supreme Court to protect their fundamental rights to the Supreme Court. The Writ jurisdiction of the Supreme Court is not exclusive and the high courts are equally empowered to issue writs to defend the fundamental rights. But the writ jurisdiction of the high courts is wider than the Supreme Court, because the Supreme Court can issue writs only in the context of human rights only. Under Article 139A, the Supreme Court may transfer to itself cases from one or more High Courts if these involve questions of law or of great importance. The Supreme Court may transfer cases from one High Court to another in the interest of justice. 10.4.3    Appellate Jurisdiction The Appellate Jurisdiction of the Supreme Court extends to civil, criminal and constitutional matters. Civil matters An appeal lies to the Supreme Court from any judgment, decree or final order of a High Court if the High Court certifies under Article 134A that a ‗substantial question of law‘ of general importance is involved and the matter needs to be decided by the Supreme Court. The High Court grants certificates only where there have been exceptional circumstances where substantial and grave injustice has been done. Monetary limits in such cases do not apply and only the substantial nature of the case matters. Criminal cases- The Supreme Court hears appeals against the judgment in a criminal proceeding of a high court if the High Court: •    Has reversed an order of acquittal of an accused person and sentenced him to death. •    Any subordinate court to its authority has in such a trial convicted the accused person and sentenced him to death (Article 134). Article 135 was included in the Constitution to enable the Supreme Court to exercise jurisdiction in respect of matters where the Federal Court had the jurisdiction. 10.4.4    Special Leave Article 136 the Supreme Court may grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. These powers of the Supreme Court to grant ‗special leave to appeal‘ are far wider than the High Courts. This power is discretionary and it cannot be claimed as a matter of rights. This is an overriding and exceptional power which can be applied in constitutional matters, civil, criminal, revenue and any other matter. This cannot be issued against the military court. This plenary jurisdiction should be applied very cautiously. Article 137 provides for the Supreme Court the power to review its own judgments and orders. Because the decisions given by the Supreme Court are final in India and no other court can challenge them, power of review is used to correct the wrong decisions or to change decisions according to the changing circumstances. 10.4.5    Apex Court of the Land Article -141 of the India Constitution declares that all courts in India will be bound by the decisions of the Supreme Court. Article 142 gives the power to regulate courts, tribunals and other quasijudicial bodies by issuing decrees and orders necessary to implement its decisions. Article 144 makes all the civil and judicial authorities subordinate to the Supreme Court. The Supreme Court may from time to time, and with the approval of the President, make rules for regulating generally the practice and procedure of the Court. Article 145 empowers the Supreme Court to make rules for practice and procedure of the Court but this power will be subjected to the laws made by the Parliament. 10.4.6    Advisory Functions Article 143 of the Constitution confers upon the Supreme Court the Advisory Jurisdiction. The President can take the opinion of the Supreme Court on any question of law or issue on which he/she thinks it is important to obtain such an opinion. The Supreme Court is not bound to give its opinion on such an issue or question of law. The President is also not bound to follow the advice given by the Supreme Court. 10.4.7    Provision to Extend the Supreme Court’s powers Article-139 lays down that Parliament may confer on the Supreme Court power to issue directions, orders or writs in matters not already covered under Article 32. Under Article140, Parliament may supplement the powers of the Supreme Court to enable it to perform effectively the functions placed upon it under the Constitution. 10.4.8    Power of Judicial Review The power of judicial review exists in countries with written constitutions. It connotes the ideology of Constitutionalism which believes in the superiority of the constitution. The literal meaning of judicial review is the reconsideration of a degree or sentence by a lower court, but now it is practiced in the context of putting limits on Legislative and Executive powers. Power of the judicial review is given implicitly in the Indian constitution which helps in protecting the supremacy of the Indian constitution, to defend the federal nature of power distribution and to defend the fundamental rights of the citizens or individuals. This power empowers the Supreme Court and High Courts to examine the constitutionality of the legislations and executive orders of the Union and the state governments. If the Court finds such legislation and order unconstitutional then the Court can declare such orders unconstitutional or ultra-vires. This power can also be used for protecting a person who has been wronged by the court in a judgment. The Indian Constitution has taken this power from the American Constitution. Dr. B.R.Ambedkar has referred to judicial review as the Heart of the Constitution. The issue of Judicial Review in India was first examined in the case of Emperor v. Burah, in which the Calcutta High Court and the Privy Council agreed that Indian courts possessed Judicial Review jurisdiction subject to specific constraints. The purpose of judicial review under the Indian Constitution is to defend and provide people's liberty and freedom. Power of Judicial review in India is limited as compared to the American Supreme Court because Indian courts follow the procedure established by the law principle in the Judicial Review. The 'Due Process' provision gives American courts much wider reach. Although in the context of article 21 (right of life and dignity) the due process of law has been adopted since the Maneka Gandhi vs Union of India case 1978. Article 13 and 32 provides power of judicial review to the Indian Parliament to protect and defend the basic rights provided in Part III of the Constitution. The Supreme Court of India and several High Courts were granted the jurisdiction to adjudicate on the legality of legislative and administrative measures which affects the provisions given in the Part iii. Article 246 of the Constitution and the 7th schedule, deals with the distribution of the law-making powers of the Union Parliament and the various State Legislatures. If any dispute arises out of this distribution of legislative powers then the Supreme Court decides. Self-Check Exercise -2 Q.1 What is Original Jurisdiction of the Supreme Court? Q.2 What is Writ Jurisdiction of the Supreme court? Q.3 What is the Advisory Jurisdiction of the Supreme Court? 10.5    The Basic Structure of the Constitution The Supreme Court of India promulgated the doctrine of basic structure in the landmark case of Kesavananda Bharati vs State of Kerala which stated that the legislature has the power to amend the Constitution but such amendments must not change the Constitution's basic structure. Doctrine of the basic structure of the constitution restricts the powers of the legislative and executive organs of the government. The Constitutional bench made no attempt to define the basic structure of the Constitution. Former Chief Justice S.M. Sikri has defined five basic features of the basic structure- i. Supremacy of the Constitution. ii. Republican and democratic form of Government. iii. Secular character of the Constitution. iv. Separation of powers between the legislature, the executive and the judiciary. v. Federal character of the Constitution. This very act of creation of the Basic structure of Constitution doctrine has been done by the Judiciary and subsequently the judiciary has defined its essential parts. This doctrine further cemented and increased the power of the Judiciary as the ultimate defender of the constitution. Writ jurisdiction of the Supreme Court under the Article 32 and high courts under the Article 226 has wider writs jurisdiction because they can issue writs for the implementation of legal rights. 10.6    Judicial Review Power of Judicial Review is negative in nature and it usually prohibits the legislative and executive organs of the government from violating the constitution. Power of the judicial review is implicit in different articles of India constitution. This power manifested itself in the various judgements of the Supreme Court and High Court in the past seventy years of functioning of the constitution. Constitutional makers have intentionally adopted the procedure established by law in place of Due process of law to avoid unnecessary conflict between the Legislature and Judiciary. But gradually the principle of Due process of law has been included in the power of judicial review. Power of Judicial review is the last constitutional mechanism to defend the rights of individuals and people against the onslaught of a tyrannical government. As the emergency during Indira rule proved, the judiciary can buck under the pressure of powerful government and then the last weapon is the public mobilization and will spirit of the nation. 10.7    Judicial Activism Judicial Activism happens when the judiciary tries to play an active role in defending the rights of citizens. The active role of the judiciary in ensuring the rule of law and upholding the rights of Constitutional values is essential part of Judicial Activism. When this activism trespasses the constitutional division of power between the three organs of the government then it becomes the Judicial Overreach. Traditional British common law and the legal system which India adopted had no locus- standi for the second person to indulge in litigation for the cause of public welfare or seeking justice for the exploited. Even today India's legal system is very expensive for ordinary people and without financial resources it is next to impossible to get justice. Two Justices V.R. Krishna Ayer and P.N. Bhagwati invented the legal tool of Public Interest Litigation (PIL) to ease the access to justice in India and which has contributed to empower the disadvantaged groups. The Black‘s Law Dictionary defines judicial activism as ―judicial philosophy which motivates judges to depart from the traditional precedents in favor of progressive and new social policies.‖ Supreme Courts has given Guideline in case of adoption of PILs as given on Supreme Court Website- •    Bonded Labour matters. •   . Neglected Children. •    Non-payment of minimum wages to workers and exploitation of casual workers and complaints of violation of Labour Laws (except in individual cases). •    Petitions from jails complaining of harassment, for (premature release) and seeking release after having completed 14 years in jail, death in jail, transfer, release on personal bond, speedy trial as a fundamental right. •    Petitions against police for refusing to register a case, harassment by police and death in police custody. •    Petitions against atrocities on women, in particular harassment of bride, bride burning, rape, murder, kidnapping etc. •    Petitions complaining of harassment or torture of villagers by co- villagers or by police from persons belonging to Scheduled Caste and Scheduled Tribes and economically backward classes. •    Petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forest and wildlife and other matters of public importance. •    Petitions from riot -victims. □ Family Pension. 10.8    The Problem of Judicial Overreach There is a very thin line between judicial activism and judicial overreach. But Judicial Overreach is very harmful for the political system as whole and it emasculates the powers of Legislature and Executive. Judiciary by its nature has prohibitory powers while Legislature has positive powers. Because of the overreach the legislature faces constant roadblocks from the judiciary while making laws. Executives at times shy away from taking harsh but necessary decisions and try to get it solved indirectly by the courts. Judiciary is only custodian of the constitution but they don't represent the spirit and support of the nation. Nor is the judiciary an elected institution and is held accountable by the citizens but governments are. 10.9    The National Legal Services Authority (NALSA) The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authorities Act, 1987 to provide free Legal Services to the weaker sections of the society and to organize Lok Adalats for amicable settlement of disputes. The Chief Justice of India is the Patron-in-Chief of the NALSA. The second senior most Justice is appointed as the Executive Chairman of NALSA. The State Legal Services Authority (SALSA) has been constituted to give effect to the policies and directions of the NALSA at the state level. The SALSA organizes the free legal services to the people and conducts Lok Adalats in the State. The State Legal Services Authority is headed by Hon‘ble the Chief Justice of the respective High Court who is the Patron-in-Chief of the State Legal Services Authority. A Senior Most Judge of the High Court is nominated as Executive Chairman, SALSA. At the District level, the District Legal Services Authority (DLSA) has been constituted to implement Legal Services Programmes. The District Legal Services Authority is situated in the District Courts Complex in every District and chaired by the District Judge of the respective district. A Civil Judge Cadre Judicial Officer is appointed as Secretary on a full time basis. The DLSA tries to provide justice to the poor people and organize Lok Adalats at the district level. Self Check Exercise-3 Q.1.What is the doctrine of ―basic structure of the constitution‖? Q.2.What is Judicial Activism? 10.10    High Courts High Courts come at the second rung of the hierarchical nature of Indian judiciary. Provision of High Courts has been given in Article 214 to 231 of the Constitution under Part VI. High Courts are also the court of record like the Supreme Courts. It deals with organization, independence, jurisdiction, powers and procedures of the high courts. The seventh amendment of the Indian constitution authorized the parliament to establish common high courts of two and more states. Presently there are 25 high courts in the county. 10.10.1    Organisation, Appointment, Qualifications, Oath, Tenure and Removal of Judges Every high court consists of a chief justice and such other judges as the president may decide from time to time. Judges of a high court are appointed by the President. The chief justice is appointed by the President after consultation with the Chief Justice of India and the Governor of the state. In the appointment of other judges the chief justice of the respective state is also consulted. In case of the common high courts governors of all the respective states are consulted. In the Third Judge case (1998) the Supreme Court has ruled that in the appointment of high court judges the chief justice of India should consult a collegium system of two senior-most judges of the Supreme Court. Qualification, Oath and Tenure Qualification - •   He should have held a judicial office for ten years. •  He should have practiced as an advocate of the high court for ten years. Judges will take faith and allegiance to the constitution of India. They will uphold the sovereignty and integrity of India besides upholding the constitution of India. Tenure - •   Judges will hold office until they attain the age of 62 years. •  Judge can resign from office by writing to the President. □ Parliament can remove the Judge. Removal of the judge There are two reasons for the removal of judges: proved misbehavior and incapacity. A judge of the high court is removed if both houses of the parliament separately vote for such a motion by the special majority (Majority of total membership of that House and majority of not less than two-thirds of the members of that House present and voting). The procedure of removal in the house is the same as is the case of removal of the Supreme Court judges. 10.10.2    Jurisdiction and Powers of High Court Original Jurisdiction- •    Matters of will, marriage, divorce, company laws and contempt of court. •    Disputes relating to the election of members of Parliament and state legislatures. □ Revenue matters •    Enforcement of fundamental rights of citizens. •    Cases ordered to be transferred from a subordinate court involving the interpretation of the Constitution. Writ Jurisdiction Article 226 empowers the high courts to issue writs like Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo-warrento for the enforcement of fundamental rights and for other purposes. The words like ―for other purposes’ is the proof that writ jurisdiction of the high courts are larger than the supreme court‗s jurisdiction. High courts can issue writ jurisdiction for the safety of legal rights. Appellate Jurisdiction - Civil Matters- Appeals from the orders and judgements of district courts directly goes to the High Courts. Appeal against administrative tribunals also goes first to the divisional bench of the high court. In 1997 the Supreme Court gave the judgment that the tribunals come under the writ jurisdiction of the high courts. The Supreme Court will not entertain the direct appeals against the Tribunal judgements form the dissatisfied parties. Criminal Matters- Appeals from session court and additional session court lie to the high court if the sentence is of imprisonment for more than seven years and confirmation of the death sentence given by the session court must be confirmed by the high court. A Court of Record - Judgements of the high courts are recognized as legal precedents and references for the subordinate courts. It has the power to punish for contempt with or without fine. Power of Judicial review High Courts have the power to judge the constitutionality of laws passed by parliament, state legislatures and actions of the executive at Centre and state both. Article 13 and 226 confer the power of judicial review upon the high court. The High Court exercises this power if laws and orders infringe upon the fundamental rights and if any authority (tribunal, administrative body) transgresses their areas of competence. Self Check Exercise-4 Q.1. What are the qualifications to become a judge in a high court? Q.2. What is the original jurisdiction of the high courts in India? 10.11    Failures of Indian Judiciary The Indian judicial system has failed in developing a legal framework which is people friendly and simple. The Indian judicial system is still functioning in the old colonial framework and language. Still today the language of the High Courts and the Supreme Court has been English. Even in district courts the language of the English is essential to survive in this profession. Legal jargons of the judicial system have not been Indianised and localised to make them easier for the common people to understand them. Pendency of cases at the Supreme Court level and high courts level is a very serious problem. Judicial system of India is very expensive and cumbersome for the common person. Rejection of the National Judicial Appointment Commission (NJAC) by the Supreme Court on the grounds that this will compromise the independence of judiciary but the question arises that in a democracy can there be any institution unaccountable to the public. 10.12    Summary The Supreme Court of India is the highest court of justice on the land of India. The Supreme Court under article 32 and high courts under article 226 have been given the responsibility of protecting the Indian citizens and individuals. The Supreme Court and High Courts have been given the power of judicial reviews. Presently judiciary has become the institution which selects its own members without any kind of responsibility towards any other organ of government and civil society. 10.13    Glossary •   Tribunal: It is the court of specific purpose. •    Jurisdiction: It is the legally defined areas of an institution. •    Lok Adalats: are institutionalized legal dispute settlement mechanisms. 10.14    Answers to Self- Check ExerciseSelf-Check Exercise -1 Ans.1. See Section 10.3 Ans.2. See Section 10.3 Self-Check Exercise -2 Ans.1. See Sub- Section10.4.1 Ans.2. See Sub- Section10.4.2 Ans.3. See Sub- Section10.4.6 Self-Check Exercise- 3 Ans.1 See Section 10.5 Ans.2 See Section 10.7 Self Check Exercise-4 Ans.1.See Section 10.10.1 Ans.2. See Sub -Section10.10.2 10.15    References/ Suggested Readings • B.L. Fadia(2021), Indian Government and Politics , Sahitya Bhavan Publications. •    Bidyut Chakrabarty & Rajendra Kumar Pandey, Indian Government and Politics •    Subhash Kashyap(1994), our constitution: An Introduction to India’s Constitution and Constitutional Law, National Book Trust, India, New Delhi. □ P.M. Bakshi(2004), The Constitution of India, Universal Law Publishing Co. □ M.Laxmikant (2021), Indian Polity, Mcgraw Hill Publication. 10.16. Terminal Questions 1.    Write down the composition, powers and functions of the Supreme Court. 2.  What is Judicial Review? What is its significance in the Indian Political system? 3.  Write a detailed note on Judicial Review. 4.    Write an essay on NALSA. 5.    What are the major failures of the Indian Legal system? 6.    What is Judicial Overreach? What are its shortcomings? UNIT-11INDIAN JUDICIAL SYSTEM - CRITICAL ANALYSIS Structure 11.1    Introduction 11.2    Learning Objectives 11.3    Indian Judicial System 11.4    Colonial Legacy and Roots of Indian Judiciary Self -Check Exercise-1 11.5    Flaws of the Common Law System Self -Check Exercise-2 11.6    Overuse of the Appellate Jurisdiction of Supreme Court and High Courts Self- Check Exercise-3 11.7    Flaws in the Legal Education in India Self -Check Exercise-4 11.8    Flaws of the Collegium System Self -Check Exercise-5 11.9    Summary 11.10    Glossary 11.11    Answers to Self- Check Exercise 11.12    References/ Suggested Readings 11.13    Terminal Questions 11.1    Introduction Present judicial system is crumbling under the sheer burden of pending cases and justice is very expensive for the ordinary citizen of India. In a democratic system no institution can be out of the critical inquiry of the public opinion. Democracy revitalizes its institutions with the mallet of public inquiry and gives them legitimacy and purpose. 11.2    Learning Objectives This unit tries to sensitive students on the flaws existing within the Indian judicial system which is hampering this institution from performing to the best of its ability. Students could understand the colonial origin of our present judicial system and its transformation after independence. They will also understand how new members or judges are recruited into the judiciary and what is the role of the Bar Council of India in improving the level of legal education in India. 11.3    Indian Judicial System The India Judiciary is the third pillar of the Indian state and it is the defender of civil, economic and political rights of the people of India. The Indian judiciary is the final interpreter of the Constitution of India and its various provisions. The Indian judiciary since independence has given various judgements like the Golak nath case ,...Keshwanada Bharati case etc. which has enriched the constitutional legacy and democracy in India. But this historical fact cannot be denied that when the Indira Gandhi government was becoming dictatorial, the judiciary failed in standing up to the powerful government. Biggest proof of this is the ADM Jabalpur vs case in which the majority of judges sided with the government and in which people‘s right to protest democratically were compromised in front of the repressive state apparatus. Only Justice Khanna has the moral courage to stand on his firm conviction by writing a dissenting note in support of defending the citizens democratic right to protest and criticize the government. But Justice Khanna was sidelined for his dissenting note while Justice Ray was rewarded for toeing the lines of government by promoting him to the post of Chief Justice of India . Although seniority wise it was the turn of Justice Khanna and Justice Khanna resigned in protest. During the peak of the emergency it was the political class which led the fight against the dictatorship under the leadership of Jai Prakesh Naryan. But gradually with the rise of regional political parties and with it coalition politics India witnessed rise of weak governments at the center and during this period. Judiciary gradually in a series of judgements tried to salvage its independence from the interference of government and it reached the culmination with the formation of the Collegium system. Presently governments are trying to push the National Judicial Appointment Commission while the judiciary has rejected this constitutional move. 11.4    Colonial Legacy and Roots of Indian Judiciary It cannot be denied that India's judiciary has got its roots from the British Colonial rule and this is even true of our present criminal and civil laws. Even after the independence of seven decades, judicial proceedings in the Supreme Court and High Courts are conducted in English which is still not understood by the majority of the population of India. Even the laws are written in the English language and this further strengthens the control of the English educated section of society. Laws were formulated by the British with the aim of better governance of their colony according to their own customs. Legal Scholar Galanter ( 1968) points out that during the times of colonial rule the state gradually expropriated the power of making law and became the sole authority which formulated and implemented law. This act of expropriation simultaneously emasculated the powers of other sources and institutions in the creation or implementation of law. After independence this trend further strengthened and the state became the sole architecture of law. New independent states relied on the laws created by the British and tools which were used were also invented by the British. This illustrates that despite independence the new state could not decolorize the nature of India's legal system and present shortcoming of the Indian legal system is the direct result of it. According to Upendra Baxi, the Indian Legal system consists of rules of social and official behavior. These rules are made by legislature, governments,courts, other statutory and corporate bodies who have subordinate legislative powers. It has provisions for dispute settling institutions like Courts,tribunals, panchayats ,arbitrators. It includes laws implementing agencies like police, civil service ,and government . It has functionaries like judges , lawyers. Upendra Baxi has pointed out that the Indian Legal System is the progeny of the British Legal System therefore it is working as an hindrance in the path of transforming Indian society into democratic and egalitarian society. Indian constitution Baxi asserts envisages radical break from the past while India Legal System favors continuity with the past. Article 13 is the only major article which is an exception to the sense of continuity which asserts all the previous and future provisions which can violate part 3 (Fundamental Rights ) of the constitution will be declared null and void. The Constitution enshrines the principle of decentralization while the Indian legal system is biased towards centralized authority. Upendra Baxi asserts that functioning of the Indian Legal System is such that it restricts and prevents basic understanding and access to the legal system. It also hampers access to information, to courts and other law making bodies. Upendra Baxi is trying to point out that the Indian legal system is such that the law is not understood by the common person nor does the legal system encourage the participation of common people in the functioning of law. Self-Check Exercise- 1 Q.1 What is the reason behind English being the language of the courts in India? Q.2. Does the Indian legal system have a centralising tendency? 11.5    Flaws of the Common Law System As India was the colony of the British and they devised a unique formula to blend the native Indian custom within the common law framework of Britain. Madhuri Pilania points out the effects of the common law system in India and problems which are very characteristic of such a legal system.The common law is a body of law which has predominantly revolved around the judicial decisions therefore also known as case law too. It is believed that Common Law has been derived from the universal consent and the practice of the people from time immemorial. This type of legal system originated from England and during colonial rule imported this model to India. On the name of understanding the time immemorial traditional or customary laws various prevalent dharmashastras of Hindus and customary books of Muslims were codified which provided the basis or the starting of the case law system. This need for finding a common customary or legal basis for Indians did more harm than doing good. Different texts were extracted out of their particular context and long process of evolution and were codified and made static, so that common law could make them basis on this practice of common law.The rise of common law in England led to centralization of law making and adjudication a centralized activity. But when application of this centralized law-making was implanted in a continent sized country like India, it led to gradual emasculation of the power of other important social, economic and political institutions to legislate law, adjudicate and implement law. Gradually the statement of principles found in the decisions of the courts started gaining more and more significance with the legal system. In Common law systems judges continuously apply the existing laws to new situations and this very often leads to the creation of new laws. For this judges go through the historical, legal and social evolution of any problem and then adjudicate on them and via doing this they cross over to the domain of rule making. In the future if the same problem arises then the court is bound to follow the reasoning used in the prior decision. Gradually this method of making ―case law‖ becomes so powerful that it encroaches upon the domain of legislature and executive. This gained further momentum with the rise of a weak and coalition government in India after the 1990s. In India judges has been given open books and it is assumed that judges in case of civil law will decide the situation while in America judges are given different circumstances which can be possible in a case so that bias , ignorance and influence of the judge do not hamper justice.This is the reason why in India lawyers are conscious of the fact who is the judge what is his/her ideological background and his temper because these factors which seems irrelevant in the justice becomes very crucial. While the American system structures the job of a judge to merely choose the most appropriate option out of multiple choices in a case. This also reduces the possibility of arbitrariness and human bias in the delivery of justice and provides a logical basis of criticism of the judgment given by the judges. In such a legal system where all possible circumstances of a case are predefined it is also possible to use technology and artificial intelligence to speed up the process of justice delivery system. If judges are being given freedom to choose circumstances in civil cases this increases the level of uncertainty in the process of justice and also reduces the speed of justice. Self-Check Exercise -2 Q.1 What was the negative impact of importing common law tradition to India? Q.2.How does the American legal system reduce arbitrariness and limit the discretion of judges? 11.6    Overuse of the Appellate Jurisdiction of Supreme Court and High Courts Indian judiciary has failed in developing affecting filters at High Court and Supreme Court level to block less significant appeal to these respective courts. Because of this majority of decisions of district courts are challenged in the high courts and many decisions are further taken to the Supreme Court. This has stretched the workload and domain of appellate jurisdiction of the high courts and high courts. This also weakens the competence and capacity of the district courts because they know their majority of decisions are going to be challenged in the High Courts. This kills the incentive of the judges, public prosecutor and lawyer to give their best effort in solving the cases pending in front of them. There is a need to increase the powers of district courts and the quality of the justice in these laws. Only matters of Constitutional significance should reach the Supreme Court and high courts should decide their level of filters so that they are also bogged down by the excess cases. Self Check Exercise-3 Q. 1.How the overuse of the appellate jurisdiction of Supreme court and high courts have impacted the efficiency of Indian judicial system? 11.7    Flaws in the Legal Education in India Presently India law education lacks critical reflection on flaws in the present legal system . This decline starts with the Bar Council of India which is the statutory body set up under section 4 of the Advocate Act 1961 which regulates practice and legal education in India. It also sets standards for legal education in India and grants recognition to the universities whose degree in law will serve as a qualification for students to enroll themselves as advocates upon graduation. Presently Bar Council has not been successful improving the equality of legal education in India and uplifting the standards of the legal profession. In this context the Department- Related Parliamentary Standing Committee On Personnel , Public Grievance ,Law and Justice has suggested the present monopoly of Bar Council over the entire spectrum of legal education needs to be divided. Bar Council should deal with undergraduate legal education which gives basic eligibility for practicing at the Bar. The committee pointed out that today legal professions are not limited to courtroom practice and now they have multiple options which require a higher and diverse level of skills. Therefore the post- graduate level of legal education should be entrusted to an independent authority and its name is proposed as the National Council for Legal Education and Research. The standing Committee points out that Bar Council of India should give priority to quality over quantity before granting recognition to new colleges. This can help in reducing the problem of mushrooming of substandard law colleges in the countries. The Parliamentary committee has asked the BCI to oversee the implementation of reservations in institutions of legal education ( which includes National Law Universities , Colleges and if they fail in implementing reservations then their recognition should be withdrawn. The Committee has asked the BCI to ensure uniformity among the different affiliated universities regarding their curricula and syllabi being taught to students so that standard of education is maintained. The committee has asked BCI to ensure that during every academic year , undergraduate students should be given a two-month apprenticeship for their future enrollment as advocates. The Committee has stated that for this Advocates Act 1961 has to be amended in consultation with universities , bar and bench. The committee has recommended that law students who undergo internship with senior advocates should be exploited and they should be paid stipends to meet their basic profession related expenses. The committee has recommended that a joint committee of senior academicians and practitioners at the Bar and Bench should be constituted to review the curriculum periodically. This curriculum according to the committee should keep the impact of technology on the legal profession at its center so that our coming legal professionals should be aware of the impact of the blockchain and smart contracts on the justice delivery system. They should also know about the transformative technologies like Artificial Intelligence, Blockchain and other smart tools which will have a significant impact upon the way law is being practiced in the country. Self- Check Exercise -4 Q.1 What is the role of the Bar Council of India? Q.2.The Standing Committee on Law & Justice suggested the creation of a new agency for the post- graduate level of legal education in India? 11.8    Flaws of the Collegium System Present Collegium system which emerges from the Second judge case and Third judge case which institutionalised the Collegiums system for the appointment and transfer of judges to the high court and supreme court. This system has stanched the Presidential or executive constitutionally mandated role in the selection of judges in the name of ensuring judicial independence. The government has tried to institutionalize the selection process of appointment of judges by passing the National Judicial Appointments Commission act through the constitutional amendment. But the Supreme court of India struck down it in 2015 on the basis that it posed a threat to the independence of the judiciary. Present Collegium system of selection don‘t have any objective criteria for the selection of judges to the respective high courts and the process of selection is not open for citizens to study and comment. This creates the possibility of subjectivity, nepotism and favoritism in the selection of judges. When judges are appointed on the basis of their contribution this kills the merit within the system. This fact was illustrated by the statement of former Union Minister of State, HRD Upendra Kushwaha that only 250 -300 gharanas( families) have sent Judges to the Supreme Court since Independence. He asserted there is the need for reservation in the judiciary for the backward and scheduled caste community. Founder of the National Lawyers Campaign for Judicial Transparency and Reforms Advocate Mathews J Nedumpara has submitted the report to a five judge bench hearing the petition challenging the NJAC Act. In this report Advocate Mathews has pointed out that presently 50% of the judges of the high court and 33 % of judges in the Supreme Court are family members of those in higher echelons of judiciary. He asserts that the Supreme Court‘s verdict in the 1990s resulted in the setting up of a 95ollegiums system that ― monopolized‖ appointments to the higher judiciary . where kith and kin and ― former and sitting judges of the Supreme Court and high courts , Governors, Chief ministers , law ministers, celebrated lawyers , the elite‖ are favored. Above reports and statements can be counter-checked and if such reports are true then it is a great concern for our judicial system. What is more important is to institutionalize a UPSC type selection process for the judges which is based on impartiality and dedication of the candidate rather than by other means. Reservation for backward and marginalized community students is essential to widen the perspective of the Indian judicial system and further deepen its commitment to the Indian constitution. Self Check Exercise-5 Q.1.What are the flaws of the Collegium system? 11.9    Summary The Indian Judiciary is the third pillar of the state and its functioning will have a direct impact on the overall quality and health of Indian democracy. Therefore its functioning and appointments in it should deserve critical inquiry of the public dialogue so that the Indian Judiciary especially supreme court keeps improving its functioning. Transparency and inclusiveness (reservations) in the appointment of the Supreme Court and higher courts is essential otherwise question marks on its credibility will arise. 11.10    Glossary •    Collegium - is the group of senior most judges of the supreme court / high courts which recommend the appointment of new judges to the court. •    Common-Law - is the judge -made law in which decisions of judges become the basis of a law. 11.11    Answers to Self- Check ExerciseSelf-Check Exercise -1 Ans.1 See Section 11.4 Ans.2. See Section 11.4 Self-Check Exercise -2 Ans.1. See Section 11.5 Ans.2. See Section 11.5 Self-Check Exercise 3 Ans.1. See Section 11.6 Self Check Exercise-4 Ans.1 See Section 11.7 Ans.2 See Section 11.7 Self Check Exercise-5 Ans.1 See Section 11.8 11.12    References/ Suggested Readings •    Upendra Baxi ,Crisis in the Indian Legal System,1982, Scribed •    Madhuri Pilania      ,Effects      of    the Common     Law System in India,https://blog.ipleaders.in/ •    R. Vigneshwaran , Legal Education in India ,Issues Challenges, Tamil Nadu National Law School, Tiruchirappalli. •    http:/theleaflet.in. The Leaflet , Parliamentary Committee calls for redefining the role of BCI in Legal education in India, 8 feb,2024. •   http:/theleaflet.in. The Leaflet , Parliamentary Committee calls for redefining the role of BCI in Legal education in India, 8 feb,2024. •   50% HC judges related to senior judicial members: Report , Soibam Rocky Singh, Hindustan Times , June 19,2015 11.8    Terminal Questions 1.    What is a collegium system? Why its major shortcomings and what are the solution to remove shortcomings? 2.    What is the Bar Council of India? What is its role in legal education in India? 3.    Why does Common Law tradition lead to more Judicial Overreach? UNIT- 12 FEDERALISM IN INDIA: STRONG CENTRE FRAMEWORK Structure 12.1    Introduction 12.2    Learning Objectives 12.3    Federalism in India 12.3.1    Historical Roots of Federalism in India 12.3.2    Nature of Federalism in Indian Constitution 12.    3.3 Phases of Indian Federalism after Independence Self -Check Exercise-1 12.4    Indian Federalism: Strong -Centre Framework Self- Check Exercise-2 12.5    Important Recommendations on Centre – State Relations Self -Check Exercise-3 12.6    Summary 12.7    Glossary 12.8    Answers to Self -Check Exercise 12.9    References/Suggested Readings 12.10    Terminal Questions 12.1    Introduction Dear students, Federalism is one of the most discussed principles of modern political science. In modern age this is a principle of reconciliation between two divergent tendencies, the widening range of common interests and the need for local autonomy. Lord Acton has aptly said: ―Of all checks on democracy, federalism has been the most efficacious and the most congenial…The federal system limits and restraints the sovereign power by dividing it, and by assigning to the government only certain defined rights.‖ The etymological origin the word federalism has a root in the Latin word ―foedus,‖ which means ―alliances‖ or ―leagues‖ of units that joined together in pacts, covenants or agreements, mainly for defensive purposes. Federalism is the theory of federal principles for dividing powers between units of a union and the centre. Power in federal political orders is decentralized, often constitutionally, between at least two levels so that units at each level have final authority and can be self governing in some areas. Citizens thus have their rights secured by two authorities, centre and units governments. The decisionmaking bodies of units may also participate in central decision-making bodies. Much recent philosophical attention is spurred by renewed political interest in federalism and backlashes against particular instances, coupled with empirical findings concerning the requisite and legitimate basis for stability and trust among citizens in federal political orders. Philosophical contributions have addressed the dilemmas and opportunities facing many countries such as Canada, Australia, Europe, Russia, Iraq, Nepal, Ethiopia and Nigeria, where federal arrangements are seen as interesting solutions to accommodate differences among populations divided by ethnic or cultural cleavages seeking a common, democratic, political order. The political principles of federal systems emphasize the primacy of bargaining and negotiated coordination among several centers of power; they stress the virtues of dispersed power centers as a means for safeguarding individual and local interests and liberties. Many countries have implemented federal systems of government with varying degree of central and regional sovereignty. In general, two extremes of federalism can be distinguished: (i) the strong federal state, with few powers reserved for unit governments ; (ii) on the other side, the national government may be a federal state in name only, being a confederation or qua in actuality. Federalism may encompass as few as two or three internal divisions. 12.2 Learning Objectives After going through this unit students will be able to understand: •    Concept of Federalism. •    Nature of Indian Federalism. •    Strong centre framework of Indian Federalism. 12.3    Federalism in India12.3.1    Historical Roots of Federalism in India The genesis of the present federal system in India traces back to the Simon Report of 1930 which supported the idea of a federal government in India. This support for the federal form of government for future of India was further affirmed in the First Round Table Conference in 1930. After the failure of the Third Round Table conference, the British Government issued a White Paper in March 1933, which proposed a new Indian Constitution with a responsible government in the provinces and diarchy at the Central level. As a result of the publication of the White Paper, a Joint Select Committee of both Houses of Parliament was appointed by the British govt. in April 1933 to evaluate and survey the proposals of the White Papers. These proposals were enacted into law and received the assent of the British Crown and became subsequently the basis for the Government of India Act of 1935. Under this act the provinces were endowed with a legal personality under a national scheme, and that the character of the national scheme was ultimately a federal system .This meant the abolition of the principle of dyarchy at the provincial level and its retention at the Centre. But the federal construction that India follows today is vastly different from what the British govt. had envisaged. The biggest hint of federalism in India lies in the history of its foundation in 1947 when after the Partition of Pakistan from the Indian subcontinent all the provinces, presidencies, and princely states were united under an instrument of accession that signifies that all these previously sovereign or reliant states came together to be called one nationstate. 12.3.2    Nature of Federalism in Indian Constitution The members of constituent assembly were not unanimous regarding the nature of the federalism to be formed in India. They refused to follow any particular theory about federalism as India had its unique problems which had not been confronted by other federal countries in the past. This is why constituent assembly members followed the policy of pick and choose as per the requirements of the nation. The constituent assembly produced a unique kind of federalism to meet India‘s peculiar needs. Though there was no lack of arguments in the constituent assembly over many issues such as distribution of powers, or distribution of revenue over the effects of emergency provisions on the federal structure but these disagreements concerned techniques as much as federal principles. On the financial provisions members demanded increased revenue for the provincial governments, but they agreed that the central government should have the authority to collect the money and distribute it among its units. K.C. Wheare asserted that the Indian constitution is ‗quasi federal‘, that establishes a unitary system with subsidiary federal features rather than a federal state with subsidiary unitary features. Some believe that the unitary features are so strong that the federal framework of the Indian constitution is just a façade, but many assert that the constitution embodies the principles of federalism in true sense. 12.3.3    Phases of Indian Federalism after Independence The evolution of federalism in India after independence can be classified into four different phases, with the first phase beginning in 1950 for 17 years and finally culminating with the fourth phase beginning from 1989. The government of India had appointed the Sarkaria Commission in 1983 to reduce the conflicts between the Central Government and State Governments. The framers of the Indian Constitution established a strong centre and visualized federalism as a functional instrument for the creation of an Indian nation and a strong cohesive state. This has been further reinforced by the actual working of the federation during the past 72 years. The study of this period can be classified as in the following four phases at different time periods. The Indian federalism has evolved with the changing times and has been largely contingent upon the transformation of political discourse in different periods. India‘s federalism has, right from the outset, been shaped by the complex interaction between the political actors at the Centre and the state level based on overlapping determinants such as political partisanship as well as politics of identity and resources. The dynamics of Indian federalism can be temporally categorised into four phases from independence to the present time which is One-party dominant Federalism (19521967); Expressive Federalism (1967-1989); Multi-party Federalism (1989-2014); and the return of the Dominant Party Federalism (2014 to present) In the first phase of federalism, the Congress party enjoyed absolute political dominance, both at the Centre as well as the states, which political scientist Rajni Kothari termed as the ‗congress system‘. During this period of time, though national politics was dominated by the then Prime Minister, Pt.Jawaharlal Nehru, yet the regional leaders and chief ministers belonging to the Congress party also had considerable political clout and support base in most of the states. Major differences between the Centre and states were used to be resolved in Congress party forums preventing any major federal conflict, creating a kind of consensual model of ‗innerparty federalism‘. Some major exceptions were the controversial decision of the Nehru government to dismiss the Communist party-led state government in Kerala in 1959 which was an early sign of the Centre‘s assertion of power over states. However, during this period, the popular regional demands and aspirations that compelled the Centre to create linguistic states and the very strong opposition from the non-Hindi speaking states against the Union government‘s proposal to declare Hindi as the national language are manifestations of regional assertion for cultural and political autonomy that challenged attempts of the centralised and homogenous model of nation-building. In the second phase which starts from 1967, the Congress party was still in power at the Centre but lost power in many states where many regional party-led and antiCongress coalition governments were formed. This phase marked the emergence of an era of ―expressive‖ and more direct conflicts in federal dynamics between the Congress-led Centre and the other parties-led state governments. During this period, after the split in the congress party in 1969 it became extremely centralised and authoritarian under former Prime Minister Indira Gandhi. The Congress party‘s regional leaders and organisation structures also considerably lost their autonomy. Congress won the national elections riding on Mrs. Gandhi‘s popularity wave during this period (except for the 1977 national election) but its social base started deteriorating because of organisational weakness at the lower level. It resulted into use of discretionary powers by the centre government to dismiss many Oppositionruled state governments. Even when the Janata government came to power at the Centre in 1977 after defeating Congress, it continued with such coercive techniques to destabilise the Opposition-ruled states. Strong regional leaders in Jammu and Kashmir, Andhra Pradesh, Tamil Nadu, Karnataka, and West Bengal emerged to resist the Centre‘s assertion of power leading to federalism of conflicts during this phase. There was an escalation of massive political crises in states like Assam, Punjab, Kashmir, and Mizoram, partly due to the centralising tendencies of the Centre in the late 1970s and early 1980s. However, the congress government at the Centre led by Rajiv Gandhi, though practised a centralised model of functioning, yet ceded some political space to adopt a reconciliatory approach for finding solutions to the regional demands and political conflicts in Assam, Punjab, and Mizoram. This phase which started in 1989 has been termed as the ‗multi-party federalism‘ period. A ‗reconfiguration of Indian politics‘ took place creating conditions for the regionalisation of national politics. First, as the Congress party‘s dominance in national politics considerably declined and the Bharatiya Janata Party was yet to emerge as a sole national alternative, it created political space for many powerful regional parties and leaders to play a national role in coalition governments and impact the national polity. This period allowed many regional leaders to share national power as no national party was able to garner an absolute parliamentary majority. As the regional actors played a national political role at the Centre by joining either of the national coalitions led by Congress (UPA) and BJP (NDA), acrimonious Centre-state conflicts declined in this era and the Centre‘s indiscriminate use of Article 356 to topple state government became rare partly due to changing political dynamics and to Supreme Court ruling (S.R. Bommai vs Union of India case judgement, 1994) against its arbitrary use by the Centre. Also, this period saw the liberalisation of the Indian economy which gave considerable autonomy to the state governments and the chief ministers to initiate business endeavours and bring in foreign investments to their respective states, in turn, creating their own political premised on growth and development. The passing of the 73rd and 74th Amendment Act in 1992 strengthened the grassroot level democracy, by bolstering the local self-government. In a true sense, the third phase opened the doors for genuine federalism via Centre-state contestations and bargaining. In the present phase, since 2014, the ‗dominant party‘ federalism has returned with the rise of the BJP party. Ending three decades of coalition governments, BJP garnered a comfortable parliamentary majority in the 2014 as well as in 2019 Lok Sabha elections. At the same time, the party has captured power in several states establishing the party‘s dominance almost similar to the so-called ‗Congress System‘. Though BJP remains an extremely powerful force at the national level, with the considerable political weakening of the Congress, it is mostly the regional parties that have challenged BJP‘s inroads in the state elections to some extent. This period witnessed some major federal discords between the Centre and the Opposition-ruled states as the latter accused the national ruling party of engineering defections and using the Governor‘s office and central investigative agencies to intimidate opposition leaders and destabilise the state governments. Regarding questions of governance, there was initial federal consensus on decisions like passing of GST law, formation of NITI Aayog and GST Council, and acceptance of the Finance Commission‘s proposal to increase states‘ share of funds. But eventually, the non-BJP ruled states remained at loggerheads with the Centre on several policy issues such as CAA, farm laws, the jurisdiction of BSF in states, GST compensation and assistance during the peak of the COVID-19 pandemic. Interestingly, the Centre has also been able to co-opt some Opposition-ruled states on contentious issues such as the abrogation of Article 370 in Kashmir and CAA built on nationalistic plank, termed ‗national federalism‘. However, during the later stages of the unprecedented COVID-19 crisis, the Centre recognized the importance of decentralized and localized governance in such a health emergency and gave the states autonomy to deal with the crisis with the Centre playing the crucial coordinating role. In short, while the second dominant party system has arrived with the hegemonic rise of the BJP, the states led by several regional leaders are resisting the rising trends of centralized federalism. Self Check Exercise-1 Q. 1.What is the nature of federalism in India? Q.2. Which constitutional amendment acts strengthened grassroot level democracy in India? 12.4    Indian Federalism: Strong Centre Framework Indian federalism is not a true federalism as its framework is tilted towards centre strongly. As we have already discussed that the Indian federalism has been termed as quasi federal by K.C.Wheare. The nature of Indian federalism is quite similar to that of Canada. We will find how Indian federalism is strong centre specific by analyzing centre state relations in India. Relations between the centre and the states can be broken down into three categories: □ Legislative relations •    Administrative relations □ Financial relations. Legislative Relations The legislative relations between the union and states are divided into four categories: •    Territorial extent of central and state legislation •    Distribution of legislative subjects •    Parliamentary legislation in the state field •    Centre‘s control over state legislation Territorial Extent of Central and State Legislation Parliament has the power to enact laws that apply to all or part of India's territory (territory includes union, state, UT).The state legislature can enact laws that apply to the entire state or only a portion of it. State laws are not applicable outside of the state unless there is a sufficient relationship between the state and the item. Only Parliament has the authority to enact "extraterritorial" legislation. Situations in which Parliamentary laws are inapplicable for the Andaman and Nicobar Islands, Daman and Diu, Dadra and Nagar Haveli, and Lakshadweep, the President can issue regulations that have the same effect as laws passed by parliament. The governor has the authority to order that an act of parliament does not apply to a designated territory in the state, or that it apply with defined modifications and exceptions. An act of Parliament can also be directed by the Governor of Assam to not apply or to apply with specific modifications. In Meghalaya, Tripura, and Mizoram, the President has the same authority Distribution of Legislative Subjects The Indian constitution follows federal system similar to the Canadian, but the former has more elaborate lists of legislative powers which include concurrent list as well. For drawing up concurrent list, the constitution makers followed Australian federalism. The constitution has divided the legislative subjects into three categories: union list, state list, and concurrent list. Union list includes 100 subjects over which the union shall have exclusive power of legislation. State list has 61 subjects over which the state legislatures have the exclusive power of legislation. The union and state legislatures can make laws in the 52 items mentioned in the concurrent list. But, in case of overlapping of a law between centre and state law made in any item under this list, the law made by the centre shall prevail over the law made by state legislature .the power of the state legislature to legislate with respect to matters enumerated in the state list has been made subject to the power of the union parliament to legislate in respect of matters enumerated in the union and concurrent lists and entries in the state list have to be interpreted accordingly. The residuary powers on residuary items which have not been mentioned in the mentioned three lists have been vested in the union (Art. 248). The final decision as whether a particular matter falls under the residuary item or not , shall be decided by the judiciary. Parliamentary Legislation in the State List Apart from these provisions there are some exceptional circumstances under which the union parliament can extend its powers over state subjects: If the Rajya Sabha passes a resolution with the backing of 2/3rd of the members present and voting, allowing parliament to create a law in the national interest on a subject specified in the state list. Such resolution can remain in force for one year. Such resolution can be renewed any number of times but at a time not more than one year. The law ceases to have effect on the expiration of six months after the resolution has ceased to be in force. However, a state may pass legislation on the same subject, but if there is a conflict between state and union legislation, the latter is to prevail. When a proclamation of national emergency is in effect, the Parliament has the authority to make law on any issue listed in the state list. On the expiration of six months after the emergency ceases to operate, the laws become inoperative. State law can make a law on the subject as well, but if there is any discrepancy between a state law and a parliamentary law, the union law will prevail. When state legislatures of two or more states requests Parliament by passing a resolution to that effect, Parliament is given the authority to make law on the matter listed in the resolution. Such law if enacted applies only to those states which have passed the resolutions. However, any other state can adopt it afterwards by passing a resolution in its legislature. To enforce international treaties, agreements or conventions, Parliament can make laws on the subjects listed in the state list. During the period when the President's rule is in effect in a state, Parliament becomes competent authority to make laws with respect to the matters in the state list related to the concerned state. Even when the president's term ends, the laws enacted during this time will remain in effect , but the concerned state legislature can later pass legislation to modify, re-enact or repeal the act as it deems fit. Control of Centre Over State Legislation The Constitution empowers union government to exert influence over the state's legislative affairs in the following ways: The governor has the authority to reserve certain types of bills passed by the state legislature for the presidential consideration. The president has absolute veto over them. Only with the President's prior approval can bills on specific topics listed in the state list be filed in the state legislature. (For example, bills related to Inter-state trade and commerce).During financial emergency, the president might direct the states to set aside money bills and other financial bills for his consideration. Administrative Relations Articles 256 to 263 in part XI deals with the administrative relations between the centre and the states. The executive power has been shared between the centre and the states on the lines of legislative powers distribution barring few cases. On matters over which it has exclusive jurisdiction (union list), as well as the exercise of rights, authority, and jurisdiction conferred on it by any treaty or agreement, the centre's power extends to the entire country. The state's jurisdiction extends to the topics included in the state list. The executive power in matters relating to the concurrent list is vested in the states. States' obligations to the centre: The executive power of the state must be exercised in such a way that the laws passed by Parliament are followed and not to obstruct or prejudice the exercise of a state's executive power. These instructions are coercive (Article 365), as any failure to follow them could result in the employment of Article 356. The Centre has been given the authority to give states guidance in the Construction and maintenance of communication systems that the government has determined to be of national or military importance. As per the centre‘s directions measures to be taken for the protection of the railways within the state; provision of adequate facilities for instruction in the mother language to students from linguistic minority groups at the primary level of school; the development and implementation of specific plans for the welfare of the ST in the various states .Article 365's coercive sanction behind central directives is also relevant in this scenario. The constitution allows for intergovernmental delegation of executive powers to reduce rigidity and avoid a deadlock situation. The president may assign the executive duties of the union to the state government with the permission of the state government. With the agreement of the federal government, the governor may assign the state's executive functions to the union. This mutual delegation may be conditional or unconditional. The constitution also allows the state to delegate executive powers to the union without the state's permission. However, Parliament, not the President, makes such delegations. However, a state's executive power cannot be delegated in the same way Cooperation between the centre and the states: To ensure cooperation and coordination between the centre and the states, the following provisions have been incorporated. Any disagreement or complaint relating to the usage, distribution, and control of waters of any interstate river and river valleys can be adjudicated by Parliament. The President has the authority to form an Inter-state council to research and discuss issues of mutual interest between the centre and the states. Public acts, records, and judicial processes of the centre and each state are to be granted full faith and credit throughout India. Parliament has the authority to appoint an appropriate authority to carry out the constitutional provisions relating to interstate trade, commerce, and intercourse Indian Administrative Service (IAS) and Indian Police Service (IPS) succeeded the colonial Indian Civil Service (ICS) and Indian Police (IP) in 1947.The Indian Forest Service (IFS) was established in 1966 as the country's third all-India service. Article 312 of the Indian constitution empowers Parliament to establish an all-India service if the Rajya Sabha passes a resolution to that effect. These three services combine to form a unified service with common rights and status, as well as pay schedules that are consistent across the country. Importance of All India Services is in assisting in maintaining a high level of administration in both the federal government and the states. Assist in ensuring that the administrative system is uniform across the country. They improve interaction, cooperation, coordination, and joint action between the centre between the centre and the states on problems of mutual interest. The following are the centre-state relations in this field: The governor appoints the chairman and members of the state public service commission, but they can only be fired by the President .If two or more states request it, Parliament might create a combined public service commission; in such circumstances, the President picks the chairman and members of the state public service commission. On the request of the governor and with the President's consent, UPSC can assist the state public service commission. The UPSC aids states in developing and implementing joint recruitment strategies for any services that need candidates with particular qualifications. Despite India's dual polity, an integrated judicial system has been established. This single judicial system is responsible for enforcing both federal and state laws. The President of India, in collaboration with the Chief Justice of India and the governor of the state, appoints the justices of a high court. The President has the authority to remove or transfer them. The establishment of common high courts for two or more states has been allowed by Parliament. During a national emergency, the centre can give state instructions on any subject. The president can assume the functions of the state government and the powers conferred by the governor or any other executive authority in the state during his presidency. During a financial emergency, the centre can order states to follow financial propriety canons, and the President can issue other essential directives, such as reducing the wages of state employees and high court judges Financial Relations Article 268 to 293 in part XII deal with financial relations between the centre and the states. Parliament has sole authority to collect taxes on the subjects listed in the Union list. The state legislature has sole authority to levy taxes on the subjects listed in the state list. Both the union and the state have the authority to charge taxes on the items included on the concurrent list. The Parliament has the residuary power of taxing. A state legislature has the authority to tax professions, trades, callings, and occupations. However, no single person's total annual payment should exceed Rs 2500.Taxes on the sale or purchase of products can be imposed by a state (other than a newspaper). However, the state's ability to levy a sales tax is limited by four factors: There can be no tax on sales or purchases made outside of the states. No tax can be levied on sales or purchases made during the import or export process. In the course of interstate trade and commerce, no tax can be imposed on the sale or purchase. A tax levied on the sale or purchase of commodities recognized by the Parliament to be of special importance in interstate trade and commerce is subject to the Parliament's limits and requirements. The state cannot levy a tax on the sale of electricity if it is consumed by or sold to the centre, or if it is consumed in the construction, maintenance, or operation of any railway by or sold to the railway company for the same purpose. A state can levy a fee on water or power sold to an interstate river authority constituted by Parliament to governor develops the river. Such imposition, on the other hand, can be carried out by a statute that has acquired the President's consent. Distribution of Tax Revenues The centre imposes taxes, but the state collects and appropriates them (Article 268). The proceeds from this are deposited in the state's consolidated fund. Stamp duty, for example, and excise duty. The federal government levies and collects taxes, while the states are responsible for collecting them (article 269). Taxes on the sale or purchase of items (other than newspapers) in interstate commerce are an example. The proceeds from this are deposited in the state's consolidated fund. Taxes are levied and collected by the federal government, but they are split between the federal government and the states (Article 270). All taxes, excluding those stated above, surcharges, and cess , fall into this group. The President decides on how these taxes are distributed based on the Finance Commission's recommendation. The surcharges on taxes and levies alluded to in Articles 269 and 270 can be imposed by Parliament at any time. Surcharge proceeds are directed solely to the centre. State-imposed, collected, and retained taxes include: These are the taxes that are solely the responsibility of the states. In the state list, they are listed. Taxes on agricultural income, alcohol excise duty, taxes on professions, ceilings, and so on. The main non-tax revenue streams for the centre are postal and Telegraph services, railroads, banking, broadcasting, coinage and currency, central public sector enterprise, escheat and lapse. While the principal non-tax revenue streams for states are irrigation, forests, fisheries, state public sector enterprise, escheat and lapse. The Constitution allows the state to receive grants-in-aid from the federal government. Statutory grants and discretionary grants are the two forms of grants-in-aid. Article 275 of the Constitution authorizes the parliament to offer grants to states in need of financial help, rather than to all states. For different states, these sums may differ. Every year, these funds are charged to India's Consolidated Fund. These are distributed to the states depending on the Finance Commission's recommendations. Both the centre and the states are empowered under Article 282 to issue any grants for any public purpose, even if it falls outside of their legislative jurisdiction. The centre is under no duty to provide these grants, and the decision is entirely up to it. The Constitution allowed for a one-time donation for a specific purpose. For example, grants instead of export duties on jute and jute products for the states of Assam, Bihar, Odisha, and West Bengal. Based on the Finance Commission's suggestion, these grants were to be distributed for ten years from the start of the constitution. Self Check Exercise-2 Q.1. For drawing up concurrent list, the constitution makers of India followed which constitution? Q.2. Indian federalism is inspired by federal set up of which nation? 12.5    Important Recommendations on Centre – State Relations Administrative Reforms Commission The union government appointed six members Administrative Reforms Commission (ARC) in 1966 under the chairmanship of Morarji Desai. The ARC submitted its report in 1969.It made 22 recommendations to improve the centre-state relations. Important recommendations were to establish inter-state council under Article 263 of the constitution; appointment of governors with extensive public service experience and nonpartisan attitudes. It recommended that States have been given the most power; more financial resources should be transferred to the states to lessen their reliance on the federal government. It recommended deployment of central armed forces in states at their request or on their initiative. The Rajamannar committee, which was constituted in 1969 by the Tamil Nadu Government, offered several recommendations to remedy the power imbalance between the centre and the state. It recommended that a)an Inter-State Council should be set up immediately; b) Finance Commission should be made a permanent body; c)Planning Commission should be disbanded and should be replace by a statutory body ; d)Artcles 356,357,365 should be omitted from the constitution. The provision that the ministry of a state holds office during the pleasure of the concerned governor of the state should be omitted; e) certain subjects of the Union List and the Concurrent List should be transferred to the State List; f) the residuary powers should be allocated to the states. Punjab made similar proposals to resolve these disparities in the Anandpur Sahib Resolution (1973), while West Bengal made similar recommendations in a memorandum. In 1983, the government established the Sarkaria Commission. It recommended for setting up of a permanent inter-State Council. Article 356 should only be utilized when necessary. It is necessary to strengthen the institution of all-India service. The parliament should retain residuary power. When the President vetoes state bills, the reasons should be revealed to the states. The Centre should have the right to deploy its armed forces without the approval of the states. It is desirable, however, that the states be consulted. The procedure for consulting the chief minister when appointing the state government should be spelled out in the constitution. Governors should be allowed to finish their five-year terms. The position of Commissioner for Linguistic Minorities should be filled. The Punchhi Commission formed in 2007 recommended that the governors should be given five-year tenure and are removed through the impeachment procedure. In subjects entrusted to the states, the Union should use the utmost caution in establishing Parliamentary primacy. It stipulated several requirements to be considered when appointing governors: a) He should be well-known in some fields; b) He should be a non-resident of the state; c) He should be a non-political figure who is not involved in local politics; d)He should not have been involved in politics in the recent past. The government should be given a five-year term limit. The procedure for impeachment of the president could be extended to governors as well. The Governor should insist on the Chief Minister demonstrating his majority on the floor of the House, and he should set a time restriction for this. When deciding situations involving the President's rule, keep the S.R.Bommai case rules in mind. The Inter-State Council should be used more frequently to promote center-state cooperation. Self Check Exercise-3 Q. 1.What were the major recommendations of Administrative Reforms Commission with regard to centre-state relations? Q.2. What were the major recommendations of Sarkaria Commission? 12.6    Summary Indian structure of Government is federal with some features of unitary form of Government. Union and states follow the principle of separation of power but not in the strict sense. Principle of Distribution of powers is usually followed in India. This makes India a federal country of its own types. This is why it is described as quasi- federal country with strong centre framework. 12.7    Glossary •    Foedus: It is a Latin word. ‗Foedus,‘ means "treaty, pact or covenant". •    Quasi-Federal: Quasi federal refers to a system of government where the distribution of powers between the Central and the state governments are not equal. 12.8    Answers to Self -Check ExerciseSelf –Check Exercise-1 Ans.1. See Sub- Section 12.3.2 Ans.2. See Sub- Section 12.3.3 Self –Check Exercise- 2 Ans.1. See Section 12.4 Ans.2. See Section 12.4 Self –Check Exercise-3 Ans.1. See Section 12.5 Ans.2 See Section 12.5 12.9    References / Suggested Readings •    Pragya Bansal ―Federalism in India – Analysis of the Indian Constitution‖, Pleaders. •    Granville Austin (1972), The Indian Constitution: Cornerstone of a Nation, OUP India. •    M.V.Paylee (2009), India’s Constitution, S.Chand Publication, New Delhi. •    Dr. R.N. Trivedi, Dar. Tripti Jain (2008), Indian Government and Politics, Vishvabharti Publications,Jaipur. •    Amber Kumar Ghosh (2022), ―Indian Federalism @75: The foundation of a strong democracy‖. www.orfonline.org •    M.Laxmikant (2021), Indian Polity, McGraw Hill Publication. 12.10    Terminal Questions 1.    Define Federalism and explain its characteristics. 2.    Explain Centre- State relations in the context of Indian Federalism. 3.    ―Indian federalism is tilted towards strong centre‖ .Give arguments UNIT- 13 ASYMMETRICAL FEDERAL PROVISION: ARTICLE 370, ARTICLE 371 Structure 13.1    Introduction 13.2    Learning Objectives 13.3    Issue of Article 370 13.3.1 Features of Article 370 13.3.2 Abrogation of Article 370 13.3.3    Different Opinions and Supreme Court‘s Verdict on Abrogation on Article 370 Self Check Exercise-1 13.4    Article 371 13.4.1    Provision under Article 371 13.4.2    Provisions under Article 371A-371J          Self Check Exercise-2 13.5    Summary 13.6    Glossary 13.7    Answers to Self -Check Exercise 13.8    References/Suggested Readings 13.9    Terminal Questions 13.1    Introduction Dear Students, Asymmetrical federalism is found in a federation in which different constituent units possess different powers: one or more of the units or states are given considerably more autonomy than the others, although they have the same constitutional status. This is in contrast to symmetric federalism, where no distinction is made between member units. As a result, it is frequently proposed as a solution to the dissatisfaction that arises when one or more constituent units feel significantly different needs from the others, as the result of ethnic, cultural or linguistic differences. This type of set up can be effective in those nations which have heterogeneous society having diversity in terms of religions, culture or ethnicity. Asymmetrical federal set up caters to the peculiar needs of such nations by giving special status to the particular communities or areas. The Indian Constitution too carries the pattern or strands of asymmetric federalism. Until 2019 Article 370 made special provisions for the state of Jammu and Kashmir. Article 371371 J make special provisions for the 12 other states namely Andhra Pradesh, Arunachal Pradesh, Assam, Gujrat, Goa, Karnataka, Mizoram, Manipur, Maharashtra, Nagaland, Sikkim and Telangana. Fifth Schedule deals with the administration and control of Scheduled Areas and Scheduled Tribes of any state except Assam, Meghalaya, Mizoram, and Tripura. Sixth Scheduled deals with the administration of Tribal Areas in four North-Eastern States of Assam, Meghalaya, Tripura and Mizoram. Nations are usually described as unitary or federal, depending on the way in which their governance is organised. In a unitary system, the Centre government has absolute powers of administration and legislation, with its constituent units having very little autonomy. On the other hand, in a federal set up,the constituent units are identified on the basis of region or ethnicity, and are conferred varying forms of autonomy or some level of administrative and legislative powers. Just as the Centre and the States do not have matching powers in all matters, there are some differences in the way some States and other constituent units of the Indian Union relate to the Centre. This creates a notable asymmetry in the way Indian federalism works. 13.2    Learning Objectives After going through this unit students will be able to: •    Understand the issue of provision of Article 371. •    Enhance their knowledge about various provisions of article 371 to 371J. 13.3    Issue of Article 370 Under article 370 of Indian constitution Jammu and Kashmir was given a special status. The central government on 6th august 2019, by the presidential order withdrew this special status conferred on Jammu and Kashmir (J&K). It has also divided the state into two regions namely Jammu and Kashmir and Ladakh and declared them as Union Territories. The article 370 was inserted in Indian constitution in part XXI as temporary provisions with respect to the Jammu and Kashmir state. This shows that it was inserted for short period and it may be repealed, modified or abrogated as per the situations in the state. 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 the issue of Kashmir. Under such circumstances the Maharaja of Kashmir king Hari Singh 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 Indian Constitution. According to Article 370, the concurrence of the state was required for making any laws in matters mentioned in the Union and Concurrent lists. This was 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 had only limited powers and other powers listed in the Union List and Concurrent List could be used only with the consent of the state government. This had given the state of Jammu and Kashmir greater autonomy. 13.3.1    Features of Article 370 Article 370 clearly stated that the provisions with respect to the state of Jammu and Kashmir are only temporary. This article became operative on 17 November, 1952 having following provisions: A)    The provisions of Article 238 were not applicable to the state of Jammu and Kashmir as per the article 370. This article of Indian constitution was later omitted from the constitution. B)    Parliament‘s power to make laws for J&K was limited to :(a) those matters in the Union List and the Concurrent List which correspond to matters specified in the state‘s Instrument of Accession. These matters were to be declared by the president in consultation with the state government. The instrument of Accession had contained matters namely, external affairs, defence, communications and ancillary matters.(b) Such other matters in the Union List and the Concurrent List which were specified by the president with the concurrence of the state government. This clearly meant that on these matters laws were to be made only with the consent of the state government. C)    Only article 1 and this article (Article 370) of the Indian constitution were applicable to J&K. D)    The other provisions of the Indian Constitution could be applied to J&K with such exceptions and modifications as specified by the President in consultation with the state govt. or with the concurrence of the state government. E)    The president could declare that article 370 ceased to be operative or could be operated with exceptions and modifications. However, this could be done by the President only on the recommendation of the constituent assembly of the state. F)    The president, in pursuance of article 370, issued the Constitution (Application to Jammu and Kashmir) order, 1950 to specify jurisdiction of the centre government over the state. This order specified the matters on which the Union Parliament would be competent to make laws for J&K, in concurrence with the Instrument of Accession - 38 Subjects from the Union List were added. In 1952, the union government and J&K signed an agreement regarding their future relationship. The Constitution (Application to Jammu and Kashmir) Order, 1954 settled the constitutional relationship of J&K and the Union of India as the constituent assembly of the state had approved accession of J&K to Indian union. This order superseded the order of 1950 and further extended the jurisdiction of the centre over the state. It made the following provisions - -    Indian citizenship and all related benefits (fundamental rights) were extended to the 'permanent residents' of Jammu and Kashmir. -    Article 35 A was added to the Constitution (empowering the state legislature to legislate on the privileges of permanent residents with regard to immovable property, settlement in the state and employment) -    The jurisdiction of the Supreme Court of India, Election Commission and the comptroller and auditor general was extended to the state. -    Central Government was given the power to declare a national emergency in the event of external aggression. The power in case of internal disturbances could be exercised only with the concurrence of the State Government. State emergency was applicable to the state but such emergency could be imposed in J&K on the ground of failure of the constitutional machinery under the provisions of the state constitution only. -    Normalized the financial relations between the Centre and J&K. 13.3.2    Abrogation of Article 370 Article 370 was opposed by the Prime Minister Narendra Modi and the ruling party BJP. This was also a part of the election manifesto of 2019 of the BJP. The government believed that it was necessary to revoke it in order to bring Kashmir to the same level as the other states and union territories of India. After the Modi government came into power once again it took no time in order to work on its promise of revoking Article 370 of the Indian Constitution. On 5th August 2019 Article 370 was finally revoked. Now Jammu and Kashmir will not have a different constitution and will work under the Indian Constitution like all the other states and union territories. All the Indian laws will apply to the Kashmiri people and now people who live in other states can now purchase property in Jammu and Kashmir. The present centre government believes that by abrogating article 370 it has corrected the historic blunder. It insists that in order to ensure integration of J&K with the rest of the nation, article 370 needed to be scrapped. In accordance with the authority afforded by clause (1) of Article 370 of the Indian Constitution, the President of India issued the Constitution (Implementation to Jammu and Kashmir) Order, 2019 on August 5, 2019 , repealing the special status previously accorded to Jammu and Kashmir. J&K no longer has its own constitution, flag, or anthem. And its population, now don‘t enjoy dual citizenship as a result of the repeal of Article 370. Jammu and Kashmir now abides by all the legislative amendments made by the parliament, including the Right to Information Act and the Right to Education Act. Now that Article 370 has been abolished, J&K is fully covered by the Indian Constitution and all more than 900 legislations of the central government. Article 370 of the Indian Constitution was implemented to give power to the people of Jammu and Kashmir to have their own control due to disputes in the neighbouring countries but it was taken back when the Bhartiya Janata Party was in power in 2019 and it led to a lot of revolts and setbacks which were also countered swiftly by the Government. It included Jammu and Kashmir under the Indian Union and also brought it to the same level as the other states. 13.3.3    Different Opinions and the Supreme Court’s Verdict on Abrogation ofArticle 370 Proponents of the government‘s move argue that the abrogation of Article 370 was the final step towards unifying the diverse states under the Indian Union. They contend that special privileges for certain regions could impede the nation‘s progress and hinder the realization of a truly united India. On the other hand, parties challenging the abrogation claimed that the Union broke the constitutional promise made to the people of Jammu & Kashmir for self-governance and internal sovereignty under Article 370. Further, they argued that Article 370 could not be abrogated after the dissolution of the J&K constituent assembly in 1957. In December 2023, a Constitutional Bench of the Supreme Court unanimously upheld the power of the President to abrogate Article 370 of the Constitution, which in August 2019 led to the reorganisation of the State of Jammu and Kashmir (J&K) into two Union Territories and denuded it of its special privileges. The bench comprising India‘s five most senior Supreme Court judges unanimously agreed that Article 370 was always a temporary provision, with its goal of eventually integration of Kashmir into India proper. The bench also stated that there were no limitations on the president‘s power to abrogate the article and that the processes enacted to change the status of Jammu and Kashmir into separate union territories were constitutionally valid. Moreover, the judges affirmed that the Jammu and Kashmir constitution was null and void as it has been replaced by the Indian constitution. In the lead judgment, Chief Justice of India (CJI) D.Y. Chandrachud, writing for himself, Justices B.R. Gavai and Surya Kant, pointed out that J&K had divested itself of ―any element of sovereignty‖ after the execution of the Instrument of Accession to the Union in October 1947. Justices Sanjay Kaul and Sanjiv Khanna concurred in their separate opinions. The special privileges of J&K as well as a separate Constitution were held to be a mere feature of ‗asymmetric federalism‘ and not sovereignty. While recognising the legitimacy of the Union actions, the Court also gave an expansive reading of the President‘s powers to take control of states under President‘s Rule. By allowing the Executive head to make ―irreversible changes‖ under President‘s Rule, the Court accepted the presidential authority to unilaterally dissolve state legislative assemblies. Further, the Bench held that the dissolution of the J&K Constituent Assemble doesn‘t restrict the President‘s power to abrogate Article 370, asserting that it was introduced to address the special circumstances prevailing in the state. This rationale, while legally sound, raises questions regarding the potential misuse of presidential powers. The Abrogation of Article 370 also has geopolitical repercussions, especially in the context of our neighbour, Pakistan. This decision has been met with obvious discontentment from Pakistan which has consistently contested India‘s decisions in the region since 1947. The Supreme Court‘s support for the government‘s decision introduces a legal perspective into the ongoing geopolitical saga, influencing the narrative of the dispute. Internationally, the decision has elicited varied reactions, with some nations expressing concern over the potential impact on regional stability.The global community continues to observe how India navigates the challenges and opportunities that ensue from this significant constitutional shift. The Supreme Court‘s decision on Article 370 marks a pivotal moment in India‘s constitutional history. It has not only settled a contentious legal issue but has also reignited debates on the delicate balance between national integration and regional autonomy. As the nation grapples with the aftermath of this verdict, it is imperative to reflect on the evolving dynamics of governance, identity, and unity in the diverse tapestry of India. Self Check Exercise-1 Q.1. When did President of India issued the Constitution (Implementation to Jammu and Kashmir) Order to repeal the special status previously accorded to Jammu and Kashmir? Q.2. What was the verdict of Supreme Court on the abrogation of Article 370? 13.4    Article 371 In part XXI of the Indian Constitution, from article 371 to 371-J contain special provisions for twelve states namely, Maharashtra, Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh or Telengana, Sikkim, Mizoram and Arunachal Pradesh, Goa and Karnataka. The main objectives behind article 371 was to grant special provisions to some states to meet the unique needs of the backward regions of these states, protect their economic and cultural interests ,combat the local challenges and protect the customary laws in these regions. Special status is not unique to Kashmir. However, the sort of asymmetry seen in J&K‘s relationship to the Centre is not seen in other States. The ‗special provisions‘ applicable to the above mentioned twelve states are mainly in the form of empowering the Governors to discharge some special responsibilities. 13.4.1    Provision under Article 371 Article 371 says that the Governors of Maharashtra and Gujarat have special responsibility to establish separate development boards for the concerned states. While, governor of Maharashtra has this responsibility in respect to Vidarbha, Marathwada, and the rest of the state, on the other hand, the Governor of Gujarat has a similar responsibility towards Saurashtra, Kutch and the rest of the state. It was stated that a report concerning the working of these developmental boards would be placed before the respective state legislative assemblies of Maharashtra and Gujarat. The responsibilities cover equitable allocation of funds for development expenditure, and providing facilities for technical education and vocational training and adequate opportunities of employment of the mentioned areas of these two states. 13.4.2    Provisions under Article 371A-371J Article 371-A confers special status on Nagaland. As per this provision, no law made by Parliament in relation to religious or social practices : customary law and procedure, administration of civil and criminal justice matters as per the Naga customary law , and ownership or transfer of land and resources will apply to Nagaland, unless the Legislative Assembly of Nagaland decides so. The protection of Naga laws and customs was written into the Constitution following the July 1960 agreement between the Centre and the Naga People‘s Convention, under which the State was later created. Further, the Governor of Nagaland has a ‗special responsibility‘ regarding law and order in the State. A regional council having 35 members should be established for the Tuensang district of the state. The governor of the state should make rules for the different aspects of the council. Article 371-B contains a special provision for Assam under which a committee of legislators from the tribal areas was formed to look after their interest. The tribal areas later became Meghalaya state. Article 371-C, deals with Manipur in regard to the special provisions. The president is authorized to create a committee of the members of legislative assembly of Manipur elected from the hill areas of the state. The president of India can direct the governor of the state for special responsibility in order to secure the proper functioning of the said committee. The Governor has the responsibility to make an annual report and submit to the President on the administration of the Hill Areas. The Centre is empowered to give directions to the State as far as the administration of these areas is concerned. Article 371-D and 371 E provide a detailed special provisions for the state of Andhra Pradesh, which further extended to Telangana state by the Andhra Pradesh Re organization act of 2014. According to article 371-D the President can pass an order to provide equitable opportunities and facilities to people belonging to different parts of Andhra Pradesh and Telangana in public employment and education. In particular, the President can create local cadres in various classes of employment and allot civil posts to specified local cadres only. The President can specify any part of the state as a ‗local area‘ for admission to any educational institution this purpose. To give effect to this arrangement, an Administrative Tribunal has been set up. No court, other than the Supreme Court, has any power of superintendence over this tribunal. President can abolish the tribunal when he or she is satisfied that it is not necessary to continue the tribunal. As per article 371-E the parliament can provide for the establishment of a central university for the state of Andhra Pradesh. Sikkim became full- fledged state in 1975 by the 36th constitutional amendment. This amendment also added Article 371F in Indian constitution which has special provisions for Sikkim. One major objective was to grant protection to existing laws in Sikkim so that they are not declared unconstitutional after being brought under the Indian constitution. According to the article 371-F, The legislative assembly of Sikkim shall consist not less than 30 members; one Lok Sabha seat has been allotted to the state. In order to protect the rights and interests of different sections of population of the state the parliament can provide number of seats to them in the state legislative assembly; delimit the assembly constituencies from which candidates belonging to such sections of the population alone can c0ontest election to the legislative assembly of the state. The governor of the state has the responsibility for peace and for an equitable arrangement to ensure the social and economic development of the different sections of the state. The president of India can extend to Sikkim any law which is in force in a state of India albeit with some restrictions and modifications. Article 371-G of Indian constitution contains special provisions to preserve the religious and social practices of Mizos in Mizoram and their customary law and procedure and administration of criminal and civil justice, besides ownership of land. The acts of Parliament related to the above mentioned matters would not be applied to the state without the decision of the state legislative assembly. The legislative assembly of the state should not be less than 40 members. Article 371-H contains special provisions for Arunachal Pradesh .It vests a special responsibility on the Governor of Arunachal Pradesh with respect to law and order in the state. It states that the Governor shall discharge this function after consulting the Council of Ministers of the state government, but exercise his individual judgment which shall be final. But this special responsibility of the governor ceases when the president gives such direction so. The legislative assembly of Arunachal Pradesh shall consist not less than 30 seats. Article 371 –I provides that the legislative assembly of Goa shall consist of not less than 30 members. Under Article 371-J, detailed special provision for the state of Karnataka has been enshrined in the Indian constitution. The president can provide special responsibility to the governor of the state to (i)establish a separate development board for HyderabadKarnataka region,(ii) a report on the working of the board to be placed every year before the state legislative assembly,(iii) ensuring equitable allocation of funds for developmental expenditure over the region,(iv) provide reservation of seats in educational and vocational institutions and in state government posts in the region for the students and persons belonging to the region respectively. Article 371 and its variations demonstrate India‘s commitment to recognizing and respecting the diversity of its states, particularly in the northeastern region. These provisions offer a degree of autonomy to these states while ensuring their integration within the larger framework of the Indian Union. Self Check Exercise-2 Q.1. What is the provision under Article 371? Q.2. Which amendment added Article 371F in Indian constitution which has special provisions for Sikkim? 13.5    Summary Article 370 gave special status to Jammu and Kashmir. But since it has been abrogated by the union government, the provisions of this Article are no longer applicable now. The provisions of Article 371 to 371-J are to grant special provisions to some states to meet the unique needs of the backward regions of these states, protect their economic and cultural interests, combat the local challenges and protect the customary laws in these regions. 13.6    Glossary •    Revocation: The official cancellation of a decree, decision or promise. •    Abrogation: The repeal or abolition of a law, right or agreement. 13.7    Answer to Self Check ExerciseSelf –Check Exercise-1 Ans.1. See Sub- Section 13.3.2     Ans.2. See Sub -Section 13.3.3 Self –Check Exercise-2 Ans.1.See Sub -Section 13.4.1 Ans.2.See Sub -Section 13.4.2 13.8    References / Suggested Readings □ K.Venkataraman, (2019), ―India‘s Asymmetric Federalism; How has Jammu and Kashmir been altered? Are there other States with special status?‖ The Hindu. •    Niharika Mukherjee (2022) ―Asymmetric Federalism in India: Issues Emerging in Case Law‖, https://www.samvidhi.org •    ―Effects of Article 370‖ (legalserviceindia.com). •   https://www.thehindu.com/news/national/supreme-courts-verdict-abrogation-ofarticle- 370-explained •   https://clpr.org.in/blog/unraveling-the-supreme-courts-verdict-upholding-theabrogation- of-article-370 > D.D.Basu (2013), Introduction to the Constitution of India, Lexis Nexis Publication. > M.V.Paylee (2009), India’s Constitution, S.Chand Publication, New Delhi. □ M.Laxmikant (2021), Indian Polity, Mcgraw Hill Publication. 13.9    Terminal Questions 1.    What were the provisions under article 370 of Indian Constitution? What are the different opinions regarding abrogation of Article 370? 2.    Discuss the various provisions under Article 370 to 370J under Indian Constitution. UNIT-14ASYMMETRICAL FEDERAL PROVISION: SCHEDULE V & VI Structure 14.1    Introduction 14.2    Learning Objectives 14.3    Schedule V and Schedule VI of Indian Constitution 14.4    Schedule V 14.4.1    Background of the Provision of Schedule V 14.4.2    Features of Schedule V Self Check Exercise-1 14.5 . Schedule VI 14.5.1    Background of the Provision of Schedule VI 14.5.2    Features of Schedule VI 14.5    Summary 14.6    Glossary 14.7    Answers to Self -Check Exercise 14.8    References/Suggested Readings 14.9 Terminal Questions 14.1    Introduction Dear students, Fifth and Sixth Schedules of the Constitution have special provisions related to the administration and control of such areas declared as ―Scheduled Areas‖ and ―Tribal Areas‖ respectively. These two schedules provide for alternate or special governance mechanisms for certain 'scheduled areas' in mainland and certain 'tribal areas' in northeastern India. Normative legislative-executive and judicial authority for States and Union Territories in India are provided for in Parts 11-12 and Chapter 5 of Part 6 respectively. 14.2    Learning Objectives After going through this unit students will be able to: •    Understand about the backgrounds of provisions of schedule V and VI of Indian Constitution. •    Understand the features of provisions of Schedule V and VI of Indian Constitution. 14.3    Schedule V and Schedule VI of Indian Constitution Although the Indian constitution seeks to provide a uniform rule over the whole country, yet certain areas of the country are governed by special provisions. At the time of the making of the Constitution, the framers of the constitution were aware of the fact that certain areas and communities in the country on account of their isolated and primitive lifestyle need special consideration for safeguarding their interests and their socioeconomic development. Article 244 in Part X of Indian constitution envisages a special system of administration of areas notified as ―Scheduled Areas‖ and ―Tribal Areas‖. According to Article 244(1), the provisions of the Fifth Schedule shall apply to the administration and control of Scheduled Areas and Scheduled Tribes in any states other than the four North Eastern states of Assam, Meghalaya, Tripura and Mizoram. The four States of North-East are excluded from the purview of the Fifth Schedule since they are administered separately under the scheme of the Sixth Schedule .Under Article 244 and the Sixth Schedule, these areas are specified as ―Tribal Areas‖ which are technically different from the ―Scheduled Areas‖ under the Fifth Schedule.Thus, the Fifth and Sixth Schedules of the Constitution have special provisions related to the administration and control of such areas declared as ―Scheduled Areas and ―Tribal Areas respectively. 14.4    Schedule V14.4.1    Background of the Schedule V The Fifth Schedule (Fifth Schedule of the Constitution of India, 1950) of the Draft Constitution of 1948 was discussed in the Constituent Assembly on 5 September 1949. It dealt with the administration and control of the Scheduled Areas and Scheduled Tribes in any State mentioned in Part I of the First Schedule. The Drafting Committee Chairman began the proceedings with an amendment to the Schedule and provided detailed reasons for the changes made. First, it was no longer required for every State to have a Tribes Advisory Council. The Committee felt that States which did not have a Scheduled Area should not be obliged to form an Advisory Council—this could be left to the discretion of the President. Second, the Governor of a State would no longer be bound by the advice of the Council in determining the applicability of a law made by Parliament or State Legislature to the Scheduled Area. Third, since the scheduled areas in all States were not yet fully demarcated, the Chairman argued that it would be better to leave it to the President to identify these areas rather than have a separate part in the Draft Schedule listing the Scheduled Areas. Fourth, a new provision giving the Parliament the power to amend the Schedule was introduced. The Chairman made the case that with time, circumstances could change and it should be open to Parliament to make appropriate changes to the Schedule. Some members were unhappy that the ‗Scheduled Tribes‘ were left out from some parts of the Schedule. A member argued that since it was unclear how the scheduled areas would be demarcated; It was possible that there could be States with no Schedule Areas but with a Scheduled Tribe population. Hence, it was important that all provisions that apply to Scheduled Areas also specifically apply to Scheduled Tribes irrespective of whether they are in a Scheduled Area or not. The member was also extremely disappointed that the Chairman‘s amendment made the Tribes Advisory Council subservient to the Governor of the State. He found it unacceptable that the Council will no longer have an effective and real say in the Administration of the Scheduled Areas and Scheduled Tribes. He also argued that the Translation Committee should not translate the term ‗Scheduled Tribes‘ as ‗Banjati‘, but use the term ‗Adibasi‘. This would be in accordance with the term used by the people of these groups for themselves. Despite several amendments being moved by the Assembly members,the Fifth Schedule as moved by the Drafting Committee chairman was adopted as part of the Constitution on 5th September,1949. 14.4.2    Features of Schedule V Schedule Six is a mini Constitution in itself as they determine the political and Constitutional arrangements of some definite territory or territories of India. The only thing which distinguishes them from the other parts of the Constitution lies in the fact that whereas the rest of the Constitution requires for amendment, a special majority in Parliament either with or without concurrence of atleast half the States, these provisions can be amended by any Act of the Parliament passed in the ordinary way. The Fifth Schedule under Article 244(1) of the Constitution, the provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any state other than the State of Assam, Meghalaya, Tripura, and Mizoram. These Scheduled Areas are predominantly inhabited by tribes specified as ―Scheduled Tribes‖ and located in the states of Andhra Pradesh, Telangana, Bihar, Chhattisgarh, Gujarat, Himachal Pradesh, Madhya Pradesh, Jharkhand, Maharashtra, Orissa and Rajasthan. The Governor of a state concerned with schedule V has been entrusted with special responsibilities in the administration of the Scheduled Areas in the state. The governor has been vested with legislative powers. The governor is required to prepare a special report annually or whenever required and submit to the President regarding the administration of the Scheduled Areas of the state. The Union Government can issue appropriate directives to the State Governments as to the administration of the Scheduled Areas. This Schedule provides for constitution of the Tribes Advisory Council with 20 members of whom 3/4th should be the members of scheduled tribes of the state legislature to give advice on such matter pertaining to the welfare and development of the Schedule Tribes as may be referred to them by the Governor. The Governor can make rules regarding the number of members of the Tribes Advisory Council, its conduct, meeting and other matters .The Governor may direct, by public notification, that a particular Act of the Parliament or of the State Legislature shall not apply to a Scheduled Areas or to its parts with such exceptions as may be directed. The Governor may make Regulations for peace and good governance in the Scheduled Areas by which she/he may, among other things, prohibit or restrict the transfer of land by the members of the Schedule Tribes amongst themselves; regulate the allotment of land to members of the Scheduled Tribes in such areas; and regulate the business as moneylender by persons who lend money to members of the Schedule Tribes, etc. While making such regulations the Governor may, in consultation with the Tribes Advisory Council, repeal or amend any Act of parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question . The Governor shall submit all regulation, which applies to such Scheduled Areas forthwith to the President, and these shall be effective only with the assent of the president. Self -Check Exercise-1 Q.1. When was Schedule V adopted by the Constituent Assembly of India? Q.2. What are the provisions under Schedle V of the Constitution of India? 14.5    Schedule VI14.5.1    Background of the Provision of Schedule VI The historical roots of administration in the North East area i.e the ‗tribal belt‘ can be traced back to the British rule. The advent of Robert Clive in 1765, was credited for establishing the Bengal Presidency and introduction to ‗supervision of laws‘ and mainly ‗collecting revenues‘ for the British presidency. Fort William of the East India Company became central to control even the estates bordering North Eastern Province. Though the British Presidency had officers to collect revenues from the province, it is learnt that the work was generally done by the zamindars. The disputes among the zamindars on revenue issues led to the separation of few areas from then Rangpur District (now in Bangladesh) and thus, a separate special post known as the ―Civil Commissioner of North-East Rangpur)‖ was created. The historical development of the Schedule Six to the Constitution of India followed a list of Regulations and Acts which paved way for the formulation of the present Schedule Six. ‗Regulation X of 1822 pioneered through it the Tribal area management of the North Eastern province. A new form of administration was brought to place popularly known as the ‗Non-Regulated System‘. Under it, all the powers of Magistrates, collectors were centred in one hand. The role of commissioners became prevalent. ―Government of India Act 1853‖and ―Indian Councils Act of 1861‖allowed laws to be framed by the Governor General in Council. Section 42 of the India Councils Act empowered the Governor of each Presidency to make laws for ‗peace and good governance.The enactment of the ―Garo Hills Act, 1869‖ was the first attempt of the British Presidency to alienate the tribal areas from the mainland administration of laws. The Act stated that the Criminal and Civil jurisdiction will stand removed from the British administration but Lt. Governors will be appointed from time to time to keep track of Civil and Criminal matters including the settlement and realization of the public revenue. The Act also encompassed Jaintia and portions of Khasi Hills under its ambit. This validity of the Act was upheld as a valid piece of conditional legislation. Later a new development was tracked through the ―Government of India Act, 1870‖, the act conferred powers to the executive to frame laws for the areas under the ―Garo Hills Act 1869‖. Also, the Governor General was recognized to legislate separately for such areas. The dynamics of laws shifted in the year 1874 when the ―Scheduled Districts Act‖ was enacted. The powers of ―Lt. Governor of Bengal‖ were shifted to ―Chief Commissioner‖ in Assam. The enactment of the Act made the entire area under the power of the then Chief Commissioner to be declared as Scheduled District. The objective of this Act was to encompass the backward areas of the British province and the areas where with time general laws of British Government were removed. The Act enabled the local Government to declare what laws were functional and what were not. The Act remained in the statute till the ―Government of India Act, 1935‖ came into force. The ―Montagu-Chelmsford Report of 1918‖ brought the role of the Governor to the forefront. The contention for the enactment was that there were certain remote areas wherein the political reform could not be applied. The role of the Governor was to function in these backward areas to uplift the tribal societies.To execute the recommendations put forth in the recommendations of Montagu-Chelmsford Report, the ―Government of India Act, 1919‖ was introduced which inserted section 52A in the ―Government of India Act, 1915‖. The Act provided autonomy to the ―Governor-General in Council‖ under Sec 52A (2) to declare any territory under the British regime as ‗backward tract‘. Under it, any territory declared as ‗backward‘ will be exempted from any Act of Indian legislature or will apply with various modifications which is deemed fit. The territories which are chalked out in the North Eastern province were designated as ‗tribal areas‘ and later recognized as ‗Schedule Six‘ under the Indian Constitution of 1950. The status of these tribal areas was examined in vast through the ―Indian Statutory Commission, 1930‖, also popularly known as the ―Simon Commission‖. Through the creation of the Commission, various suggestions were made on the Constitutional arrangement that is quintessential in such areas. Its main recommendation was to initiate a centralized administrative structure. The issue is that due to the absence of any provincial legislature there is a lack of will or any means to devote special attention to the micro demands as the expenditure in the backward areas does not aid the political interest of an elected representative. ―Government of India Act, 1935‖ gave shape to the existing structure by incorporating the term ―excluded areas‖ or ―partially excluded areas‖ instead of the term ‗backward areas. The backdrop for initiating special provisions in this schedule was to provide a platform for promoting and protecting the culture, distinct customs and civilization of these tribes. There were various committees which aided in the framing of the Schedule Six. ―Gopinath Bordoloi Comitteee‖ came as a fruit from the intense Constitutional debates on the protection of tribal areas in the North East province. The intent through it was to achieve the aspirations of the people of these areas whether they are met and on the other hand whether these areas are assimilated with the mainstream country. The committee was headed by Shri Gopinath Bordoloi and the other members included Shri J.J. M Nichols Roy, Shri Rup Nath Brahma, Shri A.V Thakkar and others. The Bordoloi committee submitted its report to the Advisory committee to which it came up with two suggested amendments. The report was also placed before the President of the Constituent Assembly. These amendments included are as follows: 1.    The Assam High Court shall have the power of revision in cases where there is failure of justice or where the authority exercised by the District Court is without jurisdiction. 2.    The plain portions will be excluded from Schedule B of the areas which were recommended for inclusion in the Schedule by the Sub Committee. Sir B.N. Rau who had prepared the first draft of the Constitution incorporated the recommendations in the Eight Schedule of the draft. The drafting Committee after minor amendments changed it from Eight to Schedule Six. In the Constituent assembly debate after extensive discussions, the draft Constitution was adopted with various amendments.The ―Constituent Assembly‖ considered to debate on the matter on the following dates 5th, 6th and 7th September, 1949. The Sixth Schedule was ultimately added to the Indian Constitution on 7th September 1949. 14.5.2    Features of the Schedule VI According to Dr. Ambedkar, the tribal people of Assam differed from the tribals of other areas. As for the latter, they were more or less assimilated with the civilization and culture of the majority of the people in whose midst they lived. As for the former, their roots were still in their own civilization and their own culture. They had not adopted either the modes or the manners of the Hindus who surrounded them. Their laws of inheritance, their laws of marriage, Custom, etc. were quite different from that of Hindus. He felt that the position of the tribals of Assam was somewhat analogous to that of the Red Indians (Now referred to as American Indians) in the United States, who are a Republic by themselves in that country, and were regarded as a separate and independent people. He agreed that Regional and District Councils have been created to some extent on the lines which was adopted by the United States for the purpose of the Red Indians. One of the most important provisions of the Sixth Schedule is that the tribal areas are to be administered as Autonomous Districts and Autonomous Regions. Therefore, under Article 244(2) of the Constitution, the Sixth Schedule makes special arrangement for the administration of Tribal Areas in the States of Assam, Meghalaya, Mizoram and Tripura. The Governor of the concerned state has the power to include, exclude or diminish any of these areas or define their boundaries. There shall be a District Council for each Autonomous District comprising not more than 30 members and a Regional council for the Autonomous Regions. The powers of administration shall be vested in these Districts and Autonomous Council. The Governor shall be entitled to make rules for the constitution of the Councils, its Composition, and terms of office, appointment of officers and staff and procedure and conduct of business. The elected members of the council shall have normal term of five years. The District and the Regional Council have the power to make rules in respect of lands other than the Reserved Forest, management of forest, other than reserved forest, use of canal or water courses for agriculture, Regulation of jhum other forms of shifting cultivation, establishment of village or town committees, appointment or succession of chief or headmen, inheritance of . The District and the Regional Council are also empowered to constitute village councils for trial or suits and cases between the except those, which has been excluded otherwise. They may similarly prescribe and lay down their procedures for trial and enforcement of their decisions. The Governor may delegate the additional powers under the code of civil procedures and code of criminal procedures. e. The District Councils may establish and manage primary schools, agriculture, animal husbandry and other community projects property, marriage and divorce and social customs with the prior approval of the government. They have their own district and their regional funds and may assess and collect land revenue and impose taxes, grant licenses and leases for minerals, make regulations for control of money lending and trading by non-tribals, regulate publications etc. The Governor has the powers to direct the exclusion or modification of any act of the State Legislature of the Arunachal Pradesh, Assam, Manipur, Mizoram, Meghalaya, Nagaland, and Tripura relating to the consumption of non-distilled alcoholic liquor. The Council shall prepare their Annual financial Statement and the same shall be placed before the Commissions to enquire State Legislature. The Governor has powers to appoint Commissions to enquire into the affairs of any Council annul or suspend any office acts or resolutions and dissolve the Council and direct general elections subject to the prior approval of the State Legislature. There is another significant tier of administration under the larger framework of asymmetric federalism. The Sixth Schedule to the Constitution contains provisions for the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram. These create autonomous districts and autonomous regions. Any autonomous district with different Scheduled Tribes will be divided into autonomous regions. These will be administered by District Councils and Regional Councils. These Councils can make laws with respect to allotment, occupation and use of land, management of forests other than reserve forests and water courses. Besides they can regulate social customs, marriage and divorce and property issues In Assam, the Karbi-Anglong Autonomous Council, Dima Hasao Autonomous District Council and the Bodoland Territorial Council have been set up under the Sixth Schedule. Another six autonomous councils have been formed by Acts of the legislature. Ladakh has two autonomous hill development councils (Leh and Kargil). The Darjeeling Gorkha Hill Council is in West Bengal. Self -Check Exercise-2 Q.1. When was Schedule VI adopted by the Constituent Assembly of India? Q.2. What are the provisions under Schedle VI of the Constitution of India? 14.6    Summary Following independence, the policy-makers of India decided to replace the British colonial policy of isolation and non-interference in the affairs of tribal people. They did so by adopting a policy of integration and development.The provisions of the Fifth and Sixth Schedules were incorporated in order to protect the aspirations of the people of the areas and simultaneously assimilate them into the mainstream of the country. 14.7    Glossory •    Autonomous: having the right or power of self-government. •    Regulation: an official rule that controls how something is done. 14.8    Answers to Self Check ExerciseSelf Check Exercise-1 Ans.1. See Sub -Section 14.4.1 Ans.2. See Sub -Section 14.4.2 Self-Check Exercise-2 Ans.1. See Sub- Section 14.5.1 Ans.2. See Sub -Section 14.5.2 14.9    References/ Suggested Readings > D.D.Basu (2013), Introduction to the Constitution of India, Lexis Nexis Publication. > M.V.Paylee (2009), India S Constitution, S.Chand Publication, New Delhi. > M.Laxmikant (2021), Indian Polity, Mcgraw Hill Publication. > https://www.constitution of    India.net/schedules/part-a-provisions-as-to- theadministration-and-control-of-scheduled-areas-and-scheduled-tribes. > Palak Symon, —Historical Analysis of the Sixth Schedule and the Indian Constitution: A Juridical Study‖, https://www.rostrumlegal.com 14.10    Terminal Questions 1.    What is Schedule V of Indian Constitution? Discuss its main features in detail. 2.    What are the features of Schedule VI of Indian Constitution? UNIT- 15 INTERGOVERNMENTAL BODIES: NITI AYOG, INTER-STATE COUNCIL Structure 15.1Introduction 15.2    Learning Objectives 15.3    NITI Ayog 15.3.1    Composition 15.3.2    Functions or Objectives 15.3.3    Guiding Principles 15.3.4    Criticism Self -Check Exercise-1 15.4    Inter-State Council 15.4.1    Composition 15.4.2    Functions 15.4.3    Advantages and Limitations Self- Check Exercise-2 15.5    Summary 15.6    Glossary 15.7    Answers to Self -Check Exercise 15.8    References / Suggested Readings 15.9    Terminal Questions 15.1    Introduction In the Indian political system, the NITI Ayog, Inter-State Council plays very important roles. NITI Ayog is country‘s premier policy-making institution that is expected to bolster the economic growth of the country. It aims to construct a strong state that will help to create a dynamic and strong nation.On the other hand the Inter-State Council is a recommendatory body which investigates and discusses subjects of common interest between the Union and states or among states. 15.2    Learning Objectives After going through this unit the students will be able to understand about Inter- governmental bodies namely, NITI Ayog and Inter-State Council and their working. 15.3    NITI Ayog The National Institution for Transforming India Ayog popularly known as NITI Ayog is the apex public policy think tank of the Indian government. It is the nodal agency tasked with catalyzing economic development, that foster cooperative federalism through the involvement of governments of states in the economic policy-making process. It provides both directional and policy inputs This body also provides relevant technical advice to the union and the states while designing strategic and long-term policies and programmes for the government of India. NITI Ayog was established on January 1, 2015 as the successor to the erstwhile Planning Commission through an executive resolution of the centre government. It is a non constitutional or extra constitutional body. It has been a paradigmatic shift from the past approach of command and control. This body accommodates diverse points of view in a collaborative way. NITI Ayog‘s policy thinking is based on ‗bottom-up‘ approach. Keeping pace with the changing time the union government decided to form NITI Ayog as erstwhile planning commission was not living up to the expectation of the government. It has been hoped that the new institution would be a catalyst to the development as it will nurture overall environment by adopting holistic approach of development. This institution is hoped to empower the role of states as equal partners in the development of the country based on the principle of cooperative federalism. It can help in making the nation a knowledge hub of internal and external resources, which might work as repository of best practices of good governance and provide a collaborative platform to centre and state governments in the joint pursuit of developmental objectives. 15.3.1    Composition The composition of the NITI Ayog is as follows: 1.    The Prime Minister of India serves as Chairperson of this body. 2.    Governing Council comprises the Chief Ministers of all the states, Delhi and Pondicherry Union Territories having legislatures and Lt. Governors of other Union Territories. 3.    Regional Councils are formed to address particular issues and possibilities affecting more than one state or region. These will be formed for a specific term. They will be summoned by the Prime Minister. These will comprise of the Chief Ministers of States and Lt. Governors of Union Territories in the region. These will be chaired by the Chairperson of the NITI Aayog or his/her nominee. 4.    Special invitees include eminent experts, specialists and practitioners with relevant domain knowledge, which will be nominated by the Prime Minister. 5.    The full-time organizational framework includes, in addition to the Prime Minister as the Chairperson: i.    Vice-Chairperson that is appointed by the Prime Minister. He/she enjoys rank of a cabinet minister.At present Suman Bery is the Vice Chairperson. ii.    Members: 1) Full time members enjoy the rank of a minister of state;2) Part time members can be maximum two from the leading universities, research organizations and other relevant institutions in an ex-officio capacity on rotation wise. iii.    Maximum 4 members of the Union council of ministers can be nominated as exofficio members. iv.    Chief Executive Officer can be appointed by the Prime Minister for a fixed term. He /she enjoys the rank of Secretary to the union government. At present B.V.R Subrahmanyam is the Chief Executive Officer. v.    Secretariat as deemed necessary. Beside these, the NITI Ayog has a number of specialized wings that includes: (a)    Research Wing, develops in house sectoral expertise as a think tank of top domain experts, specialists and scholars. (b)    Consultancy Wing provides a market place of panels of expertise and funding for the governments of centre and the states to match their requirements with private, public, national and international providers of solution. Due to this NITI Ayog is able to focus its resources on the priority issues, guidance and overall quality check on. (c)    Team India Wing consists of the representatives from every state and ministry and serves as a permanent platform for collaboration at national level. These representatives has the responsibility to ensure that every state or ministry has a continuous voice and stake in the Ayog; establish a direct communication channel between the state or ministry and the NITI Ayog for all developmental related issues as the dedicated liaison interface. NITI Ayog works in coordination, consultation and cooperation with the ministries of the Union government and state governments. It can make recommendations to the union and state governments but to take decisions and implement them depend on the respective governments. 15.3.2    Functions or Objectives >    To evolve a shared vision of national development priorities, sectors and strategies with the active involvement of States. >    To foster cooperative federalism through structured support initiatives and mechanisms with the States on a continuous basis, recognizing that strong States make a strong nation. >    To develop mechanisms to formulate credible plans at the village level and aggregate these progressively at higher levels of government. >    To ensure, on areas that are specifically referred to it, that the interests of national security are incorporated in economic strategy and policy. >    To pay special attention to the sections of our society that may be at risk of not benefiting adequately from economic progress. >    To design strategic and long-term policy and programme frameworks and initiatives, and monitor their progress and their efficacy. The lessons learned through monitoring and feedback will be used for making innovative improvements, including necessary midcourse corrections. >    To provide advice and encourage partnerships between key stakeholders and national and international like-minded think tanks, as well as educational and policy research institutions. >    To create a knowledge, innovation and entrepreneurial support system through a collaborative community of national and international experts, practitioners and other partners. >    To offer a platform for the resolution of inter-sectoral and inter departmental issues in order to accelerate the implementation of the development agenda. >    To maintain a state-of-the-art resource centre, be a repository of research on good governance and best practices in sustainable and equitable development as well as help their dissemination to stake-holders. >    To actively monitor and evaluate the implementation of programmes and initiatives, including the identification of the needed resources so as to strengthen the probability of success and scope of delivery. >    To focus on technology upgradation and capacity building for implementation of programmes and initiatives. >    To undertake other activities as may be necessary in order to further the execution of the national development agenda, and the objectives mentioned above. The NITI Ayog aims to enable the country to better face various complex challenges through leveraging of India‘s demographic dividend and realisation of the potential of youth, men and women through education ,skill development ,elimination of gender bias, and employment; elimination of poverty ,and provide chance to every citizen of India to live a dignified life with self respect; redress inequalities based on gender biasness ,caste and economic disparities,; integrate villages institutionally into the development process ;to provide policy support to more than 50 million small businesses, which are a major source of employment and to safeguard our environmental and ecological assets. 15.3.3    Guiding Principles In order to carry out the objectives or functions, the NITI Ayog follows some principles: a)    Antyodaya: As enunciated in Pandit Deendayal Upadhyay‘s idea of Antyodaya, it prioritise service and uplift of poor, marginalised and downtrodden section of the nation. b)    Inclusion: Empower vulnerable and marginalised sections, redressing identity based inequalities of all kinds. c)    Village: Integrate our villages into the development process, to draw on the vitality and energy of the bedrock of our ethos, culture and sustenance. d)    Demographic Dividend: To harness potential of people of India by focusing on their development, through education and skilling, and their empowerment through productive livelihood opportunities. e)    People‘s Participation: To transform the development process into people driven process, making an awakened and participative citizenry as the driver of good governance. f)    Governance: Nurture an open, transparent, accountable, pro-active and purposeful style of governance, transitioning focus from Outlay to Output to Outcome. g)    Sustainability: To maintain sustainability at the core of our planning and developmental process, building on our ancient tradition of respect for the environment. Based on the commitment of cooperative federalism, promotion of citizen engagement, egalitarian access to opportunity, participative and adaptive governance and ever increasing use of technology, the NITI Ayog seeks to provide a critical directional and strategic input into the development process of the nation. Therefore, the NITI Aayog is based on the seven pillars of effective Governance as under: 1.    Pro-people agenda that fulfils the aspirations of society as well as individuals. 2.    Pro-activity in anticipation of and response to citizen needs. 3.    Participative involvement of the citizenry. 4.    Empowering especially women in all aspects. 5.    Inclusion of all groups irrespective of caste, creed, and gender but special attention to the SCs, STs, OBCs and minorities. 6.    Equality of opportunity to all especially for youth. 7.    Transparency through the use of technology to make the government visible and responsive. 15.3.4 Criticism The opposition parties have expressed their apprehension that this new institution will lead to discrimination as corporate houses might start dictating their terms in the new set up. CPI (M) leader Sita Ram Yechury said that just by changing nomenclature does not serve any purpose as it is to be seen what actually the government plans to do.CPI leader Gurudas Dasgupta said that dismantling of the planning commission and bringing a new body in its place will lead to an unregulated economy. There are certain challenges regarding the functioning of the institution such as under: Independence of the NITI Ayog is a major issue. There is deep concern that NITI Aayog has lost its integrity as an independent institution to guide the government; that it has become a mouthpiece of the government and an implementer of the government‘s projects. Critics also argue that there are too many voices in NITI Ayog. The NITI Aayog has a considerably large number of members as compared to the erstwhile Planning Commission. The membership ranges from ministers to subject experts to state executive heads. Coming up with a consensus and trying to convince everybody is certainly a challenge. Lack of active actionable targets is another issue: It needs to take active measures to solve some of the challenges that India faces today such as job creations, increasing economic growth, etc. Even its three-year action agenda had too wide an approach for imminent challenges. When an institution older than half a century is replaced by a new one , people look up to it as bringing immediate change and development . This expectation from the people might come as a hindrance to NITI Aayog. It also doesn‘t focus adequately on the practical aspects of its recommendations such as fixing accountability of bureaucrats, government-citizen interaction etc. which is core to several good ideas remaining on paper. Self- Check Exercise-1 Q.1. When did NITI Ayog come into existence? Q.2. What is the composition of NITI Ayog? Q.3 What are the guiding principles of NITI Ayog? 15.4    Inter- State Council The nation can progress only if the Union and State Governments work hand in hand. There are many challenges to maintain the federation. For a soothing functioning of the system, it is necessary to conduct periodic debates and discussions. The Constitution of India provides for a polity, which clearly defines spheres of authority between the Union and the States to be exercised in the fields assigned to them. Consistent with this, the Constitution has made an elaborate distribution of powers between the Union and the States in the areas of legislative, administrative and financial powers. The subject of Legislative Power has, accordingly, been classified into three Lists – Union List (List I), State List (List II) and the Concurrent List (List III) in the Seventh Schedule of the Constitution. Residuary powers of legislation have been vested in Parliament. The Union Government has, from time to time, taken steps to look into the contentious issues between the Centre and States in the areas of distribution of powers. The Union Government, constituted a Commission in 1983 under the Chairmanship of Justice R.S. Sarkaria to review the working of the existing arrangements between the Union and the States. One of the important recommendations of Sarkaria Commission was for establishing a permanent Inter-State Council (ISC) as an independent national forum for consultation with a mandate well defined in accordance with Article 263 of the Constitution of India. This is to enhance the coordination between the Center and States. It is the most dynamic platform to discuss policies, strengthen the Centre-State relations and act as a bridge to the trust deficit between the Center and the States. Inter-State Council is not a permanent constitutional body, which can be created at any time if it seems to the President that the public interest would be served by the establishment of such council. It was set up in 1990 through a presidential ordinance for the first time as per the recommendations of the Sarkaria Commission under the Ministry of Home affairs. The secretarial functions of the Zonal Councils have been reassigned to the Inter-State Council Secretariat from 1st April 2011onwards.Inter-State Council works as an instrument for cooperation, coordination and the evolution of common policies. The interstate council is proposed to meet thrice a year but in 32 years, it has met only 11 times. The latest meeting was held after a gap of 10 years in Delhi in July 2016. 15.4.1    Composition Prime Minister acts as the chairman of Inter- State council (ISC). Other members include Chief Ministers of all the states; Chief Ministers of union territories having legislative assemblies; Administrators of union territories not having legislative assemblies; Governors of States under President‘s rule; Six union cabinet ministers, including the home minister to be nominated by the Prime Minister. Five ministers of cabinet rank/ minister of state (independent charge) nominated by the Prime Minister are permanent invitees to this council. 15.4.2    Functions The Inter-State Council is a recommendatory body which gives its recommendations on various issues relating to inter-state, union-state and union-union territories relations. It aims at promoting coordination between them by discussing, examining and deliberating on such issues. It can investigate and discuss such subjects in which the states or the union have a common interest. It can make recommendations upon any such subjects for the better coordination of policy and action on it; and deliberate upon such other issues of general interest to the states as may be referred to it by the chairman of the council. The council meetings are supposed to be held thrice a year and its decisions on all questions are decided by consensus. A standing committee of the council was setup in 1996 for continuous consultation and processing of matters for the consideration of the council. The chairman of this standing committee is Union Home Minister. Five union cabinet ministers and nine chief ministers are its other members. The Inter State Council is assisted by a secretariat known as Inter-State Council Secretariat which was set up in 1991. This secretariat is headed by a secretary to the Union Government. Since 2011, this secretariat is also working as the secretariat of the Zonal Councils. 15.4.3    Advantages and Limitations The ISC is the only multilateral centre-state forum that operates directly within the framework of the Constitution (Article 263 (b) and (c)) where topics like the GST and contemporary issues like disaster management, terrorism and internal security can be taken up. The constitutional backing of ISC puts the states on more solid footing—an essential ingredient in building the atmosphere of cooperation needed for calibrating centre-state relations. The council will help bridge the trust deficit between the centre and the states. If not always a problem solver, it at least acted as a safety valve. Major argument against the Inter-State Council is that it is just a recommendatory body to investigate and discuss subjects, in which some or all of the states or the Central government have a common interest. The Inter-state council is not a permanent constitutional body for coordination between the states and Central government. Rather, President of India can establish it at any time if it appears to him that the public interests would be served by the establishment of such a council. The interstate council is proposed to meet thrice a year, but till 25th November 2017, it just had 11 meetings since its establishment in 1990. There was a gap of a decade between the 10th meeting in 2006 and the 11th meeting in 2016.The ISC also has to have a permanent secretariat which will ensure that the periodic meetings are more fruitful. Only if the Federal and State Governments work together can the country progress. The maintenance of the Cooperative federalism is fraught with difficulties. Periodic debates and discussions are vital for the smooth functioning of the system and to fulfill the institutional gap in the Indian Union. The Council is currently only a discussion group, but in the future, it should have a bigger influence on federal coordination. Self Check Exercise-2 Q.1. What is the compostion of the Inter-State council? Q.2. How many meetings of Inter State Council have been held so far? 15.5    Summary The NITI Ayog is hoped to empower the role of states as equal partners in the development of the country based on the principle of cooperative federalism .Keeping pace with the changing time the union government decided to form NITI Ayog as erstwhile planning commission was not living up to the expectation of the government. It has been hoped that the new institution would be a catalyst to the development as it will nurture overall environment by adopting holistic approach of development. The Inter- State Council another intergovernmental body is to enhance the coordination between the Center and States. It is the most dynamic platform to discuss policies, strengthen the CentreState relations and act as a bridge to the trust deficit between the Center and the States. But lack of regular meetings of this forum is hampering this body. The resurrection of the ISC in recent times is inevitable in the context of a growing divide between the states and the Union government, more specifically the fiscal gap as a result of the experiments of demonetisation and the GST. 15.6    Glossary •    Intergovernmental: relating to or conducted between two or more governments. •    NITI: National Institution for Transforming India ISC: Inter State Council. 15.7    Answers to Self- Check ExerciseSelf Check Exercise-1 Ans.1.See Section 15.3 Ans.2.See Sub- Section 15.3.1 Ans.3. See Sub- Section 15.3.3. Self Check Exercise-2 Ans.1. See Sub- Section 15.4.1 Ans.2. See Sub- Section 15.4.3 15.8    Reference / Suggested Readings •    https://www.niti.gov.in ( official website of NITI Ayog) •   M.Laxmikant (2021), Indian Polity, Mcgraw Hill Publication. •    https://www.interstatecouncil.nic.in (official website of Inter-State Council). •    D.D.Basu (2013), Introduction to the Constitution of India, Lexis Nexis Publication. •   https://www.mha.gov.in 15.9    Terminal Questions 1.    What is the composition of NITI Ayog? What are the powers and functions of NITI Ayog? 2. What is Inter-State Council? What are the functions of Inter-State Council? UNIT-16 INTERGOVERNMENTAL BODIES: FINANCE COMMISSION OFINDIA, NATIONAL INTEGRATION COUNCIL Structure 16.1Introduction 16.2    Learning Objectives 16.3    Finance Commission of India 16.3.1    Composition 16.3.2    Functions 16.3.3    Role of the Finance Commission of India and its Evaluation Self -Check Exercise-1 16.4    National Integration Council 16.4.1    Composition 16.4.2    History of National Integration Council 16.4.3    Objectives 16.4.2 Role and Importance of National Integration Council Self- Check Exercise-2 16.5    Summary 16.6    Glossary 16.7 Answers of Self -Check Exercise 16.8    References / Suggested Readings 16.9 Terminal Questions 16.1    Introduction Finance Commission of India and National Integration Council are two very important Intergovernmental bodies.Finance commission plays a pivotal role in fiscal federalism in India.On the other hand National Integration Council              aims to promote national integration amid the Indian society by performing several activities. 16.2    Learning Objectives After going through this lesson, students will understand: □    About the working and role of Finance Commission of India □    About the working and role of National Integration Council. 16.3    Finance Commission of India The Finance Commission is a constitutional body that is at the centre of fiscal federalism. Under Article 280 of the Constitution there is provision of this commission. It was created to define the financial relations between the Centre and the states. The first Finance Commission was set up in 1951 The core responsibility of the commission is to evaluate the state of finances of the Union and State Governments, recommend the sharing of taxes between them, lay down the principles determining the distribution of these taxes among States. Its working is characterised by extensive and intensive consultations with all levels of governments, thus strengthening the principle of cooperative federalism. Its recommendations are also geared towards improving the quality of public spending and promoting fiscal stability. 16.3.1    Composition Article 280 of Indian Constitution provides for the appointment of the Finance Commission consisting of a chairperson and four members for every five years. They hold office for such period as specified by the president in his/her order. They are eligible for reappointment. The Indian constitution authorizes the Parliament to determine the qualifications of members of the commission and the manner in which they should be selected. Accordingly the parliament has specified the qualifications of the chairperson and members of the commission. For chairperson, he/she should be a person having experience in public affairs and the rest of four members should be selected from amongst, a)A judge of high court or one qualified to be appointed as one, b) a person who has specialised knowledge of finance and accounts of the government, c) a person who has wide experience in financial matters and in administration, d)a person who has special knowledge of economics. 16.3.2    Functions It shall be the duty of the Finance Commission to make recommendations to the President in relation to the matters of: •    the distribution between the Union and the States of the net proceeds of taxes which are to be, or maybe, divided between them and the allocation between the States of the respective shares of such proceeds; •    the principles which should govern the grants in aid to the states by the centre (i.e.,out of the Consolidated Fund of India); •    the measures needed to augment the consolidated fund of a state to supplement the resources of the panchayats and the municipalities in the state on the basis of the recommendations made by the state finance commission; •    any other matter referred to the Commission by the President in the interests of sound finance; •    The Commission shall determine their procedure and shall have such powers in the performance of their functions as Parliament may by law confer on them. •    As per the Code of Civil Procedure 1908, the FC has all the powers of a Civil Court. It can call witnesses; ask for the production of a public document or record from any office or court. •    The commission submits its report to the president .The president shall cause the recommendations of the commission and action taken thereon to be laid before each house of the parliament. Till the year of 1960, the finance commission used to suggest the grants given to the states of Assam, Bihar, Odisha and West Bengal in lieu of assignment of any share of the net proceeds in each year of export duty on jute products. These grants were given for a temporary period of ten years from the commencement of the constitution. 16.3.3    Role of the Finance Commission of India and its Evaluation The important role of the Finance Commission of India is to act as an executor to split the process of divisible taxes between the State and Union Government or in the case of taxes that are collected by the center govt., but the proceeds of which are distributed between the states, to determine the principles of such allocations. The Finance Commission distributes the proceeds of Income Tax between the Union and State. But the taxes on the payment of the Central Government are assigned only to the Union Territories.The President under the Article formulates the recommendations of the Finance Commission before the two houses of Parliament namely Lok Sabha and Rajya Sabha with an explanatory note as to the action to be taken on recommendations.The Finance Commission also regulates the rules governing the grants in support of the revenues of the state out of the consolidated fund of India. It is an important role of the Finance Commission in India. The Commission retains the responsibility of considering any issues referred to the Commission by the President in the interest of sound finance The recommendations made by the Finance Commission are of an advisory nature only and therefore, as they are not binding upon the government. It is up to the Government to implement its recommendations on granting money to the states. To put it in other words, ‗It is nowhere laid down in the Constitution that the recommendations of the commission shall be binding upon the Government of India or that it would amount to a legal right favouring the recipient states to receive the money recommended to be provided to them by the Commission. The Indian Constitution had envisaged the Finance commission as the balancing wheel of fiscal federalism in India, but its role in the fiscal federalism in India was undermined by the emergence of the erstwhile Planning commission as there were overlapping of functions and responsibilities between the finance commission and the planning commission. Self Check Exercise-1 Q.1. Which article of Indian Constitution has the provison of the Finance Commission of India? Q.2. What is the role of the Finance Commission of India? 16.4    National Integration Council 16.4.1    Composition National Integration Council members include Cabinet ministers, Chief Ministers of states, political leaders, Chairman of the University Grants Commission, Commissioner for Scheduled Castes and Scheduled Tribes, representatives of industry, business and trade unions 16.4.2    History of National Integration Council Since India is a land of immense diversities in terms of religion, caste, tribe, race, language, and region and so on, the achievement of national integration becomes very essential for the all-round development and prosperity of the country. In order to ensure the objective national integration, the National Integration Council was established in 1961. The then Prime Minister, Shri Jawaharlal Nehru, convened National Integration Conference in September-October, 1961 to find ways and means to combat the evils of communalism, casteism, regionalism, linguism and narrowmindedness, and to formulate definite conclusions in order to give a lead to the country. This Conference finally decided to set up a National Integration Council (NIC) to review all matters pertaining to national integration and to make recommendations thereon. The NIC was constituted accordingly and held its first meeting in 1962. The NIC consisted of the prime minister as Chairman, central home minister, chief ministers of states, seven leaders of political parties, the chairman of the UGC, two educationists, the commissioner for SCs and STs and seven other members nominated by the prime minister. The council made various recommendations for national integration, but they could not be materialised since there was hardly any effort made by centre or states governments. This council was revived in 1968. The size of the council was increased from 39 to 55 members. Various representatives from industry, business and trade unions were also included in it. The NIC met at Srinagar and adopted a resolution condemning all tendencies that struck at the root of national solidarity. It also set up three committees to make report on regionalism, communalism and linguism respectively, but no substantial progress was made. In 1980, this council was again revived by the union government as it had become defunct. The membership of the council was made more broad-based. The council set up a standing committee to keep observation on the activities of communal and other divisive forces posing a threat to the national unity. In 1986, it was reconstituted and membership of the council was also increased. The council recognized terrorism in Punjab as an attack on the unity, integrity and secular ideals of the country and passed a resolution to fight terrorism in Punjab. The council also set up a committee to formulate both short term as well as long term proposals for maintaining communal harmony and preserving national unity. In 1990, VP Singh government reconstituted this council. Its membership was increased to 101. It included prime minister as chairman, some union ministers, state chief ministers, leaders of national and regional parties, representatives of women, trade and industry, academicians ,journalists and public figures. Various issues such as Punjab crisis, Kashmir issue, violence by secessionists, communal harmony and Ram Janmabhomi- Babri Masjid problem at Ayodhya but there was no substantial result.In 2005,the United Progressive Alliance(UPA) government reconstituted the council. The NIC was to function as a forum for effective initiative and interaction on issues of national concern, review issues relating to the national integration and make recommendations. In April, 2010, the UPA government again reconstituted the council. The membership of the council was increased to 147 which included union ministers, leaders of the opposition in the Lok Sabha and the Rajya sabha, the chief ministers of all states and union territories of with legislatures, leaders of national and regional political parties, chairpersons of national commissions, eminent journalists, public figures, representatives of business and women‘s organizations. It mainly aimed at suggesting means and ways to combat the menace of communalism, casteism and regionalism. Govt. also constituted a Standing committee of the NIC. It would finalise the agenda items for NIC meetings. The last and latest meeting of the NIC was held on 23rd September, 2013. A resolution was passed in the meeting to condemn violence, take all measures to strengthen harmonious relationship between all communities, to resolve differences and disputes among the people within the framework of law, to condemn atrocities on SCs and STs, to condemn sexual abuse and to ensure that all women enjoy the fruits of freedom to pursue their social and economic development by providing equal opportunities and safeguard their right of movement in the public space at any time. 16.4.3    Objectives The council of national integration declared its goals and objectives in its first meeting held in 1968. The council of national integration primarily sets its objective not to stand with any internal conflict against religious freedom, any injustice in the political, economic, and social things. The National Integration Council reiterates its faith in these values and dedicates itself to their achievement. The National Integration Council, however, notes with concerned the increase in communal incidents in different parts of the country over the last few years. The Council emphasizes that notwithstanding sporadic occurrences of communal and other divisive conflicts, the vast majority of common men and women, irrespective of their religious affiliations, live in peace and harmony and have no interest in violence and disorders The National Integration Council condemns tendencies that strike at the root of national solidarity and calls upon all political parties, voluntary organizations, other citizen groups, the press, leaders of opinion and indeed all men of good will to bring them to a halt: by discouraging communal ill-will and regional animosities and weaning the □ misguided elements of society from paths of violence; by active and energetic propagation of the principles, especially of tolerance and harmony for which this nation stands, by mobilizing constructive forces of society in the cause of national unity □ and solidarity and giving them leadership encouragement and articulation; and by devising suitable community activities and programmes for fostering fellow feeling, emphasizing the privileges of common citizenship and in general raising the quality of national life. The council wishes to emphasize that this task is not of Governments alone although governments have to play a major role in strengthening the forces of integration and in implementing expeditiously and effectively the recommendations that this council makes. This task is the collective responsibility of all citizens-politicians, educationists, artists, writers, teachers, parents and students, intellectuals, businessmen and trade union leaders. This council most earnestly invites all Indians, regardless of their linguistic, religious, ethnic or cultural affiliations to join in this great and urgent task of promoting national unity and solidarity‖. 16.4.4    Role and Importance of National Integration Council The basic role of the national integration council is to make the novice understand the policy and the activity related to the policy. It was aimed to give value to the cultural heritage of India by maintaining unity. The national integration council aims to promote national integration amid the Indian society by performing several activities. These activities generally include quiz competitions, cultural presentations, programs related to state awareness, and debates. Apart from all these programs the council also provides explanations through practical exhibitions on the way the national integration council works. The country India is valued worldwide for its rich and valuable cultural heritage. The history of India has witnessed different leadership roles played by leaders coming from different backgrounds in terms of their caste, religion, and community. In a country full of communal diversity, bonds and unity among the people irrespective of the different caste, religion, creeds, and gender is important to maintain peace. Hence proper guidance is required to resolve the problems to avoid any kind of internal conflict and to ensure unity. Thus the National Integration Council has immense importance in this context. Self Check Exercise-2 Q.1. When did the National Integration Council establish? Q.2. What is the role of National Integration Council? 16.5    Summary The Finance Commission of India, a very important body has the core responsibility to evaluate the state of finances of the Union and State Governments, recommend the sharing of taxes between them, and lay down the principles determining the distribution of these taxes among States. It is a very important body in the context of fiscal federalism in Indian federalism. On the other hand, the National Integration Council another important intergovernmental body aims at to give value to the cultural heritage of India by maintaining unity. It aims to promote national integration amid the Indian society by performing several activities which is very crucial role to play in a diverse nation like India. 16.6    Glossary •    Recommendation:a suggestion that something is good or suitable for a particular purpose or job •    Heritage: valued objects and qualities such as historic buildings and cultural traditions that have been passed down from previous generations. 16.7    Answers to Self -Check ExerciseSelf –Check Exercise-1 Ans.1. See Section 16.3 & Sub -Section 16.3.1 Ans.2. See Sub- Section 16.3.3      Self –Check Exercise-2 Ans.1. See Sub -Section 16.4.2 Ans.2. See Sub -Section 16.4.4 16.8    Reference / Suggested Readings •    M.Laxmikant (2021), Indian Polity, Mcgraw Hill Publication. •    D.D.Basu (2013), Introduction to the Constitution of India, Lexis Nexis Publication. •    https://www.fincomindia.nic.in (official website of finance commission of India). □ https://www.mha.gov.in 16.9    Terminal questions 1.    Write the composition and functions of the Finance Commission of India. 2.    Discuss the role of the Finance commission of India in fiscal federalism of India? 3.    Write an essay on National Integration Council. UNIT-17ELECTION COMMISSION OF INDIA AND ELECTORALREFORMS Structure 17.1    Introduction 17.2    Learning Objectives 17.3    Election Commission of India 17.3.1    Composition 17.3.2    Functions 17.3.3    Powers 17.3.4    Independence and Flaws of the Election Commission Self -Check Exercise-1 17.4    Defects of Electoral Politics in India Self -Check Exercise-2 17.5    Electoral Reforms 17.5.1    Various Committees on Electoral Reforms 17.5.2    Steps taken for Electoral reforms      Self -Check Exercise-3 17.6    Summary 17.7    Glossary 17.8    Answers to Self- Check Exercise 17.9    References/Suggested Readings 17.10    Terminal Questions 17.1    Introduction Dear students, In this lesson we will discuss about Election commission of India and electoral reforms in India .As we know election is one of the prominent features of modern democracy, it plays very important role in such systems and perform functions of interest articulation, interest aggregation, political recruitment, political communication and political socialization. Through this medium voters elect their representatives and help in forming their government Elections provides legitimacy to the political systems all around the world. 17.2    Learning Objectives After going through this unit students will be able to: >    Understand about the Election Commission of India. >    Electoral system defects. >    Various electoral reform suggestions and the steps taken for that purpose. 17.3    Election Commission of India17.3.1    Composition In order to supervise the entire procedure and machinery for election and for some other ancillary matters, the constitution provides for an independent body, namely the election commission of India (Art. 324) .The provisions for the removal of the Election Commissioners make them independent of executive control and ensure an election free from the control of the party in power for the time being. The President appoints the Chief Election Commissioner and other two election commissioners. When any other election commissioner is so appointed, the chief election commissioner acts as the Election Commission‘s Chairman. The President can also appoint regional commissioners to assist the Commission, if necessary after consulting with the Election Commission. The tenure of office and the conditions of service of all the commissioners shall be determined by the country‘s President. From the beginning, the election commission consisted of the Chief Election Commissioner only. The congress government just a week before the commencement of the 9th general election appointed two more commissioners on 16th October, 1989 making it a multi member commission. The National Front Government on assuming charge amended the rules to make it again a single member body w.e f. 2nd January 1990. On 1-10-1993 the Government promulgated an Ordinance an ordinance, which subsequently converted into an act provided for the appointment of two election commissioners. The conditions of service and tenure of office of the Election Commissioner shall be such as Parliament may by law prescribe: Provided that the Chief Election Commissioner cannot be removed from his office except in like manner and on like grounds as a judge of the Supreme Court. In other words, the Chief Election Commissioner can only be removed by each house of parliament, by a special majority and on the ground of proved misbehavior or incapacity. The Election Commissioner shall have the power of superintendence, direction and conduct of all elections to Parliament and the State Legislatures and of elections to the offices of the President and Vice President (Art.324 (1)).Rajiv Kumar is the present Chief Election Commissioner of India. 17.3.2    Functions 1.    To direct and control the entire process of conducting elections to Parliament and Legislature of every State and to the offices of President and Vice-President of India. 2.    To decide the election schedules for the conduct of periodic and timely elections, whether general or bye-elections 3.    To decide on the location of polling stations, assignment of voters to the polling stations, location of counting centers, arrangements to be made in and around polling stations and counting centers and all allied matters 4.    To prepare electoral roll and issues Electronic Photo Identity Card (EPIC). 5.    To grant recognition to political parties & allot election symbols to them along with settling disputes related to it 6.    To sets limits of campaign expenditure per candidate to all the political parties, and also monitors the same 7.    To advise in the matter of post-election disqualification of sitting members of Parliament and State Legislatures. 8.    To issue the Model Code of Conduct in the election for political parties and candidates so that no one indulges in unfair practice or there is no arbitrary abuse of powers by those in power. 17.3.3    Powers Among the major Constitutional Bodies in India, Election Commission is a permanent Constitutional Body. It was established in accordance with the Constitution on 25th January 1950. •    The Constitution has vested to this body superintendence, direction and control of the entire process for conduct of elections. •    The Commission‘s functions and powers with respect to elections to the offices of the President, the Vice President, the state legislators and the Parliament are divided under three headings: •    Administrative •    Advisory •    Quasi-judicial In details, these powers of the Election Commission of India are: •    Determining the Electoral Constituencies‘ territorial areas throughout the country on the basis of the Delimitation Commission Act of Parliament. Preparing and periodically revising electoral rolls and registering all eligible voters. •    Notifying the schedules and dates of elections and scrutinising nomination papers. □ Granting recognition to the various political parties and allocating them election symbols. •    Acting as a court to settle disputes concerning the granting of recognition to political parties and allocating election symbols to the parties. •    Appointing officers for inquiring into disputes concerning electoral arrangements. □ Determining the code of conduct to be followed by the political parties and candidates during elections •    Preparing a program for publicising the policies of all the political parties on various media like TV and radio during elections. •  Advising the President on matters concerning the disqualification of MPs. •  Advising the Governor on matters concerning the disqualification of MLAs. □ Cancelling polls in case of booth capturing, rigging, violence and other irregularities. •    Requesting the Governor or the President for requisitioning the staff required for conducting elections. •    Supervising the machinery of elections throughout the country for ensuring the conduct of free and fair elections. •    Advising the President on whether elections can be held in a state that is under the President‘s rule, in order to extend the period of emergency after 1 year. •    Registering political parties and granting them the status of national or state parties (depending on their poll performance) •    The Commission is aided in its function by deputy election commissioners. The deputy ECs are taken from the civil services and they are appointed by the Commission. They have a fixed tenure. They are aided by the secretaries, deputy secretaries, joint secretaries and under-secretaries posted in the commission‘s secretariat. 17.3.4 Independence and Flaws of the Election Commission Article 324 of The Constitution of India mentions the provisions to safeguard and ensure the independent and impartial functioning of the Election Commission. The Chief Election Commissioner is provided with security of tenure. He cannot be removed from his office except in the same manner and on the same grounds as a judge of the Supreme Court. In other words, he can be removed by the President of India on the basis of a resolution passed to that effect by both the Houses of Parliament with a special majority, either on the ground of proved misbehaviour or incapacity. Thus, he does not hold his office until the pleasure of the president, though he is appointed by him. The service conditions of the chief election commissioner cannot be varied to his disadvantage after his appointment. Any other election commissioner or a regional commissioner cannot be removed from office except on the recommendation of the chief election commissioner. Though the constitution has sought to safeguard and ensure the independence and impartiality of the Election Commission, some flaws can be noted.The Constitution has not prescribed the qualifications (legal, educational, administrative or judicial) of the members of the Election Commission. The Constitution has not specified the term of the members of the Election Commission. The Constitution has not debarred the retiring election commissioners from any further appointment by the government. Self Check Exercise-1 Q.1.What is the composition of Election Commission of India? Q.2. What provisons have been mentioned in the constitution to ensure independence of the election commission of India? 17.4    Defects of Electoral Politics in India The role of black money has been increased in the elections over the years. Candidates spend huge money for publicity and campaigns of their respective parties. It requires immense resources including money to make people understand the power of the parties and to compel them to vote. Most of the time, the parties exceed the permissible extent of expenses to display their strongholds among the public. The use of muscle power is a major concern in elections. Incidents of political violence are often heard in many places because of political bias and differences in opinions. Large scale Capturing booths, bogus voting, intimidating locals, and rigging of elections have become a routine in many states in the country. Degradation of Moral Values of the politicians and candidates also maligns the nature of this democratic right. Another devastating issue of the election process conducted in India is the criminalization of politics using muscle and money. In fact, politicians with strong criminal backgrounds are also witnessed getting tickets from respective parties to compete in an election. Earlier the criminals were used by some candidates for their interests but now many criminals have themselves started contesting and winning elections of state legislatures and the parliament. Apathy among the voters is increasing due to frequent elections of different levels, disappointment and repulsion over the behaviour of political parties and their representatives in state legislatures and parliament. This apathy is very dangerous for democracy. Increasing number of independent candidates is another concern in electoral politics . Usually most of them are not serious. In fact many of them are fielded by the candidates of major parties in order to serve their vested interests. These independent candidates gets undue importance in case there is hung legislature if they get elected. Many political parties try to woo them through any mean to gain their support for the formation of their government. Misuse of administration machinery by the party in power is itself a major concern. There have been cases of bungling of counting and other instances of partial attitude of the electoral machinery. This makes free and fair elections a distant dream. Other Issues Besides these mentioned issues in the electoral politics of the country, there are other issues as well such as presence of casteism as well as communalism and attracting votes with respect to caste and religion. As there are no educational qualifications prescribed for the candidates, large numbers of illiterate and semi illiterate candidates are elected to the parliament and state legislatures. These persons don‘t perform their role as per the expectations of their voters of their constituencies as they don‘t have the capability to understand the paperwork at different platforms. Self Check Exercise-2 Q.1.What are the major defects in electoral politics in India? 17.5    Electoral Reforms India is the second-highest populated country with the largest democratic foundation in the world. Elections in India are a very big topic and an integral part of the democratic system. The voting rights of the Indians regarding electoral law have been reformed quite a few times since the advent of the Constitution of India. The rules, regulations, and directives of the Election process in India have been changed quite a few times in order to maintain the dignity of the voting right and to eliminate corruption from all possible levels. The first three elections were conducted on a fairground but the standards started to degrade in the fourth one held in 1967. Many natives considered that it is the result of political corruption that resulted in such maladministration. This is why electoral reforms in India were introduced to face such challenges and to make it a fair practice for all. 17.5.1    Various Committees on Electoral Reforms Joint Parliament Committee on Electoral Reforms (1971-72): In July 1971, 21 members Joint Parliamentary committee headed by Jaganath Rao was constituted. This committee recommended making Election Commission a multi member body as it has been envisaged in Article 324(2) of the constitution. It also recommended to appoint regional commissioners to assist the Election Commission of India in its functions. In its meetings the committee considered the issue of adoption of a system of proportional representation Tarakunde Committee (1975) Tarakunde committee had recommended that the age for voting right should be reduced to 18 years. It should be made obligatory to political parties to maintain their accounts which should be checked by the election commission. Election material should be supplied to the candidates free of cost by the government. The election commission should be a three member body. The TV and radio should be placed under the control of autonomous statutory corporation. A voter‘s council should be formed in as many constituencies as possible which can help in free and fair election. Dinesh Goswami Committee(1990) It recommended that the ordering of re-poll or countermanding should not only be on the basis of report of the returning officer, but also otherwise and, also to give the Election Commission the requisite powers to appoint investigating agencies, prosecuting agencies and constitution of special courts. The question of disqualification of members should not be decided by the speaker or the Chairman of the concerned House. Changes in the voting pattern and shift to proportional representation of the list system, instead of present voting system should be made .There should be fresh delimitation on the basis of 1981 census and there should be a provision for rotation of reserved seats for Scheduled Castes and Scheduled Tribes. It recommended that no candidates should be allowed to contest an election from more than two constituencies. The age of Candidates for assembly seats should be reduced to 21 and for the Council to 25.A model code of conduct be framed which would include issues relating to-the use of official machinery, transport, media, funds etc Extensive restructuring of the accounting of election expenses is needed. Speedy trial of election disputes through the help of ad-hoc judges should be ensured.EVM should be used to put an end to manipulating and tempering. Recommendations of the Election Commission The election commission of indis has also given its own suggestions. It suggested that the election commission should be a single member body. The electoral rolls should be revised every alternate year. Multi –purpose identity cards should be issued to all thew citizens by the concerned authorities who should be obligatory. The unauthorized possession of ballot boxes or electronic voting machine (EVM) and unauthorized printing of ballot papers should be made a cognisable offence. No candidate should be allowed to contest election from more than one constituency. Every registered political party should publish its account annually which should be audited by agencies specified by the election commission. The candidate who fails to lodge his /her election expenses return within the prescribed time should automatically stand disqualified for a period of 5 years.- Violation of Model Code of Conduct should result in the disqualification of the candidate found guilty for a period of six years. Other Suggestions The then vice president of India, Krishan Kant had suggested in 1998 that voters should be given the right of rejection vote. With this right a voter rejects all candidates in the list. It is a way to disapprove the system which commands him or her to choose from unacceptable alternatives. This suggestion appeared as not practical and desirable at that time but it is in practice these days in the form of NOTA option in elections. 17.5.2    Steps Taken for Electoral Reforms There are many steps for electoral reforms taken by the government and the election commission for electoral reforms in India. By the 61st amendment act the voting age was reduced from 21 years to 18 years for the Lok Sabha as well as assembly elections in order to provide to the unrepresented youth of the nation an opportunity to exress their feelings and help them become part of political process. In 1988,a provision was made that officers and the staff engaged in preparation ,revision and correction of electoral rolls for elections are deemed to be on deputation to the election commission for the period of such employment .In 1989,a provision was made to facilitate the use of electronic voting machines(EVMs) in elections. The EVMs were used for the first time in 1988 on experimental basis in some selected constituencies in the assemble elections of Rajasthan, Madhya Pradesh and Delhi. These days EVMs are part and parcels of election process in India. The use of Elector‘s photo identity cards by the ECI is making the electoral process simple, smoother and quicker. NO liquor or other intoxicants can be sold or given or distributed within a polling area during the period of 48 hours ending with the hour fixed for the conclusion of poll. By-elections are to be hold within six months of occurrence of the vacancy in any house of the parliament or a state legislature. A candidate cannot contest election from more than two parliamentary or assembly constituencies in elections. The possession and transportation of any kind of arms during the period of model code of conduct due to elections has been made a cognizable offence. Such an act is punishable with imprisonment of up to two years or with fine or both. The campaigning period has been reduced to 14 days. In 1999, provision was made for voting by certain classes of persons through postal voting. In 2003, the ECI through an order directed every candidate seeking election to furnish details of assets, liabilities and criminal record on his/her nomination paper the information. In 2009, according to a provision conducting exit polls and publishing results would be prohibited during the election of Lok Sabha and State legislatures. In the same year a provision was made for the simplification of the procedure for disqualification of a person found guilty of corrupt practice. In 2010, a provision was made to confer voting rights to the citizens of India residing outside India due to various reasons. In 2013,the Supreme court held that ECI may provide for the None of the Above(NOTA) option on EVMs and ballot papers. The Voter Verifiable Paper Audit (VVPAT), an independent system attached with the EVMs that allows the voter to verify that their votes are cast as intended has been introduced in elections. It ensures accuracy and transparency of the voting system. In the same year the Supreme Court held that charge sheeted members of Parliament and MLAs on conviction for offences will be immediately disqualified from holding membership of the house without being given three months‘ time for appeal, as was the case before. Self Check Exercise-3 Q.1. What are the recommendations given by the Dinesh Goswami committee regarding electoral reforms? Q.2. By which constitutional amendment act voting age was reduced from 21 years to 18 years ? 17.6    Summary There are different other major and minor political reforms in India amended by the ECI to ensure the dignity and directives of an election conducted. Over the years, these significant changes brought noteworthy transformations in the election process. It also reflects on the responsibility of the authoritative body that looks after the election, its directives, the functions of election professionals, and controlling the parties contesting in the elections in different aspects. The government recognized that electoral reforms is a continuous process and it shall be the endeavor of all the stakeholders including Government, Election Commission of India, Law commission, etc. to implement such proposals on electoral reforms on which consensus emerges, from time to time. 17.7    Glossary •    Political Socialisation: The process by which a person integrates with the political culture of the society, gains knowledge of the political values, ideals, and belief of the society and acquires a social and political nature. •    Ordinances: A law that is promulgated by the President of India only when the Parliament is not in session. •    Quasi-Judicial: It refers to a proceeding conducted by an administrative or executive official or organisation that is similar to a court proceeding. 17.8    Answers to Self -Check ExerciseSelf- Check Exercise-1 Ans.1. See Section 17.3.1 Ans.2. See Section 17.3.4 Self -Check Exercise-2 Ans.1. See Section 17.4 Self -Check Exercise-3 Ans.1. See Section 17.5.1 Ans.2. See Section 17.5.2 17.9    References / Suggested Readings •    D.D.Basu (2013), Introduction to the Constitution of India, Lexis Nexis Publication. •    Subhash C. Kashyap (2013),Our Constitution: An Introduction to India’s Constitution and Constitutional Law, National Book Trust, New Delhi. •    B.Venkatesh Kumar(2009),Electoral Reforms in India: Current Discourses, Rawat Publications. •    M.Laxmikant (2021), Indian Polity, Mcgraw Hill Publication. •    https://eci.gov.in (official website of the Election Commission of India) 17.10    Terminal Questions 1.    What is the composition of Election Commission of India? Describe powers and functions of the Election Commission of India? 2.    What are the major recommendations for electoral reforms in India? 3.    What are the major steps taken for the electoral reforms in India? UNIT-18 CONSTITUTIONAL BODY: NATIONAL COMMISSION FOR SCHEDULED CASTES Structure 18.1Introduction 18.2 Learning Objectives 18.3    Constitutional and other Provisions for the Protection of Interests of Scheduled      Castes Self -Check Exercise-1 18.4    National Commission for Scheduled Castes 18.4.1    Composition 18.4.2    Functions 18.4.3    Powers 18.4.4    Complaints Received by National Commission for Schedule Castes from Across India 18.4.5    Functions of State Offices of the Commission 18.4.6    Issues Related to National Commission for Schedule Castes 18.4.7    Measures taken Self- Check Exercise-2 18.5    Summary 18.6    Glossary 18.7 Answers to Self- Check Exercise 18.8    References/ Suggested Readings 18.9    Terminal Questions 18.1    Introduction Dear students, The makers of the Indian Constitution took cognizance of the fact that certain sections of the population were living in extreme backwardness vis-à-vis social, educational, and economic, that they felt essential to protect and promote their fundamental interests on par with rest of the populace. The founding fathers attributed some of the reasons for such backwardness, such as, practices of untouchability, poor agricultural practices, lack of access to resources etc. As a result, their social mobility got restricted and it affected their development both socially and economically. With the aim to boost their morale and enable them to access resources equally without any hassles, these communities became notified as Scheduled Castes (SCs) and Scheduled Tribes (STs) under the Clause 1 of Articles 341 and 342 of the Constitution respectively. Ever since the implementation of the constitution, the Scheduled Castes and Scheduled Tribes Commission had been operational, as constitutional bodies (Article 338). It provided for the appointment of a Special officer to investigate all matters relating to the constitutional safeguards for the SCs and STs and to report to the president. In 1978, the government set up a non- statutory multi-member commission for SCs and STs. Further in 1987, the government modified the functions of the Commission and renamed it as the National Commission for SCs and STs. In 1990, by the 65th constitutional amendment act, a high level multi-member National Commission for SCs and STs in the place of a single Special officer for SCs and STs. This constitutional body replaced the commission set up under the resolution of 1987. Due to the political pressure put forth by the Members of Parliament that a single Commission is inadequate to monitor the constitutional safeguards of SCs and STs, the 89th Constitutional Amendment Act, 2003, bifurcated the Scheduled Castes and Scheduled Tribes Commission into two separate commissions, namely National Commission for Schedule Castes (Art. 338) and National Commission for Scheduled Tribes (Art. 338-A). 18.2    Learning Objectives After going through this unit the students will be able to enhance their knowledge about the working and role of National Commission for Scheduled Castes in protecting and promoting the welfare of Scheduled Castes. 18.3    Constitutional and other Provisions for the Protection of Interests of Scheduled Castes There are numerous development, protective, social, economic, educational and cultural safeguard, political, service safeguards provided by the Indian constitution. These safeguards are applicable to all the people, especially, to the SCs and STs .The development and protective safeguards could be found in the Directive Principles of State Policy. Specifically, Article 46 intends to: a) improve the educational and economic interests of SCs and STs. National Commission for Scheduled Castes, National Commission for Scheduled Tribes, b) protect the target audience from social injustice and all forms of exploitation. With the objective to protect their social mobility and eradicate the untouchability menace, Article 17 was inserted. To give effect to this Article and to punish the miscreants, Protection of Civil Rights (PCR) Act was enacted. Article 23 prohibits human trafficking, beggary, and other similar forms of forced labour. As majority of bonded labourers belong to SCs, it has significance to this community. Article 24 states that no child below 14 years shall work in any factory or mine, that is, hazardous to his/her life. This is relevant in the context of SCs, as a considerable section of child labourers belong to these categories. Article 25(2) (b) indicates that all Hindu religious institution would be made accessible to all classes and sections of the population. This law states that all persons irrespective of caste have the right to enter religious places. Economic safeguards intend to protect the target section from economic aggression and dominance. It also provides them freedom to pursue their interests without any coercive action. In this regard, Articles 23, 24, and 46 mentioned above form part of the economic safeguards for Scheduled Castes. Article 15(4) empowers the State to initiate progressive measures for the welfare of the socially and educationally backward sections, inclusive of SCs and STs. For example, reservation of seats made possible in technical institutions, engineering, and medical colleges for the targeted section of the society. According to the Article 330, there is provision of reservation of seats for SCs and STs in the Lok Sabha and Article 332 indicates reservation of SC, ST seats in the State Legislative Assemblies. Under various sections of Article 16, the State has the right to reserve positions for the targeted audience and also promotion for the eligible groups. Under Part IX relating to the panchayats and Part IXA of the Constitution relating to the Municipalities, reservation for SC and ST in local bodies has been envisaged and provided. Besides, several legislations are in place to prevent discrimination against people belonging to Scheduled Castes and to protect their rights. These, inter-alia, are: i.    In order to prescribe punishment for the preaching and practice of ―Untouchability‖ for the enforcement of any disability arising therefrom and for matters connected therewith, the Protection of Civil Rights Act, 1955 has been enacted. ii.    In order to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been enacted. Self Check Exercise-1 Q.1. What provision article 46 contains for the welfare of Schedule Castes? Q.2. Which Article of Indian constitution has the provision of reservation of seats for SCs and STs in the Lok Sabha? 18.4    National Commission for Scheduled Castes18.4.1    Composition The National Commission for Scheduled Castes (NCSC) is a constitutional body that works to safeguard the interests of the scheduled castes in India. It seeks to offer the SC community protection from discrimination and exploitation, as well as providing facilities to uplift them. Article 338, of the constitution of India d the provision of the commission for SCs. Initially, the constitution provided for the appointment of a Special Officer under Article 338. The 65th Amendment to the constitution replaced the one-member system with a multimember National Commission for Scheduled Castes and Scheduled Tribes. The Constitution (65th Amendment) Act 1990 amended Article 338 of the Constitution. The newly formed National Commission for Scheduled Castes consists of a chairperson, a vice- chairperson and other three members. They are appointed by the president. The President can also determine conditions of their service and tenure of office. The first National Commission for Scheduled Castes was formed in 2004 under the chairmanship of Suraj Bhan. At present Kishor Makwana is the chairman of the commission. 18.4.2    Functions 1)    To investigate and monitor all issues concerning the safeguards provided for the SCs under the constitution and law. 2)    To inquire into specific complaints relating to the deprivation of the rights and safeguards of the SCs. 3)    To take part in and advise the central or state governments with respect to the planning of socio-economic development of the SCs and evaluate the progress of their development under the union or a state. 4)    To present reports to the President annually or as it may deem fit upon the working or the implementation of these safeguards. 5)    It recommends steps to be taken to further the protection, welfare and socioeconomic development of the SCs. 6)    To discharge such other function with respect to the welfare, protection, development and advancement of the SC community as the President may specify. 18.4.3    Powers The Commission has the power of a civil court in matters pertaining to SC welfare. It can use its power in summoning and enforcing the attendance of any person from any part of India and examining him on oath. Yet another power is to request any public record or copy from any court or office. Consultation The Union and every State Government consult the Commission on all major policy matters relating to Scheduled Castes. Review Meetings In 2016-17, NCSC reviewed the follow-up action been taken by the Public Sector Undertakings and Public Sector Banks. The reviews were to assess the implementation of reservation policy for SCs. 18.4.4    Complaints Received by National Commission for Schedled Castes from across India The National Commission for Scheduled Castes (NCSC) has dedicated Wings vis-à-vis Service Safeguard Wing, Economic and Social Development Wing, and Atrocities and Protection of Civil Rights Wing, that caters to different types of cases. To illustrate, in 2016, a total number of 38,669 cases were dealt with 13,540 cases at the headquarters and 25,129 cases at the state offices (Annual Report, 2016, NCSC). The commission dealt with 46985 individual cases of deprivation of rights / other grievances and disposed off 6355 cases(Annual Report 2017-18) .12036 cases were received in 201920 (upto 31.01.2020), and disposed off 6359 cases(Annual Report 2018-19, 2019-20) . The grievances/complaints received by NCSC, both at the headquarters and in state offices can be broadly classified into three categories: i) Complaints related to Service Safeguards are dealt by the Service Safeguards Wing. ii) Complaints related to economic-social development are handled by the Economic and Social Development Wing. iii) Complaints related to atrocities are dealt by Atrocities and Protection of Civil Rights Wing. Atrocity related matters include harassment, land conflict, temple entry/social boycott etc. In April, 2021 the commission started online complaints portal for making more convient to file complaints. 18.4.5    Functions of State Offices of the Commission i)    The state offices of NCSC serves as the ‗eyes‘ and ‗ears‘ of the Commission as they act as a watchdog in the formulation of policies and in issuance of guidelines. Besides, they periodically update the NCSC headquarters about the development status. The policies evolved by the respective state governments are brought to the notification of the state offices in case of any changes to be added. Further, to assess the various development schemes meant for SCs, the state officers are expected to network with the State/Union Territory administration. Based on the findings of the assessment, appropriate measures can be taken to ameliorate the socio-economic development of the target audience. ii) Secondly, the state officers of the Commission need to frequently communicate with the state administrators and accordingly guide them be it monitoring the funds earmarked and utilised for SCs as well as protecting and promoting their socio-economic interests. iii) Thirdly, each State Office compiles a quarterly report regarding the activities undertaken by them for the welfare of SCs in that respective state/union territory and reports to NCSC. This is done to provide a general view about the welfare status of SCs to NCSC and take appropriate action 18.4.6    Issues related to National Commission for Schedule Castes Atrocities against members of the Scheduled Castes account for 89% of the crimes against SCs and STs combined. Even though the Commission has extensive powers of investigation and inquiry in this area and can fix responsibility and recommend action, its recommendations are not binding. The existing priorities of the Commission are visibly lopsided in favour of the elite of these communities. The poor section of this community is neglected, and the Commission has remained insensitive towards them. Since the Commission, for the most part, acts on complaints, it is said that commission have been less than sensitive to the poor dalits which are engendered by the lack of education or information.The Commission has not used its powers of suo motu cognisance actively enough. In the matter of criminal investigation, that would require it to follow prevailing rules and procedures pertaining to evidence and prosecution. This retards the effectiveness of the commission by rendering it vulnerable to litigation in the form of appeals to higher judicial bodies and thereby nullifying its operational effectiveness. There are delays in conducting the inquiry and in delivering judgments. Delivery of judgement and the conducting of inquiries are very delayed by the Commission. Moreover, there is a reputation of the Commission for confirming the government‘s position in most cases.The Commission is supposed to prepare an annual report for presentation to Parliament. Reports are often tabled two or more years after they have been submitted to the President. Even when Reports are tabled in Parliament, they are frequently not discussed. In many policy sectors, as in the case of the Scheduled Castes, the proliferation of institutions has created an institutional confusion in which the roles and powers of each ared obfuscated. The duplication and multiplication of institutions has created more confusion. 18.4.7 Measures taken The commission has taken measures for strengthening the legal and judicial protection of Dalits under the Scheduled Castes and Tribes (Prevention of Atrocities) Act. The Commission can facilitate online reporting and tracking of crime. It can make people aware of the process of filing the cases by framing and making available simplified Standard Operating Procedures in local languages at all the police stations. The Commission can help in capacity building of lawyers, judges and policemen. This can ensure their empathetic engagement with members from Scheduled Castes. The Commission helps sensitize at least the government institutions and organisations by regularly monitoring their grievance redressal mechanisms like internal complaints committee. Self -Check Exercise-2 Q.1 What is the composition of National Commission for Scheduled Castes? Q.2.When did National Commission for Castes started online complaints portal for making more convient to file complaints? 18.5    Summary Indian society is drowned in the evil of identifying an individual based on their caste. The extremities are such that their caste can decide their fate, education, profession, and policing. The people belong to Scheduled Castes of the society deserve the same dignity as any other individual of the society. In a welfare state, every institution/authority is expected to promote the welfare of the underserved communities and it is not just vested exclusively to National Commission for Scheduled Castes (NCSC). Although, the NCSC enjoy constitutional backing, its recommendations are not mandatory rather only advisory. The National Commission for Scheduled Castes must fix the many places they are falling apart in providing equality to these castes. 18.6    Glossary •    NCSC: National Commission for Scheduled Castes •    Constitutional Body: Constitutional Body refers to an institution or authority that derives its powers and responsibilities directly from the Constitution. 18.7    Anwsers to Self- Check ExerciseSelf -Check Exercise-1 Ans1. See Section 18.3 Ans.2 See Section 18.3 Self –Check Exercise-2 Ans.1 See Sub -Section 18.4.1 Ans .2.See Sub -Section 18.4.4 18.8    References/ Suggested Readings •    M.Laxmikant, (2021), Indian Polity, MC Graw Hill, Chennai. •    https://ncsc.nic.in (official website of the National Commission for SCs). □ https://www.sansad.in 18.9    Terminal Questions 1.    What is the composition of National Commission for Scheduled Castes? Discuss the powers and functions of the National Commission for Scheduled Castes. 2.    What are the constitutional and other provisions for the protection of interests of Scheduled Castes? UNIT-19 CONSTITUTIONAL BODY: NATIONAL COMMISSION FOR SCHEDULED TRIBES Structure 19.1    Introduction 19.2    Learning Objectives 19.3    Definition of Scheduled Tribes 19.4    Constitutional and other Provisions for the Protection of Interests of Scheduled      Tribes Self- Check Exercise-1 19.5    National Commission for Scheduled Tribes 19.5.1    Composition 19.5.2    Functions 19.5.3    Powers 19.5.3    Working and Evaluation 19.3    Self Check Exercise 19.4    Glossary 19.5    Answers to Self Check Exercise 19.6    References/Suggested Readings 19.7    Terminal Questions 19.1    Introduction Dear students, National Commission for Scheduled Tribes (NCST) was established by the 89th Constitutional amendment act.The commission investigates & Monitors matters relating to Safeguards provided for STs under the Constitution or under other laws or under Govt. Order, to evaluate the working of such safeguards. 19.2    Learning Objectives After going through this unit the students will be able to enhance their knowledge about the working and role of National Commission for Scheduled Tribes in protecting and promoting the welfare of Scheduled Tribes. 19.3    Definition of Scheduled Tribes According to Article 366(25) of the Constitution, Scheduled Tribes are those communities that are scheduled in accordance with Article 342 of the Indian Constitution. Also, Article 342 of the Constitution says that the Scheduled Tribes are the tribes or tribal communities or part of or groups within these tribes and tribal communities which have been declared as such by the President through a public notification. According to the 2011 Census, the Scheduled Tribes account for 104 million representing 8.6% of the country‘s population. These Scheduled Tribes are spread throughout the country largely in forest and hilly regions. The essential characteristics of these communities are, primitive traits, geographical isolation, distinct culture, shy of contact with the community at large, economically backwards. The Plan objective of empowering the tribals is being achieved through a three-pronged strategy of social empowerment, economic empowerment, and social justice. 19.4    Constitutional and other Provisions for the Protection of Interests of Scheduled Tribes There are numerous development, protective, social, economic, educational and cultural safeguard, political, service safeguards provided by the Indian constitution. The framers of the Constitution made elaborate constitutional mechanism setup for the uplift of weaker sections of the nation. For the upliftment of the Scheduled Tribes alongwith Scheduled Castes Article 17 abolishes Untouchability. Article 46 requires the State ‗to promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation. Article 335 provides that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. Article 15(4) refers to the special provisions for their advancement. Article 16(4A) speaks of ―reservation in matters of promotion to any class or classes of posts in the services under the State in favour of SCs/STs, which are not adequately represented in the services under the State‘. Article 338 provides for a National Commission for the Scheduled Castes and Scheduled Tribes with duties to investigate and monitor all matters relating to safeguards provided for them, to inquire into specific complaints and to participate and advise on the planning process of their socio-economic development etc. Article 330 and Article 332 of the Constitution respectively provide for reservation of seats in favour of the Scheduled Castes and the Scheduled Tribes in the House of the People and in the legislative assemblies of the States. Under Part IX relating to the Panchayats and Part IXA of the Constitution relating to the Municipalities, reservation for Scheduled Castes and Scheduled Tribes in local bodies has been envisaged and provided. Besides, several legislations are in place to prevent discrimination against people belonging to Scheduled Tribes and to protect their rights. These, inter-alia, are: iii.    In order to prescribe punishment for the preaching and practice of ―Untouchability‖ for the enforcement of any disability arising therefrom and for matters connected therewith, the Protection of Civil Rights Act, 1955 has been enacted. iv.    In order to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been enacted. v.    In order to provide for the extension of the provisions of Part IX of the Constitution relating to the Panchayats to the Scheduled Areas, the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 has been enacted. vi.    To recognize and vest the forest rights and occupation in forest land in forest dwelling scheduled tribes and other traditional forest dwellers who have been residing in such forests for generations but whose rights could not be recorded and to provide for a framework for recording the forest rights so vested, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 has been enacted. Self –Check Exercise-1 Q.1. What is definition of Scheduled Tribes as per article 342 of Indian Constitution? Q.2. What is the provision under article 46 of Indian Constitution? 19.5    National Commission for Scheduled Tribes19.5.1Composition The National Commission for SCs and STs came into being by the 65th constitutional amendment act of 1990. But, geographically and culturally Scheduled Tribes are different from the Scheduled Castes. In 1999, Ministry of Tribal Affairs was created to focus to the welfare and development of the Scheduled Tribes. It was further proposed to set up National Commission for STs by bifurcating the already existing combined National Commission for SCs and STs in order to protect the interests of the STs. By the 89th constitutional amendment act, amended article 338 and inserted a new article 338-A in the constitution and established a separate National Commission for STs(NCST) which came into existence in 2004. The Commission consists of a Chairperson, ViceChairperson and three other members appointed by the President of India. The Chairman shall be appointed from amongst eminent social, political workers belonging to Scheduled Tribes who inspire confidence amongst the Scheduled tribes by their vary personality and record of selfless service. The Vice-Chairman and all other Members out of whom at least two shall be appointed from amongst persons belonging to the Scheduled Tribes. At least one other member shall be appointed from amongst women. The conditions of service and tenure of office of the members of the commission are also determined by the President. Sh. Antar Singh Arya is the present chairman of National Commission for Scheduled Tribes. 19.5.2    Functions □ It investigates and monitors all matters related to safeguarding the provisions for Scheduled Tribes under the Constitution and evaluating the working of those safeguards. •    The commission can inquire into specific complaints concerned with the deprivation of rights and safeguards of the STs. •    The commission participates and advises on the planning process for the socioeconomic development of the STs and also evaluates the progress of the various developmental activities. •    The President will be presented with an annual report of the working of those safeguards. Apart from annual reports, other reports also will be submitted to the President as and when necessary •    The Commission will also give reports on what measures are to be taken by both the central and various state governments for effective execution of the measures and safeguards for the protection, development and welfare of the STs. •    Other functions of NCST are related to welfare, protection, development & advancement of the STs. The President in 2005 specified some other functions of the commission with regard to the protection, ,welfare and development of the STs The commission can take measures over conferring ownership rights in respect of minor forests produce to Scheduled Tribes living in forest areas. It can take measures for safeguarding rights of the tribal people over mineral resources, water resources etc., as per law. It can take measures for the development of tribal people and to work for more viable livelihood strategies. The commission can take measures to improve the efficacy of the relief and rehabilitation measures for tribal groups displaced due to developmental projects; measures can be taken for the prevention of alienation of tribal people from land to effectively rehabilitate such people in whose case alienation has already taken place. It can also take measures to elicit maximum cooperation and involvement of tribal people to protect forests and undertake social afforestration. It is also to ensure implementation of the Provision of Panchayats (Extension to the Scheduled Areas) Act (PESA) of 1996. The practice of shifting cultivation by tribal people leads to their disempowerment and degradation of land and environment. The commission can take measures to reduce and eliminate such practices. 19.5.3    Powers This commission has the power to regulate its own procedures without interference of any external entity. Clause (4) of Article 338A of the Constitution empowers the Commission to regulate its own procedure. This procedural autonomy includes: i) procedure of investigation and enquiry into the working of the safeguards; ii) frequency of meetings to be conducted; iii) delineate the duties of the Commission‘s Regional Office; iv) advisory role of the Commission in the policies of the Union and State/Union Territory that are connected to ST welfare; and v) monitoring of functions of the Commission and its Regional Offices. While investigating any matter related to the deprivation of safeguards or rights, the Commission shall enquire into any complaint and if needed can assume the powers of a civil court. Even the Supreme Court has declared that whether National Commission for Scheduled Castes or National Commission for Scheduled Tribes, it has the power of a civil court to investigate into the matters related to SCs/STs, however, such powers do not convert a Commission into a civil court. This powers include to : i) summon, enforce, and examine an oath of any person across any part of India; ii) access, discover, and production of any documents pertaining to STs; iii) receive evidence on affidavits; iv) request any public record or copy from any court or office; and v) any other matter, as referred by the President or Parliament. 19.5.4    Complaints Received by National Commission for Scheduled Castes The NCST receives grievance petitions from across India that includes matters of (i) alleged violation of service safeguards (ii) matters related to alienation of land, admission in higher educational institutions vis-à-vis medical, engineering, etc. (iii) atrocities in offices, public places etc. With the objective to provide information regarding the working of the commission to the tribal petitioners, an Information and Facilitation Centre has been established at National Commission for Scheduled Tribes headquarters. Secondly, to enable the poor tribal people to reach out to the officers of NCST, a toll free number has been created. Thirdly, a dedicated web portal for tribal affairs and welfare has been instituted in the year 2007. 19.5.5    Regional Offices The commission has Regional Offices to formulate policies and issue guidelines for the welfare of STs in the respective states and union territories. The National Commission for Scheduled Tribes has six Regional Offices located at Bhopal, Bhubaneswar, Jaipur, Raipur, Ranchi and Shillong. The offices also update the headquarters regarding the developments in policy decisions in their respective jurisdictions pertaining to STs. Functions of Regional Offices i) The Regional Offices are expected to communicate with the State authorities and guide them so as to keep the policies intact with the interests of STs. The state offices also monitor the funds being earmarked under Tribal Sub-Plan and oversee the utilisation of funds.ii) Each Regional Office compiles the major issues related to ST welfare that have been undertaken in their respective jurisdiction and periodically sends the quarterly report to NCST. It enables the Commission to understand the perspectives of ST welfare at the national level and take appropriate action. iii) The regional officers accompany the Chairperson and members of NCST on their visits to the respective states/union territories. The regional officers are involved in the on-the spot enquiry conducted by NCST in case of atrocities against STs. Moreover, they are expected to network with the state authorities for proper conduct of review meetings at the state and district level. The Regional offices of the National Commission for Scheduled tribes keep a watch on the formulation of policies and issue of guidelines relating to the welfare of Scheduled Tribes in the States/UTs and keep the Commission‘s Headquarters informed about the developments periodically. Policy decisions taken by any State Government/UT Administration affecting the interests of the Scheduled Tribes are brought to the notice of the concerned authorities for necessary action. The Regional Offices of the Commission assist the Headquarter in collecting and compiling statistical and other forms of information from the State Governments/Union Territories under its jurisdiction in connection with the visits of the Commission, Review meetings taken by the Chairperson, Vice- Chairperson and/ or Members of the Commission and also for preparation of various chapters of the Annual Reports of the Commission. The Regional Offices also receive a large number of receipts of various kinds including grievances and matters relating to Scheduled Tribes from the Scheduled Tribe individuals and their Associations. As most of the cases received in the Regional Offices relate to the offices located in the States, action on those receipts/ cases is taken by the concerned Regional Office. Existence of the Regional Offices in the States helps the local Scheduled Tribes and their well-wishers to easily approach the Commission (through the concerned Regional Office). The presence of the Regional Office nearer to the local Government and their participation and contributions in various Committees fosters constructive relationship between the Regional Office and the Authorities concerned. Consequently, these Regional Offices play an important role in prompt disposal of the complaints of grievances or violation of safeguards for Scheduled Tribes in the States under the jurisdiction of the Regional Offices. Cases in which Sittings is considered necessary for which invoking of power of Civil Court is required to be exercised by the Member of the Commission, the matters are referred by the Regional Offices to the Headquarter Office for taking further necessary action. Self Check Exercise-2 Q.1.Who is the present chairman of National Commission for Scheduled Tribes? Q.2.What are the powers of the National Commission for Scheduled Tribes? 19.6    Criticism Even though the commission has powers of carrying out extensive investigations and recommending actions, these recommendations are non-binding. It is said that the commission has limited coverage as the commission has been able to uphold the rights of only the elite members of the ST community and not the poorer sections living within villages. There is delay in conducting enquiry and providing judgment on the issues referred to the commission. The NCST has failed to effectively use its powers of suo motu cognisance actively enough.Even though the report by NCST has to be placed before the parliament regularly, they are often tabled two or more years after they have been submitted to the President. 19.7    Summary The National Commission for Scheduled Tribes was established with a view to provide safeguards against the exploitation of the Scheduled Tribes as well as to protect their social, economic, educational, and cultural interests.The commission has certain drawbacks which make it somewhat less effective. The commission can become more effective provided it works on redressing the drawbacks. 19.8    Glossary •    Safeguard: a measure taken to protect someone or something or to prevent something undesireable. •    Untouchability: an evil practice of social exclusion practiced by upper-caste communities that target people from lower-caste. 19.9    Answers to Self -Check ExerciseSelf-Check Exercise-1 Ans.1. See Section 19.3 Ans.2. See Section 19.4 Self-Check Exercise-2 Ans.1. See Sub-Section 19.5.1     Ans.2. See Sub-Section 19.5.3 19.10    References / Suggested Readings •    M.Laxmikant, (2021), Indian Polity, MC Graw Hill, Chennai. •    Report on the National Commission for Schedule Tribes, Centre for Policy Research •    https://ncst.nic.in (official website of the National Commission for STs). □ Annual Report, 2015-16, National Commission for Scheduled Tribes. 19.11 Terminal Questions 1.     What is the composition of National Commission for Scheduled Tribes? Discuss the powers and functions of the National Commission for Scheduled Tribes. 2.     What are constitutional provisions for the protection and promotion of interests of STs? 3.     Critically discuss powers and functions of the National Commission for Scheduled Tribes. UNIT – 20 STATUTORY    BODY:  NATIONAL HUMAN RIGHTSCOMMISSION Structure 20.1    Introduction 20.2    Learning Objectives 20.3    National Human Rights Commission 20.3.1    Composition 20.3.2    Powers and Functions Self Check Exercise-1 20.4    Working of the National Human Rights Commission Self Check Exercise-2 20.5    Role of the National Human Rights Commission and Its Evaluation Self Check Exercise-3 20.6    Summary 20.7    Glossary 20.8    Answers to Self- Check Exercise 20.9    References / Suggested Readings 20.10    Terminal Questions 20.1    Introduction Dear students, Human rights can be defined as those fundamental rights which the human beings have by the fact of being human, and which are neither created nor abrogated by any government. Human rights are the rights and freedoms entitled to all human beings. They are fundamental and universal. Throughout human history, human rights as a concept have been constantly evolving. These rights are associated with the laws, customs and religion from a long time. People‘s duties, rights and responsibilities are addressed in five oldest written sources which are the Hindu Vedas, the Babylonian Code of Hammurabi, the Bible, the Quran and the Analects of Confucius. These rights are provided in different ways in different countries around the world. In India, these rights have been incorporated in the Constitution whereas in the UK these rights are provided through precedents. Human rights are the basic rights and freedoms that all people are entitled to everywhere. Human rights also put the responsibility on the person to not to violate another person‘s human rights. Human rights are of various types such as economic rights, social and civil rights, political and cultural rights. For the protection and implementation of human rights, not much codification was done prior to the Second World War. Under the aegis of the United Nations the Universal Declaration of Human Rights (1948) ensured detailed elaboration of human rights. Human rights as a concept are still evolving. Internationally and nationally, Human Rights are the rights relating to life, liberty, equality, and dignity of the individual guaranteed by the constitution or embodied in the International Covenants and enforceable by courts in India. The National Human Rights Commission is an embodiment of India‘s concern for the promotion and protection of human rights. India is also a signatory country to the Universal Declaration of Human Rights. The provisions of fundamental rights and directive principles of state policy in Indian constitution are the manifestations of human rights in India. In order to protect human rights in India the National Human Rights Commission has been set up which acts as a watchdog of human rights in the country. 20.2    Learning Objectives After going through this unit students will be able: □ To enhance their knowledge about National Human Rights Commission, its working and role. 20.3    National Human Rights Commission The establishment of India‘s National Human Rights Commission (NHRC) in 1993 resulted from the culmination of a number of national and international factors. Internal conflicts in Punjab, Jammu & Kashmir and the North-Eastern states escalated in the 1980s and early 1990s and were dealt with by the government with a heavy hand. The media, civil society organisations and the general public increasingly expressed concern about police and security forces‘ actions in tackling insurgency and the culture of impunity within the government - basic human rights were being ignored in the name of national security. It raised a need to create a separate body to address Human rights and to protect the violation of Human Rights. The ratio continuously kept on growing on the matters related to custodial deaths and tortures, extra judicial killings, child labour, sexual violence and arbitrary arrest and detention etc. The nonstop pressure from the foreign countries and the overflowing rates of crimes led to the creation of National Human rights commission. Thus, in the year 1992 the bill was passed in Lok Sabha and in the year 1993, the president promulgated an ordinance for the establishment of commission on Human rights at state level but after certain amendments, the bill was finally passed by both the houses and replaced the ordinance. On January 8, 1994 this bill became an act known as the protection of Human rights act, 1993. It was established in conformity with the Paris Principles , adopted for the promotion and protection of human rights in Paris (October, 1991) and endorsed by the General Assembly of the United Nations on 20 December, 1993.The provisions of the Protection of Human Rights Act of 1993 were amended in 2006. 20.3.1    Composition The National Human Rights Commission is multi member body. This commission shall have a retired chief justice of Supreme Court as its chairperson. There shall be four other members among them one should be serving or retired judge of the apex court, a serving or retired chief justice of a high court and two members to be appointed from amongst the persons having knowledge or practical experience in matters relating to human rights. Apart from these full members, the chairpersons of the National Commission for Minorities, the National Commission for SCs, the National Commission for STs and the National Commission for Women shall be the ex-officio members of the commission. The chairperson and the four members are appointed by the president of India on the basis of the recommendations of a committee having six members. This committee shall be headed by the prime minister. The speaker of the Lok Sabha, the deputy chairman of Rajya Sabha, union home minister and leaders of the opposition of both houses of the parliament shall be members of the committee. To appoint a sitting judge of the apex court or a sitting chief justice of a high court consultation with the Chief Justice of India is mandatory. The chairperson and the members shall hold office for a term of five years or until they attain the age of 70 years whichever is earlier. The chairperson and the members cannot have further employment under the central or state government. The president can remove the chairperson or any members if he/she is adjudged an insolvent or if he/she engages in any paid employment outside the duties of his/her office during his/her tenure or if he/she is declared unfit to continue in office by reason of infirmity of mind or body or if he/she is declared unsound mind and stand by a competent court or if he/she is convicted and sentenced to imprisonment for an offence. The president can also remove the chairperson or any member on the ground of proved misbehavior or incapacity. But, in such cases, the president needs to refer the matter to the Supreme Court for an inquiry. After inquiry, if the Supreme Court upholds the cause of removal and also advises so, then the chairperson or member can be removed by the president. In order to secure autonomy and impartiality of the commission, the salaries, allowances and other conditions cannot be varied to disadvantages of the members of the commission during their tenure. 20.3.2    Powers and Functions The functions of the National Human Rights Commission (NHRC) as stated in Section 12 of the Protection of Human Rights Act, 1993 includes enquiry into complaints of violation of human rights or negligence in the prevention of such violation by a public servant. The Commission also studies treaties and international instruments on human rights and makes recommendations for their effective implementation to the Government. •    The commission can investigate any complaints related to violations of Human Rights in India either suo-moto or after receiving a petition. •    It can interfere in any judicial process that involves any allegation of violation of Human Rights. •    It can visit any prison/institute under the control of the state governments to observe the living conditions of inmates. It can further make recommendations based on its observations to the authorities. □ It can review the provisions of the Constitution that safeguard Human Rights and can suggest necessary restorative measures. •    Research in the field of Human Rights is also promoted by the commission. •    It also promotes Human Rights awareness and literacy through different media in various sectors of society. •    The commission has the power to recommend suitable steps that can prevent violation of Human Rights in India to both Central as well as State Governments. • The commission submits annual report to the president of India which is laid befo re both the Houses of the Parliament. Self- Check Exercise-1 Q.1.When was National Human Rights Commission established? Q.2. What is the composition of the National Human Rights Commission? 20.4    Working of the National Human Rights Commission The National Human Rights Commission is a statutory body which has the power to regulate its own procedure. It has the same power as of the Civil Court and proceeding done by it is of judicial nature. It has the power to ask for information or reports from the government. It has its own team which is headed by Director General of Police to investigate a matter relating to the human rights violation. It can also use the services of the investigation agency of the Union Government or any State Government. It has established cooperation with the various NGOs in the country for first hand information about human rights violation in India. But the commission cannot inquire into those matters that have been expired one year from the date on which the act constituting violation of human rights is alleged to have been committed. After the completion of an inquiry, the commission can take any of the following steps : •    It can recommend to the concerned authority or government to give payment of compensation or damages to the victim. •    It can recommend to the concerned authority or government regarding the initiation of proceedings for prosecution or any other action against the guilty public servant. •    The commission can recommend to the concerned authority or government for the grant of immediate interim relief to the victim. •    It can also approach the Supreme Court or the high court concerned for the necessary directions, orders or writs. Self-Check Exercise-2 Q.1. What is the working of the National Human Rights Commission? 20.5    Role of the National Human Rights Commission and Its Evaluation The functions of the national human rights commission are mainly recommendatory in nature. It is powerless in punishing the violators of human rights, nor to reward any relief including monetary relief to the victim .Though its recommendations are not binding on the concerned government or authority. But it should be informed about the action taken on its recommendations within a month. Though the commission‘s role may be advisory and recommendatory, yet usually government considers the cases forwarded by the former. The commission has limited powers, jurisdiction and role with respect to the violation of human rights by the members of the armed forces. The commission can ask for a report from the union government and give its recommendations. The government should inform the commission of the action taken on the recommendation within three months. The commission submits its annual or special reports to the governments of states as well as centre. These reports are laid before the respective legislatures, along with a memorandum of action taken on the recommendation of the commission and the reasons for non- acceptance of any of such recommendations. There are many cases and types of Human rights violations prevailing in India. Some of the major issues covered by the NHRC to protect and safeguard the violation of Human rights in India are custodial torture, false encounter, sexual harassment, arbitrary arrest and detention, violence against women and children, protection of rights of bisexual, gay, lesbian and transgender, difficulties faced by scheduled tribes and people living in minority areas etc. The NHRC has established its position since its formation. It is regarded as a reputed and independent body to protect Human rights. The NHRC has achieved a great success with its determination. After its formation, the commission was flooded with huge number of complaints. But NHRC has only right to register the complaints and forward them to Supreme Court for their enforcement. It does not have any right to directly take action on any of these issues. Thus, former chairman of NHRC, H.L.     Dutta     has      regarded     NHRC     as     a     toothless      tiger. Apart from that, NHRC has a big involvement in helping most of the victims and to provide them relief. Now, a fast track system of complaints have been adopted and complains will be registered with computerization to prevent heavy case works. In the year 2016, The NHRC and Jan Swasthya Abhiyan (JSA) organized a regional public hearing on rights to health care for the western region in association with Union Ministry of Health and family welfare at Mumbai. The main reason of this public hearing is to know the working status of Human rights violations in public and private health care services in India. The NHRC has also visited many areas all over the country to spread the awareness among people regarding violation of Human rights. It has also requested all State Governments to report the cases of custodial deaths or rapes within 24 hours of occurring or else failing would be assumed as that there was an attempt to suppress the incident. It has recommended that more focus should be given on laws related to the protection of human rights that exist but has not implemented. It has recommended to bring human rights curriculum not only in colleges but also in NCERT Curriculum at primary levels. It has also recommended on matters related to sexual assault .This commission has also stated that proper implementation of Environmental Law is necessary. It had issued notice to the Centre and the Governments of Delhi, Punjab and Haryana to take adequate measures to protect the violation of right to life and health. The commission also provides immediate interim relief correlated to the injury or loss which the victim or members of his family have suffered due to the violation of human rights by public servants. The main duty of agents of government is to protect and serve the public. The power of enforcing the law has been provided to them but that does not give them the privilege to act against the Law. The NHRC does not take into consideration complaints relating to economic, social and cultural rights. Self Check Exercise-3 Q.1 What is the role of the National Human Rights Commission? 20.6    Summary The National Human Rights Commission has been functioning for approximately three decades. It has taken several measures to promote and protect a culture of human rights in the country. These include awareness programs through organizing Seminars and Workshops on human rights issues , imparting training and bringing out publications on human rights, , reviewing various laws keeping human rights perspective in mind, and making various recommendations to make them more human rights friendly .It also assesses the implementation of various programs/ schemes of government which has a bearing upon the enforcement of human rights and makes suggestions for their better implementation. However, there are certain issues associated with their functioning, as we have already discussed. The need of the hour is to make this commission more powerful. The effectiveness of human rights commission will be greatly enhanced if its decisions are immediately made enforceable by the government. Commission must also have clear and well-defined powers to proceed against government departments furnishing false reports. A large number of human rights violations occur in areas where there is insurgency and internal conflict. There are certain other issues which make the NHRC powerless. It is in the best interest of citizens, that these issues are resolved at the earliest. A wholehearted attempt from the legislature, the executive and all other stakeholders is needed to ensure the autonomy and effectiveness of this institution. 20.7    Glossary •    Suo Motto: A Latin legal term. It is used where a government agency acts on its own cognizance. •    Enforceable: able to be imposed so that it must be compiled with. 20.8    Answers to Self- Check ExerciseSelf- Check Exercise-1 Ans.1. See Section 20.3 Ans.2. See Sub- Section 20.3.1 Self- Check Exercise-2 Ans.1. See Section 20.4 Self Check Exercise-3 Ans.1. See Section 20.5 20.9    References / Suggested Readings •    Naincy Goyal, ―NHRC: A Critical Analysis on its role and importance‖. https:/ humanhandstogether.com •    Mandeep Tiwana, ―Needed: More Effective Human Rights Commissions in India‖ Access to Justice Program, CHRI,newsletter-Summer-2004-final (humanrightsinitiative.org) •    Shivani Verma,      ―All about National     Human      Rights Commission‖. https://blog.ipleaders.in/nhrc. •    Chiranjivi J. Nirmal (ed.) (2002), Human Rights in India: Historical, Social and Political Perspectives, Oxford University Press India. •    Satvinder Juss, (ed.) (2020), Human Rights in India, Routledge (Manohar Publishers & Distributors) •    M.Laxmikant, (2021), Indian Polity, MC Graw Hill, Chennai. 20.10    Terminal Questions 1    What is the composition of National Human Rights Commission? What are the powers and functions of the National Human Rights Commission? 2    Critically examine the role of NHRC in protecting and promoting human rights in India. UNIT -21 STATUTORY BODY: NATIONAL COMMISSION FOR WOMEN Structure 21.1    Introduction 21.2    Learning Objectives 21.3    National Commission for Women 21.3.1    Composition 21.3.2    Powers and Functions 21.3.3    Complaint & Investigation Cell 21.3.4    Legal Cell 21.3.5    Policy Monitoring and Research Cell 21.3.6    North East Cell Self Check Exercise-1 21.4    Importance and Working of the National Commission for Women Self Check Exercise-2 21.5    Drawbacks Self Check Exercise-3 21.6    Summary 21.7    Glossary 21.8    Answers to Self- Check Exercise 21.9    References / Suggested Readings 21.10    Terminal Questions 21.1    Introduction The National Commission for Women (NCW) was formed with an intention to establish an equal and just livelihood for women by making legal and constitutional amendments for women in India. Violence against Women is a fundamental violation of human rights, across nations, societies, cultures and classes and to stop this violation of the fundamental right; this Commission was formed. It recommends the remedial legislative measures; redresses grievances and advises the government on all policy matters affecting women. It enjoys all the powers of a civil court. Adversaries faced by the women in the country have been one of the biggest concerns of the government and other authorities. Over the years, many commissions have been set up by the government to look into the welfare of women in the country. According to the reports of these commissions, all of them state the necessity of setting up an apex body for reviewing and addressing the grievances of women in the country. The main intention for the establishment of the NCW was to ensure equal livelihood for women by making constitutional amendments and laws that favour them. The commission was formed to prevent any kind of violence or exploitation against women. Women are vulnerable and the problems faced by them are numerous and such a commission was established to resolve such issues concerning their rights. It is the state necessity to set up such commissions to address the grievances of women in the country. 21.2    Learning Objectives After going through this unit students will be able to enhance their knowledge about National Commission for Women and its working. 21.3    National Commission for Women21.3.1    Composition The National Commission for Women was set up as statutory body in January 1992 under the National Commission for Women act, 1990.The first commission was constituted on 31st January 1992 under the chairmanship of Jayanti Patnaik. Ms.Rekha Sharma is the current Chairperson of the National Commission for Women. The Commission consists of a chairperson, a member secretary, and the other five members. The central government nominates the chairperson. The five members are also nominated by the central government from amongst the person of ability, integrity, and standing. They should possess experience in various fields like law or legislation, trade unionism, management of industry potential of women, women‘s voluntary organization, education, administration, economic development, and social goodbeing. The union government also nominates member secretary. He/ she should be either an expert in the field of management, an organization, or an officer who is a member of civil service of the union or of an all-India service or holds a civil post under the union with appropriate experience.Ms.Rekha Sharma is the present chairperson of the commission. 21.3.2    Powers and Functions The National Commission of Women enjoys the powers of a civil court. It investigates and examines the matters related to the safeguards ensured for feminine society under the Indian constitution. Table reports to the Central Government, every year and at such other times as the Commission may deem fit, reports upon the working of those safeguards. Make in such reports and recommendations for the effective accomplishment of those safeguards for enhancing the conditions of the women by the Union or any State. The members of NCW take part in the planning process of socio-economic development of women, propose measures to encourage their representation in all spheres, and review their advancement. It also recommends amendments to meet any inadequacies or deficiencies, and advocate measures for effective implementation of the safeguards to women in India. It looks into complaints, and takes suo motto notice of matters relating to – deprivation of women‘s rights, Non-implementation of the laws, and Non-compliance of policy decisions guaranteeing the welfare for women society. It conducts special studies or investigation on the concerning issues or circumstances emerging out of segregation and outrages against ladies and recognizes the limitations in order to suggest techniques for their expulsion. It takes part and advice on the planning process of socioeconomic development of women assesses the progress of the development of women society under the union and states. It also investigates or cause to be inspected a jail, remand home women‘s establishment or other places of guardianship where ladies are kept as detainees. The Parivarik Mahila Lok Adalat , (PMLA) is an innovative component with its roots in the traditional Nyaya Panchayats . It is created by NCW for the redressal and speedy disposal of cases. The essential feature of PMLA is cordial mutual settlement and flexibility in implementation, aiming to empower women in the justice delivery mechanism. 21.3.3    Complaint & Investigation Cell This cell is the core unit of the commission. The power of selecting members is vested with the centre government and the nature of the country‘s volatile political scenario tends the commission to be politicized. It processes the complaints received orally in writing or online via official website of the National Commission for Women. It deals with the complaints received from all over the country including those relating to deprivation of rights of women and involving injustice to women takes suo motu cognizance of incidents related to commission of heinous crimes against women. The complaints are received related to domestic violence, harassment, dowry, torture, desertion, bigamy, rape, and refusal to register FIR, cruelty by husband, deprivation, gender discrimination, and sexual harassment at the workplace. Processing of Complaints To provide adequate relief to the complainant and ensure suitable redressal of her grievances. The complaints are acted upon in the following manner : 1.    Investigations by the police are expedited and monitored. 2.    Family disputes are resolved or compromised through counseling or hearing before the Commission.. For serious crimes, the Commission constitutes an Inquiry Committee which makes spot enquiries, examines various witnesses, collects evidence and submits the report with recommendations. Such investigations help in providing immediate relief and justice to the victims of violence and atrocities. The implementation of the report is monitored by the NCW. There is a provision for having experts/lawyers on these committees. 3.    A few complaints are also forwarded to the respective State Commissions for Women and other forums like the National Human Rights Commission, National Commission for Scheduled Caste / Scheduled Tribe, etc., for disposal of the complaints at their end. 4.    In respect of complaints related to sexual harassment of women at their workplaces, the concerned organizations or departments are urged to constitute an Internal Complaints Committee (ICC) as per the mandatory provisions Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 in order to enquire into such complaints. The Commission regularly monitored and takes up these complaints with the concerned organizations/departments to expedite the disposal of the complaints by following the statutory provisions. The complaints received show the trend of crimes against women and suggests systemic changes needed for reduction in crimes.The complaints are analyzed to understand the gaps in routine functioning of government in tackling violence against women and to suggest corrective measures.The complaints are also used as case studies for sensitization programmes for the police, judiciary, prosecutors, forensic scientists, defence lawyers and other administrative functionaries.The suggestions given by the National Commission for Women has no enforceability value over any State or Central Government. It is an entity to take measures if any issue arises. There are numerous unreported cases of violence against women. 21.3.4    Legal Cell In accordance with the commission ,as per Section 10 of the National Commission for Women Act, 1990 , that is to review the existing provisions of the constitution and other laws affecting women and recommend amendments thereto so as to suggest remedial legislative measures to meet any lacune, inadequacies or short comings in such legislations,the commission during the year 201516 reviewed various laws and made recommendations thereto.The commission is concerned about spreading awareness about the rights and laws related to women and in this regard a number of awareness programmes were organized with help of law colleges,universities. The commission is also concerned about the capacity building of police officers and in furtherance of the same the commission jointly organised with Bureau and Police Reserch Development Training courses for Women Police Officers in investigation of cases involving Crime against women. 21.3.5    Policy Monitoring and Reserch Cell As per the mandate, the Commission undertake special studies, organizes Seminars / Conferences and Workshops in collaboration with Non-Governmental Organizations (NGOs), Voluntary organizations, Universities/Colleges, Autonomous bodies, Institutions etc. It engages with the civil society groups, academicians, activists working on women issues and other stakeholders working towards gender rights and empowerment to get information from the grassroot level and their intellectual input. The PPMRC Cell deliberate on the issues related with socio economic conditions of women in the country and calls for special studies or investigations into specific problems or situations arising out of discrimination against women and undertakes promotional and educational research so as to suggest ways of ensuring due representation to women in all spheres. Social mobilization, maintenance and divorcee women, Panchayati Raj in action, women labour-under contract, gender bias in judicial decisions, family courts, gendercomponent in the various Commissions' reports for women, violence against women, women's access to health and education in slums etc. to help in formulation of NCW's policies for recommendations. The Cell evaluates the progress of the development of women for which clear gender profile for different states is being prepared. This Cell also conducts seminars, workshops and conferences in collaboration with state governments, civil society organisations, experts for understanding the various problem areas in the field and to suggest action plan/ remedial measures to resolve these problems. 21.3.6    North East Cell National Commission for Women has constituted a North East Cell in the Commission to address problems being faced by North East women all over the country and to take special steps for development and empowerment of them. In addition, NE Cell has been created to enhance the focus on the women of NE and their special problems/challenges, and also to intervene with State and Central Governments whenever required. North East Cell coordinates all activities for addressing issues concerning women in the NorthEastern States including special problems/challenges and to take initiatives for their development and empowerment.It organizes all matters relating to seminars/workshops/consultation/research studies/legal awareness programmes, etc. in North east States. It organises meetings and conferences in North East States. It also works on Capacity Building Training of Elected Women Representatives in Panchayati Raj Institution. It also works on coordination for home-stay tourism in North-East with Governments and State Commissions for Women. Self Check Exercise-1 Q.1. When was the National Commission for Women was established? Q.2. What is complaint & investigation cell of National Commission for Women? 21.4    Importance and Working of the National Commission for Women Women as an entity neither belong to a minority group nor are they considered a backward class. India from its inception has been a patriarchal society. Therefore women have always been subdued in society thus it became necessary to need certain strategic steps to enhance and improve the condition or status of women under maledominated society. The Supreme Court has taken vital measures for protecting the rights of women. But these have hardly sufficed to reinforce the position of women in India. In 1990, recommended the establishment of an apex body for women, the NCW. The shortage of constitutional machinery, judicial ability and social interest formed the impetus and need for the formation of the National Commission for Women. It‘s apparent from the prior mentioned conditions and problems that girls in India, though during a far better position than their ancestors, were handicapped to a broader extent. In the 1990s witnessed the violence and injustice faced by women the Government decided to form the first National Commission for women in 1992. It took up the issue of child marriage, sponsored legal awareness programmes,Parivarik Mahila Lok Adalats and reviewed laws such as Dowry Prohibition Act, 1961, PNDT Act 1994, Indian Penal Code 1860 and the National Commission for Women Act, 1990 to make them more stringent and effective. It has been organizing various workshops/consultations, constituted expert committees on economic empowerment of women, conducted workshops/seminars for gender awareness and took up publicity campaign against female feticides, violence against women etc. in order to generate awareness in the society against these social evils throughout the country. 21.5    Drawbacks National Commission for Women has been often criticised for its inability to effectively strategise and tackle the problems faced by women at both public and private spheres. NCW has been criticised as toothless and spineless. The body is only recommendatory and has no power to enforce its decisions. The body has often been reactive and arbitrarily taken up select issues and responded to them. The NCW has no actual legislative powers. It only has the powers to suggest amendments and submit reports which are not obligatory on a state or Union Governments. It does not have the power to choose its own members. The power selecting members is vested with the Union Government and the nature of the country‘s volatile political scenario tends the commission to be politicized.On financial assistance this commission is dependent on the Union Government and this could compromise the independence of the Commission.Members have at times exhorted bias and prejudice due to the influence of the prevalent patriarchy in our society. Also, the commission has been limited in its fight for empowering Indian women due to shortcomings in its composition and structure: NCW has no power to take legal actions against the Internal Complaint Committees which have a lackadaisical attitude towards grievance redressal of women facing harassments at the workplace. NCW‘s functions are dependent on the grants offered by the central government. Financial assistance provided to the Commission is very less to cater to its needs. It lacks constitutional status and thus has no legal powers to summon police officers or witnesses. Self Check Exercise-2 Q.1.What is the importance of the National Commission for Women? Q.2. What are the drawbacks of National Commission for Women? 21.6    Summary The need for a national level body to raise issues of women and to make effective interventions at the law and policy making levels with a view to ensure governmental accountability was the main reason for the demand for the National commission for Women. The present, the NCW indicates that though the commission was created with a lot of hope and expectation, but it has not lived up to these expectations. The commission needs both support and legitimacy for its work from the women's organizations, but it stands distanced from them. The commission lacks autonomy and it has been restricted in the performance of its role by its institutional design. The manner of its composition has disabled it in developing into an autonomous body and has affected the quality of its work too. The most critical point of the commission's working is with regard to its role as a policy recommendatory body. Therefore the need of the hour is that the commission must be granted the facility of choosing its members. The members should be chosen with no prejudice and should have a good knowledge of the law and understand society and human behaviour. There is a need for an increase of awareness and enlightenment especially required among uneducated women mainly in the rural areas that such a commission exists to address their rights. There should be a good network of individuals employed to reach out and help women who are vulnerable and prone to exploitation. The National Commission for women works efficiently in India but it is not full proof as it still needs improvement. Only through joint efforts of all the stakeholders this commission can become more powerful and effective body. 21.7    Glossary •    Arbitrary: Based on or determined by individual preference or convenience rather than by necessity or the intrinsic nature of something. •    Autonomy: The right of an organisation, country, or region to be independent and govern itself. 21.8    Answers to Self -Check ExercisesSelf Check Exercise-1 Ans.1. See Sub - Section 21.3.1 Ans.2. See Sub -Section 21.3.3 Self-Check Exercise-2 Ans.1.See Section 21.4 Ans.2. See Section 21.5 21.9    References / Suggested Readings •    M.Laxmikant, (2021), Indian Polity, MC Graw Hill, Chennai. •    Jeffy Johnson, ―National Commission for Women: working, composition and functions.‖ •    https://ncw.nic.in (official website of National Commission for Women). 21.10    Terminal Questions 1.     Write the composition, powers and functions of the National Commission for Women. 2.     Write an essay on the importance and working of the National Commission for Women. ASSIGNMENTS M.A. Political Science - 1st Semester Indian Politics I: Political InstitutionsCourse Code: POLS104 M.M-20 Note: Attempt any four questions of the following: 1.    What is Constitution? What is the role of colonial legacy in the making of Indian Constitution? 2.    Discuss critically the Fundamental Rights enshrined in the Indian Constitution. 3.    What are the powers of Prime Minister? Examine the position of Prime Minister in the Indian parliamentary system. 4.    Write down the composition, powers and functions of the Supreme Court of India. 5.    ―Indian federalism is tilted towards strong centre‖ .Give arguments 6.    What were the provisions under article 370 of Indian Constitution? What are the different opinions regarding abrogation of Article 370? 7.    Critically examine the role of National Human Rights Commission in protecting and promoting human rights in India. 8.    Write the composition, powers and functions of the National Commission for Women. 172