CONSTITUTIONAL

GOVERNMENT AND
DEMOCRACY IN INDIA
B.A (HONS.) POLITICAL SCIENCE
SEMESTER-III
DISCIPLINE SPECIFIC CORE COURSE
DSC-9

DEPARTMENT OF DISTANCE AND CONTINUING EDUCATION

UNIVERSITY OF DELHI
Constitutional Government and Democracy in India

Editorial Board
Dr. Shakti Pradayani Rout
Dr. Shambhu Nath Dubey
Dr. Mangal Deo

Content Writers
Kuver Pranjal Singh, Abhishek Nath, Ashutosh Kumar Jha,
Manila Narzary, Satya Prakash, Dr. Smita Agarwal,
Nishant Yadav, Pramod Kumar, Dr. Abhishek Choudhary

Content Reviewer from DDCE/COL/SOL

Kusum, Vinay Kumar Pandey

Academic Coordinator
Deekshant Awasthi

© Department of Distance and Continuing Education

ISBN: 978-81-19417-74-2
1st edition: 2023
E-mail: [email protected]
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Published by:
Department of Distance and Continuing Education
Campus of Open Learning/School of Open Learning,
University of Delhi, Delhi-110 007

Printed by:
School of Open Learning, University of Delhi

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 Constitutional Government and Democracy in India

This Study Material is duly recommended and approved in Academic Council

meeting held on 11/08/2023 Vide item no. 1015 and subsequently Executive
Council Meeting held on 25/08/2023 vide item no. 1267.

 All units are taken from CBCS. All the lesson are reframed according to
UGCF 2022, NEP.
 Corrections/Modifications/Suggestions proposed by Statutory Body,
DU/Stakeholder/s in the Self Learning Material (SLM) will be incorporated in
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Constitutional Government and Democracy in India

SYLLABUS
Constitutional Government and Democracy in India
Syllabus Mapping

Unit I: The Constituent Assembly and the Constitution

a) Philosophy of the Constitution, the Preamble, and Lesson 1: Philosophy of the Constitution,
Features of the Constitution. the Preamble and Features of the
b) Citizenship, Fundamental Rights, Directive Principles Constitution
and Fundamental Duties (Pages 3-18)
Lesson 2: Citizenship
(Page s 19-31)
Lesson 3: Fundamental Rights, Directive
Principles and Fundamental Duties
(Pages 33-50)

Unit II: Organs of Government

a) The Legislature: Power and Functions of Parliament, Lesson 4: The Legislature: Power and
Debates on Representation in Parliament. Functions of Parliament
b) The Executive: Election, Power, Functions and the (Pages 53-74)
Changing Role of President and Prime Minister. Lesson 5: Debates on Representation in
c) The Judiciary: Appointment of Judges in High Courts Parliament
and the Supreme Court, Power and Functions of High (Pages 75-90)
Courts and the Supreme Court. Lesson 6: The Executive: Election, Power,
Functions and the Changing Role of
President and Prime Minister
(Pages 91-112)
Lesson 7: The Judiciary: Appointment of
Judges in High Courts and the Supreme
Court, Power and Functions Of High
Courts and the Supreme Court
(Pages 113-134)

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Unit III: Federalism and Decentralization
a) Centre-State Relations, Asymmetrical Federalism Lesson 8: Centre-State Relations and
b) The Panchayats and Municipalities Asymmetrical Federalism
(Pages 137-148)
Lesson 9: The Panchayats
(Pages 149-168)
Lesson 10: The Municipalities
(Pages 169-184)

Unit IV: Constitutional Provisions and National Security Laws

a) Emergency Provisions Lesson 11: Emergency Provisions
b) Preventive Detention and National Security Laws ( Pages 187-199)
Lesson 12: Preventive Detention and
National Security Laws
(Pages 201-216)
Constitutional Government and Democracy in India

CONTENTS

UNIT I: THE CONSTITUENT ASSEMBLY

AND THE CONSTITUTION
LESSON 1 PHILOSOPHY OF THE CONSTITUTION, THE PREAMBLE AND
FEATURES OF THE CONSTITUTION 3-18

1.1 Learning Objectives

1.2 Introduction
1.3 Objective Resolution
1.4 Basic Structure Doctrine
1.5 The Preamble
1.6 Text of the Preamble
1.7 Ideals
1.7.1 Secular
1.7.2 Democratic
1.7.3 Fraternity and Dignity
1.8 Features of Indian Constitution
1.9 Conclusion
1.10 Self-Assessment Questions
1.11 References
LESSON 2 CITIZENSHIP 19-31

2.1 Learning Objectives

2.2 Introduction
2.3 Historical/Theoretical Understanding on Citizenship

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 Constitutional Government and Democracy in India

2.4 Struggle for Rights and T.H. Marshall

2.5 Citizenship in India
2.5.1 Constitutional Provisions of Citizenship
2.5.2 Legal Provisions Related to Citizenship
2.5.3 Loss of Citizenship
2.6 Special Provisions of Citizenship in Assam Under Assam Accord
2.6.1 Assam Accord and the Question of Identification of Illegal Immigrants
2.6.2 Assam Accord and National Register of Citizens
2.7 Conclusion
2.8 Self-Assessment Questions
2.9 References
LESSON 3 FUNDAMENTAL RIGHTS, DIRECTIVE PRINCIPLES AND
FUNDAMENTAL DUTIES 33-50

3.1 Learning Objectives

3.2 Introduction
3.3 Fundamental Rights
3.4 Fundamental Rights and Human Rights
3.5 Nature of Fundamental Rights
3.6 Rights Under Fundamental Rights
3.7 Directive Principles of State Policy
3.8 Relationship between Fundamental Rights and Directive Principles of State Policies
3.9 Constitutional Relationship
3.10 Conclusion
3.11 Self-Assessment Questions
3.12 References

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Constitutional Government and Democracy in India

UNIT II: ORGANS OF GOVERNMENT

LESSON 4 THE LEGISLATURE: POWER AND FUNCTIONS
OF PARLIAMENT 53-74

4.1 Learning Objectives

4.2 Introduction
4.3 Rajya Sabha
4.3.1 Presiding Officer of Rajya Sabha
4.3.2 Special Powers of Rajya Sabha
4.4 Lok Sabha
4.4.1 Term and Dissolution of the Lok Sabha
4.5 Relation between the Two Houses
4.6 Sessions of the Parliament
4.7 Powers of Parliament
4.7.1 Amendment of the Constitution
4.7.2 Legislative Procedure
4.7.3 Privileges, Powers and Immunities of the Members And House
4.8 The Parliamentary Committees
4.9 Restrictions on the Parliament
4.10 Conclusion
4.11 Self-Assessment Questions
4.12 References
LESSON 5 DEBATES ON REPRESENTATION IN PARLIAMENT 75-90

5.1 Learning Objectives

5.2 Introduction
5.3 Historical Narrative of Representation

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 Constitutional Government and Democracy in India

5.4 General Elections and Representation of SCs and STs in Parliament:

1952-2019
5.5 Representation of Women
5.6 Representation of Other Backward Classes and Muslims
5.7 Conclusion
5.8 Self-Assessment Questions
5.9 References
LESSON 6 THE EXECUTIVE: ELECTION, POWER, FUNCTIONS AND THE
CHANGING ROLE OF PRESIDENT AND PRIME MINISTER 91-112

6.1 Learning Objectives

6.2 Introduction
6.3 The President
6.3.1 Qualifications to Become President
6.3.2 Election of the President
6.3.3 Privileges of the President
6.3.4 Legislative Powers
6.3.5 Financial Powers
6.3.6 Position of the President
6.4 The Prime Minister
6.4.1 Power and Functions of the Prime Minister
6.4.2 Prime Minister and the President
6.5 Conclusion
6.6 Self-Assessment Questions
6.7 References
LESSON 7 THE JUDICIARY: APPOINTMENT OF JUDGES IN HIGH COURTS
AND THE SUPREME COURT, POWER AND FUNCTIONS OF HIGH
COURTS AND THE SUPREME COURT 113-134

7.1 Learning Objectives

7.2 Introduction

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Constitutional Government and Democracy in India

7.3 Appointment of Judges

7.4 Jurisdiction of the Supreme Court
7.5 Other Provisions
7.6 Independence of the Judiciary
7.7 The State High Courts
7.7.1 Extension of Jurisdiction of High Court
7.8 Judicial Activism
7.9 Public Interest Litigation
7.10 Conclusion
7.11 Self-Assessment Questions
7.12 References

UNIT III: FEDERALISM AND DECENTRALIZATION

LESSON 8 CENTRE-STATE RELATIONS AND ASYMMETRICAL
FEDERALISM 137-148

8.1 Learning Objectives

8.2 Introduction
8.3 Division of Powers
8.4 Legislative Relations
8.5 Administrative Relations
8.6 Financial Relations
8.7 Fifth and Sixth Schedules
8.8 Conclusion
8.9 Self-Assessment Questions
8.10 References

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 Constitutional Government and Democracy in India

LESSON 9 THE PANCHAYATS 149-168

9.1 Learning Objectives

9.2 Introduction
9.3 73rd Amendment Act: Key Mandatory Provisions
9.4 The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996
9.5 Convergence of Pris with Development
9.6 Conclusion
9.7 Self-Assessment Questions
9.8 References
LESSON 10 THE MUNICIPALITIES 169-184

10.1 Learning Objectives

10.2 Introduction
10.3 Evolution of Municipalities
10.4 Key Features of the Act
10.5 Conclusion
10.6 Self-Assessment Questions
10.7 References

UNIT IV: CONSTITUTIONAL PROVISIONS AND

NATIONAL SECURITY LAWS
LESSON 11 EMERGENCY PROVISIONS 187-199

11.1 Learning Objectives

11.2 Introduction
11.3 Period of Proclamation
11.4 Emergency in the State: Effects of President’s Rule
11.5 Significant Amendments Made to the Provision

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Constitutional Government and Democracy in India

11.6 Major Disputes Related to the Emergency Provisions

11.7 Conclusion
11.8 Self-Assessment Questions
11.9 References
LESSON 12 PREVENTIVE DETENTION AND NATIONAL
SECURITY LAWS 201-216

12.1 Learning Objectives

12.2 Introduction
12.3 Preventive Detention: Historical Perspective and Constitutional Provisions
12.4 Laws Related To Preventive Detention and National Security
12.5 Security Versus Human Rights: Rise of the Indian Security State?
12.6 Conclusion
12.7 Self-Assessment Questions
12.8 References

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UNIT I: THE CONSTITUENT ASSEMBLY AND
THE CONSTITUTION

LESSON 1 PHILOSOPHY OF THE CONSTITUTION,

THE PREAMBLE AND FEATURES OF
THE CONSTITUTION

LESSON 2 CITIZENSHIP

LESSON 3 FUNDAMENTAL RIGHTS, DIRECTIVE

PRINCIPLES AND FUNDAMENTAL
DUTIES
Philosophy of the Constitution, the Preamble and Features of the Constitution

LESSON 1 NOTES

PHILOSOPHY OF THE CONSTITUTION,

THE PREAMBLE AND FEATURES OF
THE CONSTITUTION
Kuver Pranjal Singh
Assistant Professor
Zakir Hussain College, DU
Structure
1.1 Learning Objectives
1.2 Introduction
1.3 Objective Resolution
1.4 Basic Structure Doctrine
1.5 The Preamble
1.6 Text of the Preamble
1.7 Ideals
1.7.1 Secular
1.7.2 Democratic
1.7.3 Fraternity and Dignity
1.8 Features of Indian Constitution
1.9 Conclusion
1.10 Self-Assessment Questions
1.11 References

1.1 LEARNING OBJECTIVES

 The lesson would discuss the foundational philosophy of the Indian Constitution
and its rules and regulations.
 It would help students understand the objectives of Indian constitution makers
and enable them to have knowledge of the various features of the constitution.
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 Constitutional Government and Democracy in India

NOTES  It is an introductory lesson on the constitution of India and its enshrined values
and philosophy.

1.2 INTRODUCTION

A constitution sets rules for governance in the way that it gives definition to the power
of the government and at the same time presents a structure of regulations that limits
the power of the government. The state is then checked continuously to protect it from
becoming tyrannical. A Constitution is a document that prescribes how the state should
be and what principles it is going to follow. Constitutions all over the world have been
known to give norms on which both the state and society would function, and to
understand the basis of these principles enshrined in a constitution, one must do a
detailed enquiry into the philosophy of the document. To do the task of philosophy or
political philosophy is to enquire not only how but what gives legitimacy to the law in
any constitution. How the law must have come into being and what purpose it must
serve? This interpretive method would also help us understand the moral values
enshrined in a constitution and their relationship with the law. The Indian Constitution
is one such document that not only gives rules and forms of governance, such as the
fact that Indian polity follows the system of parliamentary democracy because the
Constitution says so, but it also empowers the citizen by giving them rights. The
Constitution has many roles to play in Indian polity. Granville Austin, in his book, The
Indian Constitution: Cornerstone of a Nation, calls it a document of ‘social
revolution’. The Constitution essentially aims at transforming society for the better,
bringing out the transformative role of the Constitution. It must be kept in mind that
while the Constitution has ambitions to serve the needs of the people of India, it is not
bound by any one tradition.
The Introduction of The Oxford Handbook of the Indian Constitution says
that “It reflects and be in service of a global discussion on law and values”. The
Constitution can be called a universal document because it advocates universal values
of liberty, equality, and fraternity. Another reason to call it a cosmopolitan constitution
is that it is on par with international standards of constitutional law. The values and
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Philosophy of the Constitution, the Preamble and Features of the Constitution

principles enshrined in the Constitution of India are parallel to the United Nations NOTES
Human Rights Declaration and, for that matter, other constitutions around the world.
Many thinkers argue that the crux of the philosophy of the Indian Constitution
can be seen in the Preamble itself. But how can a document of the length of a page give
a precise interpretation of the philosophy of one of the longest constitutions in the
world? The answer is somewhere in the text of Preamble. Interestingly, the concepts
mentioned objectively in the text give life and meaning to the Indian Constitution. The
concepts represent ideologies of their own and give insight into the kind of constitution
the makers and the present leaders want it to be. The Preamble essentially expresses
the aims of the Indian Constitution that it wants to achieve.
The ideology behind the Constitution is reflected in the Objective Resolution.
The document was written before the Constitution. The text of the resolution is an
embodiment of the aspirations of the leaders of the national struggle, national ethos,
and values. The document is also a source of legitimacy for the Constitution as it was
debated in the Constituent Assembly, and it expresses the aspirations of the makers of
the Constitution as to what they expected of the Constitution and how it should be.
To do a philosophical enquiry into the Constitution of India is to understand the
conceptual structure of the Constitution. What are its aims and how does it achieve it?
Why do people believe in the document? What values does the Constitution enshrine
and why? Has the Constitution been able to live up to what the makers thought it
would be? To do so, the chapter will essentially deal with the two documents mentioned
above, i.e., Objective Resolution and the Preamble.

1.3 OBJECTIVE RESOLUTION

The Objective Resolution was moved in the first session of the Constituent Assembly
on 13, December 1946 by Jawahar Lal Nehru. It was adopted by the Assembly on
22, August 1947 after debate and discussions. The resolution was, in fact, the text
defining the aims of the Constituent Assembly which was responsible for deciding
what had to go in the constitution-making process. The resolution presented a moral
commitment to the assembly to establish a sovereign democratic republic with equality
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 Constitutional Government and Democracy in India

NOTES of status and equal opportunity. The resolution was, of course, the basis for the Preamble
which is known as the spirit and soul of the Indian Constitution. Objective Resolution
gave direction to the constitution framers. The objectives and ideals will be studied in
greater detail in the following section. These objectives laid down the national goals on
high ideals of republicanism, social, political and economic democracy, and minority
rights.

1.4 BASIC STRUCTURE DOCTRINE

The Preamble says that people are the ultimate authority, and the constitution emerges
from them. The word ‘emerges’ is used rather than ‘emerged’ because the constitution
can be amended according to time but not the ‘basic structure’. What does the basic
structure of the Constitution mean? Why does it matter anyway? The objectives
mentioned in the Preamble define values and ideals to be the norms followed by the
state and the subjects; this constitutes the basic element of the Constitution. According
to the Supreme Court judgments, the basic structure of the Constitution cannot be
amended in exercise of the power under Article 368 of the Constitution. The features
of the basic structure include the supremacy of the Constitution, a republican and
democratic form of government, the secular character of the Constitution, the separation
of powers of the legislature, the executive and the judiciary and the federal character
of the Constitution. It was also made evident in Keshav Nanda Bharti Sripadagalvary
v. State of Kerala in 1973 after a number of other judgments that the Preamble to the
Constitution is part of the Constitution.
In the Berubari case, the court agreed that the Preamble was in the minds of
the framers. Justice Gajendragadkar said that the Preamble was not a part of the
Constitution. It does not confer any substantial powers upon the legislatures or the
other organs of the state. Later, in another important judgment, Sajjan Singh v. State
of Rajasthan, the Court said that the Preamble has been marked by precision, is of
deep deliberation and the framers of the Constitution attach special significance to it.
The Court suggested that the Preamble should be considered a part of the Constitution.
In Golakh Nath v. State of Punjab, the Court said that the Preamble epitomizes
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Philosophy of the Constitution, the Preamble and Features of the Constitution

Constitution —eternal and unaltered. Justice Hidyatullah said in the judgement, that NOTES
our Preamble was a declaration of our faith and belief in certain fundamentals of national
life, a standard from which we must not depart and a resolve we must not shake. In
Bharti Chandra Bhavan v. State of Mysore, it was stated that the objective of the
Preamble is to help understand the Directive Principles of State Policy and Fundamental
Rights.
It was argued that India amends its Constitution so often that it becomes hard to
argue about its original intent. The judgment that held that the Preamble is part of the
Constitution was the Keshavnanda Bharti v. State of Kerala, 1973. It also said that
the power to amend is not the power to destroy. Further, it laid down that the Preamble
contained the basic structure of the Constitution.
The Supreme Court ruled that if Parliament amended any part of the Constitution,
it could not change its basic structure. Various judges have given differing definitions of
the basic structure. But the key phrases were supremacy of the Constitution; republican
and democratic government; federal and secular character of the Constitution;
maintenance of separation of powers; mandate to build a welfare state under the
directive principles of state policy; maintaining unity and integrity of India; sovereignty
of the country; essential features of individual freedoms; provision of socio-economic
justice; liberty of thought, belief, expression, faith and worship; equality of status and
opportunity.
In the Minerva Mills, 1980, the Supreme Court ruled that the Parliament could
not use its limited power and turn it into an absolute power, and upheld the basic
structure doctrine. In the same light, Justice Y.V. Chandrachud struck down the
provisions of the 42nd amendment that were not repealed by 44th amendment.
In 1976, ‘socialist’, ‘secular’, and ‘unity of the Nation’ were added to the
Preamble by the Forty-Second Amendment Act in 1976. How could these words be
added to the Preamble when the Court said that basic structure of the Constitution
cannot be amended, and the Preamble is part of the Constitution? It was believed that
these additions did not make any substantial difference to the nature of Indian politics.
Also, the forty-second amendment, which was passed by the Parliament in the time of
emergency, was highly criticized. The amendment was revised by the consequent
government after the emergency. The forty-third and forty-fourth amendments to the
Constitution amended the forty second amendment but the words ‘socialist’ and Self-Instructional
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 Constitutional Government and Democracy in India

NOTES ‘secular’ were retained. This reflected the fact that the current political party and all
parties in general accepted the changes. The following section will discuss the ideology
of the Constitution as spelled out in the keywords.

1.5 THE PREAMBLE

The Preamble is the introduction to the Constitution. It is the spirit and soul of the
Constitution. It is the mould in which the constitution is cast. The Preamble to the
Constitution contains the values that were valid and still are in the present, and are vital
for Indian politics and social life. The spirit of the Preamble will be relevant for the
times to come. People that framed the Constitution hoped that values would percolate
down to the grassroots. The Preamble presents a kind of bird’s-eye view of these key
values. In these key values and concepts, there is an establishment of a new social
order based on justice, which is social, economic, and political; liberty of thought and
expression; belief; faith; worship; equality of status and opportunity; and most
importantly, fraternity. It is also an assurance that people will live with dignity and aims
to maintain the integrity of the nation.
Empowerment of the people as an agenda of the Constitution is as important as
the rule of law character of the document. It is not merely a normative piece, but it
must be in action and result. The Constitution directs the state to promote special
areas of education and economic interest of the weaker section, as directed by the
Preamble and the objective resolution. As discussed above, the key words make the
Constitution come alive. One cannot make a philosophical enquiry without indulging in
each word, which essentially gives character to polity, in greater detail.

1.6 TEXT OF THE PREAMBLE

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure
to all its citizens:
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Philosophy of the Constitution, the Preamble and Features of the Constitution

JUSTICE, social, economic and political; LIBERTY of thought, expression, NOTES

belief, faith and worship;
EQUALITY of status and of opportunity;
And to promote among them all FRATERNITY assuring the dignity of the
individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November
1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION
Sovereignty: India is proclaimed to be sovereign by the Preamble to the
Constitution of India. The British crown no longer has possession, and it no longer has
any dependency on it; it cannot be called a colony or a dominion. To be a sovereign
both externally and internally, India not only needs to be free from foreign rule but also
to take decisions on its own for the people and the territory without any interference.
India possesses supreme political power as an independent authority and has a right to
govern itself; it can acquire foreign territory and cede any part of Indian territory in
accordance with the Constitution.
Indian sovereignty has no authority above it. It can conduct its affairs both
internally and externally. It is not subject to the control of any other state or any other
external powers. India got the status of Dominion in the Commonwealth Nations with
the passage of Indian Independence Act, 1947. India remains a member of the
Commonwealth Nation according to the agreement reached in London, 1949 at the
Prime Minister’s Conference. India became sovereign not when it became independent
with the passage of the Independence Act but with the inauguration of the Constitution.
The wording of the Preamble reflects the source of authority for the people.
From this authority emerges the will of the people. Popular sovereignty is significant
because the Constitution expressed it when it derives the ultimate authority of all
government institutions from the will of the people. This authority is updated at regular
intervals via the process of elections.
The question of sovereignty came along with the word British in the
Commonwealth Prime Minister Conference, 1949, and secondly India’s continued
membership in it. The word was subsequently dropped, and the structure was changed.
The voluntary character of the association was changed, and many countries re-joined, Self-Instructional
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 Constitutional Government and Democracy in India

NOTES some left, and some were even expelled. India no longer had any allegiance to the
British crown. Similar functional associations have not affected India’s sovereignty
such as SAARC and the UN. Interestingly, the promotion of peace and security is a
Directive Principle of State Policy of the Constitution.

1.7 IDEALS

Socialist: The word socialist was added to the Constitution in the forty-second
amendment in 1976, but even before the term was added, the Constitution had socialist
content in the form of certain Directive Principles of State Policy Articles 38, 39, and
40. The socialist pattern of society pushes forward a socialist order. It has been explained
at length in the five-year plan documents.
Constitution makers did not want to stick to any one ideology or ism or to be
limited by any of these ideologies, even economically. They decided not to include
socialism as the only ideology. In spirit, even without directly referring to socialism, the
Preamble mentions resolving to secure all citizen economic justice and equality of
status and opportunity, but the word is not defined in the Constitution.
The Constitution Bill, which was the Forty-fifth Amendment Bill, tried to define
‘Socialist’. Socialist would mean ‘free from all forms of exploitation-social, economic
and political’. Unfortunately, the bill was passed without definition.
Democratic socialism like that of Indian politics has faith in a ‘mixed economy’
where both the public and private sectors co-exist side by side. In Nakara v. Union
of India, 1983, the Supreme Court said that democratic socialism aims to end poverty,
ignorance, disease and inequality of opportunity, and Indian socialism is a blend of
Marxism and Gandhism, leaning heavily towards Gandhian socialism.
Indian Democratic Socialism aims to end poverty, ignorance, disease, and
inequality of opportunity. In another judgment, G.B. Pant v. State of Uttar Pradesh,
2000, the Court said that the socialist concept ought to be implemented in the true
spirit of the Constitution. Socialism aims at social justice. Ideals of social justice have
enabled the courts to uphold legislation which aims at removing economic inequality,
to provide a decent standard of living to the working people and to protect the interests
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Philosophy of the Constitution, the Preamble and Features of the Constitution

The Courts read the word ‘socialist’ with Articles 14 and 16 to deduce a NOTES
fundamental right to equal pay for equal work. The courts also struck down a statute
that failed to fully achieve the socialist goal. After the addition of the word, they would
interpret the Constitution and lean more in favour of nationalization and state ownership
but this came to an end with the advent of liberalization and disinvestment in public
sector.

1.7.1 Secular

The term ‘secular’ was added by the 42nd Constitutional Amendment Act of 1976.
Just like the word socialist, ‘secular state’ is not mentioned in the Constitution, but the
Constitution establishes a secular state guaranteeing fundamental rights to freedom of
religion in Articles 25 to 28. The Constitution guarantees a person’s freedom of religion
and conscience and freedom for one who has no religion. The idea of secularism in
India is different from the western notion of secularism. Donald Eugene Smith defines
Indian secularism; he writes, “The secular state is a state which gives individual and
corporate freedom of religion, is not constitutionally connected to religion, nor does it
seek either to promote or interfere with religion.” The Indian Constitution embodies a
positive kind of secularism where all religions have the same status and support from
the state.
Indian secularism essentially means that the state has no official religion. Dr.
Radhakrishnan, in his lecture The Recovery of Faith (1956), defines Indian secularism
quite precisely. He said, “When India is said to be a secular state, it does not mean that
we reject the reality of an unseen spirit or the relevance of religion to life or that we
exalt irreligion. It does not mean that secularism itself becomes a positive religion or
that the state assumes divine prerogatives. We hold that not one religion should be
given preferential status. This view of religious impartiality, or comprehension or
forbearances, has a prophetic role to play within the national and international life.”
The Indian Constitution gives full opportunity to all persons to profess, practice
and propagate religion of their choice. The Constitution restrains the state from
discriminating on grounds of religion. Single citizenship is assured to all persons
irrespective of their religion. In Bal Patil v Union of India, 2005, the Supreme Court
said that the concept of secularism, to put it in a nutshell, is that the State will have no
religion. Interestingly, secularism is translated in Hindi not as dharmnirpeksha but as Self-Instructional
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NOTES panthnirpekhsa, which literally means independent of sects, and in this sense, state
neutrality in the matters of religion.

1.7.2 Democratic

Democracy comes from Greek words ‘demo’ which means ‘the people’ and ‘kratos’
which means ‘government’. Democratic polity is basic feature of our Constitution; it
cannot be amended. The Indian Constitution provides for representative parliamentary
democracy under which the executive is responsible to the legislature for all its policies
and actions. Universal adult franchise, periodic elections, rule of law, independence of
judiciary, and the absence of discrimination on certain grounds are manifestations of
the democratic character of the Indian polity. The constitution refers to the form of
government that is responsible and representative, is chosen by the electorate, and is
accountable to them. The parliamentary form of government in India is based on the
British model because of its familiarity with the system. Another reason for accepting
the parliamentary system was the accommodation of various groups in decision-making.
A democratic polity, as stipulated in the Preamble, is based on the doctrine of popular
sovereignty, that is, the possession of supreme power by the people and not the
parliament. This is another clear difference between the British and Indian parliamentary
systems. The courts in India are vested with authority to question the constitutionality
of laws passed by the Parliament of India.
The term ‘democratic’ is used in the Preamble in a broader sense, embracing
not only political democracy but also social and economic democracy. In mere political
terms, democracy means the right of every citizen to freely vote in elections. The
principle of ‘one person one vote’ applies here. But it does mean so. It calls for the
establishment of equality of status and opportunity. It guarantees social and economic
justice. Dr. Ambedkar, in Constituent Assembly Debates, said that political democracy
is nothing without social and economic democracy. For him, socio-economic democracy
is the real aim of the Indian Constitution.

Republic:

The term ‘republic’ in our Preamble says that India has an elected head called the
President, elected indirectly for a fixed period of five years. All powers of the head are
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derived from the Constitution. The word ‘republic’ comes from the Latin word ‘Res NOTES
publicus’ meaning ‘of the people’. The idea of a republic emphasizes that the people
should be supreme, with no privileged class and no discrimination in admission to
public offices. The head of the state is elected by the people, and in a republic form of
government, the people choose the representatives. In the Federalist Papers, Madison
says, “Republic is a government which derives its powers directly or indirectly from
the great body of the people and is administered by persons holding their offices
during pleasure, for a limited period, or during good behavior.”

Justice:

The Preamble places the idea of justice above other principles of liberty, equality, and
fraternity. The promise of principle of justice is for all citizens. The term ‘justice’ in the
Preamble pushes forward social, economic and political justice by various provisions
of Fundamental Rights and Directive Principles.
Nehru said, “Social justice has always exercised an appeal to sensitive persons,
the basic attraction of Marxism for millions of people was not, I think, its attempt at
scientific theory but its passion for social justice”. Social justice denotes the equal
treatment of all citizens without any social distinction based on caste, color, race,
religion, sex, and so on. It means the absence of privileges being extended to any
section of society, and improvements in the conditions of backward classes and women.
Articles 23 and 24 are directed towards social justice. Article 23 prohibits human
beings from being trafficked and forced into labor. Article 24 prohibits the employment
of children in factories, the employment of children in the construction industry, and
hazardous employment. Article 38 enjoins the state to strive to promote the welfare of
the people by securing and protecting as effectively as possible a social order in which
social, economic and political justice shall inform all the institutions of national life.
Economic justice is reflected in Article 39, which directs the state to try to
secure for all citizens an adequate means of livelihood; ownership and control of the
material resources of the community are so distributed as best to serve the common
good; wealth is not concentrated; and there is equal pay for equal work. Economic
justice would then mean equal treatment and reduction of the gap between the rich
and the poor.
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NOTES Political justice is essentially reflected in the right to participation of people in

political processes and institutions without any discrimination. Article 39A states that
the state shall ensure that the operation of the legal system promotes justice, on a basis
of equal opportunity, and in other ways, ensure that all opportunities for securing
justice are not denied to any citizen by reason of economic or other disability.

Liberty:

The term ‘liberty’ means the absence of restraints. The Preamble to the Indian
Constitution pushes forward a positive notion of liberty, where the government must
provide opportunities for the development of individual personalities. For the Preamble,
liberty does not only mean an absence of restraints; it also aims at securing liberty of
thought, expression, belief, faith, and worship through their Fundamental Rights,
enforceable in court of law, for all Indian citizens. However, this is not absolute freedom
to act in any way one wants; there are limitations which are mentioned in the Constitution.
This makes the notion of liberty in the Constitution qualified but not absolute. There
are reasonable restrictions on freedom of speech and expression in Article 19(2), that
are restrictions on the liberty of people. These restrictions are made to regulate
fundamental rights in the way that it does not endanger the security of the state, friendly
relations with foreign states, public order, decency or morality or in relation to contempt
of court, defamation or incitement to an offence.

Equality:

The term ‘equality’ means the absence of special privileges to any section of society.
Positive notion of equality means providing adequate opportunities for all individuals
without any discrimination. The Preamble secures equality of status and opportunity
for all citizens of India in all dimensions of life: civic, political and economic. In the legal
aspect of equality, all citizens are equal before the law. It also means that law of the
land extends equal protection to all. Equal participation includes political rights to vote
and to participate equally in government processes. Economically, equality is reflected
in the principles of equal pay for equal work, and in Articles 14 and 18, which spell out
the notions of equality of status and opportunity.

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1.7.3 Fraternity and Dignity NOTES

The high ideals of justice, equality, and liberty are meaningless if fraternity is not
promoted. Indian fraternity finds its strength in the provisions of common citizenship,
which aim at nation-building through strong fellowship. Dr. Ambedkar said in Constituent
Assembly debates that fraternity means a sense of common brotherhood among all
Indians—of Indians being one people. He believed that the principle of fraternity,
which gives unity and solidarity, was difficult to achieve. It was essentially based on the
inherent socio-economic inequality in India which makes the need for the principle of
fraternity dire.
The word ‘integrity’ has been added to the Preamble by the Forty-Second
Constitutional Amendment (1976). Even before that, the Preamble declares that
fraternity has to assure two things: the dignity of the individual and the unity and integrity
of the nation. It was through the spirit of brotherhood that the goals of national unity in
a pluralist society could be achieved. Fraternity was expected to preserve and promote
both the unity and dignity of people. In similar ways, Article 17 is directed towards the
abolishment of untouchability. This is the Constitution’s agenda: to give a decent standard
of living to all, with dignity being the highest requirement for which an individual could
enforce any fundamental right in the Supreme Court.
Fundamental Duties in Article 51A make it the duty of every citizen of India to
promote harmony and the spirit of common brotherhood amongst all the people of
India, transcending religious, linguistic, regional, or sectional diversities, to uphold and
protect the sovereignty, unity, and integrity of India, and to promote harmony and
brotherhood.

1.8 FEATURES OF INDIAN CONSTITUTION

Written Constitution: The Indian Constitution is one of the longest-written constitutions.

Parliament essentially operates within the limits prescribed in the Constitution. Britain,
on the other hand, is not a written document. The Constitution comprises fundamental
principles of governance and detailed administrative provisions. The document also
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NOTES includes ordinary legislatures and established political conventions which other
constitutions did not include.
Amendability: The Indian Constitution is neither rigid nor flexile but a mixture
of the two. In Article 368 lies the provision for amendment of the text in the Constitution.
There are two types of amendment processes. Some provisions can be amended by a
special majority of the parliament which has to be a two third majority of the members
of each House present and voting, and a majority that is more than half of the total
membership of each house. Some other provisions can be amended by a special
majority of the Parliament and with the ratification of half of the total states. The
amendments which do not come under Article 368 are those provisions which can be
amended by a simple majority of Parliament. According to basic structure doctrine,
discussed in the beginning, Article 368 cannot be used to destroy or damage the basic
elements or the fundamental features of the Constitution, enshrined in the Preamble.
Federal System of Governance: The Indian Constitution establishes a federal
system of government with a constitutional division of powers between the union and
the states. However, it does contain a few federal features such as a strong centre, a
single Constitution, single citizenship, and the appointment of state governor by the
Centre. It should be noted that the word ‘federation’ hasn’t been used in the text of the
Constitution. Although Indian federation is not the result of an agreement by the states,
no state has the right to secede from the federation. K.C. Wheare calls Indian federation
‘quasi-federal’, and Morris Jones calls it ‘co-operative federalism’.
Fundamental Rights: Fundamental Rights promotes the idea of political
democracy. Most importantly, Article 13 prohibits the State from making a law that
either takes away totally or abrogates in part a fundamental right. They are enforceable
by the courts for their violation. For the restoration of these rights, one can approach
the Supreme Court which can issue writs of habeas corpus, mandamus, prohibition,
certiorari and quo warranto.
Judicial Review: The Constitution of India adopts an independent Judiciary
with the power of judicial review which restricts the supremacy of the Parliament. The
Constitution itself gives power of review to the judiciary, both Supreme Court and
High Court. It should be noted that Judicial Review is itself a basic feature of the
constitution and it cannot be amended. Judicial Review essentially means to examine
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the constitutionality of legislative enactments and executive orders by the government. NOTES
This feature upholds the principle of supremacy of the Constitution.
Transformative Constitutionalism: The Indian Constitution aims at
transforming society and to fulfil this aim, it empowers the state. Transformative
constitutionalism essentially means the disruption of existing social structures with the
means of law. Karl Klare coined the term and defined it as a long-term project of
constitutional enactments, interpretation and enforcement committed to transforming a
country’s political and social institutions and power relationships in a democratic,
participatory, and egalitarian direction. In a similar vein, one can observe the features
of the Indian Constitution which are transformative in nature. The Fundamental Rights
have numerous Articles that try to break the traditional patterns of unequal society, like
Article 17, which bans the inhumane practice of untouchability, special provisions of
differential treatment for the weaker sections of society and minority rights.

1.9 CONCLUSION

N. A. Palkhivala called the Preamble to the Indian Constitution the ‘identity card of
the Indian Constitution’. The Preamble embodies the philosophy of the Constitution.
The philosophy of the Constitution rightly forwards the vision of the Constituent
Assembly, reflected in the words of the Preamble, which give shape and character to
Fundamental Rights, Duties and Directive Principles of State Policy. The Preamble
can be amended, but not the part that builds the basic structure of the constitution.
Understanding the Preamble would mean understanding the Constitution in its entirety.
The chapter essentially tries to comprehend how the Indian Constitution establishes a
government that is an expression of commitments to high ideals such as sovereignty,
socialism, secularism, and a democratic republic aiming at equality, liberty, fraternity
and justice, deriving its authority from the people. The Constitution is a written
constitution which is flexible enough to be amended but not so flexible that it can be
amended easily. It establishes a federal structure and gives power to both the centre
and states, but pushes forward the notion of a strong state. To restrict the supremacy
of the Parliament, it has the feature of Judicial Review which protects the supremacy
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NOTES of the Constitution. The transformative role of the Constitution defines the philosophy
of the Constitution in a pure sense as it spells out the aim of social transformation.

1.10 SELF-ASSESSMENT QUESTIONS

1. The Preamble of India is part and parcel of Indian constitution. Examine.

2. Write a short note on philosophical postulate of India.
3. What are the basic principles of Indian Constitution? Elaborate on changes
made to it.

1.11 REFERENCES

 D.D. Basu, Introduction to the Constitution of India, New Delhi: Prentic

Hall of India, 1992
 Granville Austin, The Indian Constitution: Cornerstone of a Nation, Bombay:
Oxford University press, 1972
 Shibani Kinkar Chaube, The Making and Working of Indian Constitution,
New Delhi: National Book Trust, 2009
 Subhash C. Kashyap, Our Constitution: An Introduction to India’s
Constitution and Constitutional Law, New Delhi: National Book Trust, 1994
 Sujit Chaudhary, Madhav Khosla, Pratap Bhanu Mehta, The Oxford Handbook
of Indian Constitution, New Delhi: Oxford University Press, 2016
 Rajeev Bhargava, Politics and Ethics of the Indian Constitution, New Delhi:
Oxford University Press, 2009

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LESSON 2 NOTES

CITIZENSHIP
Abhishek Nath
Former Assistant Professor
Department of Political Science, DU
Structure
2.1 Learning Objectives
2.2 Introduction
2.3 Historical/Theoretical Understanding on Citizenship
2.4 Struggle for Rights and T.H. Marshall
2.5 Citizenship in India
2.5.1 Constitutional Provisions of Citizenship
2.5.2 Legal Provisions Related to Citizenship
2.5.3 Loss of Citizenship
2.6 Special Provisions of Citizenship in Assam Under Assam Accord
2.6.1 Assam Accord and the Question of Identification of Illegal Immigrants
2.6.2 Assam Accord and National Register of Citizens
2.7 Conclusion
2.8 Self-Assessment Questions
2.9 References

2.1 LEARNING OBJECTIVES

 The lesson would discuss the basic conception of citizenship and its implications
for the Indian Constitution.
 It would elaborate on the constitutional provisions of citizenship, its legal
provisions enshrined in the constitution, loss of citizenship, and special provisions
of citizenship in Assam under the Assam accord.
 The lesson would also discuss the questions of illegal immigrations and its various
implications for citizenship in India.
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2.2 INTRODUCTION

In general, citizenship means legal membership of the state. The emergence of the
modern state and its establishment as the nation-state have added new dimensions to
the membership of a person in a state. Such membership is not only associated with
the status of the person in the state, but it also determines the corresponding rights and
responsibilities. In contemporary times, the debates on citizenship revolve around the
binaries of inclusion-exclusion, legal-illegal, citizen-alien and formal and substantive.
This lesson tries to study the debates on citizenship through these binaries, and it is
also a study of the legal development of citizenship and its impacts in India.

2.3 HISTORICAL/THEORETICAL UNDERSTANDING

ON CITIZENSHIP

Prior to the emergence of modern states, the membership of a person in a state was
attached to his membership in a community, and such membership provided them with
the status of a subject. This status secured them their livelihood by attaching themselves
to the resources of the state and fulfilling the duty of paying tax, military service during
war, and so on, in return. Taking care of subjects was the king’s duty and fulfilling the
obligations was the subject’s duty. No doubt such a conception was far from the
modern understanding of citizenship because there were no rights but only duties for
the subjects.
Between the 5th and 4th Century BCE in Athens, we can trace modern ideas of
citizenship. First, Aristotle, in his book ‘Politics’, envisaged the civic life of the community
as ‘being ruled and rule in turn’. However, it is also important to note that such rights
were very limited in scope, and females, slaves, and foreigners were out of its purview.
Although through this idea Aristotle tried to achieve the normative goal of people’s
participation in political decision-making, it was at the cost of excluding a major
proportion of the community. Nevertheless, it was a qualitative leap for the idea of

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citizenship that talked about rights and duties both. It provided the idea of active NOTES
citizenship.
Greek ideas on citizenship were further modified and extended under the Roman
Empire. The expansion of the Roman Empire resulted in the inclusion of people from
different regions and races. The Greek ideas of limited citizenship weren’t be helpful;
hence, Romanized Greek scholars like Cicero and Polybius developed an idea of
citizenship that was derived from the territories. All the people of areas included under
Roman Empire were given the legal membership of state, but this legal membership
was devoid of political participation. It only provided legal protection of the state.
However, such an idea was able to meet the needs of expanding Roman Empire. It
introduced the graded idea of citizenship where legal rights of citizenship were available
to all, except the rights of political participation in the form of right to vote or right to be
elected. Women and slaves were again out of such consideration. Certainly, Romans
introduced a passive idea of citizenship; however, it was a more practical approach
that was in harmony with the needs of multi-ethnic Roman Empire.
During medieval times, the conception of citizenship was based on legal
protection, but political power was controlled by religious leaders like the Pope of
Christian Church, and the Church became the focal point of allegiance for the political
community. Nonetheless, political thinkers like Machiavelli asserted that active citizenship
is the prime virtue of the Republic, which was further affirmed by scholars like Rousseau
in modern times.
In the modern age, the emergence of nation-states and theprominence of liberal
ideology have contributed significantly to the conception of citizenship. Liberal scholars
like Thomas Hobbes (Right to life), John Locke (Right to life, liberty and personal
property) and Jean Jacques Rousseau (Right to liberty and active political participation)
laid the foundation of modern ideas of citizenship. The French revolution of 1789
propounded the principles of liberty, equality and fraternity that envisaged equal rights
of freedom to all human beings. However, securing the right to citizenship for all
inhabitants of a state and the right to have equal rights to citizenship for all citizens
required further struggle.

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NOTES
2.4 STRUGGLE FOR RIGHTS AND T.H. MARSHALL

Sketching the development of the idea of citizenship in Britain, Marshall wrote in his
book ‘Citizenship and Social Class’ (1950) that it concluded in three steps. First, civil
rights, and then political and social rights were achieved. In the first stage of struggle
for rights, equal rights were demanded by the emerging bourgeois class against the
king and his privileges. Therefore, citizenship and capitalism developed together. These
civil rights were against the state’s encroachment on the life and personal liberty of
citizens. It championed rights like limiting the state power, freedom of expression and
movement, equality before law and so on. Marshall identified these rights recognized
during the 18th century as negative rights because they tried to put restrictions on the
state. In second phase, political rights like right to vote and right to contest for public
offices were recognized in 19th century that gave birth to the representative governments.
In the 20th century, with the demand of minimum economic guarantee and equal social
status, social rights were demanded. They are regarded as positive rights as they seek
positive intervention by the state. It resulted in the emergence of welfare states. However,
it is important to note that all the citizens of the state were not given these rights
together. Initially, the bourgeois class fought and secured these rights from the kings
and later labor class and masses got these rights through their struggle against bourgeois
class in which Marxist movement played a significant role. It is also important to note
that it took more than two hundred years for a major proportion of state’s population
to secure citizenship rights, and women had to wait even more to be recognized as
equal citizens. Hence, it’s obvious that Marshall defined citizenship as an individual’s
full and equal membership in the state.
The above analysis determines that identifying the citizen and providing them
membership, extension of citizenship rights, and the question of local and alien are
essentially attached to the idea of citizenship, and behind its state’s effort to identify
loyal inhabitants, their basis and determination, and establishing themselves as a nation-
state have been the core assumptions. In this process, people not found loyal are
either deprived of citizenship rights or treated as second class citizens. European states
did so during their course of establishing themselves as nation states and the same can
be easily witnessed in third world countries that are eager to form nation in their state.
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No state is short of reasons for such efforts and wanting stability has been one of the NOTES
dominant reasons. Undisputedly, our country India is also not an exception.

2.5 CITIZENSHIP IN INDIA

The partition of India and the emergence of two new states (India and Pakistan) were
premised upon the identification of its inhabitants into two different nations and demand
for corresponding states for them. Partition resulted in a huge movement of people
across borders. The obvious consequence was the identification of citizens and the
contestation to find out the basis of such identification. There was no consensus in the
Constituent Assembly on this issue. One set of thought believed all those who had
been born within Indian territory were entitled to citizenship status, while the other
group favored a racial-cultural basis of citizenship. A third voice considering the
communal plurality advocated differentiated citizenship in India. Consequently, the
Constituent Assembly only identified who the citizens were at the commencement of
the constitution and the rest was left for future assemblies to decide. The Indian parliament
enacted the Citizenship Act 1955, and it was further amended eight times in 1957,
1960, 1985, 1986, 1992, 2003, 2005 and 2015. If we scrutinize these amendments,
it’s not wrong to comment that the basis for citizenship in India has been moved from
Jus soli to Jus sanguinis, that is, citizenship on the condition of being born in Indian
territory to the citizenship based on kin and blood ties.

2.5.1 Constitutional Provisions of Citizenship

Article 5 to 11 of Part II of Indian constitution discusses the provisions of citizenship in

India. At the commencement of the Indian constitution, on 26 January 1950, following
four categories of persons were recognized as citizens of India:
1) According to Article 5, a person who had his domicile in India and fulfilled any
one of the three conditions, viz., if he was born in India; or if either of his parents
was born in India; or if he has been ordinarily resident in India for five years
immediately before the commencement of the Constitution, became a citizen of
India.
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NOTES 2) According to Article 6, a person who migrated to India from Pakistan became
an Indian citizen if he or either of his parents or any of his grandparents was
born in undivided India and also fulfilled any one of the two conditions viz., in
case he migrated to India before July19, 1948, he had been ordinarily resident
in India since the date of his migration; or in case he migrated to India on or after
July 19, 1948, he had been registered as a citizen of India. But a person could
be so registered only if he had been resident in India for six months preceding
the date of his application for registration.
3) According to Article 7, a person who migrated to Pakistan from India after
March 1, 1947, but later returned to India for resettlement could become an
Indian citizen. For this, he had to be resident in India for six months preceding
the date of his application for registration.
4) According to Article 8, a person who, or any of whose parents or grandparents,
was born in undivided India but who is ordinarily residing outside India shall
become an Indian citizen if he has been registered as a citizen of India by the
diplomatic or consular representative of India in the country of his residence,
whether before or after he commencement of the Constitution.
In short, these provisions deal with the citizenship of a) persons domiciled in
India; b) persons migrated from Pakistan; c) persons migrated to Pakistan but later
returned; and d) persons of Indian origin residing outside India.
In addition to the above constitutional provisions, Article 9 empowers a citizen
to voluntarily denounce citizenship and Article 11 empowers parliament to enact laws
to acquisition and termination of citizenship.

2.5.2 Legal Provisions Related to Citizenship

In light of above power, the Indian constitution enacted the Citizenship Act 1955 and
it has been amended eight times in 1957, 1960, 1985, 1986, 1992, 2003, 2005 and
2015 since then. The Citizenship Act of 1955 prescribes five ways of acquiring
citizenship in India, viz., birth, descent, registration, naturalization, and incorporation
of territory.

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1) Acquisition of Citizenship by birth: a person born in India on or after 26th January NOTES
1950 but before 1st July 1987 is a citizen of India by birth irrespective of the
nationality of his parents.
A person born in India on or after 1st July 1987 is considered a citizen of India
only if either of his parents is a citizen of India at the time of his birth.
Further, those born in India on or after 3rd December 2004 are considered
citizens of India only if both of their parents are citizens of India or one of whose
parents is a citizen of India and the other is not an illegal migrant at the time of
their birth.
`It is also important to note that the children of foreign diplomats posted in India
and enemy aliens cannot acquire Indian citizenship by birth.
2) Acquisition of Citizenship by Descent: A person born outside India on or after
26th January 1950 but before 10th December 1992 is a citizen of India by
descent, if his father was a citizen of India at the time of his birth.
A person born outside India on or after 10th December 1992 is considered as
a citizen of India if either of his parents is a citizen of India at the time of his birth.
From 3rd December 2004 onwards, a person born outside India shall not be a
citizen of India by descent, unless his birth is registered at an Indian consulate
within one year of the date of birth or with the permission of the Central
Government, after the expiry of the said period. An application, for registration
of the birth of a minor child, to an Indian consulate shall be accompanied by an
undertaking in writing from the parents of such minor child that he or she does
not hold the passport of another country.
Further, a minor who is a citizen of India by virtue of descent and is also a citizen
of any other country shall cease to be a citizen of India if he does not renounce
the citizenship or nationality of another country within six months of his attaining
full age.
3) Acquisition of Citizenship by Registration: The Central government may, on an
application, register as a citizen of India any person (not being an illegal migrant)
if he belongs to any of the following categories, namely:

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NOTES a) a person of Indian origin who is ordinarily resident in India for seven years
before making an application for registration.
b) a person of Indian origin who is ordinarily resident in any country or place
outside undivided India.
c) a person who is married to a citizen of India and is ordinarily resident in
India for seven years before making an application for registration.
d) minor children of persons who are citizens of India.
e) a person of full age and capacity whose parents are registered as citizens
of India.
f) a person of full age and capacity who, or either of his parents, was earlier
citizen of independent India, and is ordinarily resident in India for twelve
months immediately before making an application for registration.
g) a person of full age and capacity who has been registered as an overseas
citizen of India cardholder for five years, and who is ordinarily resident in
India for twelve months immediately before making an application for
registration.
A person shall be deemed to be of Indian origin if he, or either of his parents,
was born in undivided India or in such other territory which became part of
India after the 15th of August 1947.
All the above categories of persons must take an oath of allegiance to the Indian
constitution.
4) Acquisition of Citizenship by Naturalization: The Central Government may, on
an application, grant a certificate of naturalization to any person (not being an
illegal migrant) if he possesses the following qualifications:
a) that he is not a subject or citizen of any country where citizens of India are
prevented from becoming subjects or citizens of that country by
naturalization.
b) that, if he is a citizen of any country, he undertakes to renounce the
citizenship of that country in the event of his application for Indian citizenship
being accepted.

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c) that, he has either resided in India or been in the service of a government NOTES
in India or partly the one and partly the other, throughout the period of
twelve months immediately preceding the date of the application.
d) that, during the fourteen years immediately preceding the said period of
twelve months, he has either resided in India or been in the service of a
government in India or partly the one and partly the other, for periods
amounting in the aggregate to not less than eleven years.
e) that, he is of good character.
f) that, he has an adequate knowledge of a language specified in the Eighth
Schedule to the constitution, and
g) that, in the event of a certificate of naturalization being granted to him, he
intends to reside in India, or to enter or continue in, service under a
government in India or under an international organization of which India
is a member or under a society, company or body of persons established
in India.
However, the government of India may waive all or any of the above conditions
for naturalization in the case of a person who has distinguished service to the
science, philosophy, art, literature, world peace or human progress. Every
naturalized citizen must take an oath of allegiance to the Constitution of India.
5) Acquisition of Citizenship by Incorporation of Territory: If any foreign territory
becomes a part of India, the government of India specifies the person who
among the people of the territory shall be the citizen of India. Such persons
become the citizens of India from the notified date. For example, when
Pondicherry became a part of India, the Government of India issued the citizenship
(Pondicherry) order, 1962, under the Citizenship Act, 1955.

2.5.3 Loss of Citizenship

The Citizenship Act, 1955, prescribes three ways of losing citizenship whether acquired
under the act or prior to it under the Constitution, viz, renunciation, termination and
deprivation.

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NOTES 1) By Renunciation: Any citizen of India of full age and capacity can make a
declaration renouncing his Indian citizenship. Upon the registration of that
declaration, that person ceases to be a citizen of India. However, if such a
declaration is made during a war in which India is engaged, its registration shall
be withheld by the Central government.
Further, when a person renounces his Indian citizenship, every minor child of
that person also loses Indian citizenship. However, when such a child attains the
age of 18, he may resume Indian citizenship.
2) By Termination: When an Indian citizen voluntarily (consciously, knowingly
and without duress, undue influence, or compulsion) acquires the citizenship of
another country, his Indian citizenship automatically terminates. This provision,
however, does not apply during a war in which India is engaged.
3) By Deprivation: It is a compulsory termination of Indian citizenship by the
Central government, if:
a) the citizen has obtained the citizenship by fraud.
b) the citizen has shown disloyalty to the Constitution of India.
c) the citizen has unlawfully traded or communicated with the enemy during a
war.
d) the citizen has, within five years after registration or naturalization, been
imprisoned in any country for two years; and
e) the citizen has been ordinarily resident out India for seven years continuously.

2.6 SPECIAL PROVISIONS OF CITIZENSHIP IN

ASSAM UNDER ASSAM ACCORD

To identify illegal Bangladeshi immigrants in Assam and determine their citizenship status,
following provisions have been added through Citizenship (Amendment) Act 1985:
1) All persons of Indian origin who came to Assam before the 1st of January, 1966
from Bangladesh and who have been ordinarily residents in Assam since the
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2) Every person of Indian origin who came to Assam on or after the 1st of January, NOTES
1966 but before the 25th March, 1971 from Bangladesh and who has been
ordinarily resident in Assam since then the date of his entry into Assam and who
has been detected to be a foreigner shall register himself. Such a registered
person shall be deemed to be a citizen of India for all purposes as from the date
of expiry of a period of ten years from the date of detection as a foreigner. But,
in the intervening period of ten years, he shall have the same rights and obligations
as a citizen of India, excepting the right to vote.

2.6.1 Assam Accord and the Question of Identification of Illegal

Immigrants

The special provisions with respect to Assam add a new category of citizenship in
Indian constitution that accepts even illegal immigrants as legal citizens. It is worth
remembering that Assam had been witnessing a continuous flow of outsiders from rest
of India and illegal immigrants from Bangladesh since the colonial time that continued
after independence and even the formation of Bangladesh. Therefore, a strong anti-
outsider and anti-foreigners movement has registered a continuous presence in Assam
to save the language, culture and political dominance of local Assamese. To deal with
this issue detection, deletion and deportation of illegal migrants residing in Assam gained
prominence and in 1983 Central government enacted and establish Illegal Migration
(Determination by Tribunal) Act 1983. The same responsibility has been endowed to
Foreigner’s Tribunal Act 1946 for the rest of India. These two tribunals have two
different approaches to working. Under the Foreigner’s Tribunal, the onus of proving
oneself legal citizen lie with the accused, while under the IMDT, the burden of proof
lies on the person who report or identify someone as illegal resident. As a result, the
IMDT failed to deliver, in comparison to Foreigner’s Tribunal. In 2005, the Supreme
Court of India in Sarvanada Sonowal versus Union of India case declared the
IMDT act null and void.

2.6.2 Assam Accord and National Register of Citizens

The Assam Accord was signed between the leaders of All Assam Student Union
(AASU) that spearheaded the Assam movement and the then Prime Minister Rajeev
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NOTES Gandhi to preserve the socio-cultural and political fabric of the natives of Assam and
to identify and deport the illegal Bangladeshi immigrants from Assam. However, the
failure of IMDT tribunal and nullifying of the Act by Supreme Court in 2005 brought
this issue to the forefront of political contestations in the state. During the last Assembly
elections and the General elections this was the prime electoral plank of the right-wing
parties like the BJP and AASU. BJP promised to update the National Register of
Citizens 1951 in the state to identify the illegal citizens. After coming to the power BJP
government started the exercise of updating the NRC. To be included in NRC a
citizen must provide proof of their residence, especially the name in the electoral roll,
before March 1971 which is the cut-off date for determining the status of citizenship in
Assam Accord.
Recently, the tribunal to perform the exercise released the final list of citizens
which excluded around 19 lakh people from the NRC list. It has been believed that a
major proportion of the excluded population would be Muslims. Surprisingly, the number
of illegal citizens was far less than claimed by the political outfits and a bunch of them
are Hindus, not Muslims. The current dispensation at the Centre which is also the
ruling party in Assam has asserted that the Hindus excluded from the NRC list will be
provided citizenship while the Muslims will be deported. It may lead to the introduction
of citizenship on the basis of religious affiliation. Moreover, many states like Haryana
and Uttarakhand are also proposing to prepare NRC in the state. This may turn the
whole population into suspects and citizens would need to be verified through the
NRC. Though there is nothing wrong with implementing NRC in the whole country,
the question is what normative value we are looking to achieve through this exercise. If
it is only to make our citizenship more exclusionary, then it requires some valid justification
and a wider consensus.

2.7 CONCLUSION

The Citizenship Amendment Act, 2005 had already excluded from citizenship the
children born to illegal immigrants in India. Many other refugee groups like Chakmas
are also struggling to get their citizenship rights in India. The NRC will open new
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nation-state has pushed the issues of inclusion and exclusion, legal and illegal, and NOTES
citizens and alien to the forefront, which may force the human being to revisit the
legitimacy of institutions like the state as an association of human beings.

2.8 SELF-ASSESSMENT QUESTIONS

1. What is citizenship? Write a short introduction to the amendment made to it in

recent past.
2. What is the National Register of Citizenship (NRC)? Write an essay on it.

2.9 REFERENCES

 Anupama Roy (2016), Citizenship in India, Oxford University Press.

 Anupama Roy (2016), Ambivalence of Citizenship in Assam, in Economic and
Political Weekly, Vol.LI,. 26 & 27, pp 45-51.
 D.D. Basu (2018), Introduction to Indian Constitution (23rd edition), New
Delhi, LexisNexis. (Chapter on Citizenship).
 M Laxmikant (2017), Indian Polity (fifth edition), Chennai, McGraw Hill
Education (India) private ltd. (chapter 6)
 Valerian Rodrigues (2008), ‘Citizenship and the Indian Constitution’, in R.
Bhargava (ed.), Politics and Ethics of the Indian Constitution, New Delhi,
Oxford University Press, pp 164-188.

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LESSON 3 NOTES

FUNDAMENTAL RIGHTS, DIRECTIVE PRINCIPLES

AND FUNDAMENTAL DUTIES
Ashutosh Kumar Jha
Former Assistant Professor
ARSD College, DU
Structure
3.1 Learning Objectives
3.2 Introduction
3.3 Fundamental Rights
3.4 Fundamental Rights and Human Rights
3.5 Nature of Fundamental Rights
3.6 Rights Under Fundamental Rights
3.7 Directive Principles of State Policy
3.8 Relationship between Fundamental Rights and Directive Principles of State
Policies
3.9 Constitutional Relationship
3.10 Conclusion
3.11 Self-Assessment Questions
3.12 References

3.1 LEARNING OBJECTIVES

 The lesson would introduce students to the basic structure of Indian constitution.
They will learn about the Fundamental Rights and Directive Principle of States
Policy (DPSP). It will also make students understand why Fundamental rights
are fundamental to the governance of the country.
 The lesson will also elaborate on foundational relationship between FR and
DPSP.
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NOTES
3.2 INTRODUCTION

Fundamental rights are fundamental in the governance of the country. The inclusion of
fundamental rights as a detailed scheme in the Constitution shows the desire of the
constitution makers to bestow Indians with basic liberty of a free and happy life. It is
also a means through which the spirit of constitutionalism is established. It is a check
on the ability of democracy to transform into a tyranny of majority. Fundamental Rights
are a social contract strengthening constitutionalism, protecting and guarding individual
autonomy. It is derived from the American constitutional provision of “Bill of Rights”
which acts as an important bulwark against the tyranny of state, guaranteeing and
protecting individual freedom and autonomy. Part III of the constitution deals with
Fundamental Rights of the citizens. They are categorized as basic human freedom
required for individual development. These rights have universal application in the
Indian society and are applied irrespective of caste, religion, place of birth, sex, colour,
etc. The fundamental rights are enumerated in the Indian constitution under Article 12
-35. (Reddy 1980)
The Directive Principles of State Policy is contained in the Part IV of the Indian
Constitution. It is borrowed from the Constitution of Ireland. The Directive Principles
of State Policy are important directives to the state. It sets out the aims and objectives
to be taken up by the states in the governance of the country. It is also considered a
means to attain the substantive socio-economic realities by the constitution makers.
Together, the Part III and Part IV contain the rights, liberties and securities of people
and groups; and the structural means to attain these noble ideals.

3.3 FUNDAMENTAL RIGHTS

Granville Austin analyses Indian Constitution as a social and revolutionary document.

(Austin 1966) This philosophy is best manifested in Part III of the Indian Constitution.
These rights are a guarantee against any form of encroachment by the government of
the day. So, they are rights that act as limitations on the powers of the government,
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The rights under Part III are considered fundamental because of two important NOTES
reasons. 1) These rights are mentioned in the Constitution as guarantees to the individual
and groups. 2) These rights are justiciable, i.e., they are enforceable through courts of
law. It also means that in case of violation of Fundamental Rights, the individual can
directly approach the highest courts for redressal of his grievance (Supreme Court of
India or the High Court of the state).
If the government (Both state and Centre) enacts a law that restricts Fundamental
Rights, such legislation can be judicially reviewed by the court and declared null and
void.
The constitution guarantees six fundamental rights to citizens which are as follows.
1. Right to Equality, (Article 14-18)
2. Right to Freedom, (Article 19-22)
3. Right against Exploitation, (Article 23-24)
4. Right to Freedom of Religion, (Article 25-28)
5. Cultural and Educational Rights, (Article 29-30)
6. Right to Constitutional Remedies. (Article 32)
The original constitution had seven Fundamental Rights which also included
Right to Property as a Fundamental Right. Since Right to Property was considered a
hindrance to the goals of attaining Land Reforms and equitable distribution of wealth,
it was repealed by 44th Constitutional Amendment Act, 1978. Now, Right to Property
is not a fundamental right but legal right under Article 300a.

3.4 FUNDAMENTAL RIGHTS AND HUMAN RIGHTS

Fundamental rights are compared to human rights. Human Rights are considered to be
the minimum necessary conditions for dignified living that involve social, political, and
cultural rights. Since fundamental rights also provide security to individuals in social,
political and cultural aspects, they are also considered fundamental human rights. The
extensive action for protection of rights is restricted to fundamental rights alone, so all
human rights are not fundamental rights. It is also hailed as the Magna Carta of the
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NOTES Indian Constitution as it establishes individual liberty and stands against coercion by an
individual or state.
Genesis of Fundamental Rights: The inspiration for fundamental rights in India
could be traced to England’s Bill of Rights (1689), The United States (1791) and the
French declaration of Rights of Man (1789).
The Commonwealth of India Bill drafted by Annie Beasant (1925) demanded
seven fundamental rights which included free conscience, free expression, freedom of
assembly, non-discrimination on grounds of religion, caste, sex, or place of origin, etc.
In 1928, the Nehru Commission, which consisted of representatives of political
parties in India and headed by Motilal Nehru, proposed a constitutional reform for
India. They called for Dominion status of India and demanded election on the basis of
adult suffrage. Their demands also included guarantees of certain rights which were
deemed fundamental and that also limit the power of the government.
In 1931, the Congress party adopted a resolution in the famous Karachi Session,
committing themselves to defense of civil rights. They also committed to abolishing
untouchability and serfdom. The resolution also committed to a minimum wage,
protecting the socio-economic rights of ordinary man.
In 1944-45, a Sapru Committee supported the demand for fundamental rights.
It was a non-partisan committee consisting of intellectuals, of which Tej Bahadur Sapru
was the chairman. When India moved towards the making of the constitution, the
constitution makers gave importance to the idea of fundamental rights. The committee
on Fundamental rights was headed by Sardar Patel and the sub-committee on minority
rights was headed by Acharya Kriplani. (Ray, 2003)

3.5 NATURE OF FUNDAMENTAL RIGHTS

Fundamental Rights are not mere imposition of prevailing practices in another country.
But it is framed after careful consideration of India’s socio-political and socio-economic
circumstances.
(1) Issue of being Absolute Right: The Fundamental rights guaranteed in our
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imposed on these Fundamental Rights under required conditions and NOTES

circumstances.
(2) Justifiability of Rights: Article 32 makes it justiciable by conferring rights on
every citizen to move to the highest court of the land for enforcement of his/her
fundamental rights.
(3) Rights available to citizens alone: Although they are Human Rights and are
universal in application, there are certain safeguards which have been provided
to the citizens of the country alone. It is with respect to the social, political and
cultural contexts of India. The rights available to citizens alone are, equality of
opportunity in matters of public employment, protection from discrimination on
any ground, freedom of speech, expression, association, movement residence
and profession and cultural and educational rights of minorities, etc.
(4) Amendability of Rights: After several tussles between the legislature and judiciary,
the Supreme Court has held that parliament can amend and abridge Fundamental
Rights but not in such a manner as to change the basic structure of the
Constitution.
Amendability of Fundamental Rights: The question whether Fundamental Rights
can be amended under Article 368 came for consideration of the Supreme Court in
Shankari Prasad v. Union of India (AIR1952 1 SCR 89.). It challenged the validity of
the 1st amendment to the Constitution. In this case, it was held that a constitution
amendment will also be held valid even it abridges or takes away any of the fundamental
rights. A similar decision was given by Supreme Court in Sajjan Singh v. State of
Rajasthan which challenged the validity of the 17th amendment. ((1965) SC 845) In
Golaknath v. State of Punjab, the validity of the Constitution (17th Amendment) Act,
1964 was again challenged, which inserted certain State Acts in Ninth Schedule. The
Supreme Court in its landmark decision overruled the decision given in the Shankari
Prasad’s and Sajjan Singh’s case. It held that the Parliament had no power from the
date of this decision to amend Part III of the Constitution so as to take away or
abridge the Fundamental rights. Eleven judges participated in this decision with the
ratio being 6:5. The judges were worried about the numerous amendments made to
abridge the fundamental rights since 1950. The Chief Justice applied the doctrine of
Prospective Overruling and held that this decision will have only prospective operation
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NOTES and, therefore, the 1st, 4th and 17th amendment will continue to be valid. It means that
all cases decided before the Golaknath’s case shall remain valid. (AIR 1967 SC 1643)
In order to remove difficulties created by Golaknath’s decision, parliament
enacted the 24th Amendment. The amendment has made the following changes: (1) it
added a new clause (4) to Article 13 which provides that nothing in this Article shall
apply to any amendment of this Constitution made under Article 368; (2) it submitted
a new heading to Article 368, the power of Parliament to amend the Constitution and
Procedure, therefore instead of Procedure for amendment of the Constitution.
(3) It inserted a new sub section (1) in Article 368 which provides that
notwithstanding anything in the Constitution, Parliament may, in exercise of its constituent
power, may amend by way of addition, variation, or repeal any provision of this
Constitution in accordance with the procedure laid down in the Article 368. Thus, the
24th amendment restored the amending power of the Parliament.
The validity of the 24th amendment was challenged in the case of Keshavnand
Bharati v. State of Kerala (1973). It challenged the validity of the Kerala Reforms Act,
1963. But during the pendency of the petition, the Kerala Act was placed in the Ninth
Schedule by the 29th Amendment. The question in the case involved the extent of the
amending power conferred by Article 368 of the Constitution. A Special bench of 13
judges was constituted to hear the case. The Court by majority overruled the
Golaknath’s case which denied Parliament the power to amend fundamental rights of
citizens. The Court held that under Article 368, Parliament is not empowered to amend
the basic structure or framework of the Constitution. (AIR 1973 SC 1461)
After the decisions of the Supreme Court in Keshavnand Bharati, Indira Gandhi
government passed Constitution (42nd Amendment) Act, 1976, which added two
new clauses. Clause (4) provided that no constitutional amendment (including the
provision of Part III) or purporting to have been made under Article 368 whether
before or after the commencement of the Constitution (42nd Amendment) Act, 1976
shall be called in any court on any ground. Clause (5) removed any doubts about the
scope of the amending power. It declared that there shall be no limitation whatever on
the constituent power of Parliament to amend by way of addition, variation or repeal
of the provisions of the Constitution under this Article.
Thus, the insertion of these clauses made it clear that the basic structure of the
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Court by 4 to 1 majority struck down clauses (4) and (5) of Article 368 inserted by NOTES
the 42nd amendment, on the ground that these clauses destroyed the essential feature
of the basic structure of the Constitution. (AIR 1980 SC 1789)
Since these clauses removed all limitations on the amending power and thereby
conferred an unlimited amending power, it was destructive of the basic structure of the
Constitution. The judgment of the Supreme Court thus makes it clear that the
Constitution not the Parliament is supreme in India. The Parliament owes its existence
to the Constitution and it cannot take priority over the Constitution. Therefore, this
landmark decision ended the long controversy between the Courts and the Executive.
Therefore, at present, the position is as follows: (1) Fundamental Rights may be repealed
or curtailed by passing a Constitution Amendment Act, according to the procedure
laid down in Article 368.
(2) Though Fundamental rights are not immune from amendment, the amendment
of a particular right maybe annulled if the Supreme Court holds that particular right or
its part which has been taken away by amendment, constitute a ‘basic’ feature of the
Constitution. (3) So long as any particular Fundamental Right is not thus taken away
by amending the Constitution, it constitutes a limitation on the legislative power of
parliament as well as the state legislatures, and any law made by either legislature in
contravention of such Fundamental Rights much be held to be void, by the Supreme
Court, unless protected by the Constitution itself, for example, by Article 31A, by the
9th Schedule, read with Article 313 etc.
So the theory of basic structure very effectively proved to be a limitation on the
amending power of the Parliament. The Basic Structure doctrine applies only to the
constitutionality of amendments and not to ordinary acts of parliament, which must
conform to the entirety of the Constitution and not just its basic structure.

3.6 RIGHTS UNDER FUNDAMENTAL RIGHTS

Right to Equality (Article 14-18)

These articles cover the issue of equality comprehensively by adopting universally

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NOTES Article 14 implies equality before law and equal protection of law. Equality
before law implies that no person has any special privilege with respect to the law of
land.
Equal protection of law implies equality of treatment in similar circumstances by
the law and it also permit differences in differential circumstances. For example, women
in India may be placed in favourable position during enactment of a law because of
unequal circumstances between men and women.
Article 15 prevents discrimination on grounds of religion, caste, sex or place of
birth. Article 16 provides equality of opportunity in matters of public appointment or
appointment to any office.
Article 17 abolishes untouchability from being practiced in India. While Article
18 abolishes all forms of title leading to an era of equal treatment of citizens by the
state. (Basu 2005)

Right to Freedom (Article19-22)

Article 19(1) of the Constitution gives citizens the right to freedom of speech and
expression, to assemble peacefully, to form unions or associations, to move freely
throughout the territory of India, and to practice any trade or profession. It is important
to note here that these rights are not absolute and have been limited by reasonable
restrictions.
The restrictions are defined in clauses 2-6 under Article 19. In order to restore
balance between freedom and social contract, these reasonable restrictions are imposed
where freedom of expression is subject to be restricted on grounds of decency, morality,
public order, friendly relations with foreign countries, and unity and integrity of India.
The reasonableness of restrictions imposed by the state can be judged by judiciary.
Article 20 says that criminal legislation cannot be implemented retrospectively.
That means a criminal can be punished with the punishment for the crime that prevails
on the day of offence. In the same article, clause B says that a person cannot be forced
to give evidence against himself.
Article 21: Right to life. It has been the most holistically interpreted article which
has added new dimension to improve life of ordinary people in the country. This article
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the body. This is mainly practiced in case of illegal imprisonment without sufficient NOTES
evidence.
Right to education was made a fundamental right under Article 21A by 86th
Constitutional Amendment, 2002. It stipulates the state to provide free and compulsory
education to all between 6-14 years of age.
Article 22 deals with safeguards against arbitrary arrest and detention.

Right Against Exploitation (Article 23-24)

Article 23 prohibits trafficking in human beings and prevents people from engaging in
forced labour.
Article 24 deals with the prevention of child labour in hazardous circumstances
like mines or factory.

Freedom of Religion (Article 25-28)

Article 25 deals with the freedom of conscience and practice and propagation of
religion.
Article 26 deals with the freedom to manage religious affairs by establishing
charity, to acquire property for religious purpose, etc.
Article 27 gives the freedom to individual to not pay any tax for promotion of
any religion.
Article 28 gives the freedom to not attend any religious instruction in certain
educational institutions.

Cultural and Educational rights (Article 29-30)

Article 29 deals with the protection of language, scrip and culture of the minority. It
also debars admission on grounds of religion, race, sex, and language in institutions
managed by state funds.
Article 30 grants a right to minority communities to manage and administer
educational institutions for preservation of their script and culture. (ibid)

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NOTES Right to constitutional remedies (Article 32)

It is the most important fundamental right as it confers the right on citizens to move the
Supreme Court for enforcement of the rights conferred by Part III. It is Article 32 which
gives fundamental right such a pride of place within the Indian Constitution. (Ibid)

3.7 DIRECTIVE PRINCIPLES OF STATE POLICY

The directives contained in (Articles 36-51, Part IV) lay down a comprehensive
program for the social and economic order of India. The constitution makers had the
vision to design directives in a manner where Ambedkar thought that future governments
would be judged for their success or failure in implementing the directives under DPSP.
It is different from fundamental rights in the sense that there is no legal sanction behind
the directives. Article 37 explicitly mentions that the provisions are fundamental in the
governance of the country and the state is duty bound to apply these principles in law-
making. It is derived from the Irish constitution, and unlike fundamental rights, these
are positive obligations on the state. (Devidas 1975)

Classification

DPSP can be classified under four different ideals it tries to promote. They are Socialistic
Ideals, Western Liberal Ideals, Gandhian Ideals, and Ideals of Freedom Struggle.
1. Socialistic Ideals (Article 38, 39, 41, 42, 43, 43A, 43B, and 45): The directives
to minimize inequalities in income and endeavor to eliminate inequalities in status
flow from Article 38.
Article 39 tries to create an adequate means of livelihood for both men and
women. Article 41 is an important directive with regards to right to work, while
Article 42 deals with just and humane conditions for work, including maternity
relief. Article 43 is a directive for the promotion of decent living wages and
promotion of cottage industries. Article 43A is a directive to make workers
participate in the management of industries. Article 43B, inserted by the 97th
amendment, is an attempt to professionalize the management of cooperative
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children under 6 years of age. All these ideals entail the creation of a society on NOTES
socialistic lines, thereby promoting socialistic ideals. (Basu 2005)
2. Gandhian Ideals (Article 40, 46, 47, and 48): Article 40 is the fulfillment of
the long-held Gandhian dream of organizing socio-political life, with the village
as the base of such an organization. The directive for the organization of village
Panchayat is the fulfillment of the same dream realized by the 73rd and 74th
Constitutional Amendments (1993), thereby ushering Panchayati Raj in India.
Article 46 deals with promoting the educational and economic interests of
scheduled castes, scheduled tribes and other weaker sections.
Article 46 deals with improving nutritional levels and public health. So, the idea
of prohibition flows from this directive. Article 48 is an important directive on
the organization of agriculture and animal husbandry. It also asks for prohibiting
the slaughter of cows, calves and other milch cattle. (ibid)
3. Western Liberalism (Article 39A, 44, and 50): Article 39 deals with free
legal aid to promote equality in justice. Article 44 is a directive to implement a
uniform civil code in India for the promotion of uniformity in civil code, thereby
realising a sense of unity and integrity. Article 50 deals with the separation of the
judiciary from the executive in the public services of the state.
4. Ideals of Freedom Struggle (Article 48A, 49, and 51): Article 48A is a
directive to safeguard forest, environment, and wildlife of the country. Article
49 deals with the protection of monuments and places and objects of national
importance. Article 51 aims to promote international peace and security. (ibid)

3.8 RELATIONSHIP BETWEEN FUNDAMENTAL

RIGHTS AND DIRECTIVE PRINCIPLES OF
STATE POLICIES

The fundamental rights and directive principles are equal in importance but vary in
degrees in terms of their importance assigned by the Constitution of India.
1. Fundamental rights are in the nature of limitations to state action, but DPSP are
positive instruments of instruction to the Indian state. Self-Instructional
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NOTES 2. Fundamental rights aim at establishing the rule of law and political democracy
by guaranteeing equality, liberty, religious freedom and cultural rights. They are
reflective of the liberal principles of the government, while the DPSP is mainly
socialist and Gandhian in orientation.
3. The Indian constitution makes Fundamental Rights justiciable i.e., their violation
can be curbed through a recourse to the judicial announcement. The Directive
Principles of State Policy aim at social welfare and economic democracy by
promoting just social, economic and political order. In this sense, they are
principles of governance that successive governments must have action-oriented
regard for. They are non-justiciable in nature, in the sense that they cannot be
proclaimed through judicial pronouncements and yet, for a balanced socio-
economic development and an egalitarian social order, they have been described
as moral percepts.
4. The rights enumerated under Fundamental Rights tend to secure the welfare of
individuals, but the DPSP seeks to promote the welfare of the community.
Together, the Fundamental Rights and Directive Principles of State Policy
comprise the human rights of an individual. According to Justice Bhagwati, “broadly
Fundamental Rights represent civil and political rights while Directive Principles embody
social and economic rights and together form the broad spectrum of human rights”.
They are intended to carry out the objective set out in the Preamble of the Constitution,
i.e., to establish an egalitarian social order informed by political, social and economic
justice and ensure dignity of individuals, both mainstream and vulnerable and
marginalized. Together, they constitute what Justice Chandrachur described as the
“conscience of the constitution”. It is interesting to note that although Fundamental
Rights and Directive Principles appear in the Constitution as distinct entities, there was
no such demarcation made between them during the period prior to the framing of the
Constitution. According to Granville Austin, both types of rights had developed as a
common demand, products of the national and social revolutions, of their almost
inseparable intertwining, and of the character of Indian Politics itself. (Austin, 1966)
They were both placed on the same pedestal and treated as falling within the
same category concisely described as “Fundamental Rights. This is because, together,
the FRs and the DPSPs contain the philosophy of the Constitution. This philosophy
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the Directive Principles of State Policy give evidence of the unmistakable anxiety of NOTES
the framers of the Constitution as a mighty instrument for the economic improvement
of the people and for the betterment of their conditions. Equally noticeable throughout
the relevant provisions is their determination to achieve this result in a democratic way
through the rule of law. In other words, the provisions of Part III and Part IV considered
in the light of the Preamble emphasize the need to improve the social and economic
conditions of the people and to attempt that task with the maximum permissible individual
freedom guaranteed to the citizens. In fact, it has been argued that the Constitution
adopts a two-fold strategy for the realization of these cherished goals. Thus, Part III
embodies and sanctifies the goals of liberty and equality by enumerating and guaranteeing
certain individual freedom. These freedoms are made justiciable and thus enforceable
against state encroachments. Part IV, which lays down the Constitutional Ideal of
Justice, enjoins the state to translate the ideal into reality through necessary legislation.
Guarantees of political and civil rights, minus social and economic rights, are incomplete
and insufficient to satisfy the spirit of man. Similarly, social and economic rights do not
attain the same values in the absence of civil and political rights. While social and
economic rights provide the foundation of the building, the latter (Civil and Political
Rights) provides the elevation.

3.9 CONSTITUTIONAL RELATIONSHIP

Although FR’s and DPSP are complementarities, there has been a controversy
surrounding the constitutional relationship (superiority or complementarity) between
Fundamental Rights and Directive Principles, fueling at times, a larger debate on the
operation of parliamentary sovereignty and judicial supremacy. It has also resulted in
not only the enactment of some of the significant constitutional amendments but also in
the pronouncement of some of the classical judicial decisions. The controversy hinges
on the issue of the superiority of Part-III or IV, in cases of conflict between them.
The Constitution of India has issued two broad mandates to the Parliament, the
Legislature of the states and all the institutions of the government: 1. Not to take away
or abridge certain rights described as Fundamental Rights, and to that purpose, make
the FRs justiciable under Article 13. 2. To apply certain principles described as Directive Self-Instructional
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NOTES Principles of State Policy through policy enactments. The controversy and the debate
primarily emanate from the justiciability and non-justiciability of the FRs and the DPSPs
respectively. The FRs, as self-evident and negative in nature, do not require any law
for their implementation (except in a few cases). Additionally, in case of their violation,
they could be restored through judicial interventions via the provisions of Article 13,
operative through Article 32 and 226. The directives, on the other hand, aim at general
welfare mechanisms that require legislation for implementation and enforcement.
In post-independent India, the adoption of welfare and distributive legislation
measures led to restrictions on individual rights like Right to Property. Enactment of a
law to give effect to one of the directives could thus end up violating a FR and the
violation could thus be challenged in the Supreme Court or High Courts under Article
32 or 226 respectively. The relationship between Fundamental Rights and Directive
Principles changed from time to time in light of judicial interpretation, which can be
categorized in the following ways: 1. Fundamental Rights are superior to Directive
Principles. 2. Directives Providing Reasonable Restrictions on Fundamental Rights 3.
Principles of Harmonious construction. 4. Complementarity and Supplementary.

Phase 1: Superiority of Fundamental Rights:

The Supreme Court, in its earlier decisions, attributed paramount importance to

Fundamental Rights based on their justiciability. In the landmark judgment of State of
Madras vs. Srimathi Champakam Dorairajan (1951), it stated that directive principles
were expressly made unenforceable by Article 37 and therefore could not override
the fundamental rights found in Part III, which were enforceable pursuant to Article
32. The court opined that the directive principles, although important in their own
respect, were required to adhere to the Fundamental Rights, and in the case of conflict,
Part III would prevail over Part IV. (Air 1951 SC 226.)

Phase 2: Directives as Providing Reasonable Restrictions on Fundamental

Rights.

In its second phase of interpretation, the Supreme Court placed reliance on the Directive
Principles for validating several legislations that were found to not violate Fundamental
Rights. The Directive Principles were regarded as a dependable index of: 1. public
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In Bombay V. Balsara, the Government of Bombay banned the consumption of NOTES

liquor except for medicinal preparation; the court held that it amounted to a reasonable
restriction under Article 19(6). Similarly, in the State of Bihar V. Kameshwar Singh,
the Supreme Court, relying upon the Directive Principles incorporated in Article 39(b),
held that certain zamindari abolition laws had been passed for a public purpose within
the meaning of Article 31(2). (AIR 1951 Pat 246)

Phase 3: Harmonious Construction:

In Mohammed Hanif Qureshi v. State of Bihar, the validity of U.P., M.P. and Bihar
legislation that banned the slaughter of certain animals, including cows, was challenged.
It was contended that this ban prevented the petitioners from carrying on their butcher’s
trade and its subsidiary undertaking and, therefore, infringed their Fundamental Rights,
inter alia, guaranteed under Article 19(1) (g). The Supreme Court held that under
Article 13(2) the State shall not make any law which takes away or abridges
Fundamental Rights, and as such, the Directive Principles cannot override this categorical
restriction imposed on the legislative power of the state. Yet, a harmonious interpretation
must be placed upon the Constitution and so interpreted. It means that the State
should certainly implement the Directive Principles, but it must do so in such a way that
its laws do not take away or abridge the Fundamental Rights. The court in this case for
the first time introduced the doctrine of harmonious construction as a new technique of
interpretation in this field. But this new technique was to be applied in such a way as
not to take away or abridge Fundamental Rights. (1958 AIR 731, 1959 SCR 629)
The first attempt in this direction was made with the enactment of the 25th Amendment
Act of 1971 which introduced a new provision under Article 31C into the Constitution.
The object of the amendment was that it was enacted to get over the difficulties placed
in the way of giving effect to the Directive Principles of State Policy. The first part of
Article 31C provides that “No law which is intended to give effect to the Directive
Principles contained in the Article 39(b) & 39(c) shall be deemed to be void on the
ground that it is inconsistent with or takes away or abridges any of the rights conferred
by Article 14 or 19”. The second part of Article 31C provided that “no law containing
a declaration that it is for giving effect to such policy can be called in question on the
ground that it does not in Act give effect to such policy”. The validity of the first part of
Article 31C was upheld in the Keshvanand Bharti Case but the second part of this Self-Instructional
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NOTES article which barred the judicial scrutiny of such laws was struck down as
unconstitutional.
After 1972, the value of the Directive Principles underwent a metamorphosis.
Article 31C gave primacy to Articles 39(b) & (C) over Articles 14, 19 & 31C. The
court emphasized that there is no disharmony between the Directive Principles and the
Fundamental Rights as they supplement each other in aiming at the same goal of bringing
about a social revolution and the establishment of a welfare state, which is envisaged in
the preamble. The courts, therefore, have a responsibility in interpreting the Constitution
to ensure implementation of the Directive Principles and to harmonize the social
objectives underlaying them with individual rights.

Phase 4: Complementary and Supplementary:

In Minerva v. Union of India, the Supreme Court, by a 4:1 majority, struck down
Article 31C as amended by the 42nd Amendment as unconstitutional on the ground
that it destroys the basic feature of the Constitution. The court held that Article 31C
was beyond the amending power of the parliament and was void since it destroys the
basic features of the Constitution by a total exclusion of challenge to any law on the
ground that it was inconsistent with any of the rights conferred by Article 14 or 19 of
the Constitution. The majority observed that the Constitution is founded on the bedrock
of the balance between Part III and IV. To give absolute primacy to one over the other
is to disturb the harmony of the Constitution which is the essential feature of the basic
structure. The Court held that the unamended Article 31C is valid as it does not destroy
any of the basic features of the Constitution. The unamended Article 31C gives protection
to a defined and limited category of laws i.e., specified in Article 31(b) & (c). They are
vital for the welfare of the people and do not violate Article 14 and 19. In fact, far from
destroying the basic structure, such laws if passed bona fide for giving effect to the
directives in Article 39(b) & (c) will fortify the structure. (Sharan 1978)

3.10 CONCLUSION

Ultimately, in our endeavor to establish the superiority or inferiority of any part, we

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lead to a sense of commitment towards social revolution. The most significant context NOTES
for the evolution of these principles should not be forgotten. We framed these principles
under complex circumstances, trying to implement these ideals in a diverse and complex
society plagued by a very disturbed past. The constitution makers did a great job of
assessing the practices globally and meticulously designing the basket of rights to usher
India into a more modern and egalitarian society. The parts of the constitution dealing
with Fundamental rights and Directive Principles of State Policy not only enumerate
the obligations of the state but also serve as the bedrock of nation-building. These
parts have the potential to lead India into an egalitarian, just, and free society. So
instead of preceding one over the other, we should judge them as complementary to
each other. The more India grows in its financial clout, the more principles of directives
will find their way to legislation in the long run. These principles strengthen the spirit of
constitutionalism, making us more free and secure.

3.11 SELF-ASSESSMENT QUESTIONS

1. Discuss the features of Directive Principles of States Policy in India. How far is
the government successful in implementing them?
2. Fundamental Rights and Directive Principles of States Policy are complementary
to each other. Explain.

3.12 REFERENCES

 Reddy, S. Sundara Rami. Fundamentalness of Fundamental Rights and Directive

Principles in the Indian Constitution, Journal of the Indian Law Institute, Vol.
22, No. 3 (July-September 1980), pp. 399- 407
 Austin, Granville, The Indian Constitution Cornerstone of a Nation, Oxford
University Press, Delhi, 1966, p 50.
 Ray, Aswini K. Human Rights Movement in India: A Historical Perspective,
Economic and Political Weekly, Vol. 38, No. 32 (Aug. 9-15, 2003), pp. 3409- Self-Instructional
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NOTES  Sharan, P. Constitution of India and Judicial Review. The Indian Journal of
Political Science, Vol. 39, No. 4 (Oct-Dec. 1978), pp. 526-537
 (1952) 1 SCR 89. Shankari Prasad v. Union of India
 (1965) SC 845 Sajjan Singh vs state of Rajasthan
 AIR 1967 SC 1643 Golaknath vs state of Punjab
 AIR 1973 SC 1461 Keshavnand Bharati v. State of Kerala
 AIR 1980 SC 1789 Minerva Mills v. Union of India
 Air 1951 SC 226. State of Madras vs. Srimathi Champakam Dorairajan
 AIR 1951 Pat 246 Kameshwar Singh vs Province of Bihar on 24 January
1950
 1958 AIR 731, 1959 SCR 629 Mohd.Hanif Quareshi & Others vs The State
of Bihar (And connected ... on 23 April 1958
 Basu, D.D. Introduction to the Constitution of India, 19th Reprint Edition,
Wadhwa, Nagpur,2005, PP 102-143
 Author(s): Devidas, T. Directive Principles: Sentiment or Sense? Journal of the
Indian Law Institute, Vol. 17, No. 3 (July-September 1975), pp. 478- 480

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UNIT II: ORGANS OF GOVERNMENT

LESSON 4 THE LEGISLATURE: POWER AND

FUNCTIONS OF PARLIAMENT

LESSON 5 DEBATES ON REPRESENTATION IN

PARLIAMENT

LESSON 6 THE EXECUTIVE: ELECTION, POWER,

FUNCTIONS AND THE CHANGING ROLE
OF PRESIDENT AND PRIME MINISTER

LESSON 7 THE JUDICIARY: APPOINTMENT OF

JUDGES IN HIGH COURTS AND THE
SUPREME COURT, POWER AND
FUNCTIONS OF HIGH COURTS AND THE
SUPREME COURT
The Legislature: Power and Functions of Parliament

LESSON 4 NOTES

THE LEGISLATURE: POWER AND FUNCTIONS

OF PARLIAMENT
Manila Narzary
Assistant Professor
Kalindi College, DU
Structure
4.1 Learning Objectives
4.2 Introduction
4.3 Rajya Sabha
4.3.1 Presiding Officer of Rajya Sabha
4.3.2 Special Powers of Rajya Sabha
4.4 Lok Sabha
4.4.1 Term and Dissolution of the Lok Sabha
4.5 Relation between the Two Houses
4.6 Sessions of the Parliament
4.7 Powers of Parliament
4.7.1 Amendment of the Constitution
4.7.2 Legislative Procedure
4.7.3 Privileges, Powers and Immunities of the Members And House
4.8 The Parliamentary Committees
4.9 Restrictions on the Parliament
4.10 Conclusion
4.11 Self-Assessment Questions
4.12 References

4.1 LEARNING OBJECTIVES

 The lesson will discuss the two houses of the Indian Parliament, i.e., Rajya
Sabha and Lok Sabha. The students would know the composition, features
and distinctions between both the Rajya Sabha and Lok Sabha.
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NOTES  The lesson would discuss various legislative procedures, the privileges, powers,
and immunities of the members of both the houses.
 It would also help students understand the various parliamentary committees
and restrictions on Parliament.

4.2 INTRODUCTION

‘Legislature generally refers to that branch of government, which is concerned with the
enactment of laws, even though it does not enjoy exclusive control over legislation and
performs certain other functions as well’. The nature and functioning of the legislature
in all countries are not similar; it depends on the type of government they have adopted.
The Union Legislature in India is known as the parliament. It consists of the President
and two houses, known respectively as the Council of States (Rajya Sabha) and the
House of People (Lok Sabha). It may be observed that though the president is not a
member of either houses of the Parliament, yet he/she is regarded as an integral part of
the parliament and performs important functions in its proceedings, viz., he/she accords
assent to bills passed by the parliament and reserves the right to summon both the
houses and dissolve the Lok Sabha.

4.3 RAJYA SABHA

The Rajya Sabha or the council of states is a permanent house. It is also the upper
chamber. The Rajya Sabha has 250 members, out of which 238 are elected from the
states and union territories. 12 members are nominated by the president of India,
having special knowledge or practical experience in matters such as literature, science,
art, and social services, etc. The representatives from union territories are chosen in
such a manner as the Parliament may by law determine.
The representatives from the states are elected by the members of the legislative
assemblies of the respective states based on proportional representation by means of
a single transferable vote. The members of the union territories are elected as decided
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states; it is noteworthy that, unlike the United States, where the states have been given NOTES
equal representation in the upper house (Senate), the states in India have been given
representation in the Rajya Sabha because of their population. “It is stipulated that for
the first five million of its population, the state will get one member per one million.
After that for every additional two million, there will be one member. Thus, the bigger
states get more representation than the smaller states like Sikkim and Tripura who
send only one member to Rajya Sabha”.

4.3.1 Presiding Officer of Rajya Sabha

The Vice-President of India is the ex-officio chairman of the Rajya Sabha. As the
presiding officer of the Rajya Sabha, his function and powers are the same as those of
the speaker. He is, however, not a member of the House. In addition, the Rajya Sabha
elects a member as Deputy Chairman, who discharges the function of the Chairman in
his absence. When the office of the Deputy Chairman also falls vacant, the Rajya
Sabha chooses another member as its Deputy Chairman.

Qualifications for Rajya Sabha

The Secretariat of the Rajya Sabha is headed by a secretary who discharges the same
functions as the Secretary of the Lok Sabha. The functions of the chairman in the
Rajya Sabha are like those of the Speaker in the Lok Sabha except that the Speaker
has certain special powers according to the Constitution, for instance, certifying a
money bill, or presiding over a joint sitting of the two houses.
Article 84 of the Constitution lays down the qualifications for membership of
Parliament. A person to be qualified for the membership of the Rajya Sabha should
possess the following qualifications:
1. He/she must be a citizen of India and make and subscribe before some
person authorized in that behalf by the Election Commission an oath or
affirmation according to the form set out for the purpose in the Third
Schedule to the Constitution.
2. He/she must be not less than 30 years of age.
3. He/she must possess such other qualifications as may be prescribed in
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NOTES Disqualifications

Article 102 of the Constitution lays down that a person shall be disqualified for being
chosen as, and for being, a member of either houses of Parliament –
1. If he holds any office of profit under the Government of India or the Government
of any State, other than an office declared by Parliament by law not to disqualify
its holder.
2. If he is of unsound mind and stands so declared by a competent court.
3. If he is an undischarged insolvent.
4. If he is not a citizen of India, or has voluntarily acquired the citizenship of a
foreign State, or is under any acknowledgement of allegiance or adherence to a
foreign state.
5. If he is so disqualified by or under any law made by Parliament.

Duration of Rajya Sabha

The Rajya Sabha is a permanent body and is not subject to dissolution. However, its
members are elected for a term of six years, and one-third of its members retire after
every two years. It may be observed that the original Constitution did not fix the term
of Rajya Sabha members. This was fixed by the parliament under the Representation
of People Act, 1951. The term of the members of the first batch of Rajya Sabha was
decided by lottery (as to who would retire after two years, four years, or six years).

4.3.2 Special Powers of Rajya Sabha

The Rajya Sabha, being a federal chamber, enjoys certain special powers under the
Constitution. All the subjects and areas regarding legislation have been divided into
three lists: Union List, State List and Concurrent List. Union and State Lists are mutually
exclusive; one cannot legislate on a matter placed in the sphere of the other. However,
if Rajya Sabha passes a resolution by a majority of not less than two-thirds of members
present and voting saying that it is “necessary or expedient in the national interest” that
Parliament should make a law on a matter enumerated in the State List, the Parliament
becomes empowered to make a law on the subject specified in the resolution, for the
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whole or any part of the territory of India. Such a resolution remains in force for a NOTES
maximum period of one year, but this period can be extended by one year at a time by
passing a similar resolution.
If Rajya Sabha passes a resolution by a majority of not less than two-thirds of
the members present and voting, declaring that it is necessary or expedient in the
national interest to create one or more All India Services common to the Union and the
States, the Parliament becomes empowered to create by law such services.
Under the Constitution, the President is empowered to issue proclamations in
the event of national emergency, in the event of failure of constitutional machinery in a
State, or in the case of financial emergency. Every such proclamation has to be approved
by both the houses of parliament within a stipulated period. Under certain circumstances,
however, Rajya Sabha enjoys special powers in this regard. If a proclamation is issued
at a time when Lok Sabha has been dissolved or the dissolution of Lok Sabha takes
place within the period allowed for its approval, then the proclamation remains effective,
if the resolution approving it is passed by Rajya Sabha within the period specified in
the Constitution under articles 352, 356 and 360.

4.4 LOK SABHA

The Lok Sabha or the House of People is the lower house of the Indian Parliament,
and its members are elected directly by the people. “Lok Sabha is to consist of not
more than 550 elected members, 530 members are elected from the states and 20
members are elected from union territories. There are two nominated members from
the Anglo- Indian community. Thus, the maximum strength of the house envisaged in
the constitution is thus 552. The number of seats allotted to the states varies according
to the strength of their population, as far as possible, in even ratio. This number will be
split into territorial constituencies, as far as possible, in even proportion of population
ascertained by the previous census. This is done through the appointment of a
delimitation commission”. In January 2020, the Anglo-Indian reserved seats in the
Loksabha and State Legislatures of India were abolished by the 104th Constitutional
Amendment Act, 2019.
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NOTES Presiding Officer of Lok Sabha

There shall be a speaker to preside over the House of the People. In general, his
position is similar to that of the speaker of the English House of Commons. The Lok
Sabha elects a speaker and a deputy speaker from amongst its members, who cease
to hold their office as soon as they cease to be members of the Lok Sabha (Article
93). However, when the Lok Sabha dissolves, the speaker continues in his office until
immediately before the first meeting of the Lok Sabha after its dissolution. The speaker
and the deputy speaker can be removed from the office before the expiry of their
terms if the House passes a resolution to this effect by a majority of its members
(Article 94). Such a resolution shall not be moved unless 14 days’ notice has been
given of the intention to move the resolution. While a resolution for his removal is
under consideration, the speaker shall not preside, but he shall have the right to speak
in and to take part in the proceedings of the house. Similarly, the term of the speaker
automatically gets extended if the term of the Lok Sabha is extended beyond five
years. The speaker takes part in the proceedings of the house but does not exercise
his votes except in cases of a tie (Article 96). The speaker will have the final power to
maintain order within the house of the people and to interpret its rules of procedure. In
the absence of a quorum, it will be the duty of the speaker to adjourn the house or to
suspend the meeting until there is a quorum.
The speaker’s conduct in regulating the procedure or maintaining order in the
House will not be subject to the jurisdiction of any court (Article 122).
Besides presiding over the house, the Speaker possesses certain powers not
belonging to the Chairman of the Council of States-
a) The Speaker shall preside over a joint sitting of the two houses of parliament
[Article 118 (4)].
b) When the money bill is transmitted from the Lower House to the Upper
House, the speaker shall endorse on the bill his certificate that it is a money
bill [Article 110 (4)]. The decision of the speaker as to whether a bill is a
money bill is final, and once the certificate is endorsed by the speaker on
a bill, the subsequent procedure in the passage of the bill must be governed
by the provisions relating to money bills.

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While the office of the Speaker is vacant or the Speaker is absent from a sitting NOTES
of the house, the Deputy Speaker presides, except when a resolution for own removal
is under consideration.

Oath

Each Member of Parliament, before taking his seat, has to make and subscribe before
the president or some person appointed on that behalf by him an oath or affirmation
according to the form set out for the purpose. If a person seats or votes in the house
without taking oath or affirmation, he shall be liable in respect of each day on which he
so sits or votes to a penalty of five hundred to be recovered as debt due to the union.

Qualifications to become member for Lok Sabha

A person to be eligible for the membership of the Lok Sabha must possess following
qualifications:
1. He should be a citizen of India.
2. He must be at least 25 years of age for membership of the Lok Sabha.
3. He should make and subscribe to an oath or affirmation according to the
prescribed form before the person authorized by the election commission.
4. He should possess such other qualifications as may be prescribed by parliament.

Disqualifications

In addition to these qualifications, a candidate for membership of parliament should

not suffer from any of the following disqualifications:
1. The person should not be holding an office of profit under central and state
government.
2. Should not be a person of unsound mind.
3. Should not be an undischarged insolvent
4. Should not have acquired the citizenship of a foreign state voluntarily
5. Should not be disqualified under any law made by the parliament.
6. Should not be guilty of corrupt practice at an election.
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NOTES 7. Should not be convicted for an offence resulting in imprisonment for two or
more years.
8. Should not have failed to lodge an account for election expenses.
9. Should not have an interest or share in the contract for supply of goods or in the
execution of any work.
10. Should not be a director or managing agent or hold any office of profit in a
corporation.
11. Should not have been dismissed from government service for corruption or
disloyalty to the state.

Resignation and Removal of the Speaker /Deputy Speaker

The speaker can resign his office at any time by submitting a resignation addressed to
the deputy speaker. Similarly, the deputy speaker can resign from his office by writing
to the speaker. The two officers can also be removed from their offices before the
expiration of their terms through a resolution of the House of the People passed by a
majority of all the members of the House. The resolution for the removal of the speaker
or Deputy Speaker can be moved only after fourteen days’ notice has been given,
indicating the intention to move such a resolution.

4.4.1 Term and Dissolution of the Lok Sabha

The Lok Sabha enjoys a term of five years from the date of its first session. The term
of the house was fixed at six-years under the Forty-Second Amendment, but it has
been reduced to five years by the Forty-Fourth Amendment. After the expiry of this
term, the house stands automatically dissolved. The life of the house can be extended
during the proclamation of an emergency by one year at a time. However, its term
comes to an end six months after the proclamation has ceased to be in operation.
The term of the House can be cut short if the president dissolves it earlier on the
advice of the Council of Ministers. Under the Constitution, the Council of Ministers is
responsible to the Lok Sabha for all its actions and stays in office if it enjoys the
confidence of the parliament. In case, the parliament shows a lack of confidence in the
Council of Ministers, it must either tender resignation or make room for the opposition
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to form a government or advice the president to dissolve the house and order fresh NOTES
elections. The council will tender such advice only if it feels that it still enjoys the
confidence of the voters. It may be observed that after the 42nd amendment, it has
become obligatory for the president to act on the advice of the Council of Ministers,
which implies that he cannot refuse to dissolve the house if the Council of Ministers so
recommends.

4.5 RELATION BETWEEN THE TWO HOUSES

Under Article 75(3) of the Constitution, the Council of Ministers is collectively

responsible to the Lok Sabha which means that the Rajya Sabha cannot make or
unmake the government. It can, however, exercise control over the government and
this function becomes quite prominent, particularly when the government does not
enjoy a majority in the Rajya Sabha.
To resolve a deadlock between the two houses, in case of an ordinary legislation,
the Constitution provides for the joint sitting of both the houses. In fact, there have
been three occasions in the past when the Houses of Parliament have met in joint
sitting to resolve differences between them. Issues in joint sittings are decided by most
of the total number of members of both houses present and voting. The joint sitting is
held in the Central Hall of Parliament House presided over by the Speaker, Lok
Sabha. However, in the case of a money bill, there is no provision in the Constitution
for a joint sitting of both Houses as Lok Sabha clearly enjoys preeminence over Rajya
Sabha in financial matters. As regards a constitution amendment bill, it has been provided
in the Constitution that such a bill has to be passed by a specific majority, as prescribed
under Article 368 of the Constitution, by both Houses. There is, therefore, no provision
for resolving a deadlock between the two houses in regard to a constitution amendment
bill.
Ministers may belong to either house of Parliament. The Constitution does not
make any distinction between the houses in this regard. Every Minister has the right to
speak and take part in the proceedings of either House, but he is entitled to vote only
in the House of which he is a member.
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NOTES Similarly, about the powers, privileges and immunities of the Houses of Parliament,
their members and committees thereof, the two Houses are placed absolutely on equal
footing by the Constitution.
Other important matters in respect of which both Houses enjoy equal powers
are the election and impeachment of the President, the election of the Vice-President,
approving the Proclamation of Emergency, the proclamation regarding the failure of
constitutional machinery in States, and financial emergency. In respect of receiving
reports and papers from various statutory authorities, etc., both Houses have equal
powers.
It is thus clear that except in the case of collective responsibility of the Council
of Ministers and certain financial matters, which fall in the domain of Lok Sabha only,
both Houses enjoy equal powers.

4.6 SESSIONS OF THE PARLIAMENT

Generally, the parliament has three sessions each year: the budget session, the monsoon
session and the winter session. The constitution vests in the president the power to
summon each house of parliament at such time and place, as he thinks fit. However, he
must ensure that the gap between the last sittings in one session and the next session is
not more than six months. The president can from time to time prorogue either houses
or a house of the parliament. Prorogue means that the president can terminate the
session. It is quite different from adjournment of the house which implies the suspension
of the house and does not constitute an end to the session. It may be noted that an
adjournment of the house is a privilege of the house. However, prorogue of the houses
of parliament is the privilege of the President.

Quorum

“The quorum means the minimum number of required members to be present to enable
the House for its meeting. In both the Houses, the quorum is one-tenth of the total
number of members of the respective houses”.

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Joint Session of Two Houses of Parliament NOTES

The president could convene joint sessions of the two houses of parliament if a bill
passed by one house is rejected by the other house, if one house disagrees with the
amendments proposed by the other house, or if one house has passed a bill and the
other house has not passed that bill for more than six months. In these cases, the
president must notify the houses by sending a message of his intention to summon them
for a joint sitting for the purpose of deliberation and voting on the bill in dispute. At the
joint sitting of the two houses, the bill is passed by a majority of the total members of
both houses present and voting. The joint sitting of two houses is presided over by the
speaker of the Lok Sabha or by such person as may be determined by rules or
procedure.

4.7 POWERS OF PARLIAMENT

The powers assigned to the Parliament by the Constitution can be studied under
following categories:

Legislative Power

The parliament has the power to legislate on all subjects enumerated in the Union list,
the concurrent list, and matters not included in any of the three list, viz., residuary
subjects. Though the state legislatures can also make laws on the subjects mentioned
in the concurrent list, the laws made by the union legislature enjoy precedence over the
laws made by the state legislature. The Parliament can also legislate on a subject in the
state list if the Rajya Sabha passes a resolution by a two-thirds majority of the members
present and votes declaring that a particular matter mentioned in the state list is of
national interest. The parliament can also legislate on the subjects in the state list during
proclamation of a national emergency or an emergency due to the breakdown of the
constitution of international treaties, agreements, conventions or decisions made at
international conferences and associations. The states can also request the parliament
to legislate on a state subject if the legislatures of two or more states pass a resolution
to this effect.
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NOTES It may be observed that in matters of legislation, the two houses enjoy co-equal
powers, and legislative proposals can be initiated in either of the two houses. But the
approval of both houses is essential for the passage of the law. In cases of differences
between the two houses on any legislative matter, the differences are resolved by
arranging joint sittings of the two houses.

Financial power

The powers of Lok Sabha and Rajya Sabha over money bills are not equal. The Lok
Sabha enjoys real supremacy over the Upper House because it controls the pursuit of
the nation. The money bills can originate only in the Lok Sabha and, after they are
passed by the Lok Sabha they are referred to the Rajya Sabha for recommendation.
The Rajya Sabha must return the money bill to the Lok Sabha within fourteen days of
its receipt with or without its recommendations. The union government cannot incur
any expenditure or levy any taxes without the consent of the Parliament. However, the
Lok Sabha is free to accept or reject these recommendations. If the recommendations
of the Rajya Sabha are passed by the Lok Sabha, the bill is deemed to have been
passed by both the houses in its amended form. On the other hand, if the Rajya Sabha
does not return the bill to Lok Sabha within fourteen days, or the recommendations of
Rajya Sabha are not acceptable to the Lok Sabha, the bill is deemed to have been
passed by both the houses in the form in which it was originally passed by the Lok
Sabha. Thus, the Rajya Sabha can merely delay the enactment of a money bill for a
period of fourteen days. It is to be noted that the final decision regarding whether a bill
is a money bill or not rests with the speaker of the Lok Sabha.

Control over Executive

The Parliament also exercises effective control over the executive. Under the
parliamentary system of government provided under the Indian Constitution, the Council
of Ministers, which is the real executive, is collectively responsible to the Parliament
and stays in office as long as it enjoys its confidence. If the parliament passes the vote
of no-confidence against the Council of Ministers, it must quit office. The parliament
keeps constant control over the activities of the government and can seek information
and clarification on various issues and policies. For this purpose, the Parliament makes
use of instruments like questions, supplementary questions, adjournment motions, cut
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motion, call attention notices, etc. The vote of no-confidence is a rare instrument and NOTES
is resorted to only in extreme cases. When a no-confidence motion is passed against
the council of ministers, it may not tender a resignation and advise the president to
dissolve the Lok Sabha and order fresh elections. Thus, the Parliament hardly exercises
any effective control over the executive. In fact, it is the executive which directs and
controls the parliament. On account of rigid party discipline, the parliament invariably
approves the proposals submitted by the council of ministers and its policies. Parliament
may discuss debate, criticize and sometimes bitterly attack the policies of the government,
but ultimately it approves the actions and decisions of the council of ministers.
With regard to control over the executive, the position of Lok Sabha and Rajya
Sabha is not identical. In this regard, the Lok Sabha is better placed. Lok Sabha in
respect of control over the executive is more fortunate than the Rajya Sabha. It can
seek information from the ministers about their policies and criticize them for their
lapses. Only Lok Sabha can entertain censure or even propose a vote of no-confidence
against the government. The Rajya Sabha, however, does not enjoy any effective
control over the executive. It may seek information from the ministers and criticize
their policies, but it certainly cannot oust the ministry through a vote of no-confidence.

4.7.1 Amendment of the Constitution

The Parliament plays a significant role in the amendment of the constitution. Under the
Indian Constitution, amendments to the constitution can be initiated only by the parliament
and the state legislature does not enjoy any power in this regard. A major portion of
the constitution can be amended by the parliament by a two-thirds majority or simple
majority without seeking approval of the states. Only certain provisions which relate
to the federal character of the Indian polity, the powers of the Union and State
Governments, the election of President, the Supreme Court and High Courts, the
representation of the states in parliament etc. require approval of a majority of the
state legislatures for amendment vests equal power in the two houses of Parliament.

Electoral Power

The elected members of the two houses of Parliament participate in the election of the
President along with the elected members of the state legislative assemblies. The elected
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NOTES Approval of Emergency

The approval of the Parliament is essential for the continuation of emergency under
Article 352, 356 and 360 beyond a certain period. The proclamation of emergency
under Article 352 must be approved by the Parliament within 30 days, while the
emergencies declared under Articles 356 and 360 must be approved by the Parliament
within two months.

Power of Removing Certain Officials

The Parliament enjoys the power to recommend the removal of judges of the Supreme
Court and High Courts, the Comptroller and Auditor General, the Chairman and
Members of Union Public Service Commissions etc. The resolution for the removal of
these officials must be passed by each house of the Parliament by a majority of the
total membership of that house which should not be less than two-thirds majority of
the members of the House present and voting.

Impeachment of the President

The Parliament enjoys the right to impeach the President for the violation of the
Constitution. The impeachment proceedings can be initiated in either house of Parliament.
After the charges have been preferred by one house, the other house investigates the
charges. If the investigating house passes a resolution by two-thirds majority of total
membership sustaining the charge, the President is removed from his office.

Creation of new India Services

The parliament can also create new All India Services in the national interest. For this
purpose, the Rajya Sabha has to pass resolution by two-thirds majority of its members
present and voting, whereupon the Parliament can proceed with the creation of new
All India Services. In exercise of this power, the Parliament created All India Engineering
Service, All India Forest Service, and Indian Medical and Health Services.

4.7.2 Legislative Procedure

After having a brief idea about the powers and position of the Indian Parliament, it is
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An ordinary bill can originate in either House of the parliament. After it has been NOTES
passed by one house, it is sent to the other house for consideration. The other house
can either pass the bill in the same form; or pass it with certain amendments; or reject
it; or may not take any decision on it. If the bill is passed by the other house in the same
form, it is transmitted to the president for his assent. If the house passes the bill with
certain amendments, the bill is sent back to the house of its origin for reconsideration.
If the first house agrees with these amendments, the bill is sent to the president for his
assent in its modified form. But if the house of origin does not agree with the amendments
proposed by the other house, or if the bill is rejected by the other house, or the other
house does not take any action on the bill for six months, a sort of deadlock is created.
This deadlock is resolved through a joint sitting of two houses. If at the joint sitting, the
bill is passed by a majority of the total members of both the houses present and voting,
it is deemed to have been passed by both the houses. Usually, at such a joint sitting,
the Lok Sabha has a greater say on account of its greater numerical strength.

President’s Assent

The President’s assent is vital for a bill to become an Act. After a bill has been passed
by the Parliament and referred to the president for his assent, the president can either
give his assent or withhold his assent. If he gives his assent, the bill becomes an Act.
However, if the president chooses to withhold his assent, he may return the bill to the
house with his recommendations. If the houses pass the bill again with or without
amendments, the president has to append his signature.

Financial Procedure

A money bill cannot be introduced in the Council of States or Rajya Sabha; it can only
be introduced in Lok Sabha. When a money bill is passed by the House of People or
Lok Sabha, it is sent to the Rajya Sabha for its recommendations. The Rajya Sabha,
within a period of 14 days from the date of receipt of the bill, returns the bill to the Lok
Sabha with its recommendations. The Lok Sabha may either accept or reject all or
any of the recommendations, and in either case the bill is considered to have passed
by both the houses in the form in which it passed by the Lok Sabha. If the money bill
is not returned by the Rajya Sabha to the Lok Sabha within the said period of 14 days,
it shall be deemed to have been passed by the houses at the expiration of the said
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NOTES 4.7.3 Privileges, Powers and Immunities of the Members And House

Some of the privileges and immunities of the houses of Parliament, Members and
Committees are specified in the Constitution under Article 105, while some are contained
in certain statutes and the Rules of Procedure of the Houses and also in conventions
which have grown over the years.
Some of the important privileges and immunities are-
 Freedom of speech in Parliament and immunity of a member from any
proceedings in any court in respect of anything said or any vote given by him
in Parliament or any Committee thereof.
 Immunity to a person from proceedings in any court in respect of the
publication by or under the authority of either House of Parliament of any
report, paper, votes or proceedings.
 Prohibition on the courts to inquire into proceedings of Parliament.
 Freedom from arrest of members in civil cases during the continuance of the
session of the House and forty days before the commencement and forty
days after its conclusion.
 Exemption of a member from initiation of a legal process of civil or criminal
arrest within the precincts of the House without obtaining permission of the
speaker.

4.8 THE PARLIAMENTARY COMMITTEES

To cope with the ever-increasing work, the Indian Parliament has set up a number of
committees. The committee plays an effective role in the working of the Indian
Parliament. The members of these committees are appointed by the speaker or elected
by the House from amongst its members. These committees are authorized to call
witnesses and collect evidence by asking for official papers and records. Sometimes,
it is called as mini-legislatures.

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Parliamentary committees are of two types: Ad hoc Committees and Standing NOTES
Committees. An Ad hoc committee is appointed for a specific purpose, and when it
has finished its work and submitted its report, it ceases to exist. The best known and
most regular examples of Ad hoc Committees are the select and joint committees on
bills. Such committees are appointed on other matters as well. One such committee
functioning at present is the Railway Convention Committee.
Each house has a number of standing committees. The Rajya Sabha and Lok
Sabha each have a business advisory committee, a committee on petitions, a committee
of privileges and rules committee. The Lok Sabha has, in addition, a number of other
committees.
Of special importance is yet another class of committees which acts as
Parliament’s “watch dogs” over the executive. These are the committee on subordinate
legislation, the committee on government assurance, the estimates committee, the public
account committee, and committee on public undertakings. The estimates committee,
the public account committee and the committee on public undertakings play an
important role in exercising checks on Governmental Expenditure.
The functions and composition of the important committees of Parliament are-
Business advisory committee: This committee is concerned with the planning and
regulation of the House. It also advises the House regarding allocation of time for the
discussion of various issues. This committee was formed at the beginning of the Lok
Sabha’s session and consists of 15 members. The speaker is the chairman of the
committee. To ensure the smooth working of the house, the leaders of major opposition
parties are also associated with this committee.
Committee on private members bills and resolutions: This committee examines the
bills submitted by the members of the House and classifies them according to their
importance and need. This committee consists of 15 members who are nominated by
the Speaker for a term of one year.
Select committee on bills: There are a number of select committees of the house
which collect information on various issues and submit necessary reports on the basis
of the examination of relevant material and witness. The committee is dissolved soon
after it has submitted the report on the subject under reference. The numbers of the
select committees are appointed by the house. The strength of the members of various
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NOTES Committee on public undertaking: This committee consists of 22 members- 15

from the Lok Sabha and 7 from the Rajya Sabha. The members of the committee hold
office for a term of one year. The committee was constituted for the first time with
effect from 1st May, 1964.
The functions of the committee on public undertakings are:
1. To examine the reports and accounts of the public undertakings.
2. To examine the reports, if any, of the comptroller and auditor general on
the public undertakings.
3. To examine, in the context of the autonomy and efficiency of public
undertakings, whether the affairs of the public undertakings are being
managed in accordance with sound principles and prudent commercial
practices; and
4. To exercise such other functions vested in the Public Accounts Committee
and the Estimates Committee in relation to the Public Undertakings as are
not covered by clause 1, 2, and 3 above and as may be allotted to the
committee by the Speaker from time to time. The committee does not,
however, examine matters of major government policy and day to day
administration of the undertakings.
Committee on petitions: This committee examines the petitions made by the members
of the House and suggests remedial measures. The committee consists of not less than
15 members in the Lok Sabha and 10 members in the Rajya Sabha. The members of
the committee are nominated by the presiding officers of the respective houses. A
minister is not nominated to this committee, and if a member is appointed a minister
after his nomination to this committee, he ceases to be a member of the committee
from the date of such appointment.
Committee on Government Assurances: This committee examines the various
assurances and undertakings given by the ministers on the floor of the house to find out
how far these have been fulfilled or implemented within the stipulated timeframe of one
year. The ministers are not eligible for membership in the committee.
Rules committee: The rules committee consists of 15 members nominated by the
speaker, with the speaker as the ex-officio chairman of the committee. The Committee
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considers matters of procedure and conduct of business in the House and recommends NOTES
changes/ amendments to the Rules of Procedure and Conduct of Business in Lok
Sabha, if necessary.
Committee on absence of Members: The committee consists of 15 members who
hold office for one year. The members are nominated by the Speaker. This Committee
considers all application from members for leave of absence from the sittings of the
House and examines every case where a member has been absent for a period of 60
days or more, without permission, from the sittings of the House which might also be
equivalent to declaring that particular seat to be vacant as has been specified in the
Constitution.
The Estimate committee: This committee consists of 30 members who are elected
by the Lok Sabha every year from among its members. Unlike the PAC and the
Committee on Public Undertakings, the members of Rajya Sabha are not associated
with it. A minister is not eligible for election of this committee. The life of the Committee
is one year.
Committee on privileges: This committee consists of not more than 15 members in
the Lok Sabha and not more than 10 members in the Rajya Sabha. Its function is to
examine every question of privilege of the House or of the members or of any of its
committees referred to it by the House or by the Speaker/Chairman. It determines,
with reference to the facts of each case, whether a breach of privilege is involved and
makes suitable recommendations in its report to the House.
Committee on the welfare of Scheduled Caste and Scheduled Tribes: This
committee consists of 30 members:20 members from the Lok Sabha and 10 members
from the Rajya Sabha. The committee considers all matters related to the welfare of
the Scheduled Caste and the Scheduled Tribes, and keeps a watch whether the
constitutional safeguards in respect of these classes are properly implemented.
The Public Accounts Committee: This is also a joint committee of the two houses. It
consists of 22 members: 15 members from Lok Sabha and 7 members from the Rajya
Sabha. It may be noted that the Rajya Sabha members are only associate members
and not entitled to vote. The members of the committee are elected for one year but
by convention they generally remain in office for at least two years. The election is held
on the basis of proportional representation through a single transferable vote. The
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NOTES ministers cannot be members of this committee. The chairman of the committee is
appointed by the Speaker from amongst its members. However, if the deputy speaker
happens to be a member of the Committee, he ipso facto becomes its chairman. The
main duty of the committee is to ascertain whether the money granted by Parliament
has been spent by government “within the scope of demand”. The appropriation
accounts of the Government of India and the Audit Report presented by the Comptroller
and Auditor General mainly form the basis for examination by the committee. Cases
involving losses, nugatory expenditures and financial irregularities come in for severe
criticism from the committee. The committee is not concerned with the question of
policy. It is concerned only with the execution of the policy laid down by Parliament
and its result. This committee is for one year.
Joint Committee on office of profit: This joint committee consists of 15 members;
on a government motion moved in the Lok Sabha and concurred by the Rajya Sabha,
10 members are elected from the Lok Sabha and 5 members are elected from the
Rajya Sabha according to principles of proportional representation by means of a
single transferable vote. The committee is constituted for the duration of each Lok
Sabha. The Speaker nominates the Chairman from among the elected members. The
main functions of the Committee are to examine the composition and character of the
Committees and other bodies appointed by the Central and the State Governments,
and to recommend what offices should disqualify and should not disqualify a person
from being a member of the Parliament under Article 102 of the Constitution.
Committee on subordinate legislation: This committee consists of 15 members
nominated by the Speaker. The function of the committee is related to what is commonly
known as delegated legislation. The main function of the committee is to scrutinize and
report to the house whether the powers to make regulations, rules, sub-rules, by-laws
conferred by the Constitution or delegated by Parliament are being properly exercised
by the executive within the scope of such delegation.
The committees are an instrument of the parliament and not of the government.
Their role is advisory; obviously, they are not meant to dislodge the cabinet, only to
improve their performance through scrutiny and control.

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NOTES
4.9 RESTRICTIONS ON THE PARLIAMENT

The Indian Parliament is not a sovereign body like the British Parliament and there are
serious limitations on its authority.
Federal system of Government: In the first instance, the Constitution provides for a
federal system of government based on distribution of powers between the centre and
the states. The two must operate within the jurisdiction earmarked for them. This
greatly restricts the authority of Parliament.
Written constitution: The written constitution of India also greatly restrains the authority
of the parliament. Parliament must operate within the parameters set by the Constitution.
No doubt, under certain conditions, the parliament is authorized to make laws even on
subjects allotted to the states, but it has to operate strictly in accordance with the
provisions of the Constitution in this regard. The Parliament cannot affect any changes
in those provisions of the Constitution which relate to the relations between the Centre
and the states.
Judicial review: India has adopted the principle of judicial review which greatly restricts
the authority of the Parliament. According to this principle, the Supreme Court of India
can declare a law passed by Parliament as unconstitutional if it contravenes any provision
of the Constitution. In Britain, the courts have no power to pronounce upon the
constitutionality or loyalty of the laws passed by the parliament.
Fundamental rights: The incorporation of fundamental rights in the Constitution has
also restricted the authority of the parliament. The Parliament cannot make any law
which contravenes the fundamental rights enshrined in the Constitution and if it does
so, the same can be declared as ultra vires by the courts.

4.10 CONCLUSION

India has bicameral legislature with many similarities with British parliament, but the
houses are less powerful. There are many restrictions on it.
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NOTES
4.11 SELF-ASSESSMENT QUESTIONS

1. Write an essay on the role and function of the Parliament in India.

2. Examine the similarities and difference between working of Lok Sabha and
Rajya Sabha.

4.12 REFERENCES

 Bakshi P.M., The Constitution of India, Universal Law Publishing, Delhi, 2000.
 Basu D.D., Introduction to the Constitution of India, Prentice-Hall of India,
New Delhi, 1992.
 Jain M.P., Indian Constitutional Law, Wadhwa & Company, Nagpur, 1999.
 Pylee M.V., India’s Constitution, S. Chand & Company, New Delhi, 1994.
 Rao K.V., Parliamentary Democracy of India: A Critical Commentary,
The World Press, Calcutta, 1961.
 Singh M.P. & Saxena R., Indian Politics: Contemporary Issues and
Concerns, Prentice-Hall of India, New Delhi, 2008.

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LESSON 5 NOTES

DEBATES ON REPRESENTATION IN PARLIAMENT

Satya Prakash
Research Scholar
Department of Political Science, DU
Structure
5.1 Learning Objectives
5.2 Introduction
5.3 Historical Narrative of Representation
5.4 General Elections and Representation of SCs and STs in Parliament:
1952-2019
5.5 Representation of Women
5.6 Representation of Other Backward Classes and Muslims
5.7 Conclusion
5.8 Self-assessment Questions
5.9 References

5.1 LEARNING OBJECTIVES

 The lesson would help students understand the idea of representation and the
changing scenario of representation in the present context. It would help our
students understand how seats and positions are being distributed among SCs
and STs.
 The student would also know about various committees related to Other
Backward Classes and reservation policies that came into existence in the 1990s.
They will also assess its relevance in the present scenario. The lesson would
also discuss women’s representation in parliament.

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NOTES
5.2 INTRODUCTION

The debate around representation in the Indian political system is not neoteric, but it
has a long history. The phenomenon is not gravitated around a single entity, but it is
surrounded by numerous identities like caste, gender, culture, religion, region, etc. The
idea of political representation and its implementation in India is quite a complex task
as the concept has faced various challenges regarding what to represent, whom to
represent and in what perspective the representation shall be; therefore, with changing
time, many new complexities have emerged, for instance, the demand of Jat
Communities to be included in Other Backward Classes reservation. There are many
philosophers and authors who have tried to define the representation, and in fact,
there is pervasive literature that provides different definitions of the representation, yet
only a few consent to exclusive elucidation of the representation.
After independence, India adopted the British model of government, i.e., the
parliamentary form of government. Parliament is basically a part of a democratic political
system, where all the power is vested in the members of parliament who are directly
elected by the people. There have been numerous debates around the world about the
sustainability and success of the parliamentary form of government in India. It has
been said that the parliamentary form of government suits a particular kind of society,
and this alien concept is based on the precise traditional cultural principles of Britain.
However, Indian social experiences stand opposite to those of the British because of
their diverse nature in terms of religion, castes, region, languages, etc. Caste, as the
central phenomenon of the Indian social system, was based on the principle of purity
and impurity, and historically the hierarchy within the caste system determined the
respect and position of an individual or for that matter community. Therefore, raising
questions on the sustainability of the parliamentary form of government in India was
inevitable. Dealing with the original features of the parliamentary form of government,
the Simon Commission states that in the parliamentary political system, a government
can be brought to an end at any time by the vote of the legislature. On the question of
adaptation of parliamentary form of government, there emerged two camps: one who
favored the parliamentary form and the other who rejected the idea. The prominent
leaders like Sardar Patel, K. M. Munsi, Nehru Report 1928, etc. favored the
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parliamentary form of government in India, citing that many of the leaders had been NOTES
familiar with the British experience of the parliamentary system and the public life of
Indians was regulated by British constitutional laws and the adaptation of new model
of government like presidential form was a challenge for them. The other camp that
opposed the parliamentary system and advocated for the presidential form argued
that the parliamentary form suits a society of a particular kind. In this support, Ram
Narayan Singh argued that in the parliamentary model it would be hard to find honest
legislators and ministers whereas in presidential form it would be easy to find an honest
president. Others doubted that in parliamentary form the number of political parties
will increase dramatically based on different identities and demands which may cause
instability for the government. Mahatma Gandhi, Aziz Ahmed Khan, Kazi Syed
Karimudin, Syed Ahmed Khan, etc. rejected the idea of the parliamentary form of
government. The Gandhian model of governance was entirely unique as he wanted to
make the village panchayat system the unit of governance, and his approach of
governance may be called the ‘upward mobility model’ (village to provincial level) of
governance. The larger chunk of Indians, including Nehru, strongly favored the
parliamentary mode of government, and India adopted the parliamentary form of
government after independence.

5.3 HISTORICAL NARRATIVE OF

REPRESENTATION

The founding vision of India is intrinsically plural and egalitarian in conception.1 An

egalitarian society seems to be utopia and the utopia of egalitarianism was based on
the idea of equality. According to Buddhist philosophy, “human beings are absolutely
on equality with one another, and the concept of equality is not partial and sectional
but complete and universal”. In the West, the ‘idea of equality’ became a universal
phenomenon only after the French Revolution. Every existing society, whether past or
present, has gone through some sort of inequality in every sphere of life, and that
inequality is natural and functional in character. Naturally, all human beings are born
equal but the practices of discrimination and inequality based on caste, color, race,
creed, etc. are socially constructed, and it was accepted all around the world. The
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NOTES phenomenon of inequality, for Davis Moore, is that the most able person in a social
structure gets a superior place in society and accordingly possesses a superior position
than the others. The Marxian ideology believes that inequality in society exists because
of existing economic inequality and the ‘haves’ acquire the power to make decision
against the ‘have nots’. Andre Beteille argues that inequality in India is closely related
to the hierarchical system, which rests on the division of groups and categories as well
as the perception of people considering these as right, desirable, and proper.
The notion of superiority and inferiority among castes resulted in injustice,
inequality, and backwardness of castes at the lower end of the hierarchy. The
discrimination and inequality based on caste could be either individual or society-
centric, directly affecting the development of society. Each caste group in the hierarchy
was supposed to pursue their caste occupation and had limited scope for occupational
mobility. The prevailing structure of caste led to social backwardness of castes at
lower end and simultaneously led to social, economic, and educational inequality. It is
universally conceived that people or communities who are unequal in property, prestige
and power also differ in their opportunities in life, political participation, ideology and
beliefs. With the development of popular slogans of justice, equality, and modern
nation-state, representation and participation in decision making were proposed as
the panacea for their problems.
Therefore, representational policy in India is a form of establishing a just society
by providing ‘equality of opportunity in decision making processes’ for the deprived
castes, particularly Scheduled Castes and the Scheduled Tribes. ‘Representation in
Parliament’ policy finds its origin in the age-old discrimination based on caste. It is
basically a process of reserving a fixed percentage of seats in Indian elections for the
Scheduled Castes and the Scheduled Tribes.
To frame the law of the land, the Indian Constitution, in December 1946, the
Constituent Assembly was established. The main challenges before the members of
the Constituent Assembly were to establish a society based on equalitarianism, and
the basic features of it have been incorporated into the Preamble of the Indian
Constitution. After hard work for three years of the Constitution Assembly, the world’s
largest Constitution came into force on January 26, 1950. The Constitution of India
incorporated many provisions which provided a long-awaited social justice to the
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Tribes in the General and Assembly elections. Apart from this, it also provided provisions NOTES
for reservation in educational institutions and jobs, which was functional just after
independence for the Scheduled Castes and Scheduled Tribes, and it came sometime
in 1992-93 for the Other Backward Classes (OBCs). However, the matter of
reservation of seats in favor of Scheduled Castes and Scheduled Tribes has gone
through various challenges as a section of the members of the Constituent Assembly
criticized the Scheduled Castes and Scheduled Tribes reservation provision; however,
one of the members of the Harijan Community, S. Nagappa, strongly emphasized the
reservation in favor of those who had been exploited and remained away from the
mainstream social system and politics.

5.4 GENERAL ELECTIONS AND REPRESENTATION

OF SCs AND STs IN PARLIAMENT: 1952-2019

The Constitution of India under the provision of Article 330 and Article 332, provides
provision for reservation of seats in favor of Schedules Castes and Scheduled Tribes
in the Lok Sabha and the Vidhana Sabha. The representation of SCs and STs has
been discussed into two phases i.e., before liberalization (1952-1989) and post
liberalization (1991-2019).
Table-1: Representation of Scheduled Castes and Scheduled Tribes in Lok
Sabha:(1952-1989)

Phase-I: Pre-Liberalisation
Caste 1952 1957 1962 1967 1971 1977 1980 1984 1989
SCs 77 86 75 79 81 85 87 82 81
STs 29 34 35 40 35 39 39 43 40

Source: Data has been compiled from CSDS; Election Commission of India
As far as the members of parliament are concerned, for the first three consecutive
general elections, i.e., 1952, 1957 and 1962, most of the members were part of the
freedom struggle movement and they were more statesmen and socialists in nature
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NOTES and post-graduates. There were even members who were only matriculants, but they
were fluent English speakers. The SC and ST members of the parliament were also
educated but none of them had education in foreign countries. The educational
advancement of the SCs was higher in comparison to the ST parliamentarians. Education
has always been a prominent concept in pushing society upward; therefore, educated
parliamentarians played a vital role in preaching their fellow communities about political
emancipation and this result can be seen in the gradual increment in the number of
parliamentarians from the SCs and STs communities.
The reservation of seats for SCs and STs brought a significant change in the
composition of the Lok Sabha. For the first time, the deprived classes made laws for
every citizen of India, and this was a high level of political and social emancipation for
the SCs and STs communities. From 1952 to 1967, the representation of the number
of SC Member of Parliaments did not show significant change, with the exception of
the 1957 election, which reflects an increment of 10 seats for SCs in comparison to
the 1952 election, whereas for STs representatives, the number of Lok Sabha members
gradually increased. In 1952, it was only 29 seats, which rose to 40 seats in 1967.
The change in seats shows that both of the community members got elected from the
general seats. For 1971 to 1989, the representation of the members of SCs and STs
communities remained stable, with only a very small change in seats.
Table-2: Representation of Scheduled Castes and Scheduled Tribes in Lok Sabha:
(1991-2019)

Phase- II: Post-Liberalization

Caste 1991 1996 1999 2004 2009 2014 2019
SCs 86 85 80 82 85 84 86
STs 42 44 41 54 51 47 52

Source: Data has been compiled from CSDS and the Election Commission of India.
The politics of the post liberalization period were characterized by the assertion
of caste and identity. This was also the era of coalition government at the center, and a
few political parties based on the identities of SCs and STs had a positive impact on
politics. The BSP was the newly emerged political party that gained the status of
national party in this era. For the period of 1991 to 1999, there have been no significant
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changes in number of the elected Lok Sabha Members from SC and ST communities; NOTES
however, from 2004 to 2019, collectively, the total number of SCs and STs
representatives was all-time high, like in 2004 and 2009, the number was 136, for
2014, it was 131, and 138 in 2019. The 2019 General Election was a new phase for
the SC and the ST representation. In this election, the SCs and STs won a total of 138
seats which is the highest since independence. In 2019 General Elections, a total of 33
ST candidates contested the elections on general seats, but only 4 could manage to
register their victory and all the 4 candidates were from the BJP. The Congress party
filled 4 ST candidates; others filled 14, and there were 11 independent candidates
who contested elections for the general seats; however, none of them could win the
elections. Among all the 86 SC seats, BJP won 46 seats, Congress 5, DMK 5, TMC
5, and YSRCP 4. The BSP, which is said to be the party of SCs and STs could only
win 2 seats. Similarly, among 52 ST seats, BJP won 31 and Congress 4; however, in
most of the states, the SC and ST centric parties could not even open their account.

5.5 REPRESENTATION OF WOMEN

The practice of democracy has a long tradition, and it has been in transition from
Platonic era to the contemporary times. In most countries, the right to vote was restricted
to men, and in some states, to privileged men, but in India, the right to vote was
granted to everyone who attained the age of 18 years, irrespective of caste, religion,
gender, etc., and this process provided an opportunity for every citizen to feel like they
were part of the decision-making process. Through the elections, the voters elect to
send their representative to the Parliament, and in the state assemblies, who make
policies and decisions on their behalf.
In most countries, including India, the maximum number of parliamentarians
or the legislature belong to the male group, and women are inadequately represented
in the apex decision-making bodies. There have been demands for equal representation
of women in legislative bodies, but this demand took serious note in the 20th century
when the feminist political scientists around the world brought these issues into academia.
The two noted works first Hanna Pitkin’s The Concept of Representation (1967)
and secondly Anne Phillip’s The Politics of Presence (1995), provided a new Self-Instructional
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NOTES momentum to the representation debate of women in the apex legislative bodies. The
former discusses the four types of representation, i.e., authorized: in this criterion, the
voters elect the members who make legislations on their behalf; descriptive: a kind of
group representation based on caste, for instance, Triveni Sangh, an organization based
on caste identity etc.; and substantive: this representation raised issues in the interest
of groups. Pitkin’s work did not emphasize strongly for women, but Anne Phillip’s
writings approach was explicitly gendered, and she argued that women have been
excluded from mainstream politics for generations, and increasing the presence of
women in elected bodies emphasizes political equality for women.

Women’s organizations like the All India Women Conference (1927), the
Women’s India Association (1917) and the National Council of Women in India (1925)
gave new momentum to the demand for representation of women in mainstream politics.
In 1917, Sarojini Naidu advocated that “when franchise was extended to the people
of India, women be recognized as people”. But when the Montague’s scheme of
reforms for India was published, it completely ignored women. In 1928, when Simon
Commission came to India, the women members requested the reservation of four
seats for women in the legislature so that they could table the interests of women;
however, the Commission left the decision to incorporate women’s reservation on the
will of provincial governments. The above discussed incidences reflect that women
have been kept out of mainstream politics deliberately.
This is the common claim made by the representatives in the legislative bodies
that they represent the voice of the voters, and for that matter, groups based on different
identities based on castes, gender, religion, region, etc. But feminists and women groups
put a question mark on the representatives who claim to act for women. They are of
the opinion that the social and political circumstances of men are entirely different from
those of the women, and therefore the issues of women could be best represented by
women only. The Constitution of India provides provisions for the reservation of seats
in the legislative bodies at the center as well as the state level for the Scheduled Tribes
and the Scheduled Castes, but it does not have any such provision for women. The
long-awaited demand for the reservation of seats in the parliament for women was
introduced in 1996, 1998, and 1999; however, all three bills lapsed due to the dissolution
of the then Lok Sabha on different political grounds. Again, the bill was introduced by
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Bill, 2008. The bill stressed on ‘one-third’ reservation of seats for women in all formats NOTES
of legislative bodies like state assemblies and the Lok Sabha, and also that one-third
of the total seats reserved for Scheduled Tribes and the Scheduled Castes shall be
reserved for women of the same category in the Lok Sabha and the State Assemblies.
The 73rd and 74th Amendment Act, 1993 provided for the provision of reservation of
one-third of the total seats for women in the Panchayats and Municipal elections. The
Women’s Reservation Bill, 2023 was introduced in Lok Sabha on 19 September
2023. This legislation seeks to allocate 33 percent of the seats in the directly elected
Lok Sabha and state legislative assemblies for women. On 20 September 2023, Lok
Sabha passed the bill with 454 votes in favour and two against. The Rajya Sabha
passed the bill unanimously with 214 votes in favour and none against, on 21 September
2023.
There have been two sides of debate on the reservation of seats for women in
the apex decision-making bodies. The supporters of reservation bill for women argue
that the Constitution of India states equality of men and women, but this principle is far
from reality. Women have been kept out of the purview of mainstream politics, and
they stress the reservation of seats in favor of women for their political emancipation.
They cite the example of the success and development of the panchayat system under
the supervision of women candidates and say that the reservation of seats increases
the redistribution of resources for the betterment of those who are represented. But
there also emerged opponents of the reservation policy for women; one of them is the
Constituent Assembly member Renuka Roy, who argued that the reservation of seats
for women would provide much empowerment to them and their ability to consider
the unreserved seats would decline.
Apart from the reservation of seats for women, one shall also know why
women should be represented in the apex legislative bodies and how effective their
representation would be. This is the fundamental narrative of society: that the pain of
the deprived could be better understood by those who have sometimes gone through
deprivation. Similarly, women assert that better legislation for the development of women
could be tabled by the women legislature, and this is unfair for men to dominate the
descriptive representation. Male law makers are not always attentive towards how
the enforced policy will impact the life of a woman. The increment in the number of
female representatives would be an incentive for political parties, as the parties would
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NOTES women in legislature will bring a large-scale societal transformation, as Anne Phillips
argued that the presence of women representatives in the legislative body will attempt
to minimize the political inequality more seriously than men, and their presence in the
parliament and the assemblies will make it more democratic and functional.
Women constitute approximately half of the total population in India but their
presence in politics is comparatively low in comparison to men. Table No. 3 gives an
overall account of the number of elected Member of Parliaments (Lok Sabha) from
1952 to 2019
Table No.3: Total Number of Elected MPs (Lok Sabha) from 1952-2019

Lok Sabha-Wise Year No. of Women MPs

First 1951-52 24
Second 1957 24
Third 1962 37
Fourth 1967 33
Fifth 1971 28
Sixth 1977 21
Seventh 1980 32
Eighth 1984 45
Ninth 1989 28
Tenth 1991 42
Eleventh 1996 41
Twelfth 1998 44
Thirteenth 1999 52
Fourteenth 2004 52
Fifteenth 2009 64
Sixteenth 2014 68
Seventeenth 2019 78

Source: loksabha.nic.in
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The number of women parliamentarians from 1952 to 2019 has increased but NOTES
the number in comparison to male parliamentarians is not adequate. The above figure
reveals that in comparison to the first general elections in 1952, the number of women
parliamentarians increased by three times in 2019. The presence of women in the first
two Lok Sabha elections was the same. The politics of India before the liberalization
of Indian economy was under the dominance of the Congress System, except for the
1977 elections. In 1975, the country faced the largest attack on the democratic ethos
by imposing emergency provisions in India. From 1971 onwards, a dramatic increment
in the proportion of electorate from deprived sections like SCs, STs, OBCs, Muslims,
and women was marked in comparison to the general electorate. The Janata Party
always presented itself as the biggest supporter of marginalized groups, including women,
but in 1971, when the Janata Party was voted to power, the total number of women
parliamentarians was only 21, which was the lowest since 1952. The number increased
to 45 during the Rajiv Gandhi regime. In 2014 and 2019, under the leadership of
Narendra Modi, the number of women parliamentarians has reached the highest level
since 1952 i.e., 68 and 78, respectively, and many of them hold important ministries of
government of India; the late Sushma Swaraj was a dynamic foreign minister; Nirmala
Sitaraman held ministries like the defense and finance in 2014 and 2019 respectively;
Smriti Irani had the important ministry of Human and Resource Development, etc.
There are a few countries in which the number of female representatives is higher or
comparatively equal to that of men like (according to 2010 data) Rwanda (56.3%),
Sweden (46.4 %), South Africa (44.5%), Iceland (42.9 %), etc. The presence of
women parliamentarians and the policies enacted by them have a positive impact on
young women and simultaneously incorporate gendered ideas into the policy so that it
can positively impact the lives of women.

5.6 REPRESENTATION OF OTHER BACKWARD

CLASSES AND MUSLIMS

A. Other Backward Classes

From 1952 to the 1990s, as cited in the Table no. 1 and Table no. 2, the presence of
Scheduled Tribes and Scheduled Castes in the context of their population has increased
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NOTES provision. However, in comparison to the total population, the representation of OBCs
is very far from reality. But their presence marked a significant change in the 1990s.
The implementation of Mandal Commission and the rise of political parties based on
caste identities forced many mainstream political parties to realize the strength of the
Other Backward Classes; as a result, many political parties started incorporating OBC
candidates into their parties, and the BJP, which is said to be the party of upper castes,
gave major seats to the OBCs in the 1990s general elections. The assertion of OBC
caste identities in the 1990s was at its peak.
However, the presence of Other Backward Classes in parliamentary politics
had very little impact on the presence of Upper Castes. The presence of OBCs and
the SCs and STs in the 1990s in the Lok Sabha changed the social demography of the
Parliament; the increase in the number of OBCs in the apex legislative bodies has been
defined as ‘second democratic upsurge’ by Yogendra Yadav. Yogendra Yadav, in his
idea of second upsurge, says that the social composition of the legislatures at the
centre has gone through significant change and there has been a participatory upsurge
among the underprivileged castes and groups like women. In many state elections,
particularly in Uttar Pradesh and Bihar, the number of OBC MLAs increased to its
highest level. For example, in Bihar, the emergence of Lalu Prasad Yadav after 1990
brought historic changes in the politics of Bihar. In the 1990 election, among 55
backward caste MLAs, 36 were from Yadav caste and 5 were from lower backward
castes. In comparison to the 2010 Assembly election, the number of MLAs from
Yadav community increased from 39 to 61 in 2015 and the Kurmi representation
declined from 18 to 16, but there was an increase of an MLA from Koeri from 19 to
20. In the 2015 State Assembly elections, the Mahagathbandhan provided 134 seats
out of 243 seats to backward classes, of which 35% were from Yadav-Kurmi
communities, 39 and 40 seats were provided to upper castes and SCs-STs,
respectively.
In 1952, the total number of lower caste Lok Sabha members was 59, which
went to 70 in 1957. The number became 69, 87, 84, 107, and 91 in 1962, 1967,
1971, 1977, and 1980, respectively. The major changes in the presence of OBC Lok
Sabha Members were registered after 1991 elections. In 1991, the total number of
OBC Lok Sabha Members was 128 which came to 125 in 1996 and 128 in 2004. In
2019 elections, the presence of Other Backward Classes was the lowest since 1991.
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B. Muslims Representation NOTES

Being the second-largest population in India according to religious identity, Muslims

have inadequate representation in Parliament. Muslims demanded separate electorates
in the Constituent Assembly; however, it was not granted on grounds that it might
create more social divisions in India based on religious identity. After the partition,
approximately 35 million Muslims chose India as their motherland. The Muslim
population in India is mostly concentrated in the northern part of India like Uttar Pradesh,
Bihar and West Bengal. However, Muslims live as minorities in other states as well.
Table No. 4: Number of Muslims Lok Sabha Members from 1951 to 2019

Lok Sabha-Wise Year Total No. of Muslim MPs

First 1951-52 11
Second 1957 19
Third 1962 20
Fourth 1967 25
Fifth 1971 28
Sixth 1977 34
Seventh 1980 49
Eighth 1984 42
Ninth 1989 27
Tenth 1991 25
Eleventh 1996 29
Twelfth 1998 28
Thirteenth 1999 31
Fourteenth 2004 34
Fifteenth 2009 30
Sixteenth 2014 23
Seventeenth 2019 27

Source: Fact Sheets: Muslim Representation in Parliament. India Today, 2014.

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NOTES Since the first general elections of 1952, the number of Muslim representatives
was static, and it varies between 11 and 34. However, a major rise in the number of
Muslim representatives could be marked in the seventh general election in which the
total number of representation of Muslims rose to 49, which was more than 4 times to
the 1952 elections, and it declined by 7 seats in 1984, as the total number of Muslim
representations dropped to 42. The Mandal and the Mandir politics in the early phase
of the 1990s took Indian political system to a new turn and since then the number of
Muslim representatives did not rise above 34 seats. The rise of backward classes in
the 1990s did not impact the politics of upper castes but it impacted the political
representation of Muslims. The Muslim representatives claim that the number of their
representation is not in accordance with their population, for instance, the presence of
Muslims in 2014 Lok Sabha should have been 66 but they only 23 got place in the
Lower House of the Parliament. They also see the rise of BJP as the major reason for
their decline in Lok Sabha because of the politics of Hinduism and the Hindu culture.

5.7 CONCLUSION

This fact cannot be denied that representational politics provides an opportunity to

law makers to make impactful policies for the betterment of marginalized and backward
communities. The politics of representation has been successful to some extent in
bringing changes in the demography of the Lok Sabha, but it has failed to bring
inclusiveness among their own fellow communities. The era of 1990s was the period
of upsurge of the OBCs but the upper backwards like Yadavs, Koiri, Kurmi etc. were
the beneficiary of the upsurge. The extremely backward castes like Nai, Teli, Kumhar,
Badhai, Dhanuk etc. are still looking for their representation. The number of female
members has also increased but they are still lacking the recognition, and the mainstream
media does not provide much space to the female members. The Scheduled Castes
and the Scheduled Tribes are in a better position in comparison to the other backward
classes, Muslims, and Women, registering victory on the unreserved seats and that
signals the political empowerment of the SCs and the STs.

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NOTES
5.8 SELF-ASSESSMENT QUESTIONS

1. Critically evaluate various dimensions of Indian Representation Act.

2. Evaluate various provisions related to representation for SCs, STs and Other
Backward Classes in India.

5.9 REFERENCES

 Zoya Hasan, Politics of Inclusion: Caste, Minorities and Affirmative Action

(New Delhi: Oxford University Press, 2009), 19.
 Preet Sagar, Reservation for Backward Classes: A Perspective (Delhi:
Ashthan Prakashan, 1997), V-VI.
 Wang Chi Blu, The Scientific Outlook of Buddhism, trans. in English by P.H.
Wei (2003). The concept has been taken from the third chapter of the book
titled “Chapter 3- The Buddhist Theory of Equality”. https://www.wisdomlib.org/
buddhism/book/the-scientific-outlook-of-buddhism/d/doc2238.html Accessed
on June 15, 2018.
 Dinesh Kumar Singh, “Understanding State Politics in India: A Case Study of
Bihar”, in State Politics in India, ed. Himanshu Roy, M.P Singh and A.P.S.
Chouhan, (Delhi: Primus Books, 2017), 152.
 Birendra Yadav, “Bihar Assembly’s Caste”, Forward Press (January 2016).
https://www.forwardpress.in/2016/03/bihar-assemblys-caste/ Accessed on July
03, 2018.
 https://www.indiatoday.in/assembly-elections-2015/bihar-polls/story/bihar-
assembly-election-caste-casts-web-on-candidates-list-of-grand-alliance-
265003-2015-09-27. Accessed on June 15, 2018.
 Shankar, B.L. and Rodrigues. Valarian, The Indian Parliament: A Democracy
at Work. New Delhi,OUP, 2011.
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NOTES  Agrawal, Arun “The India Parliament”, in Institutions in India: Performance

and Design, New Delhi, OUP, 2005.
 Kapoor, Devesh and Mehta, Pratab Bhanu, “ The Indian Parliament as an
Institution of Accountability, Democracy, Governance and Human Rights
Programme Paper Number 23, January 2006.
 Phillips, Anne. The Politics of Presence. Oxford: Clarendon Press, 1995.
 Pitkin, Hanna, The Concept of Representation. Los Angeles: University of
California Press, 1967.

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The Executive: Election, Power, Functions and the Changing Role of President...

LESSON 6 NOTES

THE EXECUTIVE: ELECTION, POWER,

FUNCTIONS AND THE CHANGING ROLE OF
PRESIDENT AND PRIME MINISTER
Manila Narzary
Assistant Professor
Kalindi College, DU
Structure
6.1 Learning Objectives
6.2 Introduction
6.3 The President
6.3.1 Qualifications to Become President
6.3.2 Election of the President
6.3.3 Privileges of the President
6.3.4 Legislative Powers
6.3.5 Financial Powers
6.3.6 Position of the President
6.4 The Prime Minister
6.4.1 Power and Functions of the Prime Minister
6.4.2 Prime Minister and the President
6.5 Conclusion
6.6 Self-Assessment Questions
6.7 References

6.1 LEARNING OBJECTIVES

 The lesson would help students understand the power and functions of the
Prime Minister and the President. It would create a link between the two.
 The lesson also helps students to understand how parliamentary democracy
gives more emphasis on the role of the Prime Minister.
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NOTES
6.2 INTRODUCTION

The executive refers to that wing of the government which enforces laws enacted by
the legislature and carries on the general administration of the country. According to
Prof. Garner, the executive organs embrace the totality of all the functionaries and
agencies which are concerned with the execution of the will of the state as formulated
and expressed in terms of law. The Indian Constitution, which has followed the British
Parliamentary pattern, has provided for the executive at the center and in each of the
states. Though the formal executive authority at the Centre and in the States is vested
with the President and the Governor, respectively, in actual practice, this authority is
exercised by the Council of Ministers.

6.3 THE PRESIDENT

The Constitution of India envisages a parliamentary form of government in India.

Although Article 53 of the constitution says that the executive power of the Union shall
be exercised by the president either directly or through officers’ subordinate to him, in
practice, the president has to abide by the decisions of the Council of Ministers with
the Prime Minister at the head.
The president in the constitution is not a figurehead. He is the embodiment of
the ultimate authority of the constitution, which moves only on threat to constitutional
government. The president’s oath of office compels him ‘to preserve, protect and
defend the constitution and the law’ and “to devote himself to the service and wellbeing
of the people of India.” The supremacy of the president lies in securing the supremacy
of the constitution.
The importance of the president in the constitutional set-up of the country is
disclosed by the manner of his election. He is elected by the members of an electoral
college consisting of (i) the elected members of both the Houses of Parliament; and (ii)
the elected members of the Legislative Assembly of the states. The suggestion that the
Electoral College should consist of members of parliament alone was turned down so
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replica of the prime minister.” This would show, in the first place, that the president is NOTES
not merely a figurehead and in second place, that he represents the people of India, as
opposed to the Union Ministers who represent only the majority party in parliament,
thus making him not only the head of the union, but also the chief of the nation and the
country.

6.3.1 Qualifications to Become President

The qualifications for the office of the president are contained in Article 58 and 59 and
the Presidential Election Act and are as follows.
a. He/she should be a citizen of India.
b. He/she should have completed thirty-five years of age;
c. He/she should be qualified for election as a member of the Lok Sabha;
d. He/she should not hold any office of profit under the Government of India or the
government of any state or under any local or other authority subject to the
control of any of the said governments.
e. He/she should not be a member of either House of Parliament or a State
legislature. If any such person is elected as president, his/ her seat in the parliament
or the state legislature is deemed to have been vacated.
f. A candidate contesting election for the office of president must deposit a security
of Rs.15000 with his nomination papers. This has been done to prevent fake
candidates from contesting elections.
Certain office holders, however, are also permitted to stand as presidents. They
are:
1. The current vice president
2. The governor of any state
3. A minister of the union or any state (including Prime Minister and Chief
Minister)
In such situations, when a vice president, state governor or minister is elected as
president, they are considered to have vacated their previous office on the date they
began serving as president.
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NOTES Further, Article 59 enumerates that the president shall be entitled without payment
of rent to the use of his official residences and shall also be entitled to such emoluments,
allowances and privileges as may be determined by parliament by law and, until provision
in that behalf is made, such emoluments, allowances and privileges as are specified in
the Second Schedule, which cannot be diminished during his or her term of office.

6.3.2 Election of the President

The president is indirectly elected through an electoral college to ensure due

representation to the union as well as the states. The Electoral College consists of (i)
the elected members of both the houses of parliament; and (ii) the elected members of
the Legislative Assemblies of the states. The nominated members of parliament or
state legislature do not take part in president’s elections. The election is held according
to the system of proportional representation through a single transferable vote. The
constitution tries to ensure uniformity among the states and parity between the union
and the states. Therefore, the constitution lays down that the elected members of the
Legislative Assembly of a state shall have as many votes as there are multiples of 1000
in the quotient obtained by dividing the population of the state by the total number of
members of the Assembly. In short, the number of votes which each member of the
Legislative Assembly is entitled to cast in the presidential election is based on the
population of the state.
Similarly, the constitution tries to maintain a parity between the strength of the
states and the parliament and provides that each member of the parliament shall be
entitled to cast as many votes as are obtained by dividing the total number of votes of
the legislative assemblies of all the states by the total number of elected members of
the two houses of parliament. All disputes regarding the election of the president are
inquired into and decided by the Supreme Court of India, whose decision is final.

Oath

Before assuming his office, the president must take an oath or an affirmation in the
presence of the Chief Justice of India, or, in his absence, the senior most judge of the
Supreme Court.

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Term of the office and removal NOTES

The president holds office for a term of five years from the date on which he assumes
office. He continues in office even after the expiration of his term until his successor is
elected and the office is assumed by him. The president is eligible for re-election. Dr.
Rajendra Prasad, the first president of India, held the office for two terms. Thereafter,
no president has held office for more than one term. The president can resign his office
before the expiration of five years, by addressing his resignation to the vice-president.

Impeachment

The president can be removed from his office before the expiration of his term through
impeachment. According to the Constitution, the president can be impeached only for
a violation of the constitution. Impeachment proceedings can be initiated in either
house of the parliament. Thereafter, the other house investigates the charges. The
president is given a chance to be present at such an investigation. If the investigating
house also passes a resolution by a two-thirds majority of the total membership of the
house sustaining the charge, the president stands impeached from the date on which
the resolution is passed.

Vacancy

In case the office of the president falls vacant due to death, resignation or removal of
the president, the vice-president of the India becomes the president, till fresh elections
are held for the post and the new incumbent assumes office. Under the constitution,
such elections must be held within six months of the occurrence of vacancy. Similarly,
if the president is not able to discharge his duties due to sickness or absence due to
other reasons, the vice-president discharges the functions of the president. When the
vice-president acts as the president he is entitled to the same salary, allowances and
privileges which are available to the president. In case the vice-president of India is
not available to discharge the duties of the president, the Chief justice of India performs
these duties. This happened when V.V. Giri, vice-president of India, who was acting
as the president after the death of Dr. Zakir Hussain, tendered his resignation.
Thereupon, the then Chief Justice of India (M. Hidayatullah) assumed the office of the
president.
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NOTES 6.3.3 Privileges of the President

The president enjoys several privileges -

1. He/she is not answerable to any court for the exercise of power and the
performance of the duties of his office except through impeachment proceedings.
2. No criminal proceedings can be instituted against him in any court during his
term of office.
3. He/ she cannot be arrested or imprisoned during his term of office.
4. No civil proceedings can be instituted against him in any court in respect of any
act done by him in his personal capacity, during his term of office.

Powers of the President

The president is the executive head of the state and has been vested with a variety of
powers, which can be studied under the following heads:

Executive Power

The constitution vests all the executive authority of the union in the president which he
may exercise either directly or through the officers subordinate to him. The executive
powers of the president extend to all those matters with respect to which the parliament
has the exclusive power to make laws. All executive orders are expressed to be taken
in his name. All contracts of the union government are also executed in the name of the
president. According to Article 53(2), the President is also supreme commander of
the armed forces of India and has the power to declare war and make peace. All the
major executive appointments of the Union Government are also made by the president.
Some of the important appointments made by the president include the Prime Minister
and other members of the Council of Ministers; the Governor of the states; Attorney
General of India; Chairman and Members of the Union Public Service Commission;
the Comptroller and Auditor General of India; Chief Justice and Judges of the supreme
court; Chief justice and Judges of the High courts; the commissioner of scheduled
caste and scheduled tribes and Backward classes; Members of Finance Commission;
Ambassadors and other Diplomatic envoys etc. It may be observed that though formally
all the above executive powers are vested in the president, he exercises them on the
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advice of the Prime Minister and his Council of Ministers. Earlier, it was not obligatory NOTES
for the president to accept this advice, but the 42nd Amendment made it obligatory for
the president to exercise his functions in accordance with the advice of the Council of
Ministers.
However, under the 44th Amendment, the President has been authorized to
refer the matter to the Council of Ministers for reconsideration. But if the Council of
Ministers after such reconsideration tenders any advice to the President, the latter
must abide by the same. This modification was made to ensure that the situation which
arose in 1975, when the President signed the Proclamation of Emergency on the
advice of Prime Minister (Mrs. Indira Gandhi) even though she had not consulted the
cabinet, does not recur.

6.3.4 Legislative Powers

As an integral part of the Parliament, the president of India enjoys extensive legislative
powers. He can summon and prorogue the two houses of parliament and can dissolve
the Lok Sabha. In case of conflict between the two houses of parliament, the president
can call a joint sitting of both the houses to resolve the deadlock. The president addresses
either house of parliament or a joint session of the two houses at the commencement
of each session. The first session of parliament each year also starts with an address
from the president. In this address, the president outlines the general policy and program
of the government. The address of the president is prepared for him by the Council of
Ministers. The president also reserves the right to send messages to either house of
parliament with respect to pending bills or otherwise and the house is duty bound to
consider his message. Certain bills can be introduced in the parliament only on the
recommendation of the president. The president also enjoys the final authority to decide
the questions regarding disqualification of members and his decision in this regard is
final. However, in this matter, the president acts on the advice of election commission.
The president nominates 12 members to the Rajya Sabha from among those
who have distinguished themselves in fine arts, literature, social service etc. All the bills
after they are passed by the two houses of parliament must receive the assent of the
president. When a bill is presented to the president for his assent, he can either sign it
or refuse his signature and return the bill to the originating house for reconsideration.
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NOTES However, if the parliament repasses the bill and sends the same to the president, he
must append his signature. Thus, the parliament can overrule the veto of the president.
Finally, the president can promulgate ordinances during the recess of the
parliament if he is satisfied that the circumstances warrant an immediate action. It may
be observed that the satisfaction of the president virtually means satisfaction of the
council of ministers. Therefore, the president always issues ordinances on the advice
of the council of ministers. The ordinances issued by the president have the same force
as a law of parliament. Further, the ordinance has to be placed before both the houses
of the parliament. If the parliament does not take any action on the ordinance for six
weeks, the ordinance shall automatically lapse after the expiry of this period. The
ordinance shall cease to operate if the two houses of the parliament pass a resolution
disapproving the same before the expiry of six weeks. But if the two houses of parliament
accord their approval to the ordinance, it becomes an act.
The legislative powers of the president also extend to matters falling under the
jurisdiction of the state legislature. Under the constitution, the governor of the state can
reserve certain bills, presented to him for his assent by the state legislature, for the
consideration of the president. Further, certain bills cannot be introduced in the state
legislature without prior sanction of the president. Similarly, some bills passed by state
legislature come into force only after presidential assent. The president also enjoys the
power to issue regulations for the Union Territories of Andaman and Nicobar Island
and Lakshadweep, Minicoy and Amindivi Islands. These regulations have the same
force as the laws of parliament. The president also lays the reports and recommendations
of several important bodies and Commissions before the parliament like UPSC, Finance
Commission, CAG, etc.

6.3.5 Financial Powers

The president also enjoys substantial financial powers. No money bill can be introduced
in parliament except on his recommendation. Every year at the beginning of the financial
year, the president causes the annual Financial Statement to be laid before the parliament,
showing the estimated receipts and expenditures of the Union Government. Similarly,
no bill imposing or altering any tax or duty in which the states are interested can be
introduced in the parliament without the recommendation of the president.
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The constitution places the Contingency Fund of India at the disposal of the NOTES
president who is authorized to make advances out of it to meet the unforeseen
expenditures pending and determines the share of the states in the income tax receipts.
He also decides about the grants-in-aid to be made to the states of Assam, Bengal,
Bihar and Orissa in lieu of their share of the jute export duty. Every five years, the
president appoints a Finance Commission, consisting of a chairman and four other
members, to make recommendations to him regarding the distribution of such taxes as
are to be divided between the Union and the States. The Finance Commission also
advises on the principles which should govern the grants-in aid to the states outside the
consolidated fund of India. The president can also seek advice of the Finance
Commission on any other issue concerning sound finances.

Judicial Powers

First and foremost, the president has the power to appoint the Chief Justices and other
judges of the Supreme Court and the high courts. He can also dismiss them only after
an address by each house of the parliament supported by a majority of the total
membership of that house and by majority of not less than two thirds of the members
of the house present and voting has been presented to the president in the same session
for such removal on the ground of proved misbehavior or incapacity. Mentioned in
Article 124(4) of the Constitution.
The president can seek advice from the Supreme Court on any question of law
or fact and the court has to tender the same. Above all, as per Article 72 of the
Constitution, the President of India also has the power to grant pardon, reprieve,
respite, or remission of punishment to any person convicted of any offence.
a) In all cases where the punishment or sentence is by a court martial;
b) In all cases where the punishment or sentence is for an offence against any
law relating to matters within the executive power of the Union;
c) In all cases where the sentence is of death.
It may be observed that the president can grant pardon at any stage after the
commission of the offence viz., before legal proceedings are instituted, during pendency
of proceedings or after the conviction. The president enjoys legal immunity and is not
answerable to any court of law for anything done in the exercise of his official duties.
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NOTES He can neither be arrested, nor can judicial proceedings be instituted against him in
any court law. Civil suits can, however, be brought against the president only after
giving him a written notice of at least two months. So far, no such suit has been brought
against him.

Emergency powers

The Constitution arms the president with excessive emergency powers. The constitution
has envisaged three types of emergencies viz.
a) Emergency due to war, external aggression or arm rebellion;
b) Emergency due to failure of constitutional machinery in a state; and
c) Emergency due to threat to the financial stability of the country

a) Emergency due to war, external aggression or arm rebellion

Article 352 provides that if the president is satisfied that the security of India is threatened
by foreign attack or armed rebellion, he/she can make a proclamation of emergency in
respect of the whole of India or any part of the country. It is noteworthy that the
president can make such a proclamation even when he feels that there is imminent
danger to the security of India. During the proclamation of emergency, the president
can modify the distribution of power between the Union and the States and suspend
the enforcement of fundamental rights. The president can make such a proclamation
for whole of India or any part of it. The courts cannot examine whether the grounds of
emergency did exist in fact. The satisfaction of the president is enough to make a
proclamation of emergency.
The proclamation of emergency has to be laid before each house of parliament
and ceases to operate at the expiration of one-month period unless within this period
the proclamation is approved by the resolutions of both the houses of the parliament.
However, if the proclamation of emergency is issued at a time when the Lok Sabha
has been dissolved or the dissolution of the Lok Sabha takes place during the period
of one month without approving the proclamation, the proclamation must be placed
before the Rajya Sabha for approval. It must be placed before the Lok Sabha as soon
as it reassembles. Unless the Lok Sabha passes a resolution approving the proclamation
earlier, the proclamation shall cease to operate after the expiry of 30 days from the
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date on which the Lok Sabha held its first meeting after re-election. It may be noted NOTES
that in terms of the 44th Amendment Act, the resolution approving the proclamation
has to be passed by special majority, i.e., by a two- thirds of members present and
voting in each house.
The proclamation of emergency, if approved by parliament, remains in force for
a period of six months from the date of passing the resolution approving it, unless
revoked earlier. Thereafter, the parliament can approve the continuation of emergency
for six months at a time. The Lok Sabha may move a resolution for disapproving the
continuance of the proclamation of emergency by giving a notice in writing signed by
not less than one-tenth of the total number of members of the house. Such a notice has
to be given to the speaker if the house is in session and to the president if the house is
not in session. A special meeting of the Lok Sabha has to be called within 14 days of
the receipt of the notice by the speaker or president for the purpose of considering the
resolution.

b) Emergency due to failure of constitutional machinery in a state

The second type of emergency power given to the president deals with the failure of
constitution machinery in the states. Article 356 provides that if the president, on receipt
of report from the Governor or otherwise, is satisfied that the government of a state
cannot be carried on in accordance with the provisions of the constitution, he can
make a proclamation of emergency. During such emergency, the president can assume
to himself all or any of the functions of the state government and all or any of the
powers vested in or exercisable by governor or anybody or authority in the state other
than the legislature of the state. And also, the president can declare that the powers of
the legislature of the state shall be exercised by or under the powers of the parliament.
This means that the law-making power of the state is suspended during the emergency
and the distribution of legislative powers between Centre and states is fundamentally
changed.
Every proclamation has to be laid before each house of parliament and continues
in force for two months unless approved by resolutions of both houses of parliament.
Such a proclamation continues for six months and can be extended by subsequent
resolution of parliament by six months at a time but not beyond three years. After the
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NOTES president can continue emergency in the state and the constitutional machinery has to
be restored there. In original Article 356, the period was six months at a time of 42nd
Amendment. But 59th Amendment provided special provisions to continue president’s
rule beyond three years, only in Punjab. The 63rd Amendment repealed Amendment
59 but 65th Amendment again gave power to parliament to extend the president’s rule
in Punjab.
Earlier, 38th Amendment had made it clear that the satisfaction of the president
shall be final and conclusive and shall not be questioned in any court on any ground.
This provision has been omitted by the 44th Amendment. But in general, courts have
taken a position that such a proclamation was a political matter and not a legal one,
therefore, they cannot pass judgment on the same.
A proclamation of emergency under Article 356 means that the president assumes
to himself all or any of the functions of the government of the state, including those
belonging to the governor or any other authority. It is because of this that this emergency
is called “President’s Rule”.

c) Emergency due to threat to the financial stability of the country

According to Article 360, the president can declare financial emergency if he is satisfied
that a situation has arisen whereby the financial stability or credit of India or of any part
of the territory thereof is threatened. During such an emergency, he can direct the
union as well as the state government to observe such canons of financial propriety as
he may deem desirable. All money bills and financial bills must be reserved for
consideration of the president after they are passed by the legislatures of the state. He/
she can also ask them to reduce salaries and allowances of all or any class of state
servants. He/she can direct the states to reserve their money bills for his consideration.
He/she can even order the reduction of salaries of judges of the Supreme Court and
the High Courts.

Diplomatic power

The president represents India in the international affairs and enjoys extensive diplomatic
powers. He sends Indian diplomatic envoys to foreign states and receives their envoys
accredited to India. He can also ask the foreign diplomats to leave the country by
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declaring them as persona-non-grata. All the international treaties and agreements NOTES
are concluded by India on behalf of the president and are subjected to his final signature.

6.3.6 Position of the President

The position of the president has been a subject of great controversy ever since the
inauguration of the constitution. Different scholars have broadly expressed two views.
Those who have taken a purely legalistic view of his position assert that the constitution
has vested all the executive powers in the President which he can exercise either
directly or through officers subordinate to him. There was no mention in the constitution
before the enactment of the 42nd Amendment that the President was bound to accept
the advice of the Council of Ministers. Naturally, these scholars assumed that the
president could act on his own and assume autocratic powers. As opposed to this,
some other scholars have viewed the position of the president in the context of the
parliamentary system of government adopted in the country. They have argued that
the president is expected to be merely a constitutional ruler and the real authority rest
with the popularly elected Council of Ministers, since power and responsibility must
go hand and hand. This view was given a formal legal shape by the 42nd amendment
which clearly stipulated that the president in the exercise of his functions shall act in
accordance with the advice of the Council of Ministers. The Amendment did not
permit the president to play even the role of an adviser or a guide. The limited role of
the president of India was further confirmed by the 44th Amendment, which provided
that “the president may require the Council of Ministers to reconsider such advice,
either generally or otherwise, and the president shall act in accordance with the advice
tendered after such reconsideration”.
According to Dr. Bhim Rao Ambedkar, who was the chairman of the Drafting
Committee of the constitution, “the president occupies the same position as the
king under the English constitution… he is the head of the Nation but does not
rule the Nation. He will be generally bound by the advice of the Ministers. He
can do nothing contrary to their advice, nor can do anything without their advice.”
A similar view was expressed by Dr. Rajendra Prasad as the president of constituent
Assembly in these words: “Although there is no specific provision to accept the
advice of his ministers, it is hoped that the Convention under which in England
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NOTES country also and the president would become constitutional president in all
matters”.
Despite the limited role envisaged for the Indian president by the 42nd and 44th
amendments, it would be certainly wrong to assert that the president is merely a rubber
stamp and has no discretion in any matter. The weak position of the president does not
mean that his office is superfluous. He plays a vital role in the work of the Government.
Being impartial and above party politics, he exerts or is likely to exert his influence on
the decision of the Prime Minister. A capable president can certainly make his weight
felt both by executive and the legislative departments. He can send messages to the
parliament and can ask the Council of Ministers to reconsider the advice tendered to
him. He can greatly influence the decision of the cabinet through advice and criticism.
Under certain conditions, he can make use of his discretion. For example, if no single
political party is able to get a clear-cut majority in the Lok Sabha, the president can
show some discretion in the selection of the Prime Minister.
No president till date, however, has exceeded his authority and has asserted
himself/herself. Most of the presidents have played a constructive role and have guided
the Indian Government meaningfully. During the emergency in India caused by the
Chinese invasion, President Radhakrisnan conducted himself in a noble and dignified
way. He did not overdo his role, nor did he try to assert his authority. There has been
no rivalry in India between the president and the prime minister. Both have acted in
perfect co-operation. However, serious differences developed between the former
president Giani Zail Singh and Prime Minister Rajiv Gandhi during the former’s tenure
of last few months.
However, it cannot be doubted that the real executive power lies in the Prime
Minister and his Council of Ministers, and the President is the only formal executive.

6.4 THE PRIME MINISTER

The Prime Minister occupies a pivotal position in the union executive. Unlike Britain,
where the Prime Minister does not enjoy any constitutional status, the office of the
Prime Minister in the India has been created by the Constitution. Article 74(1) of the
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constitution provides that “there shall be Council of Ministers with the Prime Minister NOTES
at the head to aid and advice the President who shall, in the exercise of his functions,
act in accordance with such advice.”
The prime minister is appointed by the President. However, the President must
appoint only such a person as Prime Minister who commands majority in the Lok
Sabha. This means that if a single party has a majority in Lok Sabha, its leader would
naturally be appointed as Prime Minister. On the other hand, if there is no single party
with majority in the Lok Sabha or is no recognized leader of the majority party, the
President can use some discretion in the appointment of the Prime Minister. Even, in
this case, the president must ensure that only such a person is appointed as Prime
Minister who shall be able to muster majority support in the parliament.

Term of Prime Minister

Term of the office of Prime Minister holds office for a term of five years. However, if
the life of the Lok Sabha is extended beyond five years, the term of the Prime Minister
gets automatically extended. Similarly, if the Lok Sabha is dissolved before the expiration
of its five years term, the term of the Prime Minister is automatically cut short.
Theoretically, the Prime Minister holds office during the pleasure of the President,
but he remains in office if he enjoys the confidence of the Lok Sabha. If he loses the
confidence of the Lok Sabha, the Prime Minister must either tender his resignation or
the President can dismiss him.

Salary and Allowances

The Prime Minister gets a monthly salary and other allowances which are paid to
members of parliament. He also receives constituency allowances at the same rate to
which the MPs are entitled. In addition, the Prime Minister gets a sumptuary allowance
per month. Over and above, he is entitled to free housing, medical facilities and travelling
allowances.

6.4.1 Power and Functions of the Prime Minister

The Prime Minister, as the Chief adviser of the president and the Chairman of the
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NOTES acknowledges the primary position of the Prime Minister in the council of ministers by
specifically providing that “there shall be Council of Ministers with the Prime Minister
as its head” to aid and advise the President. Even if the constitution had not specifically
assigned a primary position to the Prime Minister, he would have assumed that position
in actual practice. It is well known fact that in the Parliamentary system of government,
the Prime Minister is the Centre of executive and imparts content and meaning to the
policies to the government. The powers of the Prime Minister can be conveniently
studied under the following categories:
1. In relation to the Council of Ministers: The prime minister occupies a key
position in relation to the council of ministers. All members of the council of
ministers are appointed by the president on the advice of the prime minister.
However, the prime minister is not free to include anyone in his council and has
to keep several practical considerations in mind while forming the council. After
the council of ministers is constituted, it is the prerogative of the prime minister
to allocate various portfolios among the ministers. He can also reshuffle these
portfolios subsequently in the interest of administrative efficiency. In case of
difference of opinion between the prime minister and other ministers, the prime
minister can either advise the minister to tender his resignation or recommend
his dismissal to the president. As the Chairman of the council of ministers, the
prime minister determines its agenda and proceedings, and influences the
decisions of the council of ministers in a decisive manner. Above all, the prime
minister co-ordinates the working of the various ministries and ensures that their
policies and programs do not conflict.
2. In relation to the president: The prime minister is the chief channel of
communication between the president and the council of ministers. According
to Article 78, it is the duty of the prime minister to communicate to the president
all the decisions of the council of ministers. Similarly, if the president so desires,
the prime minister has to submit a matter for the consideration of the council of
ministers, if the decision has been taken by an individual minister but no decision
has been taken by the council of ministers as such. The prime minister is also
duty-bound to supply such information to the president regarding proposal of
legislation and administration of the Union, as the president may call for. It is
significant to note that no other member of the council of ministers is authorized
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to make any direct communication with the president unless he is so authorized. NOTES
The president acts on the advice of the prime minister about the appointment of
important officials like the Chief Justice of India, the judges of supreme court,
the Chief justice and judges of the High Courts; Comptroller and Auditor General;
Chairman and members of Union Public Service Commissioner; Election
Commissioner; Governors; Chief of the Army, Navy, and Air Force;
Ambassadors and High Commissioners and other officials.
3. In relation to Parliament: The prime minister is intimately connected to the
parliament. In fact, he is appointed as prime minister only because he is the
leader of the majority party in Lok Sabha. After his appointment, the prime
minister and the council of ministers are collectively responsible to the parliament
and stay in office as long as it enjoys the confidence of the majority of the
members of Lok Sabha. The prime minister has to justify the policy and programs
of his government on the floor of the parliament. In fact, all important policy
announcements are made by the prime minister on the floor of the parliament.
The prime minister also exercises control over the timetable of the house. Its
sessions are convened and postponed by the president on the advice of the
prime minister. The president dissolves the Lok Sabha on the advice of the
prime minister.
4. In relation to the party: The prime minister is an important leader of the party
and greatly influences its working and decisions. He keeps in constant touch
with other important members of his party to ensure the party solidarity and
support. The prime minister is fully aware that the continued existence of his
government depends on party support. Therefore, he tries to maintain the best
of relations and control over party leaders. Quite often, the prime minister himself
acts as the president of the party. But at present, the prime minister and the
president of the party are separate. It is a well-known fact that at times prime
ministers like Pt. Jawaharlal Nehru, Mrs. Indira Gandhi and Mr. Charan Singh,
and Mr. Rajiv Gandhi were also the president of their political parties.
5. Conduct of international relations: The prime minister also plays an important
role in the conduct of international relations. Generally, the prime minister keeps
the portfolio of external affairs with him. Even if some other minister oversees
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NOTES keeps him posted with all the recent developments. The prime minister represents
the country in the various international conferences and plays a vital role in the
conduct of the country’s international relations.
6. Power of patronage: The president of India is the head of the state while prime
minister is the head of the government. He enjoys great power of patronage.
Although the president of India is vested with many executive powers, in actual
practice he or she acts only on the advice of the prime minister and the cabinet.
All major appointments of the Union Government are virtually made by the
prime minister and all the major decision-making bodies like the Union Cabinet,
Governor, and Chairmanship of various committees, Planning Commission (Niti
Ayog), etc. Cabinet Committees function under his supervision and direction.
The prime mister can elevate even the non-entities to the most important position.

Position of the Prime Minister:

The Prime Minister no longer remains the leader of the party in Parliament but becomes
the leader of the nation as a whole. He is the center and focus of the people’s hope and
aspirations. To the people at large, he symbolizes the national government. He enjoys
tremendous power and influence both in the executive and legislative sphere. As Head
of the Council of Ministers, he plays a decisive role in the formation and implementation
of the policy by the various ministers. The nominal or constitutional position of the
President of India under the Indian political system further adds to the powers and
prestige of the Prime Minister. In this respect, all the power vested in the president by
the constitution are exercised by the prime minister. The position of the Prime Minister
in Great Britain and all those epithets which are used for the British Prime Minister are
applicable to him as well. Some of these epithets are primus inter pares (first among
equals), ‘steersman of the Ship of the State’, ‘the moon among the lesser stars’ and
‘sun around which all other planet revolves’. In fact, the position of the Indian Prime
Minister is superior to the position of the British Prime Minister in so far as Indian
Prime Minister’s office enjoys a constitutional basis and is not a product of the
convention. It may be further observed that the position of the Indian Prime Minister,
like that of the British Prime Minister, depends on his personality, the position of his
party in the parliament and his own position within the party.
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6.4.2 Prime Minister and the President NOTES

According to the characteristics and convention of the Parliamentary democracy, the

President is supposed to only be a constitutional head. All the executive powers lie
with the prime minister and his cabinet and President is just a nominal executive.
Therefore, the President being the nominal executive can only function with the aid and
advice of the real executive, i.e., the prime minister and his Council of Ministers. Also,
in view of elected nature of President, differences of opinion may arise between the
President and Prime Minister. The Prime Minister has no power to dislodge the President
except through impeachment, which requires special majority in both Houses of
Parliament. The President has several ways of conveying his displeasure to the Prime
Minister. Article 74 lays down that the Prime Minister and his Council of Ministers are
to aid and advice the President of India. It says that the President shall in the exercise
of his functions act in accordance with such advice.
According to the Article 78 of the Constitution, it shall be the duty of the Prime
Minister to communicate to the President all decisions of the Council of Ministers
relating the administration of the affairs of the Union and proposals of the legislation.
This makes Prime Minister a link between the President and the Cabinet and Chief
advisor of the President. This also gives the President the right to information. The
Prime Minister is bound to forward to the president such information relating to the
administration of the affairs of the union and proposals for legislation as the President
may call for. Also, the president may require the prime minister to submit, for the
consideration of the council of Ministers, any matter in which the decision has been
taken by a minister, but which has not been considered by the council. Many times, it
has been found that the president has been kept in the dark. There were major ideological
differences between President Rajendra Prasad and Prime Minister Pundit Nehru
over certain appointments of highest state officials and even governors and
ambassadors. Through the daily newspaper, the President came to know about the
appointments, and the president protested against such practices of ignoring the
president, because it was setting bad precedents. President Rajendra Prasad also
criticized the treaty of 1954 on Tibet with China. It has been reported that President
Rajendra Prasad’s desire to personally address Parliament on the Hindu Code Bill
was turned down. In 1960, President Rajendra Prasad even asked the constitution
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NOTES experts to re-examine the powers of the president in the Indian Constitution. Again,
the relationship between President Giani Zail Singh and Prime Minister Rajiv Gandhi
was strained, because the President complained that he was ignored and sidelined by
Prime Minister Rajiv Gandhi and had been kept in the dark and not informed about
many important state matters, despite constitutional provisions and also in pursuance
of the convention followed by all previous prime ministers, in their relationship with
President. Prime Minister Rajiv Gandhi denied this allegation.
Theoretically speaking, it may be a violation of Article 78, for it carries the word
‘duty’, which implies it is the duty of the Prime Minister to consult the President.
Fortunately, or unfortunately no president so far has made an issue of this; hence,
Article 78 has not been tested. Mostly, other presidents like Zakir Hussain, V.V. Giri,
F.A. Ahmed, R. Venkataraman, and Sankar Dayal Sharma stuck to their constitutional
role and the relations between them, and the Prime Minister did not enter into any
controversy. President Zail Singh also did not give his assent to the Indian post office
amendment bill in 1986. President Zail Singh withheld his assent on the ground that the
Act would violate the privacy of citizens. Prime Minister Rajiv Gandhi could do nothing
about it, which was again refused by President R. Venkatraman, and he returned the
bill with suggestions for amendment on 7th January 1990. The Janata Dal government
did not pursue the matter. President K.R. Narayan also sent back the Cabinet’s advice
to impose Article 356 or President Rule in states for reconsideration. President A.P.J.
Abdul Kalam again in many cases earned the wrath of the Prime Minister. On assuming
office, he wanted to address the Members of Parliament, but that was refused by the
Cabinet on the ground that there were no such provisions in the Constitution. Some of
his official visits were not appreciated like his official visit to riot-hit Gujarat was not
appreciated by the Government. The president also sent back the poll ordinance for
reconsideration but had to sign it after it was passed for the second time. He also sent
back the office of profit bill in 2006. During Pratibha Devi Patil’s tenure, there was no
friction between the government and the President. Thus, there have been questions
about president’s acting independently in cases of fluid situations or cabinet having lost
majorities. Unless some definite conventions are established for such eventualities ,this
may prove quite dangerous for Parliamentary Democracy.

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NOTES
6.5 CONCLUSION

The president has the function and power to uphold and defend the Constitution of
India. Any decision made by the executive or legislative branches of government will
always require presidential approval before it can become law. Thus, role of President
and Prime Minister both are powerful. Any unlawful decisions taken by the executive
or legislature can be rejected by the president. According to Article 60, the president
is the first, most powerful, and swiftest defender of the constitution and has the authority
to take proactive measures to ensure that the executive and legislative branches operate
in accordance with the constitution. The judiciary’s role in maintaining the Indian
Constitution is the second line of defense in overturning any unlawful measures taken
by the Indian Union’s executive and legislative branches.

6.6 SELF-ASSESSMENT QUESTIONS

1. Critically examine the powers and functions of President of India and their impact
on the democratic functioning of the country.
2. Write an essay on the role and function of Prime minister of India. With the
changing scenario, how is the office of PM becoming strong and powerful?

6.7 REFERENCES

 Bakshi P.M., The Constitution of India, Universal Law Publishing, Delhi, 2000.
 Basu D.D., Introduction to the Constitution of India, Prentice-Hall of India,
New Delhi, 1992.
 Jain M.P., Indian Constitutional Law, Wadhwa& Company, Nagpur, 1999.

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NOTES  Pylee M.V., India’s Constitution, S. Chand & Company, New Delhi, 1994.
 Rao K.V., Parliamentary Democracy of India: A Critical Commentary,
The World Press, Calcutta, 1961.
 Singh M.P. & Saxena R., Indian Politics: Contemporary Issues and
Concerns, Prentice-Hall of India, New Delhi, 2008.

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LESSON 7 NOTES

THE JUDICIARY: APPOINTMENT OF JUDGES IN

HIGH COURTS AND THE SUPREME COURT,
POWER AND FUNCTIONS OF HIGH COURTS AND
THE SUPREME COURT
Manila Narzary
Assistant Professor
Kalindi College, DU
Structure
7.1 Learning Objectives
7.2 Introduction
7.3 Appointment of Judges
7.4 Jurisdiction of the Supreme Court
7.5 Other Provisions
7.6 Independence of the Judiciary
7.7 The State High Courts
7.7.1 Extension of Jurisdiction of High Court
7.8 Judicial Activism
7.9 Public Interest Litigation
7.10 Conclusion
7.11 Self-assessment Questions
7.12 References

7.1 LEARNING OBJECTIVES

 The lesson would help students understand the judiciary, the independence of
judiciary, the workings of the state high courts, and the extension of jurisdiction
of the High Court.
 The lesson also gives glimpses of judicial activism, public interest litigation, etc.
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NOTES
7.2 INTRODUCTION

Under the Act of 1935, for the first time, an All India Court called the “Federal Court
of India” was set up. With the coming into force of the Indian Constitution on 28th
January 1950, the Federal Court of India was substituted by the Supreme Court.
Under the Federal Constitution, a Supreme Court is an essential part of the constitutional
scheme. It is at once the highest interpreter of the constitution and a tribunal for the
final determination of disputes between the union and its constituent units. The Supreme
Court of India, however, is more than a federal court.
“The framing of draft provisions establishing the Supreme Court was done by
an ad hoc committee of five members- B.N. Rao, K.M. Munshi, M.L. Mitter,
Vardacharian and Alladi Krishnaswamy Ayer. This report was later submitted to the
Union Constitution Committee. This report was accepted by the Constituent Assembly
except for the rule applicable to choosing the judges of the court. The Supreme Court
was idealized by the Constituent Assembly because the court was seen as an extension
of the rights; it was to be an arm of social movement; as the guardian of the Constitution;
it would be the expression of the new law created by Indian for Indian”.
According to Article 32, the Supreme Court is the protector of all the fundamental
rights embodied in the Constitution, and it has to safeguard these rights from every
infringement at the hands of either the Union Government or state governments. The
Supreme Court of India is independent of legislative and executive influences. The second
function of the court is federal in nature. It has original jurisdiction in cases involving the
states of the union inter se or between one or more states, on the one hand, and the
union on the other. Thirdly, it is called upon to give advice to the president whenever he
asks for it. It has the power to supervise the workings of the entire judicial system and
maintain uniformity of law, ensuring high standards set by the framers of the constitution.

7.3 APPOINTMENT OF JUDGES

The judges of the Supreme Court are appointed by the president. The president appoints
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Court and high courts, as he may deem necessary. However, in appointing other judges, NOTES
the president also consults the Chief Justice of India. It may be observed that the
power of appointing judges of the Supreme Court is only a formal power, and he
always appoints them on the advice of the council of ministers.

Tenure

In United States of America, judges are appointed for life or until they show good
behavior, which practically ensures them a lifelong tenure. The Constituent Assembly
of India decided against this. It valued the independence of the judiciary but seems to
have assumed that judges tend to become on account of their legal background and
old age. It was in favor of judicial competence and efficiency but distrusted the old age
and conservatism of the judges. This is perhaps why Article 124(2) stipulates that
judges can be appointed until they have attained the age of 65 years. The Chief Justice
also serves up to the age of 65 years.

Qualification

In order to be appointed as a Judge of the Supreme Court, a person must be a citizen

of India and must have been, for at least five years, a Judge of a High Court or of two
or more such courts in succession, or an advocate of a High Court or of two or more
such courts in succession for at least 10 years or he must be, in the opinion of the
President, a distinguished jurist. Provisions exist for the appointment of a judge of a
High Court as an Ad-hoc Judge of the Supreme Court and for retired judges of the
Supreme Court or High Courts to sit and act as judges of that court. A judge can
resign from his job prior to his attaining the stipulated age by writing to the president,
who is the appointing authority. A judge can be removed from office by an order of the
president when the house of parliament makes such a proposal by most of the total
membership of that house. The proposal must be adopted by a majority of not less
than two-thirds of the members of the other house during the same session of the
legislature. Besides, the motion must be based on the grounds of misbehavior.

Appointment of acting Chief

According to the Article 126, when the office of Chief Justice of India is vacant or
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NOTES duties of the office, his duties shall be performed by one of the judges of the court, as
the president may appoint for the purpose.

Seat of Supreme Court

The Supreme Court is permanently located in New Delhi. However, the Chief Justice
of India can arrange its sitting at some other place in India with the approval of the
president from time to time. Why a provision has been made for making the sittings of
the court at a place other than Delhi possible was justified by Dr. Ambedkar in the
Constituent Assembly itself when he said, “supposing the capital of India was changed,
we would have to amend the constitution in order to allow the supreme court to sit at
such other place as the parliament may decide as the capital, therefore, I think subsequent
words are necessary”.

Appointment of Ad Hoc and Retired Judges

If the Supreme Court cannot hold or continue its meeting due to lack of quorum, the
Chief Justice of India may, with the prior consent of the president and in consultation
with the Chief Justice of a particular high court, request a judge of that high court to act
as an ad hoc judge of the Supreme Court for such period as may be necessary.
However, only such persons can be appointed as ad hoc judges who are qualified to
be appointed as a judge of the Supreme Court. It shall be the duty of the judge, so
designated, to give priority to his duty to attend the sittings of the Supreme Court
rather than other duties at the time and period for which his attendance is required in
the Supreme Court. At that time, he shall have all the jurisdiction, powers, and privileges,
and shall discharge the duties of a judge of the Supreme Court. As per Article 128, the
Chief Justice can also require the attendance of the retired judge of a Supreme Court,
to act as the judge of the Supreme Court. Such a judge is entitled to such allowances
as the president may by order determine, and shall have all the jurisdiction, powers,
and privileges of a judge of the Supreme Court.

7.4 JURISDICTION OF THE SUPREME COURT

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1. Original jurisdiction: The original jurisdiction of the Supreme Court extends NOTES
to all those cases that can originate only in the Supreme Court. These include
disputes (a) between the Government of India and one or more states; (b)
between the Government of India and any state or states on the one side and
one or more states on the other side; and (c) between two or more states.
It may be observed that disputes involving the above parties are brought before
the Supreme Court only if a question of law or fact is involved. Even cases
involving disputes over the enforcement of fundamental rights fall within the
original jurisdiction of the Supreme Court. The Supreme Court is authorized to
issue directions, orders, or writs for the enforcement of these rights. Some of
the writs which can be issued by the Supreme Court for this purpose include
Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto.
(P. Chander1984:192)
However, the Supreme Court does not enjoy any original power regarding
disputes arising out of any treaty, agreement, covenant, engagement, Sanad, or
other similar instruments that had been entered into or executed before the
commencement of the Constitution and that continued in operation even after
the commencement of the Constitution.
The Parliament can, by law, exclude the jurisdiction of the Supreme Court in
disputes with respect to the use, distribution, or control of the water of any
inter-state river or river valley. Other matters that do not fall under the original
jurisdiction of the Supreme Court include matters referred to the finance
commission (Article 280) and the adjustment of expenses between the union
and states (Article 290).
2. Appellate Jurisdiction: The Supreme Court is the highest court of appeal in
the country and hears appeals against the judgments of lower courts in
constitutional, civil, and criminal matters. In constitutional matters, an appeal
can be made to the Supreme Court if the High Court certifies that the case
involves a substantial question of law as to the interpretation of the Constitution.
Even if the high court does not grant this certificate, the Supreme Court can
grant special leave to appeal from any judgment, decree, determination, sentence,
or order made by any court or tribunal in India.
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NOTES In civil cases, an appeal can be made to the Supreme Court against the judgment,
decree, or final order of a High Court if it grants a certificate (a) that the case
involves a substantial question of law of general importance and (b) that, in its
opinion, the said question needs to be decided by the Supreme Court.
In criminal cases, an appeal can be made to the Supreme Court against the
judgment, final order, or sentence of a High Court if the High Court certifies that
the case is fit for appeal to the Supreme Court. An appeal can also be taken to
the Supreme Court without the certificate of the High Court if the lower court
acquits the accused but the High Court reverses the order of acquittal in appeal
and passes a sentence of death; or if the High Court takes a case from the lower
court, conducts the trial itself, convicts the accused, and awards the death
sentence.
The appellate jurisdiction of the Supreme Court can be further extended by the
parliament (Article 134, clause 2). In pursuance of this power, the parliament
passed the Supreme Court (Enlargement of Jurisdiction) Act, 1970, which
provides that an appeal shall lie to the Supreme Court from any judgment or
final order of sentence in a criminal proceeding of a High Court if the High
Court has on appeal reversed an order of acquittal of an accused person and
sentenced him to imprisonment for life or imprisonment for a period of not less
than 10 years; or has withdrawn for trial before itself any case from any court
subject to its authority and has in such trial convicted the accused person and
sentenced him to imprisonment for life or imprisonment for a period of not less
than 10 years. As a result of this enactment, the accused can make an appeal to
the Supreme Court as a matter of right without any certificate from the High
Court even where the High Court does not award the sentence of death.
3. Advisory Jurisdiction: The Supreme Court also enjoys advisory jurisdiction.
Advisory jurisdiction is provided in Article 143 of the Indian Constitution. If at
any time it appears to the president that any question of law or fact has arisen or
is likely to arise, and the question is of such a nature and of such public importance
that it is expedient to obtain the opinion of the Supreme Court upon it, he may
refer the question for the advisory opinion of the court, and the court may, after
such hearing as it thinks fit, report to the President its opinion thereon. However,
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refuse the same. But the Supreme Court is bound to give its opinion on matters NOTES
relating to disputes arising out of any treaty, agreement, covenant, engagement,
Sanad, etc. entered into or executed before the commencement of the
Constitution, if the president refers such dispute to it. In actual practice, however,
since the enforcement of the Constitution, the Supreme Court has never refused
to give its opinion on any matter referred to it. It is noteworthy that the Supreme
Court of United States does not enjoy any advisory jurisdiction. On the other
hand, under the Canadian Constitution, the Supreme Court has been given
advisory jurisdiction and its opinion on any matter referred to it for hearing and
consideration.
The advisory opinion of the Supreme Court is not binding on the President of
India because it is merely some advice, and the president may or may not
accept it.

7.5 OTHER PROVISIONS

In addition to these jurisdictions, there are several other provisions dealing with other
aspects of the Supreme Court’s power.
Firstly, Article 129 of the Constitution declares the Supreme Court’s power as
a court of record, which implies that it has all the power of such a court, including the
power to punish for contempt of court. The Supreme Court has summary jurisdiction
to punish its authority. This power is exercised only in the public interest to punish an
act that might interfere with the administration of justice. The court exercises this power
“cautiously, wisely and circumspection.” The court can punish its contempt with a fine
or imprisonment. The court may take action (a) suo motu, or (b) on a petition made by
the Attorney-General or Solicitor General, or (c) on a petition made by any person,
and in the case of criminal contempt, with the consent in writing of the Attorney General
or the Solicitor General. A court of record possesses the following features: (a) its
proceedings are recorded for perpetual verification and testimony; (b) its records are
admitted in evidence and cannot be questioned when produced in any court of law;
(c) it has the power to punish by fine and imprisonment any person guilty of contempt
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NOTES Secondly, the decision of the Supreme Court is not bound by its earlier decision
and can depart from it if it is convinced of its error and its harmful effect in the general
interest of the public. For example, in the Golaknath case, the Supreme Court departed
from its earlier decision in Shankari Prasad vs. The Union of India. Later, the Supreme
Court even departed from its decision in the Golaknath case in its judgment in Keshav
Anand Bharti case.
Thirdly, the decrees, orders, etc. issued by the Supreme Court of India are
enforceable throughout the territory of India in such manner as may be prescribed by
or under any law made by the parliament. The Supreme Court can also issue orders
for the purpose of securing the attendance of any person, the discovery or production
of any documents, or the investigation or punishment of any contempt of itself.
Fourthly, the Constitution authorizes the Supreme Court to make rules for broadly
regulating the practice and procedure of the court with regard to which the Supreme
Court can make rules include the persons practicing before the court; the procedure
for hearing appeals and other matters pertaining to appeals including the time within
which appeals to the court are to be entered; proceeding in the court for the enforcement
of any of the rights conferred by Part III of the constitution; condition subject to which
any judgment pronounced or order made by the court may be reviewed and the
procedure for such review; cost of the incidentals to any proceeding in the court and
the fees to be charged in respect of the proceedings therein; granting of bails; stay of
proceedings; summary determination of any appeal which appears to the court to be
frivolous or brought for the purpose of delay; and procedure for enquiries etc.
Fifthly, the Chief Justice of India can appoint officers and servants of the Supreme
Court in consultation with the Union Public Service Commission. The conditions of
service of officers and servants of the Supreme Court are also prescribed by the Chief
Justice of India in consultation with the president. It is noteworthy that the administrative
expenses of the Supreme Court, including all salaries, allowances, and pensions payable
to or in respect of the officers and servants of the court, shall be charged upon the
Consolidated Fund of India and any fees or other money taken by the court form a
part of that fund.
Sixthly, the Supreme Court decides the disputes regarding the election of the
president and the Vice-President and its decision in this regard is final.
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Seventhly, on reference made by the President, the Supreme Court can NOTES
recommend the removal of the Chairman and other members of the Union Public
Service Commission on grounds of misbehavior.

7.6 INDEPENDENCE OF THE JUDICIARY

The constitution has made provisions for ensuring the independence and impartiality of
the Supreme Court and to place it beyond executive and legislative interference or
influence. Therefore, meticulous care was taken to ensure the independence of judges
in various ways.
1. Though the president is the appointing authority, he does not enjoy absolute
discretion here. The judges are appointed after due consultation with the Chief
Justice of India. In the case of the appointment of Chief Justice, the president
must consult such judges of the Supreme Court and High Court as he may
deem necessary.
2. The judges of the Supreme Court enjoy the security of tenure. Their removal on
the grounds of proven misbehavior or incapacity is very difficult.
3. The Constitution provides a high retirement age for judges. Once appointed,
they can hold office until they reach the age of 65.
4. During their tenure as judges of the Supreme Court and after their retirement,
the judges cannot practice in India.
5. The judges also enjoy the security of service conditions. Their salaries have
been fixed by the Constitution. Their privileges, rights and allowances cannot
be altered to their disadvantages.
6. Besides, the salaries of the judges and the administrative expenses of the Supreme
Court are charged to the Consolidated Fund of India and are not subject to the
vote of parliament.
7. Only during financial emergency can the salaries and allowances of the judges
be reduced.

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NOTES 8. The independence of the Court is further safeguarded by the provision that the
actions and decisions of the judges in their official capacity are immune from
criticism in the sense that no motive may be imputed to them. Parliament cannot
discuss the conduct of a judge except when a resolution for his removal is being
considered.
9. The Supreme Court has its own establishment over which it has complete control.
The court determines the terms of service of its officers and servants, and
appointments are made by the chief justice.

7.7 THE STATE HIGH COURTS

The Constitution of India has provided a single integrated judiciary with the Supreme
Court at the top. At the state level, the Constitution provides a High Court which is the
highest organ of the judicial administration in the states. Article 214 of the Constitution
provides that there shall be a High Court for each state. However, the parliament can
by law establish a common High court for two or more states, or for two or more
states and a Union territory. In pursuance of this power, the parliament has set up
common high courts for certain states/Union Territories. For example, Punjab, Haryana,
and Union Territory of Chandigarh have a common high court.

Composition of High Court

Under Article 216, every high court shall consist of a Chief Justice and such other
judges as the President may, from time to time, appoint. As per Article 217, the Chief
Justice of a High Court is appointed by the President in consultation with the Chief
Justice of India and the Governor of the State.

Appointment of judges

The High Court of the State consists of a Chief Justice and such other judges as the
President may from time to time determine. This implies that the strength of the High
Court has not been fixed by the Constitution and is determined by the president. It is
not the same for all by the president. The Chief Justice of the High Court is appointed
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state concerned. The other judges of the High Court are appointed by the President in NOTES
consultation with the Chief Justice of India, the Chief Justice of the High Court and the
Governor of the state. The President also appoints additional judges for a period not
exceeding two years to dispose of pending work. The Chief Justice of the High Court
can invite the retired judges of the High Courts to participate in the proceedings of the
High Court with the prior consent of the President. ‘According to Article 223 when
the office of the Chief Justice of a High Court is vacant or when any such Chief Justice
is, by reason of absence or otherwise, unable to perform the duties of his office, the
duties of the office shall be performed by a judge of the court as the President may
appoint’.

Term and Removal

The Chief Justice and the judges of the High Court hold office until the age of 62 and
are removable in the same manner as a judge of the Supreme Court; Article 220
restricts any person who has held as a permanent judge of a High Court to plead or
act in any court or before any authority in India except the Supreme Court and the
other High Courts. A judge of a high court can also resign his office by writing to the
president.

Qualification

A person to be eligible for appointment as a judge of a High Court must possess the
following qualifications. (a) He must be citizen of India; (b) he must have held a judicial
office for at least ten years or (c) be an advocate of a High Court or courts for at least
ten years. It may be observed that while an eminent jurist can be appointed as judge of
the Supreme Court, he cannot be appointed as the judge of a High Court.

Oath

Before entering his office, a judge of the High Court has to take an oath in the prescribed
form before the Governor of the State or some other person appointed by him for that
purpose. In the oath, the judge affirms that he will bear true faith and allegiance to the
Constitution of India, will perform the duties of the office without fear, favor, affection
or ill-will, and will uphold the Constitution and the laws.
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NOTES Jurisdiction of the High Court

As per the Constitution of India, high courts enjoy the following jurisdiction:
Article 225 of the constitution deals with the general jurisdiction of the High
Court and provides that, subject to the provisions of this constitution and to the provision
of any laws of the appropriate legislature made by virtue of power conferred on that
legislature by this constitution, the jurisdiction of, and the law administered in, any
existing High Court, and the respective powers of the judges thereof in relation to the
administration of justice in the court, including any power to make rules of court and to
regulate the sittings of the court and members thereof sitting alone or in division Court
before the commencement of this constitution. Thus, the constitution tries to preserve
the pre-constitutional jurisdiction of the High Court’s jurisdiction over revenue matters.

Writ jurisdiction

The High Court’s issue to any person or authority within its jurisdiction, directions,
orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition,
quo warranto, and certiorari, or any of them for the enforcement of fundamental rights
or any other purpose, it may be observed that the use of words ‘any other purpose’
makes the jurisdiction of the High Court more extensive than that of the Supreme
Court. The Supreme Court’s jurisdiction extends to the enforcement of a legal right or
a legal duty. However, the jurisdiction of the Supreme Court extends throughout the
territory of India, but the jurisdiction of the High Court extends only to the cases
arising within its local limits.

Supervisory Jurisdiction

The high court exercises supervision over all courts and tribunals within its jurisdiction
by virtue of Article 227 of the Constitution of India. For this purpose, it can call for
returns from them, make and issue general rules, prescribe forms for regulating the
practice and procedure of such courts, and settle the table of fees to be given to the
sheriff, clerks, attorney, advocates, and pleaders. However, the High Court does not
exercise any provision over those courts or tribunals that are constituted by law and
relate to the armed forces. It may be observed that the power of superintendence over
the lower courts enjoyed by the High Court is not confined to administrative supervision
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that the lower courts discharge their duties within the bounds of their authority or make NOTES
use of the powers vested in them.
The high courts can withdraw cases from subordinate courts to themselves and
to dispose of themselves. Article 228 says that ‘if the high court is satisfied that a case
pending in a court subordinate to it involves a substantial question of law as to the
interpretation of the constitution, the determination of which is necessary for the disposal
of the case, it shall withdraw the case itself, or determine the case to the court from
which the case has been so withdrawn, together with a copy of its judgment on such
question, and the said court shall on receipt thereof proceed to dispose of the case in
conformity with such judgment.’ The High Court can also transfer cases from one
lower court to another lower court for disposal.
There are two types of courts in every district: Civil Court and Criminal Court.
Besides the District court, there are courts of sub-judges, massif courts and courts of
small causes. Below the Session courts are the courts of First-class Magistrates. In
metropolitan cities like Delhi, Mumbai, Kolkata, and Chennai, these magistrates are
known as metropolitan magistrates. Apart from this, there are courts of Second Class
and Third-Class Magistrates also. They function under the superintendence and control
of the High Court of that state.

7.7.1 Extension of Jurisdiction of High Court

The right to extend or exclude the jurisdiction of a High Court over any Union territory
rests with the parliament. The legislature of the state does not enjoy any power to
increase, restrict, or abolish the jurisdiction of the High Court. The high courts of India
have been vested with quite extensive and effective powers.

A Court of Record

Every high court is also a court of record and has all the powers of such a court
including the power to punish for its contempt. The 42nd Amendment Act of 1976
curtailed the jurisdiction of the High Courts in various spheres. However, the 44th
Amendment Act of 1979 restored the original jurisdiction and position of the high
courts. It may be observed that these powers of the High Court are similar to the
powers of the Supreme Court.
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NOTES Power to Regulate its Working:

The Chief Justice of the High Court is authorized by the Constitution to appoint officers
and servants of the High Court. However, the governor of the state can require him to
consult the state public service commission in this connection. The condition of service
of the officers and servants of the High Court are also laid down by the Chief Justice
of the court or some other judges or officers of the court authorized by the Chief
Justice to make rules for the purpose. However, the rules relating to salaries, allowances,
leave, or pension require the formal approval of the governor of the state.
A survey of the powers and functions of the High Court shows that it is primarily
a supervisory court which exercises supervision over the subordinate courts and tribunals
within its jurisdiction. At the same time, it also acts as a guardian of the fundamental
liberties of the people of the country against possible encroachment by the legislature
and the executives. The actual working of the High Court since the inauguration of the
Constitution has amply demonstrated that they have given precedence to writ petitions
over other works and knocked down a number of statutes and executive orders on the
ground that they encroached on the fundamental rights of the citizens. It has played a vital
role in protecting the freedom of the citizens and acting as a guardian of their rights.

Judicial Review

Judicial review, broadly speaking, means the power of the judiciary to review any
order or act of the public authority, both executive and legislative, and to pronounce
upon the constitutional validity when challenged by the effected person. This power is
based on the simple rationale that the Constitution is the supreme law of the land, and
any authority that ventures to go beyond the limitation laid down by the constitution
will be curbed. Obviously, it is a far-reaching power. In Britain, with the concept of the
supremacy of parliament, the judiciary has no such power, whereas in America under
the doctrine of limited or constitutional government, it has become very important.
Judicial review has two prime functions: (1) legitimizing government action; and (2)
protecting the Constitution against any encroachment by the government.
“The doctrine of judicial review originated in United States of America. This
was contribution of American Constitutional System. This was acquired by the American
Supreme Court in Marbury vs. Madison case in 1803 when Chief Justice Marshall
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null and void. Since then, it got strongly embedded in the constitution and judicial NOTES
supremacy got established”.
It is emphatically the province and duty of the judicial department to say what
the law is; those who apply the rule to cases must expound on and interpret that rule.
If two laws conflict with each other, the court must decide on the operation of each.
So, if a law is in conflict with the constitution, if the court must either decide that case
conformably to the law disregarding the constitution or apply it to a particular case, the
court must determine which of these conflicting rules govern the case; this is the very
essence of the judicial duty.
However, the Indian constitution does not, in so many words, assign the power
of judicial review to the judiciary. It is implicit in Articles 13, 32 and 226. Article 13 (1)
says that “all laws in force in the territory of India immediately before the commencement
of this provisions of this part (Part III i.e., Chapter on Fundamental Rights), shall, to
the extent of such inconsistency, be void.” Article 13(2) clearly prohibits the state from
making any law which takes away or abridges the fundamental rights and any law
which does so, will be void to the extent. Articles 32 and 226 deal with the powers of
the Supreme Court and the High court respectively with regard to the protection of
fundamental rights by issuing various kinds of writs. Further, there are other Articles
like 131-136, 143, 145, 246, 251, 254, and 372, from which the power of judicial
review is also derived. Though the word judicial review has not been used anywhere in
the Constitution, the framers of the constitution certainly wanted this power to be
exercised by the courts while interpreting the constitution. They wanted the judges of
the Supreme Court and the high courts to uphold the constitution and the laws. While
assuming judges of the Supreme Court and High Court must make an affirmation to
this effect and undertake responsibility to protect the constitution against attacks from
the legislature and executive, in this respect, the Indian Supreme Court resembles the
American Supreme Court rather than the British Court, which is obliged to enforce the
laws enacted by the parliament without going into their constitutionality. The adoption
of federal system and the incorporation of fundamental rights into the Constitution are
responsible for the unique position of the Supreme Court in India. It must be seen that
the Union and the state governments keep within their respective spheres and the
fundamental rights granted by the Constitution are not violated. For this purpose, it has
been granted the power to pronounce on the constitutionality of federal as well as
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NOTES The power of the judicial review of Indian Supreme Court is much narrower
than the Supreme Court of the United States of America. The Indian Supreme Court
can declare a law as valid only if it is contrary to the letter of the Constitution. It cannot
go beyond the law to find out its objectives and to declare it unconstitutional. The
Supreme Court does not possess any power to question the wisdom or policy of the
laws enacted by the parliament or the state legislature.
The power of judicial review can be adjudged from various landmark judgments
of the Supreme Court and the effort of the parliament to claim its sovereignty by
limiting the power of judicial review. Over the years, the numbers of laws in the ninth
schedule have greatly increased. Further restrictions were placed on the power of
judicial review in the wake of the Supreme Court’s decisions in Golak Nath, Bank
Nationalization, and privy purses cases through the 24th and 25th amendments to the
constitution. The power of judicial review was once again curtailed in 1975 through
the 39th Amendment that exempted the election of the President, Vice-President, Prime
Minister, and Speaker from judicial review. Still more restrictions on the power of
judicial review were imposed by the 42nd Amendment. These restrictions were–
1. The power of the center was increased by transferring certain provisions from
state list to the concurrent list.
2. The power of the Supreme Court and High Courts were curtailed. With respect
to Articles 14, 19, and 31, the parliament can make any law to implement
Directive Principles of State Policy.
3. The power of the Supreme Court was further curtailed by stating that no
amendment of this constitution made or purporting to have been made under
this article shall be called in question in any court on any ground.
4. A minimum of seven judges of the Supreme Court should sit for the purpose of
determining the constitutional validity of central law, and it cannot be declared
unconstitutional unless a two-third majority of judges decide and for the High
Court there had to be five judges to determine the constitutional validity of law.
5. The validity of the central law was to be decided by the Supreme Court under
Article 141A and not by the High Court under the Article 228A and subsequently
the validity of the state law could be decided by the high courts.

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6. The power of issuing writs for the implementation of fundamental rights were NOTES
curtailed to the effect that these writs will not be issued unless substantial injury
has taken place and if alternative remedy is provided under any law.
7. Further, the appointment procedures of High Courts were dealt extensively.
8. It was also stated that the decisions of any administrative tribunals can be
questioned or challenged only in the Supreme Court.
However, the Supreme Court has not accepted all these restrictions tamely and
at times asserted its authority by declaring some of these amendments as null and void.
It asserted that curbs on judicial review were against the basic scheme of the
Constitution. In simple words, the Supreme Court, through its power of judicial review,
has tried to ensure that the basic structure of the constitution is not changed, and the
rule of law established under the constitution is not thwarted. There are several examples
to cite where the court has exercised the power of judicial review.
The working of the Supreme Court during the first three decades can be described
as an arena of struggle between the legislature and the judiciary in relation to fundamental
rights and power of amendment. But by evolving the doctrine of basic structure of the
Constitution, the Supreme Court limited the power of the Parliament to amend the
Constitution. It was an innovation which widened the court’s power of judicial review
to an unlimited extent. Thus, although the Supreme Court reversed the Golaknath
judgment, in fact it extended its jurisdiction even beyond the Golaknath case judgment.
In the post Keshavananda scenario, major parts of the Constitution have come into
the ambit of basic structures of the Constitution which the Parliament cannot change.

7.8 JUDICIAL ACTIVISM

Judicial activism refers to the interference of the judiciary in the legislative and executive
fields. It mainly occurs due to the non-activity of the other organs of the government.
Judicial activism is a way through which relief is provided to the disadvantaged and
aggrieved citizens. Judicial activism is providing a base for policy making in competition
with the legislature and executive. Judicial activism is the rendering of decisions, which
are in tune with the temper and tempo of the times. Judicial activism has arisen mainly
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NOTES due to the failure of the executive and legislatures to act. Secondly, it has arisen also
because there is a doubt that the legislature and executive have failed to deliver the
goods. Thirdly, it occurs because the entire system has been plagued by ineffectiveness
and inactiveness.
Activism is judicial policy making which furthers the cause of social change or
articulates concepts such as liberty, equality, or justice. Activism counters the traditional
concept of judiciary as a mere umpire; on the contrary, it should work as an active
catalyst in the constitutional scheme. It must be an arm of the social revolution. An
active judge activates the legal mechanism and makes it play a vital role in the socio-
economic process.
Its emergence can be traced back to 1893, when Justice Mahmood of Allahabad
High Court delivered a dissenting judgment. It was a case of an under trial who could
not afford to engage a lawyer. So, the question was whether the court could decide his
case by merely looking into his paper. Justice Mahmood held that the pre-condition of
the case being heard would be fulfilled only when somebody speaks.
The violation of basic human rights has also led to judicial activism. Finally, due
to the misuse and abuse of some of the provisions of the Constitution, judicial activism
has gained significance. Judicial activism, like many catchwords, has acquired so many
different meanings as to obscure more than it reveals. But at the same time, it cannot
be discarded as an intellectual void for the vagueness of the definition of the word, for
at its heart, it speaks about the survival of the law. Abandonment of this word is not a
viable option; clarification is needed as to what judicial activism is. Judicial activism is
different from judicial review or other processes of jurisdiction in the sense that under
the gamut of judicial review, the judiciary can extend its influence to the spheres of
executive and the legislative. Judicial activism simply means a pro-active judiciary
which does not limit itself to the interpretation of law but also sees if the law affects
people adversely. The great contribution of judicial activism in India has been to provide
a safety valve and hope that justice is not beyond reach.
According to Upendra Baxi, if the executive or legislature defaults on its legal
and constitutional obligations, courts cannot for long take the view that violations of
rights involved in such defaults are of no concern to them. What therefore emerges is
that provisions of judicial function can be constructed only in the context of the work
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The following trends were the cause of the emergence of judicial activism: the NOTES
expansion of rights of hearing in the administrative process, excessive delegation without
limitation, the expansion of judicial review over administration, the promotion of open
government, the indiscriminate exercise of contempt power, the exercise of jurisdiction
when non-existent, overextending the standard of rules of interpretation in its search to
achieve economic, social, and educational objectives, and passing of orders that are
unworkable.
The first case of judicial activism can be seen in the Keshavananda Bharti case
(1973) or the fundamental rights case, where the court gave the verdict that a
constitutional amendment dully passed by the legislature was invalid as damaging or
destroying its basic structure. The Supreme Court declared that the executive had no
right to temper the Constitution and alter its fundamental features. There have been a
lot of cases where the court has played an active role. Some important cases are
theS.P. Gupta v. Union of India, 1982, where through public interest litigation, the
court has granted access to persons inspired by public interest to invite judicial
intervention against abuse of power or misuse of power or inaction of the government;
the Vineet Narain v. Union of India, 1996, where the apex court took upon itself the
task of monitoring the investigations pertaining to the Hawala transactions; and Common
Cause v. Union of India, 1996. In a recent landmark judgment in February 2012, the
Supreme Court cancelled 122 telecommunication licenses awarded to companies in
2008 related to the 2G spectrum scam. Courts also gave judgment/verdict on several
cases related to environment. The courts have, by a process of interpretation,
substantially enlarged the ambit of civil liberties enjoyed by citizens and have also
zealously guarded these rights against any encroachment either by the executive or the
legislature. Also, the Supreme Court and Parliament have acted as partners in various
areas of social justice. For example, in developing industrial law, both have shared
common concerns.
As justice A.M. Ahmedi had opined, “judicial activism has been more or less
thrust upon Indian judiciary”. The reluctance of the legislature and the executive to
take hard and unpleasant decisions has compelled the judiciary to become active.
When a sensitive issue remains unattended to and unresolved, people become restive
and seek courts to come across a solution. But this era of judicial activism is a temporary
one. In our democracy, the legislative, the executive, the judiciary, and the media have
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NOTES
7.9 PUBLIC INTEREST LITIGATION

Public Interest Litigation, popularly known as PIL, can be broadly defined as litigation
in the interest of that nebulous entity: the public in general. Prior to 1980s, only the
aggrieved party could personally knock the doors of justice and seek remedy for his
grievance and any other person who was not personally affected could not knock the
doors of justice as a proxy for the victim or the aggrieved party. In other words, only
the affected parties had the locus standi (standing required in law) to file a case and
continue the litigation and the non-affected persons had no locus standi to do so. And
as a result, there was hardly any link between the rights guaranteed by the Constitution
of Indian Union and the laws made by the legislature on the one hand and the vast
majority of illiterate citizens on the other.
Two judges of the Supreme Court, Justice V.R. Krishna Iyer and P.N. Bhagawati,
recognized the possibility of providing access to justice to the poor and the exploited
by relaxing the rules of locus standi. In a series of path-breaking pronouncements, for
instance, S.P. Gupta v. Union of India, 1982, the Supreme Court of India, through
public interest litigation, has granted access to persons inspired by public interest to
invite judicial intervention against abuse of power or misuse of power or the inaction of
the government. Justice P.N. Bhagawati in this case articulated the concept of PIL.
‘PIL is an off shoot of social forces where freedom suffered in the cruel hands
and public participation was required to check the system. It was an opportunity for
citizens to participate and reaffirm their faith in the legal process. The petition can be
filed by any voluntary agency or a member of the public. However, the court must
satisfy itself while accepting the petition and see that the person is acting bona fide and
not for personal profit or gain’. In most of the PIL cases, government agencies are
involved on account of their violating the written legal norms or interpreting them to
suit their own convenience. Even after the court’s decisions, they continued to do so,
and a couple of state administrations are repeatedly figuring in the PIL cases.
The PIL involves issues connected with a set of fundamental rights like right to
free legal aid, right to human treatment in the prison, right against torture, and issues
related to protection of environment. It also involves other issues like degraded bonded
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harassment of working women in the place of work, children, slum dwellers, construction NOTES
workers, etc. Article 32 emerged as a forum of PIL in recent years and it has become
a byword for judicial involvement in social, political, and economic affairs of society.
Judges have encouraged the practice of allowing third parties to file writs on behalf of
weaker sections of society. In PIL, any person or group or group can approach the
Supreme Court and High Courts for the redress of grievances on behalf of the victims
who are incapable of approaching the court.
‘The movement of liberalization of locus standi started with the Bar Council of
Maharashtra v. M.V. Dabholkar where the Bar Council was stated to be aggrieved
party. Further, the judiciary directed the government agencies to be responsive to
public grievances. The PIL got the required recognition in S.P. Gupta case who was
not an aggrieved person. The court observed that the basis of judicial redressal was
personal injury but today where there is public wrong, or injury caused by act or
omission of the state or a public acting bona fide and having sufficient interest can
maintain an action for redressal of such public wrong or public injury’. As litigation
became very expensive, the affected parties joined together to fight for a common
cause. The PIL promises a new jurisprudence of state accountability, particularly in
respect of the rights of the weaker section of society.
The Supreme Court, with its wide jurisdiction and powers, reflected the concern
by providing social equality and the rule of law. It has acted judiciously in changing the
socio-economic structure for the progress of the nation. The existence of this court
gives a feeling of security among citizens. It acts as an independent authority which
puts checks on extreme actions and upholds the constitutional values. The court should
not allow its process to be abused by politicians and others to delay legitimate
administrative action or to gain in a political objective. However, the PIL has been
criticized for adding to the arrears of the courts of consuming too much time and of
making litigation a vital issue.

7.10 CONCLUSION

In a democratic polity, the independence of judiciary is valuable. The independence of

judiciary has three dimensions: (1) freedom from encroachment from other organs; (2) Self-Instructional
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NOTES freedom from the executive and the legislative interference; and (3) decisions should
not be influenced by either the executive or the legislature and should be delivered
without favor and fear. To strengthen the judiciary, one may even add that the Cabinet
Ministers and members of Parliament should refrain from criticizing the judges and
their judgments. It is important to provide freedom because only then can we expect
the judiciary to perform its assigned role independently and to the best of its ability.

7.11 SELF-ASSESSMENT QUESTIONS

1. Examine the powers and functions of the Supreme Court of India. Explain why
judicial activism is needed for independence and impartiality.
2. Write an essay on pros and cons of Judicial Activism in India.

7.12 REFERENCES

 Bakshi P.M., The Constitution of India, Universal Law Publishing, Delhi, 2000.
 Basu D.D., Introduction to the Constitution of India, Prentice-Hall of India,
New Delhi, 1992.
 Jain M.P., Indian Constitutional Law, Wadhwa & Company, Nagpur, 1999.
 Pylee M.V., India’s Constitution, S. Chand & Company, New Delhi, 1994.
 Rao K.V., Parliamentary Democracy of India: A Critical Commentary,
The World Press, Calcutta, 1961.
 Singh M.P. &Saxena R., Indian Politics: Contemporary Issues and Concerns,
Prentice-Hall of India, New Delhi, 2008.

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UNIT III: FEDERALISM AND
DECENTRALIZATION

LESSON 8 CENTRE-STATE RELATIONS AND

ASYMMETRICAL FEDERALISM

LESSON 9 THE PANCHAYATS

LESSON 10 THE MUNICIPALITIES

Centre-State Relations and Asymmetrical Federalism

LESSON 8 NOTES

CENTRE-STATE RELATIONS AND

ASYMMETRICAL FEDERALISM
Dr. Smita Agarwal
Associate Professor
Department of Political Science, DU
Structure
8.1 Learning Objectives
8.2 Introduction
8.3 Division of Powers
8.4 Legislative Relations
8.5 Administrative Relations
8.6 Financial Relations
8.7 Fifth and Sixth Schedules
8.8 Conclusion
8.9 Self-Assessment Questions
8.10 References

8.1 LEARNING OBJECTIVES

 The students will understand the idea of federalism in general. They will also
become aware about the Indian working of federalism.
 The lesson will elaborate on the nature of Indian federalism which is being
otherwise known as quasi federal.
 The lesson would also brief about the division of power in the Indian federation
between Center and State, the legislative, executive and judicial relation between
state and federal government otherwise known as Central government.

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NOTES
8.2 INTRODUCTION

Federalism is the form of government where the powers are divided between its constituent
units – the Centre and the States – in a way that each remains independent of each other.
K.C. Wheare argues that, “By the federal principle, I mean the method of dividing
powers so that general and regional governments are each within a sphere, coordinate
and independent.” The framers of the Indian Constitution divided the powers between
the Centre and the States but at the same time, in Article 1 of the Constitution, declared
India as a ‘Union of States’ and not as a Federation of States. The complexity of the
nature of Indian federalism is further evident from the views of various political scientists.
People like Sir Ivor Jennings, Paul H. Appleby, K. Subba Rao, Dr. Rajendra Prasad
and Dr. B.R. Ambedkar describe the Constitution as federal whereas Dr. K.M. Munshi
calls it more unitary than federal and K.C. Wheare describes it as quasi-federal.

8.3 DIVISION OF POWERS

The federal principle envisages sharing of power between the Centre and the States. It
is the Constitution that confers powers on these units by specifying the subjects allotted
to both the Centre and the States. The Indian Constitution provides for three lists –
According to the Article 246, Parliament has been given the exclusive power to make
laws on matters mentioned in the Union List and the State Legislature has been given
the exclusive powers to make laws on matters mentioned in the State List. On matters
mentioned in the Concurrent list, both Parliament and the State Legislature have
concurrent jurisdiction. However, in case of a conflict between the law made by the
Parliament and the State Legislature on a matter mentioned in the Concurrent list, the
law made by the Parliament prevails and the law made by the State legislature shall be
void to the extent it clashes with the law made by the Parliament (Article 254).
List I of Schedule 7 called as Union List contains 100 subjects of national
importance e.g., Defense of India, Armed forces, foreign affairs, War and peace,
Railways, Currency and coinage, Reserve Bank of India, Trade and Commerce, etc.,
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List II of Schedule 7 contains 61 subjects, e.g., Police, Prisons, Local NOTES

governments, public health, Agriculture, Land, Money lending, etc., over which the
State legislature has exclusive power to make laws.
List III of 7th Schedule contains 52 subjects, e.g., Criminal law, Marriage and
Divorce, Forests, Price control, Factories, Acquisition and requisitioning of property,
etc., on which both the Centre and the States are competent to make laws.

8.4 LEGISLATIVE RELATIONS

In ordinary circumstances the distribution of powers in legislative matters is guided by

Article 245 and Article 246 which specifies the subjects and the jurisdictions of the
Centre and the States. The Union government has no jurisdiction with respect to the
subjects mentioned in the State list. But under certain circumstances this scheme of
distribution of powers automatically gets modified whereby many articles of the
Constitution either empower Parliament to make laws even on matters mentioned in
the State list or empower the President to veto the Bills passed by the State legislature.
For example:
a) According to Article 249, if the Rajya Sabha passes a resolution, supported by
at least 2/3rd of its members, present and voting, declaring a particular subject
to be of ‘national interest’, then the Parliament becomes competent to make
law on the specified State subject, for a period of not more than one year at a
time.
b) Under Article 250, the Parliament has the power to make laws on State subjects
for the whole or any part of the territory of India during ‘the proclamation of
Emergency.’
c) According to Article 252, the legislatures of two or more States may pass
resolutions requesting Parliament to make laws on a subject which is not included
in the Union list. Such laws will be applicable only in those States which have
passed such resolutions. It will also apply to those States which adopt it by
resolution. For example, The Wildlife (Protection) Act, 1972; The Transplantation
of Human Organs Act, 1994 were passed under Article 252.
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NOTES d) According to Article 253, Parliament has the power to make laws for
implementing any treaty, agreement or convention with any other country or any
decision made at any international conference or body. Under this article the
Parliament may legislate on a subject enumerated in the State list.
e) The Governor of the State may reserve certain kinds of Bills for Presidential
assent. Even some of the Bills pertaining to matters mentioned in the Concurrent
list [Article 254(2)] may also be reserved by the Governor for the consideration
of the President.
f) Whenever emergency is declared in the country under Article 352 of the
Constitution, Parliament gets the power of making laws on matters mentioned
in the State list [Article 250(1)] which means for all practical purposes the State
list is automatically converted into a Concurrent list.
Thus, the mere listing of subjects in the three different lists does not specify the
positions occupied by the Centre and the States in the balance of power. Even though
certain important subjects are listed in the State list, Parliament can intervene in that
field on many grounds mentioned in the Constitution and this has strengthened the
position of the Centre vis-a-vis the States. The socio-economic-political conditions of
the Country and the international environment at the time of the framing of the
Constitution made it all the more essential to strengthen the Centre and this was done
by giving it a dominant role in the distribution of legislative powers.

8.5 ADMINISTRATIVE RELATIONS

The Indian federal system is based on the general principle that the executive power is
co-extensive with the legislative power, i.e., the executive power of the Union extends
to all those matters with respect to which Parliament has the power to make laws
(Article 73) and the executive power of the States extends to all those matters with
respect to which the legislature of the State has the power to make laws (Article 73).
But as far as the exercise of administrative powers is concerned, the Centre possesses
many more powers than it enjoys in the field of legislation. Articles 256 to 263 provide
for Union control over the States even in normal conditions. The Union may give
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a) To ensure compliance with laws made by the Parliament (Article 256). NOTES
b) To ensure that the executive power of the State is exercised in a manner not to
impede the exercise of the executive power of the Union (Article 257).
c) For the construction and maintenance of means of communication of national
and military importance and for the protection of railways within the State.
d) To execute schemes related to welfare of Scheduled Tribes (Article 339).
e) To ensure that every State is run in accordance with the provisions of the
Constitution (Article 355).
f) Regarding the way the executive power is to be exercised during a Proclamation
of Emergency under Article 352 (Article 353).
Also, if a State fails to comply with any of the directions given by the Government
of India under any of the provisions of the Constitution, the President may hold that a
situation has arisen in which the Government of the State cannot be carried on in
accordance with the provisions of this Constitution (365). As soon as this declaration
is made the State Government will be dismissed under Article 356 and the State
Assembly may either be suspended or dissolved.
Other than those mentioned above, there are certain more provisions in the
Constitution which tilt the balance of power in favour of the Centre. For example:
a) Article 275 provides for payment by the Union of grants-in-aid of revenues
of the States.
b) The officers of the All-India Services are allotted to a state cadre but are
controlled by the Union. More such All-India services can be created by
the Centre if the Rajya Sabha by passing a resolution by two-thirds majority
of members present and voting recommends the creation of such All-
India services.
c) Article 258 empowers the Union to entrust certain functions either
conditionally or unconditionally to the State government or its officers
with the consent of the State government. But in certain cases, even without
the consent of the State government, Parliament may by law confer powers
and imposes duties on State officials. However, in such cases if the State
Government is to incur certain additional expenses, then they are to be
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NOTES d) Governors are the Constitutional Head of the State, and they are appointed,
dismissed, and transferred by the President. Many a times, because of the
pressure of the Central government, they must exercise their power of
appointing and dismissing Ministries, summoning, proroguing and dissolving
the Assemblies; making recommendations to impose the President’s rule,
keeping in view the interests of the ruling party at the Centre.
The facts mentioned here undoubtedly point towards the administratively
predominant position of the Centre vis-à-vis the States. Though the Constitution framers
tried their best to delicately balance the issues of State autonomy and that of providing
for a strong Centre to maintain the Unity and Integrity of the Country, yet the States
occupy a subordinate position as far as administrative powers are concerned.

8.6 FINANCIAL RELATIONS

To ensure that both the Centre and the States have their independent sources of income.
The Constitution framers, in Part XII of the Constitution, made provisions for the
distribution of various taxes and duties between the Centre and the State. But a detailed
analysis of Articles 264 – 300 will reveal that the States have been made dependent
on the Union for funds. The various taxes, duties, and other sources of revenue can be
summarized in the following six categories:
a) Taxes levied by the Union but collected and appropriated by the States. They
are:
i) Stamp duties mentioned in the Union list, and
ii) Duties of excise on medicinal and toilet preparations.
The Union has no share in the proceeds (Article 268).
b) Taxes levied and collected by the Union but are assigned to the States as per
the principles formulated by the Parliament by law (Article 269).
c) Taxes levied and collected by the Union (except those mentioned in Articles
268, 268 A and 269) and distributed between the Union and the States (Article
270). This article was inserted by the 80th Constitution Amendment act, 2000
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d) Article 271 provides for levy of surcharges on duties and taxes. The proceeds NOTES
of such surcharges go to the Union exclusively with no share to the States.
e) Taxes which are levied and collected by the Union and may be distributed
between the Union and the States if Parliament by law so provides (Article
272).
f) Certain grants-in-aid provided by the Centre:
i) A certain amount of export duty on jute and jute products is to be given as
grants-in aid to the States of Assam, Bihar, Orissa, and West Bengal (Article
273).
ii) Certain grants-in-aid may be given to the States which are in need of
assistance if the Parliament provides (Article 275). Different sums may be
fixed for different States depending upon the assessment of their needs
and some of them may not be given at all.
iii) Article 282 empowers the Union and the States to make grants for any
public purpose.
Consolidated Fund: Under Article 266, the Constitution has brought into existence a
Consolidated Fund for the Central government and also a separate Consolidated
Fund for each State. All the receipts of the taxes, fees, cess (Tax on tax), etc., in
favour of the Centre or the State are credited in their Consolidated Funds, respectively.
In order to withdraw money from the Consolidated Fund the competent legislature
passes Appropriation Acts. The purpose of creating these funds was to ensure that no
appropriation can be made of these Funds without the authority of law.
Finance Commission and Planning Commission: Article 280 provides for the
Constitution a Finance Commission. Article 280(3) of the Constitution has assigned
an important role to the Finance Commission so far as the distribution of the net
proceeds of the taxes which are to be and may be divided between Centre and the
States and in giving grants-in-aid including the determination of the principles governing
them is concerned. But apart from it there is another Commission which was created
by a resolution of the Government which controls and distributes Central grants to the
States. This Commission was an extra-Constitutional body but was performing
important financial functions.
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NOTES Even though there is a division of powers between the Centre and the States,
the Centre has very frequently used its powers to meet the political needs of the party
in power. The various issues that have been major irritants in the Centre – State relations
are as follows:
(a) Discriminatory Role of the Governor
(b) Reservation of Bills for the Consideration of the President
(c) Dismissal of State Governments under Article 356
(d) Use of All India Services by the Centre
(e) Discrimination against States in allocation of Funds
(f) Postponement of Assembly By-elections on partisan grounds
(g) Appointment of Enquiry Commissions
(h) Demand for State Autonomy
(i) Law and Order problem in the States and the role of the Centre
(j) Differences on Finance and Planning
(k) Inter-State Disputes (Boundary and Water)

8.7 FIFTH AND SIXTH SCHEDULES

The fact that the geographical size of the States is different from each other requires
that the Constitution recognizes this inequality while at the same time protecting the
diversity as well as the unity of the country. The statutory arrangements recognizing
this asymmetry have been appropriately incorporated in the Constitution. These
asymmetries have been visible in different forms – economic, social, and cultural. The
Constitutional provisions also ensure that the cultural identities, customs, and political
and economic interests of various regions and communities are protected.
With the purpose of protecting the interests of Scheduled Tribes about land
alienation and other social aspects, provisions of ‘Fifth Schedule’ and ‘Sixth Schedule’
have been integrated in the Constitution. The Constitution contains special provisions
for administration and control of certain areas which have been named as Scheduled
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Areas and for Scheduled Tribes even though such areas form part of a State or Union NOTES
Territory.

1. Fifth Schedule

The Fifth Schedule under Article 244(1) of the Constitution defines ‘Scheduled Areas’
as those areas as the President may by order declare to be Scheduled Areas after
consultation with the Governor of the State. Fresh orders may be issued from time to
time redefining the Scheduled Areas. This Schedule covers Tribal areas in 9 states of
India namely Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand,
Madhya Pradesh, Maharashtra, Orissa, and Rajasthan. The main provisions are as
follows:
a) The executive power of the State is subject to the 5th Schedule.
b) The Governor is required to report to the President annually or whenever so
required by the President regarding the administration of the Scheduled Areas.
c) Each State has a Tribes Advisory Council consisting of not more than 20 members
of whom ¾ shall be the representatives of Scheduled Tribes in the Legislative
Assembly of the State. It is the duty of the Tribes Advisory Council to advise
the government on the matters relating to the welfare and advancement of the
Scheduled Tribes referred to by the Governor.
d) The Governor is authorized to direct that any particular Act of Parliament or of
the State legislature shall not apply to a Schedule Area or shall apply with such
modifications as may be specified.
e) The Governor is authorized to make regulations to prohibit or restrict transfer
of land by or among the members of Scheduled Tribes. All such regulations
made by the Governor must have the assent of the President.
The purpose of the Fifth Schedule is to provide protection to the Tribal people
living in these Scheduled areas from being alienated from their land and natural
resources.

2. Sixth Schedule

To safeguard the democratic traditions and cultural diversity of the tribes residing in
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NOTES by the Constitution makers. These provisions are enshrined in the Sixth Schedule,
which in accordance with Article 244, lays down special provisions for administration
of Tribal Area in Assam, Meghalaya, Tripura, and Mizoram. The following provisions
emanate from this Schedule:
a) Each Tribal Area is administered as an autonomous district.
b) Such districts remain under the executive authority of the State in which they are
situated but District Councils and Regional Councils are created which exercise
certain legislative and judicial functions.
c) These councils have power to make laws for certain specified subjects, e.g.,
land use, land occupation, succession of property, use of water course,
management of forest, marriage and divorce, social customs, flood control,
trade and commerce, etc.
d) They have also been conferred upon judicial powers. They can constitute village
councils or courts for the trial of suits and cases between parties all of whom
belong to Scheduled Tribes within such areas.
e) The Councils have the power to assess and collect land revenue and to levy
certain specific taxes, e.g., taxes on profession, animals, and vehicles, on entry
of goods, etc.
f) The President about a Central Act and the Governor regarding a State Act may
direct that the Central Act or State Act shall not apply to an autonomous district
or shall apply with such modifications as may be specified.
g) The Councils will be subject to the jurisdiction of the High Court.

8.8 CONCLUSION

India has a federal polity tilted more towards the center. It is sometimes considered as
quasi federal. There is a three-fold distribution of legislative power, represented by
three lists in the Indian Federalism – the Union list, the State list, and the Concurrent
list. Among the lists the Union list gives much power to the center. The concurrent list

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says that the central rules are final. Thus, Indian federalism is midway between the NOTES
federal structure enunciated in the USA and strong centralizing tendency in the UK.
After abolition of Art. 370 we are heading towards the symmetrical federalism.

8.9 SELF-ASSESSMENT QUESTIONS

1. What are the main features/characteristics of Indian Federalism? Why is Indian

federalism considered as quasi federal?
2. Which type of federalism is practiced in India? Discuss administrative, legislative,
and financial relationship between center and state.

8.10 REFERENCES

 Baviskar, B.S., “Impact of Women’s Participation in Local Governance in Rural

India” – in L.C. Jain (ed.), Decentralization and Local Governance (New
Delhi: Orient Longman, 2005).
 Buch, Nirmala, “Women and Panchayats: Opportunities, Challenges and
Support” – in L.C. Jain (ed.), Decentralization and Local Governance (New
Delhi: Orient Longman, 2005).
 Chattopadhyay R. and Esther Duflo, Women’s leadership and policy
decisions: Evidence from a nationwide randomized experiment in India
(Boston: Institute for Economic Development, 2001)
 Dsouza Peter Ronald ‘Decentrlization and local government’ in Zoya Hasan,
E Sridharan and R. Sudrshan (ed) India’s Living Constitution: Ideas practises
and controversies Permanent Black :2002
 Mathew George, “Panchayati Raj in India- An Overview”, in “Status of
Panchayati Raj in the States and Union Territories of India 2000”, Concept
Publishing Company, 2000, N. Delhi.

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NOTES  Institute of Social Studies Trust, “Women in Leadership Positions: A Scoping

Paper”, ISST, New Delhi, July 2005, available at - http://www.isstindia.org/
PDF/Women%20in%20Leadership%20Position.pdf\
 Kumar Girish, “Local Democracy in India, Interpreting Decentralization”,
Introduction, Sage Publication, New Delhi, 2006.
 Manor, James, Political economy of Democratic Decentralisation, Wasington
D.c, World Bank,1999

Reports

 Constituent Assembly Debates, Official Report”, Vol. VIII, Lok Sabha

Secretariat, New Delhi, 1999.
 Decentralization in India: Issues and Challenges: Discussion papers UNDP
https://www.undp.org/content/dam/india/docs/decentralisation_india
_challenges_ opportunities.pdf
 Report on the working Group on Democratic Decentralistion and PRI’S
http://planningcommission.nic.in/aboutus/committee/wrkgrp11/wg11_demo.pdf

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The Panchayats

LESSON 9 NOTES

THE PANCHAYATS
Dr. Smita Agarwal
Associate Professor
Department of Political Science, DU
Structure
9.1 Learning Objectives
9.2 Introduction
9.3 73rd Amendment Act: Key Mandatory Provisions
9.4 The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996
9.5 Convergence of PRIs with Development
9.6 Conclusion
9.7 Self-Assessment Questions
9.8 References

9.1 LEARNING OBJECTIVES

 The lesson would make the students to understand about the idea of grassroots
democracy practiced in India.
 The lesson would explore the evolution of Panchayati Raj system and
implementation of it through 73rd amendment.
 It would also explore the process of gradual devolution or transfer of functions,
resources and decision-making powers to the lower level democratically elected
bodies in India.

9.2 INTRODUCTION

Grassroots democracy is a tendency towards designing political processes whereas

much decision-making authority as practical is shifted to the organization’s lowest
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NOTES are collectively called local governance. Grassroots democracy thus helps in pursuing
collective action by defining the framework for citizen-citizen and citizen-state interaction.
Local governance is associated with decentralization of power. Broadly speaking the
term decentralization refers to the process of gradual devolution or transfer of functions,
resources and decision-making powers to the lower level democratically elected bodies
(Crook and Manor 1998). In terms of applicability to different types of initiatives,
decentralization occurs through different types, i.e., privatization, de-concentration,
downward fiscal transfers and devolution1. Of these, devolution is considered to be an
ideal form of decentralization in its wider connotations. This includes devolution or
transfer of tasks and function with matching resources, as well as appropriate decision-
making powers to the lower level democratically elected bodies, which are often
perceived as independent of higher-level authorities. This is considered as a
comprehensive definition of decentralization as it is by and large covers what is perceived
as common ground held by others.

History of Local Governance in India: An Overview

Local governance historically predates the emergence of nation-states. In ancient history,

tribes and clans established systems of local governance in most of the world. They
established their own codes of conduct and ways of raising revenues and delivering
services to the tribe or clan. Tribal and clan elders developed consensus on the roles
and responsibilities of various members. Some tribes and clans with better organization
and skills then sought to enlarge their spheres of influence through conquest and
cooperation with other tribes. In this way, the first Chinese dynasty, the Xia, was
established (2070 BC to 1600 BC) (see Zheng and Fan 2003). A similar situation
prevailed in ancient India, where in the third millennium BC (about 2500 BC) a rich
civilization was established in the Indus Valley (now Pakistan). This advanced civilization
has placed great emphasis on autonomy in local governance and enshrined a consensus
on division of work for various members of the society.2

1
Decentralization is a broad term which has been defined in many ways. Here it is based on the
assessment of Rondenelli et al. (1984). For a brief account of this refer to Manor, James,
“Political Economy of Democratic Decentralization”, World Bank 1999.
2
‘Two Perspectives on Local Government’ (Introduction) in Grassroots Democracy in India
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 The Panchayats

The philosophical basis of local government is well laid out in the Gandhian NOTES
ideas when he defined village panchayats in the following words “My idea of village
Swaraj is that it is a complete republic independent of its neighbours for its own vital
wants and yet interdependent for many others in which dependence is necessity. The
government of the village will be conducted by the panchayat of five persons annually
elected by the adult villagers, males and females, possessing minimum prescribed
qualifications. These will have all authority and jurisdiction required. Since there will
be no system of punishment in the accepted sense, the panchayat will be legislature,
judiciary and executive combined to operate for its year of office. Any village can
become such a republic today without much interference even from the present
government whose sole effective connection with the village is the execution of village
revenue. Here, there is a perfect democracy based upon individual freedom. The
individual is the architect of his own government.”3

Local Governance in Pre-Colonial Period

It is widely recognized that self-governing village communities characterized by agrarian

economies had existed in India from earliest times. Not only they are mentioned in the
Rig Veda which dates from approximately 1200 B.C., there is also definite evidence
available of the existence of ‘village sabhas’ (council of assemblies) and ‘gramins’
(senior persons of the village) until about 600 B.C. These village bodies were the lines
of contact with higher authorities on day-to-day matters affecting the villages. In course
of time, these village bodies took the form of panchayats (an assembly of five people)
which looked after the affairs of the village. They had both police and judicial powers.
Custom and religion elevated them to a sacred position of authority. Besides the Village
panchayats, there were also Caste panchayats to ensure that persons belonging to a
particular caste adhered to its code of social conduct and ethics. If this was the general
pattern in the Indo-Gangetic plains, in the south, village panchayats generally had a
village assembly whose executive body consisted of representatives of various groups
and castes. Both the panchayats in north and south had been pivot of administration,
the center of social life and focus of solidarity. Even during the Medieval and Mughal
3
Gandhi, M.K., ‘My Idea of Village Panchayat’, 26th July 1942, Harijan.

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NOTES periods, this characteristic of the village panchayat remained unchanged. Although
under the Mughals their judicial powers were curtailed, local affairs remained unregulated
from above and village officers and servants were answerable primarily to the
panchayats.4

Local Governance in British Colonial Period

With the advent of the British, the self-contained village communities and their panchayats
ceased to get sustenance. In the course of time, they were replaced by formally
constituted institutions of administration. It is a historical fact that self-government in
India, in the sense of responsible representative institutions was the creation of colonial
rulers. It is not that the first priority of the British rulers concentrated on creation of
local bodies. But their interest in trade made them establish local bodies in those areas;
it was limited to the creation of local bodies of nominated members in the major
towns. It was thus as early as 1687 a Municipal Corporation came to be formed in
Madras based upon the British Model of a Town Council. This body was empowered
to levy taxes for building halls and schools. With the passage of time, the sphere of
activities of this corporation and similar bodies set up in other major towns increased
and their administrative power widened. Although symbolizing local government of
some sort, the bodies continued to comprise of nominated members only5. A great
shift occurred in the structure and functioning of local government bodies after Mayo
Resolution was passed. In 1870 the Viceroy, Lord Mayo, got a resolution passed by
his council for decentralization of power to bring about administrative efficiency in
getting the demands of people fulfilled and add to the “existing imperial resources
which would suffice for the growing wants of the country”6.
The passing of Ripon resolution in 1882 was a watershed in the structural evolution
of the government in the country. He established the local bodies consisting of elected
non-official members and presided by a non-official chairperson. It is ‘Magna Carta’
of local democracy in India. The role of local administration was elevated by the
passing of the resolution. The resolution proposed the establishment of rural local

4
Mathew George, “Panchayati Raj in India- An overview” in “Status of Panchayati Raj in the
States and Union Territories of India 2000”, Concept Publishing Company, New Delhi, 2000
5
Ibid
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Venkatarangaiya, M. and Pattabhiram, M. (ed.), Local Government in India: Selected Readings,
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 The Panchayats

boards, two-thirds of whose membership was composed of elected representatives. NOTES

Although the step was half-hearted, the term ‘self-government’ began to take
prominence. In 1906, the Indian National Congress under the presidentship of Dadabhai
Naroji, accepted “self-government” as the political goal of the country. In 1907, the
government constituted a ‘Royal Commission on Decentralization’ which, in its report
released in1909 elaborated further the principles enunciated in the Ripon Resolution.
Although this commission consisted of five Englishmen and only one Indian, it recognized
the importance of panchayats in the Indian context. But like the Ripon Resolution,
recommendations made by the Royal Commission on Decentralization remained largely
on paper, a fact underlined by the congress in a resolution adopted in 28th congress
session in 1913. The Montagu-Chelmsford Reforms in 1919, under the proposed
scheme of dyarchy, made local self-government a “transferred subject”. This meant
that local self-government was brought under the domain of Indian ministers in the
provinces. It was a promising move and an advance in this sphere. To make local self-
government both fully responsible and representative, the reforms had suggested that
there should be as far as possible, complete popular control in local bodies and largest
possible independence for them of outside control. Notwithstanding this professed
objective of Montagu-Chelmsford scheme, it did not make the panchayat institutions
truly democratic and vibrant instruments of self-government at the level of villages due
to various constraints, both organizational and fiscal. Still in almost all provinces and
several native states, acts were passed for the establishment of village panchayats. By
1925, eight provinces in British India had passed the act these statutory panchayats
covered only a limited number of villages and had only a limited number of functions.7
The Government of India Act, 1935 and the inauguration of Provincial Autonomy
under it marked another important stage in the evolution of panchayats in the country.
With popularly, elected government in the provinces almost all provincial administration
felt duty-bound to enact legislations for further democratization of the local self-
government institutions including village panchayats.8 From 1935 till 1947, the status
of panchayats remained unchanged.

7
Mathew George, “Panchayati Raj in India- An overview” in “Status of Panchayati Raj in the
States and Union Territories of India 2000”, Concept Publishing Company, New Delhi, 2000
8
Mathew George, “Panchayati Raj In India- An Overview”, in “Status of Panchayati Raj in the
States And Union Territories of India 2000”, Concept Publishing Company, 2000, N. Delhi. Self-Instructional
Material 153

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NOTES Constituent Assembly Debates

India gaining Independence and Gandhi’s influence upon political freedom during national
movement with village panchayats at its center made the people think that India’s
commitment to democratic decentralization would find a special status in the constitution.
The first draft of India’s constitution did not give any place to panchayats. For
Ambedkar, ‘village republics’ have ruined India and they are ‘a sink of localism and
ignorance, narrow-mindedness and communal’, and he was surprised that those who
condemn provincialism and communalism should come forward as champions of village.
Countering this member like Madhav Rau of Mysore said, “It is true some villages are
chronically faction-ridden and indulge in petty tyrannies, or remain the strongholds of
untouchability. A considerable number are pathetic or even moribund.” However
according to him, if thirty percent could be classed as good, they could not be ignored.
He quoted the example of the effort being made by then popular government in Mysore
as ‘encouraging and sometimes gratifying’.9 Despite some leaders defending the Local
governance they were not made statutory. They were made part of Article 40 of the
Indian constitution and list II entry 5 in the seventh schedule. The entry empowered
the state legislature to legislate with respect to all matters relating to local government
including the constitution and establishment of such local authorities. The constitution
also empowered the state legislatures to confer such powers upon local authority
including power to levy taxes which the state could levy under the state list. Despite
such direct and indirect powers, no substantial steps were taken to give village
panchayats a role in social transformation and implementation of development
programs.

Rise and Decline of Panchayats till 1977

India’s development strategy in the early fifties was through centrally administered
plans. It did not take long to realize the folly of this approach. The Community
Development Project, in 1952, experimented in Shantiniketan, Baroda, and Nilokheri
soon found themselves in a pit in the absence of effective instruments of people’s
participation. To suggest a constitutional setup to secure such a participation in the
Community Development and National Extension Service Program, the committee on

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9
Constituent Assembly Debates, Official Report”, Vol. VIII, Lok Sabha Secretariat, New Delhi,
154 Material 1999.

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 The Panchayats

planned projects constituted a team to study the failure of these two projects. The NOTES
study team was headed by Balwant Rai Mehta, a Member of Parliament and was set
up in 1957. The team gave two recommendations, viz., (a) administrative
decentralization for effective implementation of development program, (b) control by
elected bodies for this decentralized administrative system. Its recommendation was
that public participation in community works should be organized through statutory
representative body, and it gave a fillip to prevailing nation-wide sentiments.10
The recommendations of Balwant Rai Mehta team favoring democratic
decentralization, created the pace of constituting Panchayati Raj institutions in all states.
Even the National Development Council affirmed the basic principle of democratic
decentralization enunciated by Balwant Rai team and left it to the states to work out
the measures suitable to each state. During this stage the term “Panchayati Raj” came
to mean, as a process of governance. It led to a system organically linking people from
Gram Sabha to Lok Sabha. S.K. Dey had disclosed that the term was given by
Nehru, and it is different from panchayats which means a local body within a
geographical area. Rajasthan was the first state to inaugurate Panchayati Raj after
Balwant Rai Mehta’s report. Jawahar Lal Nehru while inaugurating the panchayat at
Nagaur hailed it as “the most revolutionary and historical step in the context of new
India.” Democracy at the top cannot be successful until it is built from below. Nehru
had felt similar sentiments while inaugurating the new Panchayati Raj at Shadnagar,
near Hyderabad nine days later S.K. De. The Ministry of Community Development in
Nehru’s cabinet and the architect of Panchayati Raj after Independence elevated the
whole idea to a philosophical level and viewed it as an instrument which linked individual
with the universe. In the sphere of national democracy, he visualized an organic and
intimate relationship between Gram Sabha and Lok Sabha.
By 1959, all the states had passed panchayat acts, and by mid-1960’s,
panchayats had reached all parts of the country. More than 217, 3000 village panchayats,
covering over 96 percent of the 579,000 inhabited villages and 92 percent of the rural
population had been established. On an average, a panchayat covered a population of
about 2,400 in two to three villages.11 There was enthusiasm in rural India and the

10
Peter Ronal Dsouza ‘Decentrlization and local government’ in Zoya Hasan, E Sridharan and R.
Sudarshan (ed) India’s Living Constitution: Ideas prcatises and controversies Permanent
Black: 2002 Self-Instructional
11
George Mathew Op.cit Material 155

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NOTES people felt they had a say in affairs affecting them. Those were the promising days of
Panchayati Raj Institutions in India. The report of the Ministry of Community
Development had started in 1964-65 than younger and better leadership was emerging
through the Panchayati Raj institutions and there was a fairly high degree of satisfaction
among the people with their working.
In yet another comment, a study team, appointed by the Associations of
Voluntary Agencies for Rural Development (AVARD) in 1962 to evaluate Panchayati
Raj in Rajasthan, had made the following observation: It was reported that the people
felt that they had sufficient powers to enable them to mold their future. They are fully
conscious of the fact that such privileges and favours which were formerly under the
control of the Block Development Officers (B.D.O.) are now under their control by
securing full advantage of democratic decentralization. The study team then proceed
to say that the conferring of power on people’s representatives had improved the
attendance of teachers in primary schools, while block administration had become
more responsive, people were voicing their grievances before the Pradhans and obtaining
relief through them and above all petty corruption both among the subordinate staff as
well as among the newly elected leaders had declined; the former because the block
staff had come under the Panchayat Samiti and the latter because the public reputation
of the Pradhans was crucial for them to get re-elected. In other words, Panchayati Raj
institutions fulfilled all the functions of a local government and acted as the nurseries or
even the primary schools of democracy. Due to interest generated by the Panchayati
Raj institutions several states set up committees to assess their working and to
recommend measures for improvement.
Echoing the same voice of the study team, Abhijit Datta said Panchayati Raj
institutions have become only a living caricature of local government. The decline of
Panchayati Raj occurred mainly because there was paucity of funds at their disposal
and state and center funds were inadequate. The elections to the panchayats were a
farce for it was like a change in permutation and combination, as George Mathew
says12. Traditional rivalries obstructed the functioning of panchayats which gave state
government to delay the elections. In 1966-67, the reduction of Community
Development Ministry to a department and later its merger under Food and Agriculture
Department further marginalized the role of panchayats. Along with this, came the next

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Mathew Op.cit
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blow when new schemes integrated with district areas were launched. Later Community NOTES
Development Program was widened to include rural development. Thus it marked the
end of both ‘community’ and ‘panchayats’ as agents of change and agencies of
development., as it is observed by L.C. Jain13.

Ashok Mehta Committee 1978

Ashok Mehta committee was set up to enquire into the working of the Panchayati Raj
institutions and to suggest ways to strengthen it. It marked a turning point in the concept
and functioning of Panchayati Raj. It launched second generation panchayats. First
generation panchayats were in the Nehruvian era. Mehta committee had suggested
the following:
(1) All development activities should flow through the block level organization.
(2) Panchayat samiti is a key unit of decentralization and in most cases, it was
coterminous with the Block.14
Second generation panchayats started with the setting of panchayats in Bengal
on the lines of recommendation given by Mehta Committee. West Bengal, Karnataka
Jammu and Kashmir, and Andhra Pradesh either revised their existing panchayats or
enacted new acts in theory accepting Ashok Mehta Committee. Thus, in this phase
panchayats developed into a political institution. This was largely due to the intervention
of various political leaders of different states.
Ashok Mehta committee made the first official recommendation for including in
the constitution. Though the states had gone ahead in devolving powers to the panchayats
but concentration of power at the center was working as a serious impediment. For
instance, in 1985 Abdul Nazir Sab, the Ministry of Panchayati Raj and Rural
Development in Karnataka under the Janta Government, had stressed that “without a
constitutional amendment guaranteeing the- ‘Four Pillar State’, our efforts may not
be fruitful as we desire.”
Since the second-generation panchayats gave more power to the local bodies,
they evoked more enthusiasm both in implementation and functioning. The West Bengal
pattern was a success story. It was thought that since no state government had taken

13
Ibid Self-Instructional
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Ibid Material 157

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NOTES their process seriously the need for constitutional support became pertinent. Further
success in this approach demands political will, people’s awareness and building healthy
conventions and traditions guided by constitutional and legislative changes which can
bring a transformation in society. The working of second generations revealed that first
two factors were present, only third factor that was missing had thwarted the successful
working of panchayats. Various scholars working on panchayats have even suggested
that in the present condition constitutional mandate had become necessary to realize
the dreams of making panchayats as vehicle of social change.
By the end of 1988 a sub-committee of parliament for Ministry of Rural
Development under the chairmanship of P. K. Thungon made recommendations for
strengthening the Panchayati Raj system. It also recommended giving constitutional
status to panchayats. It was against this scene that on 15th May the constitution (64th
Amendment Bill) was drafted and introduced in the Parliament. It was modelled on
the recommendations of L.M. Singhvi draft bill and Ashok Mehta Committee Report.
Though the bill was welcomed, it was opposed for it followed a uniform pattern, thus
ignoring the different structures of different states and secondly, it was an agency of the
state with no role being played by states. There was an outcry from both political
parties and intellectual citizens. In response to this widespread criticism, a committee
headed by S.R. Bommai was appointed by the National Front. The report submitted
stressed on the lacunae of earlier bill and later bills that were re-drafted included the
findings.15
Although the 64th Amendment Bill was passed with a two-thirds majority in
Lok Sabha, in the Rajya Sabha, it failed to meet the mandatory requirement by two
votes. The National Front government introduced the 74th Amendment Bill (a combined
bill on both Panchayats and Municipalities) on 7th September 1990 during its short
tenure but it was never taken up for discussion. By this time, the political atmosphere
was charged with giving constitutional status to local bodies. All parties had declared
in their manifesto that they supported constitutional amendment for strengthening
panchayats. In September 1991, the congress government under Narasimha Rao
introduced 72nd (Panchayats) and 73rd Amendment (Nagarpalikas) constitutional
Amendment bills. These two bills were referred to a Joint Select Committee of
Parliament. The Lok Sabha passed the two bills on 22nd December 1992, while the

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Rajya Sabha passed them the next day. By the time parliament passed the two bills, NOTES
their sequence changed to 73rd and 74th Amendment Act respectively. Following their
ratification by more than one-third states assemblies, the president gave his assent on
20th April 1993. They came into force as the constitution (Seventy Third Amendments)
Act, 1992 on April 1993, and constitution (Seventy-Fourth Amendment) Act, 1992
on 1st June 1993. These amendments to the constitution brought about fundamental
change not only in the realm of local government but also in India’s federal character.16

9.3 73RD AMENDMENT ACT: KEY MANDATORY

PROVISIONS

Gram Sabha: It is a body consisting of persons registered in the electoral rolls relating
to a village. This body was endowed with such powers and functions as the legislature
of the state may provide by law. (Article 243 A)
Constitution of Panchayats: The establishment in every state (except those with
populations below 2 million) of rural local bodies (panchayats) at the village, intermediate
and district levels. (Article 243B)
 Elections: Direct elections to all seats in the panchayats at all levels. Indirect
elections to the position of panchayat chairperson at the intermediate and district
levels (Article 243C). Compulsory elections to panchayats every five years
with the elections being held before the end of the term of the incumbent panchayat
in the event that a panchayat is dissolved prematurely, elections must be held
within six months, with the newly elected members serving out the remainder of
the five year term. (Article 243E)
 Reservations of Seats (Article 243 D): Not less than one-third of the total
number of seats reserved for the Scheduled Castes and Scheduled Tribes in
every panchayats. And among this one-third of the seats shall be reserved for
women belonging to the Scheduled Castes or as the case may be Scheduled
Tribes.

16
Kumar Girish, “Local Democracy in India, Interpreting Decentralization”, Introduction, Sage Self-Instructional
Publication, New Delhi, 2006. Material 159

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NOTES  Not less than one-third (including the number of seats reserved for women
belonging to the Scheduled Caste and Scheduled Tribes) of the total seats to be
filled by direct election in every panchayat shall be reserved for women and
allotted by rotation to different constituencies in a panchayat.
 The act also provides for reservation of one-third of the total number of offices
of chairpersons in the panchayats at all levels for women including women from
Scheduled Caste and Scheduled Tribes.
Following the amendment, about eight lakh women representatives entered the different
tiers of rural governance in 1993-1994.
Election Commission (Article 243K) an independent election commission to supervise
and manage elections to local bodies, much as the Election Commission of India manages
state assembly and parliamentary elections.
State Finance Commission (Article 243 I) established every five years, to review
the financial position of local bodies and recommend the principles that should govern
the allocation of funds and taxation authority to local bodies.
District Planning Committees Article 243ZD: mandates the constitution of District
Planning Committees to consolidate the plans prepared by both rural and urban local
bodies. In order to facilitate a well-planned husbanding of available resources,
Panchayats and municipalities should be informed as early as possible of what they
might be expected to receive by way of tied and untied funds under various budgetary
heads for implementing various schemes. This is an essential pre-requisite for each tier
of the Panchayati Raj system to prepare plans for its areas of responsibility, as defined
through Activity Mapping, and then for all these plans, along with plans of municipalities,
to be “consolidated” by the District Planning Committees (DPC) as mandated by
Article 243 ZD of the Constitution. It needs to be underlined that the Constitution
does not provide for DPCs to prepare district plans on their own, but to “consolidate”
local area plans drawn up at lower tiers in both rural and urban areas of each district
(A different provision of the Constitution covers district planning for Metropolitan
areas).
Specific Provisions for Tribal and Scheduled Areas: Article 243M (1) provides
that this Part shall apply to the Scheduled Areas referred to in clause (1) and the tribal

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areas referred to in clause (2) of article 244. (2) This Part shall apply to (a) the States NOTES
of Nagaland, Meghalaya and Mizoram: (b) the hill areas in the State of Manipur for
which District Councils exist under any law for the time being in force. (3) Nothing in
this Part (a) relating to Panchayats at the district level shall apply to the hill areas of the
District of Darjeeling in the State of West Bengal for which Darjeeling Gorkha Hill
Council exists under any law for the time being in force.
Parliament may, by law, extend the provisions of this Part to the Scheduled
Areas and the tribal areas referred to in clause (1) subject to such exceptions and
modifications as may be specified in such law and no such law shall be deemed to be
an amendment of this Constitution for the purposes of article 368. As required under
Part IX of the Constitution, all the States and UTs have enacted/amended their
Panchayati Raj Acts incorporating the provisions of Part IX.

9.4 THE PROVISIONS OF THE PANCHAYATS

(EXTENSION TO THE SCHEDULED AREAS)
ACT, 1996

Enactment of “The Provisions of the Panchayats (Extension to the Scheduled Areas)

Act, 1996” (PESA) was a step taken by the Government of India to provide for the
extension of the provisions of the Part-IX of the Constitution relating to the Panchayats
to the Fifth Schedule Areas with certain modifications as provided under Article
243M(4)(b) of the Constitution. This legislation has not only extended the development,
planning and audit functions to the Gram Sabhas in the Fifth Schedule Areas but has
also endowed it with the management and control of natural resources and adjudication
of justice in accordance with traditions and customs.

Issues in the Working of Panchayati Raj Act

PRIs are either a failure or, at best, a series of missed opportunities. Before 1993,
India had only two levels of government. The 73rd Amendment introduced local
governing bodies across India. This amendment, however, did not require the

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NOTES implementation of local self-governing bodies. It only mandated the creation of local
self-governing bodies, and left the decision to delegate powers, functions, and finances
to the state legislatures.

Limited Transfer of Power to the Panchayats

Despite XI schedule of the Indian constitution delegating powers to the panchayats,

their transfer of power has been limited. This has been so due to reluctance of state
legislature to make Panchayats autonomous. As a result, panchayats are mere
implementing agency for the state and central governments. A study carried out by
Planning Commission17 showed a terrible situation with regard to all state governments
in transferring power to panchayats.

Lack of funds to Panchayats

Local governments can either raise their own revenue through local taxes or receive
intergovernmental transfers. The 73th Amendment recognized both forms of public
finance, but did not mandate either. The power to tax, even for subjects falling within
the purview of PRIs, has to be specifically authorized by the state legislature. The 73rd
Amendment left this be a choice open to the state legislatures—a choice that most
states have not exercised. A second avenue of revenue generation is intergovernmental
transfers, where state governments devolve a certain percentage of their revenue to
PRIs. The constitutional amendment created provisions for State Finance Commissions
to recommend the revenue share between state and local governments. However,
these are merely recommendations, and the state governments are not bound by them.
Though finance commissions, at every level, have advocated for greater devolution of
funds, there has been little action by states to devolve funds. As a result, PRIs are so
starved for funds that they are often unable to meet even payroll obligations. They are
reluctant to take on projects that require any meaningful financial outlay and are often
unable to solve even the most basic local governance needs. The only long-term solution
is to foster genuine fiscal federalism where PRIs raise a large portion of their own
revenue and face hard budget constraints, i.e., fiscal autonomy accompanied by fiscal
responsibility.

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Proxy Candidate NOTES

The 73rd Amendments required that no less than one-third of the total seats in local
bodies should be reserved for women. At 1.4 million, India has the most women in
elected positions. This is the only level of government with reservation for women.
However various researches conducted after the implementation of reservation for
women found that women acted as proxy candidates18 for men of their family. They
were rubber stamps where actual decisions were taken by men of their family. They
lacked knowledge and experience for carrying out functions of panchayats. At the
same time Research using PRIs has shown that having female political representation
in local governments makes women more likely to come forward and report crimes.
Further, female PRI leaders are more likely to focus on issues pertinent to women. R.
Chattopadhyay and E. Duflo19 show that in districts with female sarpanch/pradhans,
significantly greater investments are made in drinking water, a priority public goods
issue for women. They also show that SC sarpanch/pradhans are more likely to invest
in public goods in SC hamlets, an important change in the severely segregated villages
of India. In a country where access is determined by gender and caste, even more
than economic status, these changes are remarkable.

Unscientific distribution of functions

The Panchayati Raj scheme is defective in so far as the distribution of functions between
the structures at different levels has not been made along scientific lines. The blending
of development and local self-government functions has significantly curtailed the
autonomy of the local self-government institutions. Again, it has virtually converted
them into governmental agencies. Even the functions assigned to the Panchayat and
the Panchayat Samiti overlap, leading to confusion, duplication of efforts and shifting
of responsibility. The three-tiers do not operate as functional authorities. The tendency

18
Baviskar, B.S., “Impact of Women’s Participation in Local Governance in Rural India” –in L.C.
Jain (ed.), Decentralization and Local Governance (New Delhi: Orient Longman, 2005). Buch,
Nirmala, “Women and Panchayats: Opportunities, Challenges and Support” – in L.C. Jain
(ed.), Decentralization and Local Governance (New Delhi: Orient Longman, 2005).
19
Raghabendra Chattopadhyay and Esther Duflo, Women’s leadership and policy
decisions: Evidence from a nationwide randomized experiment in India (Boston: Institute for
Economic Development, 2001) Self-Instructional
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NOTES on the part of the higher structure to treat the lower structure as its subordinate is
markedly visible.

Bureaucratic Attitude towards Panchayats

Introduction of the Panchayati Raj aimed at securing effective participation of the

people but in reality this hardly happens since the key administrative and technical
positions are manned by the government officials. Generally, there is lack of proper
cooperation and coordination between the people and the officials like Block
Development Officers, the District Officers, etc. Again, the officers fail to discharge
the developmental duties more efficiently and sincerely. Bureaucracy at the state level
that had long enjoyed autonomy refuses to be under elected representatives. As a
result, they create hindrances by creating parallel structures of power with panchayat
institutions or they show lack of co-ordination with them.

Undemocratic composition of various Panchayati Raj institutions

Various Panchayati Raj Institutions are constituted setting aside democratic norms and
principles. In many cases state governments show reluctance in setting elections
commission that can aid the elections at this level. As a result, there are long delays in
holding elections. At the same time the indirect election of most of the members to
Panchayat Samiti only increases the possibility of corruption and bribery. Even the Zila
Parishad consists of mainly ex-officio members. They are, for the most part, government
officials. This negates sound democratic principles.

Disillusionment on structural-functional front

The performance of Panchayati Raj Institutions has been badly affected by political
cum caste factionalism, rendering developmental projects into an illusion or dream.
Corruption, inefficiency, scant regard for procedures, political interference in day to
day administration, parochial loyalties, motivated actions, power concentration instead
of true service mentality – all these have stood in the way of the success of Panchayati
Raj. Furthermore, the power to supersede the local bodies on the part of the State
Government clearly violates the spirit of democratic decentralization.

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Politicization of PRIs NOTES

It is being increasingly noticed that the Panchayati Raj Institutions are viewed only as
organisational arms of political parties, especially of the ruling party in the state. The
State Government, in most states, allows the Panchayati Raj Institutions to function
only upon expediency rather than any commitment to the philosophy of democratic
decentralisation.

9.5 CONVERGENCE OF PRIs WITH DEVELOPMENT

Now that there are millions of elected representatives giving voice to Indians at the
grass-roots level, these representatives need clear mandates of local functions, and
the ability to raise their own revenue, to foster better local governance. Without the
functions and finances, PRIs will only be an expensive failure. This can happen only if
the higher tier of governments sees them as a forum to explain their development
strategies. Judicious use of Gram Sabhas can actually make panchayats an arena for
citizen-governance interface.
Panchayats can play an effective role in convergence of development efforts at
the local level. This convergence can be of two kinds – one, internal to the efforts of
the line departments working under the control of the PRIs and another external by
converging the efforts of the line departments with the efforts of the organs of the
larger society.
Panchayats through the system of internal audits can Enhance Accountability of
Elected Representatives periodically to face their constituency. Moreover, through
this process the elected representatives are made to explain to the electorate what
they had done and what they propose to do. The Gram Sabhas, if regularly conducted,
can definitely achieve the purpose for which they have now been created, by providing
a ready and effective forum of accountability not only for the Gram Panchayat members
but also for the elected representatives of the higher tiers. This would augur well for
our democratic polity. The existence of the PRIs can help in introducing the process of
social audit at the local levels. Voluntary councils of experts and eminent citizens
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NOTES constituted by the Gram Sabhas can evaluate the work carried out by the panchayats
and judge their quality, effectiveness and conformity with accepted norms. The PRIs
can also ensure wide publicity for their activities among the people through the Gram
Sabhas. Steps can be taken to provide access to official records and accounts at least
at the Gram Panchayat level and this can be extended to the higher tiers over a period.
Such arrangements for ensuring transparency in administration can be fully
operationalized throughout the country based on the experience gained at the local
levels. The activities of the various community-based organisations working at the
village levels can be effectively monitored by insisting on their reporting to the Gram
Sabhas of their activities.
Finally, there is need to train local government representatives themselves for
their new role. The PRI representatives and local officials must devise mechanisms for
collaboration in the context of direct democracy. It is in their interest to understand
each other’s problems and limitations at a very early stage and in smaller territories
where the problems are comparatively easy and manageable. The attitudinal differences
between the politicians and bureaucrats can be brought down to an acceptable level
over a period, as both the groups gain experience in working together and managing
local administration. Till then, the need to train both of them independently and also
jointly with a view not only to equipping them for their tasks but also to co-exist
harmoniously will remain.

9.6 CONCLUSION

Let us summarize, as we all know, without a strong political will, an autonomous local
authority, even if there is one, will always remain the weaker party in any conflict with
a nationally based department functionary. Another key element for the success of
PRIs is the change of mindset from one that works for the people to one that works
with the people. This would require a re-orientation of both the bureaucrats and senior
politicians at the central/provincial levels, from an attitude which is centralizing, control
oriented and populist to one of sharing authority through regular institutions of
democracy. This can be achieved through a process of training and fresh
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NOTES
9.7 SELF-ASSESSMENT QUESTIONS

1. Write a short essay on role and function of Panchayati raj in India.

2. Describe how Panchayati Raj Institutions can act more efficiently and what
should be the method of social auditing.

9.8 REFERENCES

 Baviskar, B.S., “Impact of Women’s Participation in Local Governance in Rural

India” – in L.C. Jain (ed.), Decentralization and Local Governance (New
Delhi: Orient Longman, 2005).
 Buch, Nirmala, “Women and Panchayats: Opportunities, Challenges and
Support” – in L.C. Jain (ed.), Decentralization and Local Governance (New
Delhi: Orient Longman, 2005).
 Chattopadhyay R. and Esther Duflo, Women’s leadership and policy
decisions: Evidence from a nationwide randomized experiment in India
(Boston: Institute for Economic Development, 2001)
 Dsouza Peter Ronald ‘Decentrlization and local government’ in Zoya hssan, E
Sridharan and R. Sudrshan (ed) India’s Living Constitution: Ideas practises and
controversies Permanent Black :2002
 Mathew George, “Panchayati Raj in India- An Overview”, in “Status of
Panchayati Raj in the States and Union Territories of India 2000”, Concept
Publishing Company, 2000, N. Delhi.
 Institute of Social Studies Trust, “Women in Leadership Positions: A Scoping
Paper”,
 ISST, New Delhi, July 2005, available at -
 http://www.isstindia.org/PDF/Women%20in%20Leadership%20Position.pdf\
 Kumar Girish, “Local Democracy in India, Interpreting Decentralization”,
Introduction, Sage Publication, New Delhi, 2006. Self-Instructional
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 Constitutional Government and Democracy in India

NOTES  Manor, James, Political economy of Democratic Decentralisation, Wasington

D.c, World Bank,1999

Reports

 Constituent Assembly Debates, Official Report”, Vol. VIII, Lok Sabha

Secretariat, New Delhi, 1999.
 Decentralization in India: Issues and Challenges: Discussion papers UNDP https:/
/www.undp.org/content/dam/india/docs/decentralisation_india_challenges_
opportunities.pdf
 Report on the working Group on Democratic Decentralistion and PRI’S http:/
/planningcommission.nic.in/aboutus/committee/wrkgrp11/wg11_demo.pdf

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The Municipalities

LESSON 10 NOTES

THE MUNICIPALITIES
Dr. Smita Agarwal
Associate Professor
Department of Political Science, DU
Structure
10.1 Learning Objectives
10.2 Introduction
10.3 Evolution of Municipalities
10.4 Key Features of the Act
10.5 Conclusion
10.6 Self-Assessment Questions
10.7 References

10.1 LEARNING OBJECTIVES

 The lesson would make the students to understand about the idea of grassroots
municipalities practiced in India.
 The lesson would explore the evolution of municipalities system.
 It would also explore the process of gradual devolution or transfer of functions,
resources and decision-making powers to the lower level municipality elected
bodies in India.

10.2 INTRODUCTION

Urbanization is perceived as a determinant as well because of economic development.

Over the past two decades, many countries in Asia have experienced rapid economic
growth. This has led to a rapid rise in their urban population. However, despite a
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NOTES average urban resident is not satisfactory. Urban centers are characterized by squalor
slums, traffic congestion, and shortages of water and power. While the national
governments pursue the goals of economic development, it is generally left to the local
governments to manage rapidly growing urban areas and provide for basic services to
his residents1. Urban management and governance have assumed an increasing
importance, as the capacity of a nation to pursue its economic goals is contingent upon
its ability to govern the cities. This is largely due to the significant contribution of the
urban centers to the national income. The economic liberalization and decentralization
of government have been the most common features of developmental policies of
most countries in the past decade. Nations have evolved policies, aimed at achieving
high economic growth rates, integrating the national economy with the global one and
increasing economic efficiency through greater competition. At the same time,
decentralization policies, aimed at delegation, devolution and democratization have
also been pursued2. The aim of this lesson is to discuss the history of urban governance,
central provisions of 74th Amendment Act and obstacles to its implementation.

10.3 EVOLUTION OF MUNICIPALITIES

Historical records provide evidence of the existence of organised urban life in India
since the ancient period. An officer was appointed to perform various functions related
to city administration. Subsequently, local institutions were constituted. The modern
municipal government in urban units is essentially a creation and legacy of British rule.
It was imported in India by Britishers from their own land. However, it is said that the
origin of local self-government had very deep roots in ancient India. On the basis of
historical records, excavations and archaeological investigations, it is believed that
some form of local self-government did exist in the remote past. In the Vedas and in
the writings of Manu, Kautilya and others, and also in the records of some travelers
like Magasthnese, the origin of local self-government can be traced back to the Buddhist
period3. The Ramayana and the Mahabharata also point to the existence of several

1
Vekateshwaralu, U., Urbanization in India, New Age International Pub., Delhi, P. 235.
2
Ibid
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Aizaz Rumi, Challenges of Urban Local governance in India, Asian Research Paper p 10
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The Municipalities

forms of local self-government such as Paura (guild), Nigama, Pauga and Gana, NOTES
performing various administrative and legislative functions and raising levies from different
sources. Local government continued during the succeeding period of Hindu rule in
the form of town committees, which were known as ‘Goshthis’ and ‘Mahajan Samitees’.
The representative character of these samitees was respected by the rulers. In the
Mauryan period followed by the Gupta era and subsequently in the medieval period,
the system of local self-government continued to be more or less the same. However,
the system of local self-government was quite different in the Mughal period. The
Mughals were fond of building new cities and maintaining them. Those cities were, by
and large, centers of trade and industry. Surat, Patna and Ahmedabad, for example,
happened to be provincial capitals and offered a rich market. Whatever urban
administration was there, it was autocratic in form. The City Kotwal, appointed by the
emperor, was the key-centre of municipal administration. He was responsible for
maintenance of inventory of houses, roads, levy and collection of local taxes, tolls,
transit duties, etc. The markets were controlled by him. He kept a check on weights
and measures and a vigil on the local prices. These are basically municipal functions,
which were performed by him in addition to his foremost duty of maintaining law and
order. Thus, in ‘kotwal’ of the Muslim period, offices of the modern Municipal
Commissioner and the City Magistrate were combined. British rule in India came to
be extended through the East India Company, which was, in its origin, a commercial
concern engaged in trade. The unsettled political conditions in India in the eighteenth
century, and the rivalry between the trading companies representing different European
powers led the Britishers to intrigue with the local rulers to protect their trading interests.
As a consequence, the East India Company found itself landed suddenly with liability
to rule over vast tracts of land. The company, at the same time, got concerned also
with the health and conveniences of its servants. The basic necessities of a healthy and
safe living, i.e., sanitation, light and roads were almost absent. The Britishers thought it
proper to transplant some sort of municipal institutions in areas where the servants of
the company and other Europeans had settled. Madras was the first city to have a
local government established under a charter, dated December 30, 1687, issued by
the Company4. The Municipal Corporation, which came into existence on September
29, 1688, was to consist of a Mayor, 12 Alderman and 60 to 120 Burgesses. The
company declared in the charter that it wanted to encourage people of all nations and
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Ibid Material 171

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NOTES all sects of religion residing within the limits of the corporation and that the Alderman
should be from among the heads and chiefs of all respective castes. The Burgesses
were also to be both from Europeans and Indians. The Mayorship was confined to the
Englishmen. The Madras Corporation was given powers to raise money by taxing the
inhabitants. From the funds so raised it was required to build a town hall, a jail and a
school for the children of the Europeans, to improve roads, undertake lighting
conservancy and similar other services. Thus, a beginning was made in the direction of
establishment of municipal government in India. It was a period when local government
in England had not been fashioned properly. The next step, not of the same significance
was the establishment of Mayor’s Court in all the presidency towns, i.e. Madras,
Calcutta and Bombay, by King George-I through a charter issued to the Company on
24th September 1726. The charter introduced uniformity of approach to all the three
towns. The charter also provided for the constitution of a corporation in each presidency
town, appointment of a Mayor and nine Aldermen. The charter of 1687 created a
corporation and a Mayor’s court in Madras, while the charter of 1726 created similar
organization in all the three presidency towns. However, under the new charter their
functions were largely judicial. With the renewal of Charter of the East India Company
by the British Parliament in 1793, a new attempt was made to establish municipal
organizations in the presidency towns. It empowered the Governor General-in-Council
to appoint Justices of Peace from among the servants of East India Company and
other British inhabitants for the Mayor’s Courts. In 1801, town duties were imposed
in the towns of Bengal for the purpose of improving public resources. This amounted
to use of local resources for filling the imperial coffers. The indirect tax in the shape of
town duties was condemned by Charles Trevelyan in his ‘Report on Town Duties’ in
1833. Between 1813 and 1816 different regulations were made to set-up committees
in large cities to collect taxes on houses and lands for the provision of a town choukidar.
Act XVI of 1837 authorized to committee to use the savings from House Tax for
cleansing and repairing of towns5. The Act of 1842 was the first formal measure for
organizing municipal institutions, but initially it was confined to Bengal Presidency.
Under the Act any town could constitute a committee if two-thirds of the householders
put up a written demand for the purpose. The Town Committee was authorized to
levy tax on the householders and undertake sanitary service. Because of the provision
for direct taxation in the Act, only one town in Bengal made use of the Act, in U.P.
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(then called as Northwest Provinces), the Act was introduced in two towns at the NOTES
request of European residents, first in Mussoorie in 1842, followed by Nanital in
1845, but it did not succeed in either place. The elective element was introduced in a
restricted sense in Bombay under Act XI of 1845 and in Calcutta under Act No. XVI
of 1847. In Bombay, a board of conservancy was established which was to have five
members elected by the justices of Peace. Calcutta was provided with a Board of
Seven Commissioners for the improvement of the city. Four of them were to be elected
according to formula agreed upon by the ratepayers and the government. However,
the said elective principle suffered a setback in 1856.
All the municipal functions were concentrated in the hands of British. After the
mutiny and its suppression and re-occupation of Oudh in 1858, the management of
Nazul and Municipal affairs were entrusted to the Local Agency Committee set up for
the purpose. A Royal Army Sanitation Commission was appointed by the Government
in 1863 to report on the condition of the health of the Army in India. Most of the towns
were dirty and insanitary. The Commission recommended measures for better sanitary
arrangements to be implemented immediately. Within a few years of publication of its
report and in the wake of Lord Lawrence’s resolutions of 1864, Acts were passed for
extension of municipal administration in different provinces. For example, Punjab
Municipalities Act, 1867, Madras Town Improvement Act (passed in 1865), the N.W.P.
Municipalities Legislation (enacted in 1868) and Bengal had two Acts, No. III in 1864
and No. VI in 1868. The N.W.P. Act contained a provision for the election of the
President if so, directed by the provincial government6.
In 1870 came the Lord Mayo’s resolution, which included: “But beyond all this,
there is a greater and wider object in view. Local interest, supervision and care are
necessary to succeed in the management of funds devoted to Education, Sanitation,
Medical Charity, and Local Public Works. The operation of this resolution, in its meaning
and integrity, will afford opportunities for the development of self-government, for
strengthening Municipal Institutions, and for the association of native and Europeans,
to a greater extent than heretofore, in the administration of affairs”. In this way, an
emphasis was laid in the direction of ‘Self-Government’. As a consequence, either
new acts were passed or the old acts were amended in several provinces to incorporate
the elective principle in local bodies.

6
Venkteswar, Ibid Self-Instructional
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NOTES Lord Ripon, who took over in 1880 as the new Viceroy, was a liberal and
could not ignore the sentiments of Indians. He felt that it was yet not the time to give
them a share in the central and provincial governments, but opportunities should be
thrown open to them for training in political and popular education. He believed this
training could be purposeful only when local bodies became elective and enjoyed real
powers. This meant a reduction in control exercised by the central and provincial
government over the local government institutions. The famous resolution, which is
also called Magna Carta of Local Self Government, was issued by Lord Ripon’s
Government on 18th May, 1882. The objective of Ripon’s policy was two-fold. On
the first hand the resolution provided that “adequate resources which are local in
nature and are suited for local control, should be provided to local bodies”. In the
second place the resolution aimed at real self-government. He also wanted the local
governments to suggest as to what measures, legislative or otherwise, are necessary to
ensure more local self-government. Another important reform sought to be made by
Ripon was in the composition of local boards, whether rural or urban. He felt that they
must have a large preponderance of non-official members, and in no case the official
members should exceed one third of the whole. He commented that the non-official
members must be led to feel the real responsibilities to discharge. Having this end in
view he suggested that, wherever practicable, a non-official should be made chairman
of the Board. He went to the extent that where the District Magistrate continues to be
chairman; he must not have, in that capacity, the right to vote in the proceedings. The
first outcome of the new resolution was the making of legislations to enable local
governments to give effect to the general scheme. In Madras, a committee was
appointed by the government in 1882, to report on the then existing local self-
government and to suggest the needed reforms. Incorporating many of the
recommendations made by the committee, the District Municipalities Act IV of 1884
was passed. One of the important provisions was related to the election of 3/4th of the
number of municipal commissioners by ratepayers. In Bombay, the Act of 1884
prescribed the election of at least one-half of the commissioners generally both in ‘city’
and ‘town’ municipalities. It also fixed a limit on the number of government officers
being nominated as members. It could not exceed one-quarter of the total. Similarly,
Bengal Act No. III of 1884 also provided for election of two-third municipal
commissioners by the ratepayers. The Chairman was to be elected by the commissioners
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municipality could be introduced at the pleasure of the provincial government. However, NOTES
it did assure that after the introduction of the elective principle into a municipality, the
step could not be retraced unless and until a majority of the electors moved an
application for it or until it was considered against public interest. Assam and Central
Provinces adopted no new legislation. They continued to follow the provisions of
Bengal Act V of 1872 and Act of 1873 respectively. A review of the working of
various legislations passed by the provincial government after Ripon’s resolution was
made by the Government of India in 1896. Two resolutions were adopted by Lord
Elgin’s government, one in October 1896 in respect of municipal bodies and the other
for local boards in August, 1897. They showed an improvement in the working of
local bodies so far as their finances and especially the expenditure was concerned.7
In between, despite repeated recommendations for moves to empower local
governance, the administration remained silent. It was only later that with the passing
of Montague-Chelmsford Report submitted in 1918, the importance of extension of
franchise at the local level was realised. They felt that this would help in arousing
citizens’ interest in elections and in the functioning of local bodies. They were of the
opinion that the largest measure of responsibility should be introduced at the local level
because this will provide an outlet for the energies of the Indian politicians. With the
installation of responsible governments under dyarchy system in various provinces
under the Act of 1919, the local self- government was transferred to ministers responsible
to new provincial legislatures. The ministers and the legislative councils displayed keen
enthusiasm for clothing local bodies with greater powers, freeing them from official
control and making them responsible to a substantially enlarged electorate. This
generated enhanced activity in the local institutions. Municipal elections were keenly
contested. The municipalities were encouraged to elect non-official presidents and
vice-presidents. The municipal law in Bihar and Orrisa (combined) was enacted in
1922. The external control was reduced to a minimum. All the rare payers, including
women, were given the right to vote and to seek election. However, the elective strength
was raised to three fourths in 1929. Women were given right to vote and stand for
election. A special provision for the representation of depressed classes was also
made.
The Indian Statutory Commission (popularly known as Simon Commission)
was appointed by the British Crown in 1927 to examine the working of responsible
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Venketswara, Ibid Material 175

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NOTES government introduced under the Act of 1919 and to suggest steps, which should be
taken to advance the system. The Commission favoured the appointment of professional
administrators, to be left free in the details of administration, powers of punishment
and correction, more by advice and encouragement, to the provincial governments, as
was the case in Great Britain. Communal and caste considerations came into play
both in municipal politics and municipal administration. All these factors were responsible
for impairing the efficiency of local bodies. New reforms were introduced under the
Government of India Act 1935. A restricted form of provincial autonomy was granted.
The distinction between the reserved and transferred subjects was withdrawn. Popular
governments were installed in different provinces. Indians, having now been given
powers, concerned themselves with the re-organization of local self-government. Many
provincial governments appointed committees to re-organize the local government8.
Despite recommendations made by many committees from time to time,
committees could not see the light of the day until after independence. Independence
brought a new kind of activity in every sphere of public life. It opened a new chapter
in the history of local government in India. The present Constitution came into force in
1950 and the local self-government entered a new phase. The Constitution of India
has allotted the local self-government to the state list of functions. Since Independence
much important legislations for reshaping of local self-government have been passed
in many states of India. The constitutions of local bodies were democratized by the
introduction of adult suffrage and the abolition of communal representation. In July
1953, the U.P. Government took a decision to set up Municipal Corporations in five
big cities of Kanpur, Agra, Varanasi, Allahabad and Lucknow, popularly known as
KAVAL Towns. As a result, the state of the U.P. adopted a new Act for Municipal
Corporations in 1959. After Independence the National Government appointed a
committee in 1948 known as the Local Finance Inquiry Committee, to report on ways
and means for improving the financial resources of local bodies. The report came in
1951. The Taxation Enquiry Commission, set up in 1953, was also baffled with this
problem. The Central Government though, under the Constitution not charged with
the responsibility of local government, has been the principal source of reforms in the
municipal field. It is the Central Government, which has been responsible for setting up
committees and commissions and other organs devoted to studying the problems of
local government. The other significant committees and commissions appointed were:
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Mahaeshwari, S.R. Local Government in India, Orient Longmans, Delhi, 1971, P-17.

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1. The committee on the training of Municipal Employees, 1963; 2. The Rural Urban NOTES
Relationship Committee, 1963-1966; 3. National Commission on Urbanization, 1985-
1988. The Centre Council of Local Self-Government constituted by the Central
Government, has also played a significant role in labouring on reforms needed in the
various aspects of municipal government and administration. The Rural-Urban
Relationship Committee devoted itself to both functional and financial aspects and
was largely microscopic in its approach. One more report came from another committee
of the council on the service conditions of municipal employees (1965-68). Then in
1985, the Central Government appointed the National Commission on Urbanization,
which gave its report in 1988. This was the first commission to study and give suggestions
on all aspects of urban management. Apart from the contributions made by the Central
Government, committees were appointed in different states in order to improve the
municipal organizations and administration thereunder. Municipal legislation has been
suitably adapted from time to time keeping this end in view. Major structural changes
had not taken place except in the larger and important cities, where municipal
corporations had been established, and in U.P. in 1966, where Centralization of
Municipal Services took place, until 1992, when the Constitution 74th Amendment
Act 1992, relating to Municipalities (Urban local Government) was passed by the
parliament in 1992. It received the assent of the president of India on 20th April 1993.
The Act seeks to provide a common framework for the structure and mandate of
urban local bodies to enable them to function as effective democratic units of local Self
Government. The Act provided for a period of one year from the date of its
commencement, within which the then existing municipal laws (which were in force at
that time in states/union territories) were required to be changed/amended/modified in
order to bring them in conformity with the provisions of the constitution (74th
Amendment) Act—1992.

10.4 KEY FEATURES OF THE ACT

Constitution of Municipalities
1. There shall be constituted in every state (Article 243 Q)

(a) A Nagar Panchayat (by whatever name called) for a transitional area, an area in Self-Instructional
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NOTES urban area. (c) A municipal corporation for a larger urban area in accordance with the
provisions of this part.

2. Composition of Municipalities: (Article 243 R)

(i) As provided in clause (2) all the seats in a municipality shall be filled by persons
chosen by direct election from the territorial constituencies in the municipal areas and
for this purpose each municipal area shall be divided into territorial constituencies to
be known as wards. (ii) The Legislature of a state may, by law provide (a) For the
representation in a Municipality of: (A) Persons having special knowledge or experience
in municipal administration. (B) The members of the Home of people and the members
of the Legislative Assembly of the state representing constituencies which comprise
wholly or partly the municipal area: (C) The members of the council of states and the
members of the Legislative Council of the state registered as electors within the municipal
area. (D) The chairpersons of the committees constituted under clause (5) of Article
243S: provided that the persons referred to in paragraph (A) shall not have the right to
vote in the meetings of the municipality.

Constitution and Composition of Wards Committees: (Article 243 S)

1. There shall be constituted wards committees consisting of one or more wards,

within the territorial area of a municipality having a population of three lakhs or
more.
2. The legislature of a state may, by law, make provision with respect to:
(a) The composition and the territorial area of a ward committee. (b) The way
the seats in a wards committee shall be filled.
3. A member of a municipality representing a ward within the territorial area of the
wards committee shall be a member of that committee.
4. Where a wards committee consists of:
(a) One ward, the member representing that ward in the municipality, or two or
more wards, one of the members representing such wards in the municipality
elected by the members of the wards committee shall be the chairperson of that
committee.
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Reservation of Seats: (Article 243 T) NOTES

Seats shall be reserved for the scheduled castes and scheduled tribes in every
municipality and the number of seats so reserved shall bear, as nearly as may be, the
same proportion to the total number of seats to be filled by direct election in that
municipality as the population of the scheduled castes in the municipal area or of the
scheduled tribes in the municipal area bears to the total population of that area and
such seats may be allotted by rotation to different constituencies in a municipality. Not
less than one-third (including the number of seats reserved for women belonging to the
Scheduled Caste and Scheduled Tribes) of the total seats to be filled by direct election
in every panchayat shall be reserved for women and allotted by rotation to different
constituencies in a municipality.
The act also provides for reservation of one-third of the total number of offices
of chairpersons in the municipalities at all levels for women including women from
Scheduled Caste and Scheduled Tribes.

Duration of Municipalities: (Article 243U)

Every Municipality unless sooner dissolved under any law for the time being in force,
shall continue for five years from the date appointed for its first meeting and no longer
provided that a municipality shall be given a reasonable opportunity of being heard
before its dissolution.

Powers, Authority and Responsibilities of Municipalities: (Article 243W)

Subject to the provisions of the constitution, the legislature of state may by

law, endow:
(a) The municipalities with such power and authority as may be necessary to enable
them to function as Institutions of self-government and such law may contain provision
for the devolution of powers and responsibilities upon municipalities, subject to such
conditions as may be specified therein, with respect to (i) The preparation of plans for
economic development and social justice. (ii) The performance of functions and the
Implementation of schemes as may be entrusted to them including those in relation to
the matter listed in the twelfth schedule. (b) The committees with such powers and
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NOTES authority as may be necessary to enable them to carry out the responsibilities conferred
upon them including those in relation to the matters listed in the Twelfth schedule.

Power to Impose Taxes by, and Funds of the Municipalities: (Article 243X)

The legislature of a state may, by law:

(a) Authorize a municipality to levy, collect and appropriate such taxes, duties, tolls
and fees in accordance with such procedure and subject to such limits. (b) Assign to a
municipality such taxes, duties, tolls and fees levied and collected by the State
Government for such purposes and subject to such conditions and limits, (c) Provide
for making such grants-in-aid to the municipalities from the consolidated fund of the
state and (d) Provide for constitution of such funds for crediting all money received,
respectively, by or on behalf of the municipalities and also for the withdrawal of such
money therefrom, as may be specified in the law.

Finance Commission: (Article 243Y)

The Finance Commission constituted under Article 243 I shall also review the financial
position of the municipalities and make recommendations to the Governor. The
Governor shall cause every recommendation made by the commission under this Article
together with an explanatory memorandum as to the action taken thereon to be laid
before the legislature of the state.

Election Commission (Article 243ZA)

An independent election commission to supervise and manage elections to local bodies,

much as the Election Commission of India manages state assembly and parliamentary
elections.

Committee for District Planning: (Article 243ZD)

There shall be constituted in every state at the district level a District Planning Committee
to consolidate the plans prepared by the panchayats and the Municipalities in the
district and to prepare a draft development plan for the district as a whole.

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Committee for Metropolitan Planning: (Article 243ZE) NOTES

There shall be constituted in every metropolitan area a Metropolitan Planning Committee

to prepare a draft development plan for the metropolitan area as a whole.

Every metropolitan planning committee shall, in preparing the draft

development plan:
(a) Have regarded to:

(i) The plans prepared by the municipalities and the panchayats, in the metropolitan area.
(iv) The extent and nature of investments likely to be made in metropolitan area by
agencies of the Government of India and the Government of state and other available
resources whether financial or otherwise. (b) Consult such institutions and organizations
as the Governor may by order, specify. (c) The chairperson of every metropolitan planning
committee shall forward the development plan, as recommended by such committee, to
the Government of the State. Nagar Panchayats are created for a transitional area (the
area which is fast changing from rural to urban area) or for a very small urban areas.

Obstacles to the Working of Urban Local Bodies in India

The constitution 74th Amendment Acts have made a hold attempt to ensure their
continuity, stability, representativeness, and autonomy to function as valuable systems
of self-governance. Yet the intention of legislatures has marred their effective working
in the following ways:

Participation in the Decision-making Process

The extent of participation in the decision-making process is understood since

perceptions/views of those municipal functionaries who participate regularly in the
meetings of urban local governments, namely the elected members (i.e., mayor/president,
councilors) and the appointed authorities (i.e., the executive officer, and other staff). It
is learnt that the nominated and ex-officio members are generally not present in municipal
meetings.

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NOTES Influence of Social and Economic factors on Decision-making

Social and economic factors related to caste, religion and economic status play a
significant role in guiding the decision-making process during municipal meetings. It is
reported that members/authorities belonging to high caste and who are economically
better off dominate and are often successful in getting their decisions/resolutions
accepted. Due to this reason, the grievances of other members are generally not heard.
In this situation, it may not be incorrect to assume that only a particular section of the
population benefits when decisions are implemented.

Influence of Political Factors on Decision-making

Party politics exists at the municipal level. It is reported that members affiliated to the
largest political parties strongly influence decisions during the meetings of the local
government. Furthermore, it is mentioned that the appointed authorities often work
under pressure created by the municipal members. In the past, several authorities have
been transferred to other areas because of not cooperating with the decisions taken
by the local political leaders.

Ineffective Women’s Participation in Decision-making

At least one-third of the members associated with urban local governments belong to
the women category. On the basis of discussions held with a select number of women
members, it is learnt that this group is unable to make a meaningful contribution on
municipal matters discussed in the meetings. In this regard, it is observed that illiteracy
and lack of awareness cannot be accepted as valid reasons for the ineffective
participation of women members.

Issue of Proxy Candidates

Reservation of seats for women in Urban Local bodies have ensured their presence
but have not helped them to participate effectively. This is because women have turned
rubber stamps for their male counterparts who exercise major control in the functioning
of Panchayats who are present in the meetings held with/on behalf of their wives.
Women members feel that work practices are too complex and not easy to comprehend.
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grievances in this regard. Such members lose their interest in municipal matters because

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The Municipalities

of the lack of incentives offered by the State government. In this situation, it becomes NOTES
difficult for them to be accountable to the citizens who have elected them and vested
their faith in them.
State Control on the working of Municipalities. Various studies point out that
decisions on every aspect related to the development of urban services at the local
level are taken during the meetings held by urban local governments. Yet a review of
the perceptions of a selected number of authorities and members associated with the
urban local governments reveal that there are delays in Convening Municipal Meetings
due to an absence of active cooperation received from the elected ward members
(i.e., councillors) on most municipal matters. This is because in these meetings the
grievances of most members (with respect to the development of their ward) are not
being taken into consideration.

Party Interest interferes in the working of Panchayats

Factionalism of Members on the basis of party interest influences the procedure of

passing a resolution during municipal meetings. It is alleged that the dominating members
are generally successful in getting their own resolutions passed. On the other hand, the
grievances of members in minority (comprising scheduled castes/backward class/
economically weaker sections/women) are often not heard.

Lack of bureaucratic support

Discussions held with various municipal members and authorities with respect to this
aspect reveals that the practices adopted by local governments, especially in the
execution of projects, are characterized by numerous deficiencies, which affect
adversely the project planning and implementation process. This happens by not sharing
information, alliances with private contractors and corruption have hindered effective
utilization of urban governance services.

10.5 CONCLUSION

In order to make urban local governance effective, training should be provided from
time to time to first time entrants so that they become acquainted with procedures and Self-Instructional
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rules of the institutions. Use of digital technology to publish the rules or to advertise the

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NOTES contracts can help in minimizing corruption. Social audits and citizen participation by
increasing frequency of meetings of people with ward members can help in making
delivery of services effective. Nothing of this can be successful without the zeal of state
legislatures who will be ready to devolve powers to these bodies.

10.6 SELF-ASSESSMENT QUESTIONS

1. Write an essay on the power and function of Municipalities in India after 74th
amendment.
2. How are Municipalities in India working these days? Discuss their growth and
challenges.

10.7 REFERENCES

 Aizaz Rumi, Challenges of Urban Local governance in India, Asian Research

Paper
 Chaubey, P.K Urban Local bodies in India: Quest for making them self-Reliant
https://fincomindia.nic.in/writereaddata/html_en_files/oldcommission_html/
predocs/speech/chaubey_ulb.pdf
 Mahaeshwari, S.R. Local Government in India, Orient Longmans, Delhi, 1971
 Vekateshwaralu, U., Urbanization in India, New Age International Pub., Delhi

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UNIT IV: CONSTITUTIONAL PROVISIONS AND
NATIONAL SECURITY LAWS

LESSON 11 EMERGENCY PROVISIONS

LESSON 12 PREVENTIVE DETENTION AND

NATIONAL SECURITY LAWS
Emergency Provisions

LESSON 11 NOTES

EMERGENCY PROVISIONS
Nishant Yadav
Assistant Professor
Meerut University
Pramod Kumar
Research Scholar
Department of Political Science, DU
Structure
11.1 Learning Objectives
11.2 Introduction
11.3 Period of Proclamation
11.4 Emergency in the State: Effects of President’s Rule
11.5 Significant Amendments Made to the Provision
11.6 Major Disputes Related to the Emergency Provisions
11.7 Conclusion
11.8 Self-Assessment Questions
11.9 References

11.1 LEARNING OBJECTIVES

 The lesson would discuss about Indian federalism, division of power, emergency
provisions like Article 352, 356 and 360.
 The lesson would also discuss about the problems related to emergency
provisions.

11.2 INTRODUCTION

Under Indian federalism, the powers are divided constitutionally between the Centre
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 Constitutional Government and Democracy in India

NOTES provides that the Centre can acquire the strength of a unitary system. These Emergency
provisions enable the Centre to deal effectively with any unusual situation. Although
this is contrary to the concept of federalism, the framers of the Indian Constitution
adopted federalism in a revised manner keeping in mind the specific circumstances of
the time. The purpose of adding these Emergency provisions to the Constitution is to
protect the sovereignty, unity and integrity of the country.
The Emergency provisions in India derived from the Weimar Constitution of
Germany. These provisions are mentioned in Part XVIII of the Indian Constitution,
and they extend from Article 352 to Article 360. The following three types of Emergency
provisions are envisaged in the Constitution of India:
 Article 352, National Emergency: Emergency arising out of war or external
aggression or armed rebellion.
 Article 356, Emergency in the State: Emergency arising out of the failure of
Constitutional machinery in the state(s), which is also commonly known as
the President’s Rule.
 Article 360, Financial emergency.

National Emergency (Article 352)

Under Article 352, the President can declare an Emergency in the country if he is
satisfied that a grave emergency exists based on war, external aggression or internal
disturbance. An Emergency can be declared all over India or in some part of it. A
Proclamation of Emergency by the President can be terminated at any time by a second
Proclamation. Such a Proclamation will not require Parliamentary approval. Also, it is
necessary for the President to abolish such proclamation which the Lok Sabha has
rejected approval to continue. Since the Constitution came into force, there have been
many changes in the provisions related to the Emergency. The Constitutional
Amendments related to some of the major changes are as follows:

42nd Constitution Amendment Act (1976):

 The Amendment gave the President the right to amend or change the National
Emergency. Under the original Constitution, it was only possible to enforce or
remove it altogether.
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Emergency Provisions

 Under the original Constitution, National Emergency could be enforced only NOTES
across whole of the Indian territory. But this Amendment empowered the
President to impose Emergency even in some parts of the country.

44th Constitution Amendment Act (1978):

It was brought by the executive to prevent the misuse of powers found in the Emergency
provisions. Article 352, as after 44th Amendment Act 1978, provides:
 If the President realises that a serious emergency exists, which is causing the
security of India or any part of it from a war (national emergency), external
invasion or armed rebellion, or if such a crisis is imminent, then by proclamation
to this effect May be declared in relation to the whole of India or in relation to
any part of it which may be mentioned in the proclamation. The President may
withdraw or change such declaration by a subsequent proclamation.
 The President will issue a proclamation of Emergency only when it is
communicated in writing to the Cabinet, that is, only in consultation with the
entire Cabinet, and not on the advice of the Prime Minister as was the case in
June 1975.
 Each such proclamation shall be laid before each House of Parliament and at
the end of one month (which was 2 months before the 44th Amendment) for
approval. If it is not approved by the resolutions of both the Houses of Parliament
before the expiry of that period, then it will cease to be in force.
 On the tenure of Lok Sabha and State Legislative Assembly
To extend the tenure of the Lok Sabha beyond its normal term, i.e., 5 years, by
making law by the Parliament, it can be extended for one year at a time, which can be
extended for any length of time by this process. Similarly, Parliament can also extend
the tenure of a State Assembly every time for one year (for any length of time). The
State Legislature will continue to function and make laws, but Parliament shall have
concurrent legislative powers concerning the State and any such law passed by the
Parliament shall, to the extent of incapacity, expire six months after the removal of the
National Emergency. It is worth mentioning here that both the above extensions remain
applicable for a maximum period of six months after the end of the emergency.
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NOTES  Impact on financial relations

The President can stop the distribution of financial resources between the Centre and
the States and can use any national resource, depending on which State the Centre
declared the Emergency.

 Impact on Fundamental Rights

According to Article 358, when a National Emergency is declared, the six Fundamental
Rights granted under Article 19 remain suspended.
Under Article 359, the President may by order declare that the right to move
any court for the enforcement of any Fundamental Rights (except contained in Article
20 and 21) remain suspended for the period during which the Proclamation is in force
or for such shorter period as may be specified in the order.

Occurrence of National Emergency:

Till now, the National Emergency has been proclaimed three times.
 October 1962 to January 1968: When China invading the North-East Frontier
Agency area of Arunachal Pradesh.
 December 1971 to March 1977: When Pakistan conducted undeclared war
against India.
 From June 1975 to March 1977: Based on internal disturbance.

Emergency in the State(s): President’s Rule

Article 355 provides that it is the duty of the Union to protect every State against
external aggression and internal disturbance and to ensure that the government of
every State is carried on in accordance with the provisions of this Constitution. The
emergency arising out of the failure of the Constitutional machinery in the State (Article
356), provides that if a report is received from the Governor of a state or otherwise if
the President is resolved that such a situation has arisen in which the rule of that state
cannot be conducted according to the provisions of the Constitution, then by Presidential
Proclamation:
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Emergency Provisions

 All or any of the functions of the Government of that State and vested in or NOTES
exercised by the Governor or anybody or authority of the State shall take all or
any power in his hands.
 May declare that the powers of the State Legislature shall be exercisable by or
under the authority of Parliament.
He may make such relevant and incidental provisions as may be necessary or
desirable to give effect to the purpose of the President’s proclamation.
Any such proclamation may be withdrawn or amended by the President by a
subsequent proclamation. But the President cannot suspend the enforcement of any
provision relating to High Courts in whole or in part by this proclamation. It is clear
from the term used in Article 356 ‘on the report from the Governor or otherwise’ that
the President can take action even if there is no report from the Governor of the State.
For this, it is only sufficient that the President be satisfied that the Constitutional machinery
has failed in a state. It is clear from Article 356 that the President’s solution is the
solution of the Cabinet, and not his solution. The term ‘State cannot be governed
according to the provisions of the Constitution’ used in Article 356 has a very wide
meaning. And this is the reason why this provision was the most misused in the Indian
federal system and to prevent its misuse, the judiciary had to interfere in the executive’s
actions at times.

11.3 PERIOD OF PROCLAMATION

The proclamation issued under Article 356 shall be laid before each House of Parliament
and shall not remain in force at the end of two months if it has not been returned by the
previous Proclamation. If it is not ratified by resolutions by both the Houses of Parliament
before the end of that period but if a proclamation is made at a time when the Lok
Sabha has been dissolved or is held within a period of two months and the Rajya
Sabha resolution of approval has been passed by but has not been approved by Lok
Sabha, then 30 days from the first sitting of Lok Sabha after reconstitution, unless
before the expiration of the said period of thirty days a resolution approving the
Proclamation has been also passed by the Lok Sabha. If the Parliament approves the
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NOTES proclamation within two months, it will remain in enforcement for 6 months. By
resolution, this period can be extended for 6 months at a time, but no such proclamation
will remain in force in any case for more than 3 years. Thus the maximum period of
proclamation under Article 356 is three years. After the end of this period, neither the
President nor the Parliament can maintain the proclamation. Within this period, elections
will have to be handed over to the representatives of the public.

11.4 EMERGENCY IN THE STATE: EFFECTS OF

PRESIDENT’S RULE

 Executive

The state government is dismissed, and the central government takes over the executive
powers of the state government.

 Legislature

The state legislature does not undertake law-making; the state assembly is suspended
or dissolved.

 Financial Relations

There will be no impact on the distribution of financial resources between the centre
and the state. But the President can modify the Constitutional distribution of taxes
between the Centre and the States. Such amendments continue until the end of the
financial year in which the Emergency ends.

11.5 SIGNIFICANT AMENDMENTS MADE TO THE

PROVISION

44th Constitution Amendment Act (1978)

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Emergency Provisions

was done for a maximum period of three years, in which one year of emergency under NOTES
normal circumstances and two years of emergency in unusual circumstances, the
conditions prescribed for this would have to be met. Under this Amendment Act, the
scope of Article 356 was significantly reduced. The Emergency Proclamation will
remain in force for 6 months once approved by the Parliament. This period can be
extended for 6 months at a time. A resolution to continue the emergency provision
under the Amendment Act shall not be passed by either House unless:
 The emergency proclamation is in force while passing such a resolution and
 The Election Commission should not give a certificate that it is necessary to
continue the emergency due to difficulties in conducting general elections for the
concerned assembly.
In this way, the emergency can be continued for more than one year only until
the certificate of the appropriate circumstances is obtained by the Election Commission.
Earlier there was no such condition and the government used to extend the period to
three years without any reason. Article 356 states that such proclamations are made
on the basis of the President’s solution. By adding a proviso to Article 356 by the
42nd Constitution Amendment 1976, it was made clear that the President’s solution
could not be challenged in the Court. But this proviso was again removed by the 44th
Constitution Amendment Act 1978. As a result, the President’s resolution in the matter
may be judicially reviewed, that is, if the proclamation is motivated by mala-fide
intentions or the reasons stated therein have no reasonable connection with the
President’s resolution, the Court may declare it unconstitutional.

11.6 MAJOR DISPUTES RELATED TO THE

EMERGENCY PROVISIONS

Article 356 has been used more than 100 times from the day the Constitution came
into force. In most of the cases, the President’s rule was implemented in such a situation
when it was not possible to form a permanent government for some reason. Examples
are Punjab in 1951, PEPSU in 1953, Andhra Pradesh in 1954, Travancore-Cochin
(1956), Orissa (1961), Kerala (1954), Rajasthan (1966) and Uttar Pradesh in 1978,
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 Constitutional Government and Democracy in India

NOTES rule was imposed in Gujarat when the Legislature was disbanded due to the students’
movement which drew attention to the misuse of Article356. Some other such major
disputes are as follows:

• President’s Rule in nine states in 1977:

In 1977, Article 356 was implemented under specific circumstances. In 1977, the
emergency was proclaimed based on internal disturbance in the country. After the end
of the Emergency, the Congress government announced the election by dissolving the
Lok Sabha. The Congress party suffered a massive defeat in this election and the
Janata Party won an overwhelming majority in Lok Sabha. At this time the Congress
party was ruling in many states. The Janata Party government implemented President’s
rule in nine states of the country on the ground that the Congress party lost the trust of
the people due to the failure of a single candidate of the Congress party in the elections
to the current Lok Sabha in these states.
The Congress party was defeated heavily in the Lok Sabha elections and not a
single candidate was successful in Uttar Pradesh, Bihar, West Bengal, Haryana, Punjab,
Rajasthan, Madhya Pradesh and Himachal Pradesh. The Janata Party got a two-
thirds majority in the Lok Sabha. The Home Minister wrote a letter to the Chief
Ministers of these states in which they requested that they advise their Governors to
dissolve the assembly and conduct elections in the states. The Home Minister believed
that the governments of these states had lost the trust of the people so they should
resign and hold elections to gain public confidence. This suggestion of the Home Minister
was rejected by the Congress Ministers of these states. 6 out of 9 states filed petitions
against the central government in the Supreme Court, arguing that the government’s
threat to dissolve legislatures was unconstitutional. They also argued the Constitution
of India does not have any such provision to dissolve the assemblies if the public lost
faith in a party in the Lok Sabha.

• President’s Rule in nine states again in 1980:

Article 356 was again misused in 1980 in the same circumstances in which it was used
by the Janata Party in 1977. The affected states were Uttar Pradesh, Bihar, Rajasthan,
Madhya Pradesh, Punjab, Orissa, Gujarat, Maharashtra, and Tamil Nadu. The
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Emergency Provisions

represent the people properly. As is known, in 1977, the Janata Party government NOTES
was in power at the Centre, but due to mutual discord, the Janata Party was disbanded,
and the President dissolved the Lok Sabha and announced a mid-term election. The
Janata Party lost heavily in the 1979 Parliamentary Elections and the Congress Party
won an absolute majority in the Parliament. At this time, the Janata Party governments
were in power in the appropriate states. The Congress government removed these
governments on February 18, 1980, and imposed President’s rule in these states. The
government did not mention any reason in the order.

Court Decisions related to disputes

In Rajasthan State vs. Union of India (1977), a seven Judges Constitution Bench of
the Supreme Court heard the petition and ruled that the exercise of dissolution of
legislative assemblies by the Central Government under Article 356 is constitutional.
The Court said that under Article 356 there is no requirement that the President should
act only on the report of the Governor. If the Central Government is satisfied for other
reasons that the State Government is not operating as per the provisions of the
Constitution, it may advise the President to overthrow them.
The Constitution Bench of the nine judges of the Supreme Court in S R Bommai
vs. Union of India (1994) suit determined that the proclamation made by the President
under Article 356 for the imposition of President’s rule in the States is subject to
judicial review and reasonable reasons for resolution is a prerequisite condition. Courts
can examine whether there were reasonable reasons on which the President made the
proclamation.

Difference between Articles 352 and 356

The proclamations made under Articles 352 and 356 have the following differences:
 The assembly of the state is not suspended under Article 352. The executive
and the legislature of the state continue to function. The only result of emergency
proclamation under this article is that the centre gets concurrent power of
legislation and administration about the state. On the other hand, under Article
356, the State Legislature is suspended or dissolved, and the legislative and
administrative powers of the State are vested in the Central Government as a
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NOTES  Under Article 352, there is a change in the relationship between the Centre and
all the states, whereas, under Article 356, there is a change in the relations of
only one state in which President’s rule applies. In essence, Article 352 applies
to all States, while Article 356 applies only to the State in which the Constitutional
machinery has failed.
 Under Article 352, the Fundamental Rights of citizens and the right of enforcement
by the courts (Article 359) are suspended, while under Article 356 the
Fundamental Rights do not get affected.

Financial Emergency (Article 360)

Under Article 360, if the President is satisfied that a situation has arisen in which the
financial or credit stability of India or any part of it is endangered, then he may proclaim
Financial Emergency. This Emergency has not yet been imposed in the country.
The 44th Constitutional Amendment provides that a proclamation issued under
Article 360 can be revoked or amended by any subsequent proclamation. The
provision shall not remain in force at the end of the two months, until the resolution
approving the proclamation before the expiry of that period is passed by both the
Houses. But if the Lok Sabha is dissolved in this 2-month period and the resolution is
approved by the Rajya Sabha, but not by the Lok Sabha, the proclamation will not
remain in force at the end of 30 days from the date when the new Lok Sabha sits
unless the resolution for approval of the proclamation is passed by the Lok Sabha
within this period.
In the said period in which such proclamation is in force, the executive power of
the Union to direct any State to abide by such principles of financial justification as
may be specified in the directions and to give such other directions as the President
may require to give for that purpose and will be detailed as deemed appropriate. The
following provisions will also be included under any such direction:
 Arrangements for the reduction of salaries and allowances of all or any class of
persons serving concerning the affairs of the state (including Supreme Court
and High Court judges).
 Provides for keeping the Money Bills or other Bills protected after consideration
by the President after being passed by the State Legislature. The proclamation
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issued in Article 360 will have a duration of two months. If it is not approved NOTES
by the resolution passed by the Parliament before the expiry of the said two
months, it shall not remain in force at the end of two months.

11.7 CONCLUSION

The beginning of the national emergency started in the backdrop of the 1971 Lok
Sabha elections, in which the then Prime Minister Smt. Indira Gandhi defeated her
main rival Raj Narayan from Rae Bareli Parliamentary seat. But after the election
results came, Raj Narayan challenged the election result in Allahabad High Court. He
argued that Indira Gandhi misused government machinery in elections, spent more
than the prescribed limit and used wrong methods to influence voters. The High Court
upheld these allegations and found Indira Gandhi guilty of rigging the election and was
banned from holding any office for six years. But Indira Gandhi refused to accept the
decision and announced an appeal to the Supreme Court. On 24 June 1975, the
Supreme Court upheld the High Court order. Jayaprakash Narayan called for a
demonstration across the country till Indira resigned despite her unwillingness. As a
result, after passing the President’s Ordinance on 25 June 1975, the Indira Gandhi
government imposed the Emergency and on 26 June, the Emergency was announced.
As soon as the Emergency came into force, political opponents were arrested
under the Maintenance of Internal Security Act (MISA), including Jayaprakash
Narayan, George Fernandes, and Atal Bihari Vajpayee. The emergency was declared
in India over a period of 21 months from 25 June 1975 to 21 March 1977. The then
President Fakhruddin Ali Ahmed declared Emergency under Article 352 of the Indian
Constitution at the behest of the then Indian Prime Minister Indira Gandhi. This was
the most controversial and undemocratic period in the history of independent India.
Elections were postponed in the Emergency and civil rights were abolished arbitrarily.
Indira Gandhi’s political opponents were imprisoned, and the press was banned. A
massive vasectomy campaign was carried out under the leadership of the Prime
Minister’s son Sanjay Gandhi. And perhaps this is why Jayaprakash Narayan called it
‘the darkest period in Indian history’. Because of the above misuse, the Indian
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NOTES of the justified Parliament on the Proclamation of National Emergency were embedded
in it.
Like in the case relating to the National Emergency provisions, the Constitutional
Bench of the Supreme Court in its decision of historical importance determined that
the power of the President to implement President’s rule and dissolve the Legislative
Assembly in the States under Article 356 is conditional. While delivering the majority
judgment of the Court, Justice Shri P V Jeevan Reddy stated that the proclamation of
the imposition of President’s rule in the states can be judicially reviewed and if it is
found that Article 356 is used with malicious intent, the dissolved assembly may be
revived. The specific norms laid down by the Supreme Court regarding the imposition
of President’s rule which are mandatory for the Central Government to follow are the
following:
Under Article 356, the power of the President to impose President’s rule in a
State and dissolve the Legislative Assembly is ‘conditional’, not unlimited and he has
to show that the circumstances under Article 356 (1) existed on the basis of which the
President has taken action.
 President’s rule cannot be implemented without the written report of the
Governor.
 If the President’s rule is imposed only by malicious imposition, the Court
can revive the Legislative Assembly.
 Both the implementation of President’s rule and dissolution of the Legislative
Assembly cannot be done simultaneously. The President can run the assembly
only after the approval of the proclamation by the Parliament. Until such
approval is done, the President can only suspend the Legislative Assembly.
 The Supreme Court and the High Court may compel the Central Government
to convey the advice based on Article 74 (2) on the basis of which the
Central Council of Ministers advises the President to implement President’s
rule in a state. The above advice is not part of the consultation, so the court
can examine it.
 The ruling of a political party at the centre with a majority cannot be the
reason for the removal of the government of the opposition party in a state.
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state under Article 356 is applied on political grounds, driven by malfeasance, NOTES
the Court can not only declare it illegal but also revive the dissolved Legislative
Assembly. This historic judgement will certainly help in curbing the misuse of
Article 356. The guiding principles prescribed by the Court for the use of
Article 356 are most welcome and shall help strengthen the democratic
polity of the country.

11.8 SELF-ASSESSMENT QUESTIONS

1. Define federalism. Discuss various provisions of federalism that exist in India.

2. India state is federal in nature but unitary in spirit. Examine the statement in the
Indian context.

11.9 REFERENCES

 Basu, Durga Das (1960), Introduction to the Constitution of India, New Delhi:
Lexis Nexis Butterworths.
 Kashyap, Subhash C. (2010), Indian Constitution: Conflicts and Controversies,
New Delhi: Vitasta Publishing.
 Das, Hari (2002), Political System of India, New Delhi: Anmol Publications.
 Pylee, M.V. (1997), India’s Constitution, New Delhi: S. Chand & Co.
 Nariman, Fali. S. (2007), India’s Legal System: Can It Be Saved? New Delhi:
Penguin Books
 Nariman, Fali. S. (2014), the State of the Nation: In Context of India’s
Constitution, New Delhi: Hay House India
 Prakash, Gyan (2018) Emergency Chronicles: Indira Gandhi and Democracy’s
Turning Point New Delhi: Hamish Hamilton
 Nayar, Kuldip (1977). The Judgment: Inside story of the emergency in India.
New Delhi: Vikas Publishing House. Self-Instructional
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Preventive Detention and National Security Laws

LESSON 12 NOTES

PREVENTIVE DETENTION AND NATIONAL

SECURITY LAWS
Dr. Abhishek Choudhary
Associate Professor
Department of Political Science, DU
Structure
12.1 Learning Objectives
12.2 Introduction
12.3 Preventive Detention: Historical Perspective and Constitutional Provisions
12.4 Laws Related To Preventive Detention and National Security
12.5 Security Versus Human Rights: Rise of the Indian Security State?
12.6 Conclusion
12.7 Self-Assessment Questions
12.8 References

12.1 LEARNING OBJECTIVES

 To learn about the history of Security Law

 To explain the historical perspective and constitutional provisions and how they
work in Preventative Detention and National Security
 To understand the overview of security versus human rights
 To analyse the rise of the Indian Security State

12.2 INTRODUCTION

The system of governance in India contains certain laws and acts that have either been
formulated to maintain the internal security or continued since the British era. This Self-Instructional
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NOTES lesson discusses these provisions, laws and acts. It is divided into three parts. The first
part provides a historical background and talks about preventive detention in the context
of Article 22 of the Indian Constitution under which preventive arrests could be made.
The second part provides the details of national security acts along with the laws
related to preventive detention. The last part provides a critical examination of these
provisions, laws and acts in the context of the issues of human rights.

12.3 PREVENTIVE DETENTION: HISTORICAL

PERSPECTIVE AND CONSTITUTIONAL
PROVISIONS

There is a long history of laws pertaining to preventive detentions in South Asia.

Preventive detention remained a major tool in the hands of the colonial regime. During
the First and the Second World War, England created emergency acts such as the
Realm Act and Emergency Powers (Defence) Act for the purpose of Preventive
Detention (Jinks 2001). Such acts were made specifically for the war-time emergencies,
and they ceased to exist once the wars got over. However, after the First World War,
the Defence of India Act was replaced by peace-time preventive detention laws such
as the Rowlatt Act (1919) and Bengal Criminal Law Amendment Ordinance. These
acts contained provision reflective of preventive detention: individuals who were thought
to pose a threat to public order and national security could be arrested without trial
based on the logic of preventive action (Jinks 2001).
The history of preventive detention in India can be traced back to the British era
when the government was empowered under the Bengal Regulation - III of 1818 (the
Bengal State Prisoners Regulation) to detain anyone merely on the basis of suspicion
(Rahman 2004).
The constitution of post-colonial India got affirmation in 1949. The new
constitution clearly provided powers to the state and central legislatures to enact laws
related to preventive detention. The Parliament and the state assemblies can make
such laws that contain provisions pertaining to preventive detention in relation to issue

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of defense, foreign affairs or the security of India (Jinks 2001, Singh 2012). The NOTES
starting point for the provisions related to preventive detention in independent India
can be found in its Constitution itself. Indian citizen are provided fundamental rights
under Part III of the Indian Constitution.
Within this part, Article 22 of the Constitution provides for ‘protection against
arrest and detention in certain cases’ (Constitution of India 1950). The initial wordings
of Article 22 present itself as a relief from the executive for the citizens. It talks about
the specification of time-limit for arrest. According to the first two clauses, the person
being arrested shall not be detained in custody without being informed of the grounds
for such arrest (Constitution of India 1950). Such information must be furnished as
soon as possible, and he shall not be denied the right to consult and to be defended by
a legal practitioner of his choice under Article 22 (1) (Constitution of India 1950).
Furthermore, every person who is arrested and detained in custody shall be produced
before the nearest magistrate within a period of twenty-four hours of such arrest excluding
the time necessary for the journey from the place of arrest to the court of the magistrate
and no such person shall be detained in custody beyond the said period without the
authority of a magistrate under Article 22 (2) (Constitution of India 1950). However,
Article 22 (3) appears as a constraint on the previous two articles. According to
Article 22 (3), nothing in clauses (1) and (2) shall apply (a) to any person who for the
time being is an enemy alien; or (b) to any person who is arrested or detained under
any law providing for preventive detention (Constitution of India 1950).
Under section 5 of Article 22, when any person is detained in pursuance of an
order made under any law providing for preventive detention, the authority making the
order shall, as soon as may be, communicate to such person the grounds on which the
order has been made and shall afford him the earliest opportunity of making a
representation against the order. However, clause 6, nothing in clause 5 shall require
the authority making any such order to disclose facts which such authority considers to
be against the public interest to disclose (Constitution of India 1950). Thus, in a head
on collision between protection from preventive detention and the issue of public order
and security, the latter takes precedence.

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NOTES
12.4 LAWS RELATED TO PREVENTIVE DETENTION
AND NATIONAL SECURITY

Contextualizing the Situation

Before assessing the laws, acts and provisions pertaining to preventive detention and
national security, it is pertinent to have a look at the major terrorist attacks in India:
12 March 1993 – 13 serial bomb blasts killing 257 people.
13 December 2001 – Attack on Indian Parliament killing 14 people.
14 March 2003 – Train blast in Mulund killing 10 people.
29 October 2005 – Delhi Bomb blasts killing 62 people.
5 July 2005 – Ram Janmabhoomi attacks in Ayodhya.
7 March 2007 – Varanasi bomb blasts killing 28 people.
11 July 2006 – Serial bomb blasts in Mumbai trains killing 209 people.
26 November to 29 November 2008 – Coordinated attacks in Mumbai killing
around 170 people.
These numbers clearly indicate that India is a major target for terrorist attacks.
It is in this context that the government of India has formulated laws, acts, and ordinances
to fight the menace of terrorism.

1. Preventive Detention Act, 1950

The Constitution of India passed the first Preventive Detention Act on 26 February
1950 (Jinks2001). The purpose of this act was to stop anti-national elements from
undertaking acts that are hostile to the security and defense of India. After 2 years in
practice, the act was supposed to terminate on 1 April 1951. However, the duration
of the act was increased from time to time and ultimately it was abolished on 31
December 1971 (Rahman 2004).

2. Maintenance of Internal Security Act, MISA, 1971

MISA was enacted in 1971 to maintain internal security in India. It was a controversial
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the Congress leadership such as opposition leaders, journalists and social workers. NOTES
They were regularly arrested and put behind bars in the name of maintaining internal
security during the National Emergency imposed by government led by Mrs. Indira
Gandhi. The act apparently provided the government with unlimited powers. The police
or the government agencies could arrest anyone preventively for longer durations and
they were also given the power to search without any warrant. The act also made
tapping of telephonic conversations by the government legitimate. During the National
Emergency of 1975-1977, several modifications were made to the act from time to
time. Ultimately the act was scrapped when the Janata Party came to power in 1977
(Mishra 2018).

3. Foreign Exchange and Prevention of Smuggling Activities Act,

COFEPOSA, 1974:

This act provided for preventive detention in certain cases in order to conserve and
augment foreign exchange and to prevent smuggling activities (Ministry of Finance
1974). This act was like a supporting act for MISA, 1971. Even though MISA was
repealed in 1977, COFESA continued. Earlier the duration of detention for traffickers
was one year. This was increased to two years through another ordinance on 13 July
1984 (Ministry of Finance 1974, 1984).

4. Terrorist and Disruptive Activities (Prevention) Act, TADA, 1985:

This act was brought in May 1985 in context of the separatist movement of Khalistan.
Initially, it was brought only for two years. However, in 1987, it was amended and re-
introduced. This act is considered as the most effective and the most draconian of
laws made under preventive detention system (Chopra 2015, PUDR 1993, Singh
2007). The objective of this law clearly stated that it has been agreed on the basis of
experience that in order to stop and effectively tackle terrorist and disruptive activities,
it not only necessary to maintain existing laws but also to make them more powerful.
To fulfil this objective, when this ordinance took the shape of an act in 1987, there
were two changes made to it. First, for the possession of specific arms and ammunition
listed under Arms Rules of 1962, or bombs, dynamite or other explosive substances,
the punishment will be an imprisonment of at least five years which may extend to
imprisonment for life with fine (PUDR 1993). The second change was related to the
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NOTES higher rank would be admissible as evidence (PUDR 1993). The duration of this act
was increased every two years till 1993. From the end of its duration in 1995 till the
enactment of POTA, there was no law at the central level to deal with terrorism in
India (Hargopal and Jagannatham2009).

5. Prevention of Terrorism Act, POTA, 2002:

The Law Commission of India presented a draft of an act like TADA in its 173rd
report in April 2001. POTA can virtually be seen as a form of TADA. As an ordinance,
POTO (Prevention of Terrorism Ordinance, 2001) was prepared in the backdrop of
terrorist attacks of 11 September 2001 in the USA. The ordinance was promulgated
by the National Democratic Alliance government led by BJP on 24 October 2001.
After the Parliament attacks of 13 December 2001, Parliament was suspended and
therefore, in absence of passing it as an act, another ordinance was passed on 30
December 2001. Ultimately, the ordinance became an act, POTA, on 26 March 2002
after it was passed in an extraordinary joint sitting of the Parliament. With this ended
the period of not having a national anti-terror law in India (Singh 2008).
The legal system that came into existence with POTA adopted the provisions of
TADA. The system of arrest, investigation and trial, acceptance of confession as
evidence, etc., were clearly reflective of the draconian nature of TADA. The time from
investigation to granting of bail was reduced from one year to 180 days. However, the
conditions for the grant of bail remained so difficult that it counter-balanced the reduction
in the duration. There was a new, special provision which related to the interception of
mediums of electronic communication (Hargopal and Jagannatham2009). While TADA
did not contain a provision for tapping telephonic conversations, POTA made these
evidence admissible in the courts. In Mohammed Afzal versus the State case related
to Parliament attacks, the most important evidence against the four convicts were
collected through interception of telephonic communication (Hargopal and
Jagannatham2009).
Under POTA, 23 terrorist organizations were banned. While the provisions for
declaring suspect groups as terrorist groups were there in UAPA of 1967 as well,
POTA made major changes to these. Under section 18 (3) of POTA, if the central
government is assured that any organization is linked with terrorist activities, it can
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declare that organization as a terrorist group. Due to this provision, there is no
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requirement or burden of issuing any reason while declaring and banning any such NOTES
group and organization. Under POTA, there is provision of punishing those who hide
terrorists or conceal information related to terrorists. Police can arrest anyone on the
basis of suspicion. However, the person cannot be kept in custody for more than three
months without filing a charge sheet. A person arrested under POTA could appeal in
the High Court or the Supreme Court. However, this could be done only after three
months of arrest. Another important aspect of POTA was that it was created within
the ideological discourse of global Islamic terrorism and National-security State. This
act was repealed through an ordinance on 21 September 2004(Singh 2012).

6. National Security Act, NSA, 1980

The National Security Act (NSA) is an act to provide the government with greater
powers for the security of the nation. The National Security Ordinance was promulgated
in September 1980. It took the shape of National Security Act and was passed on 27
December 1980. This act provides the Central and the State government with powers
to directly arrest and detain suspicious people who seek to pose hurdles in security of
the country, put the relation of India with other countries in jeopardy, disturb the public
order or create hurled in maintenance of supply and services in the society (Jinks
2001). This act can be used by the District Magistrate and the Commissioner of
Police in their limited jurisdiction. The maximum period of detention is 12 months.
However, the law contains the provision for providing information of and reasons
about detention to the State government. No such decision remains in force for more
than 12 days without the approval of the State government (Jinks 2001).

7. Unlawful Activities (Prevention) Act, UAPA, 1967, 2004, 2008, 2012, 2019

The Unlawful Activities (Prevention) Act (UAPA) was first passed in 1967 to declare
as unlawful all such organizations who were seen as supporters of separatism. In the
1990s, in the context of the demolition of the Babri Mosque and increase in separatist
movements in Kashmir, several organizations were declared unlawful under this act
(Singh 2012). Jamaat-e-Islami, Islamic Sevak Sangh, Vishwa Hindu Parishad,
Rashtriya Swayamsevak Sangh, Bajrang Dal, and Jammu Kashmir Liberation Front
were some organizations that were declared unlawful in 1990s. Jamaat was banned
for questioning the sovereignty and territorial integrity of India and for considering the
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NOTES separation of Kashmir from India as inevitable. Islamic Sevak Sangh was banned for
its inflammatory speeches and for causing feeling of disharmony between different
communities on the basis of religion. Vishwa Hindu Parishad was banned for demolishing
the Babri Mosque and for speeches against Muslims (Singh 2012).
This act was amended in 2004 by the United Progressive Alliance (UPA)
government. By this time, the public opposition towards POTA had increased and the
UPA government had to repeal it as promised during their election campaign. The
amended UAPA included the draconian provisions of POTA as it were. It included the
definition of ‘acts of terrorism’ and ‘terrorist organization’ along with a list of organizations
declared as terrorist organizations (Singh 2012). This amendment not only adopted
the definitions as provided in POTA; it also used vague language to increase its own
scope and applicability (Singh 2012).
The act was again amended after the 2008 Mumbai attacks. With this
amendment, the provisions of POTA and TADA such as maximum period for police
custody, custody without warrant and prohibition on bail were added to the UAPA
(TNN 2008). These changes made possible for the government to keep suspicious
individuals under custody for longer durations without the possibility of getting bail.
The 2012 amendment of the UAPA added production and circulation of high-
quality counterfeit currency, and financing organizations that have been declared unlawful
under the definition of ‘terrorist activities’ as examples of such acts that pose a threat
to the economic security of the country.
The latest amendment to the UAPA in 2019 provides the NIA with the power
to designate even individuals, besides organizations, as ‘terrorists’ on the basis of
suspicion of having links with acts of terrorism (PTI2019b). Each amendment has led
to an increase in the scope of UAPA.

8. National Investigating Agency Act, 2008 and National Investigation

Agency, NIA

With the background of Mumbai attacks of November 2008, the National Investigation
Agency (NIA) was established in December 2008 under the National Investigating
Agency Act of 2008 (Ministry of Home Affairs 2008). It was passed alongside the
Unlawful Activities (Prevention) Act of 2008 (Ministry of Home Affairs 2008). NIA is
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of the Central government. This act specifically investigates such cases that pose a NOTES
challenge to the sovereignty, unity and integrity of India. NIA has special powers to
investigate cases related to terrorism in a fast-tracked manner. Also, the onus of proving
innocence falls on the convicted individual (Ministry of Home Affairs 2008). Under
the NIA, an officer above the rank of sub-inspector is provided with special powers
of investigation (Ministry of Home Affairs 2008). Additionally, NIA is to have its own
special lawyers and courts for the hearing of causes related to terrorism (Ministry of
Home Affairs 2008).
The National Investigation Agency (Amendment) Act, 2019 was passed in the
Indian Parliament on 17 June 2019 (PTI2019c). This act provided for even greater
powers of investigation to the NIA. After this amendment, the NIA got powers to
investigate such attacks that targeted Indians and their interests abroad (PTI2019c).
This amendment further strengthens the NIA for investigation against human trafficking,
counterfeit currency, manufacture or sale of prohibited arms, cyber-terrorism and
offenses under the Explosive Substances Act of 1908 (PTI2019c).

9. Armed Forces (Assam and Manipur) Special Powers Act, AFSPA, 1958

The Armed Forces Special Powers Act (AFSPA) was adopted in order to prevent
the armed rebellions that were rising in the states of the North-East India to claim
autonomy. Under the provisions of this act, the armed forces in the disturbed areas of
the State of Assam and Manipur were granted certain special powers (Hargopal and
Jagannatham 2009). The main objective of the act was to defend the country against
separatism, violence and foreign attacks. Under this act, if the Governor of Assam or
the Chief Commissioner of Manipur is of the opinion that the given area exhibits disturbed
or dangerous conditions, he may declare the entire area or a part of it as disturbed by
notification of the official Gazette (Hargopal and Jagannatham 2009).
The act empowers any commissioned officer, warrant officer, non-commissioned
officer or any other person of equivalent rank in the army to use force, or even open
fire, on any person who is acting against the law (Hargopal and Jagannatham 2009).
In such situations, it is the opinion of the officer on the basis of which he might decide
that he can fire on a suspect if it is important to maintain public order. In such cases,
use of force or firearm can even cause death. Additionally, an individual can be arrested
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NOTES warrant on the basis of suspicion. In these situations, the presence of ‘reasonable
suspicion’ becomes a sufficient condition to take such actions by the authorized
personnel (Hargopal and Jagannatham 2009, Singh 2007).
In 1972, after some amendments, this act was applied on entire North-East
India including Assam, Manipur, Tripura, Meghalaya, Arunachal Pradesh, Mizoram
and Nagaland. It was applied in Tripura on 16 February 1997 as a reaction to extremist
violence and was removed after 18 years, in May 2015, after the situation improved.
In 1983, the government brought the AFSPA (Punjab and Chandigarh) Ordinance in
order to fight the increasing violent separatist movements. This ordinance took the
shape of a law on 6 October 1983. This act was applied to the entire State of Punjab
as well as Union Territory of Chandigarh by 15 October 1983. It was removed in
1997 after being operational for around 14 years. On 5 July 1990, the AFSPA (Jammu
and Kashmir) was applied to the entire state of Jammu and Kashmir to tackle the
violent separatism in the state. The act is still continued there (Hargopal and Jagannatham
2009, Chopra 2015). This act added some new provisions as well. Now such acts
also came under the purview of AFSPA (1990) that question the sovereignty of India
and that shows disrespect towards the national flag, national anthem or the Constitution
of India (Hargopal and Jagannatham 2009).

12.5 SECURITY VERSUS HUMAN RIGHTS: RISE OF

THE INDIAN SECURITY STATE?

It is important to understand the negative side of the provisions, acts, laws and
ordinances pertaining to national security in India. Specifically, certain provisions of
UAPA and AFSPA pose a direct threat to human rights.
There are some fundamental differences between ordinary law and extraordinary
law. First, extraordinary laws are made in the first place in order to deal with a certain
problem whose nature is extraordinary. A corollary of this feature demands that the
laws should cease to exist when the situation no longer remains extraordinary. Thus,
some commentators and analysts view such laws as temporary (Singh 2008).

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Anti-terrorism laws transgress the limits set by the constitutional safeguards NOTES
provided under Article 22 of the Indian Constitution (Singh 2007). Additionally, these
laws weaken the right to fair trial provided under criminal procedure. Under these
laws and acts, the suspect individual has to spend several years behind bars or house-
arrest even before being to the court of law (Singh 2008, 2012). There are so many
cases where the suspected individual is acquitted as innocent after a hearing that takes
place after several years of arrest. A recent example confirms this argument. 17 Muslim
youths were arrested in 2008 by the Karnataka Police on the basis of the suspicion
that they were connected to the banned organization SIMI (Student Islamic Movement
of India). After a delay of 15 years, no evidence was found against these youths, and
they were acquitted due to lack of evidence (PTI2015). Similarly, 6 people spending
their time in connection with the Samleti blast were found innocent after 23 years and
were acquitted eventually. Behind the bars for over two decades, the world was
completely changed for these six men (PTI2019a).
In a situation where the judiciary considers admission of guilt as evidence, the
possibility and scope of torture by the police increases drastically. The police can
cross limits of cruelty in order to extract statements from the convicted individuals and
present it as evidence (Singh 2008). According to the report of the National Human
Rights Commission, in cases of ordinary law, the admission of guilt by the convict is
not considered as evidence in the court of law in order to prevent atrocities on the
convict. In cases of extraordinary laws, however, such a provision is also diluted
(Singh 2012).
Some provisions of the AFSPA are extremely controversial. Under section 4 of
AFSPA, an authorized official has permission to shoot at any person after giving warning.
The provisions such as arrest without warrant and search without warrant protect
these officials from the normal processes of rule of law. In November 2000, ten common
citizens were shot at in Manipur’s capital Imphal when they were waiting for a bus
(Hargopal and Jagannatham 2009). Irom Chanu Sharmila began a hunger strike as a
mark of protest against this massacre. The government kept arresting her continuously
every year. The fast by Irom Sharmila was finally ended in July 2016 but the provisions
of AFSPA hardly underwent any substantive change.
There has been opposition and protest against the cases of rape in areas of
AFSPA. Thangjam Manorama was captured in July 2004 from her home by 17 Assam Self-Instructional
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NOTES Rifles team of Indian paramilitary forces. She was found dead with multiple gunshot
injuries on her private parts hardly two km away from a police station (Rajagopal
2014). Post-mortem report found evidence of rape before murder. A few days after
this incidence, about 30 women staged a protest, standing naked in front of Assam
Rifles headquarters. The Justice Verma Committee Report presented in 2013 contained
recommendation in relation to crimes against women in conflict areas (Rajagopal 2014,
Singh 2013). This report suggested a reassessment of the provisions of AFSPA.
According to the current provisions, it is required to gain the approval of the central
government to begin prosecution against armed personnel (Singh 2013). Verma
Committee recommends that such an approval should not be required in cases of rape
(Singh 2013). Additionally, the complainant of sexual violence should be granted
protection. Another recommendation was to set up the office of a special commissioner
to look after the cases of sexual violence in conflict areas and to initiate prosecution
against the alleged violators (Singh 2013). However, there has been no visible progress
on these issues.
Under the provisions of POTA, especially under section 21, a climate of suspicion
and lack of faith emerges. The law goes against the idea of freedom by suppressing the
voices of dissent. Such provisions certainly tend towards establishing an apolitical
society. Elements of democratic deliberation and publicness are lost in such a society.
The UAPA has increased its repressiveness with every amendment. The recent
amendment to the act faces criticism for infringing upon freedom of speech and the
issue of stigma attached to being labelled as a terrorist. Once someone is notified as a
terrorist, it would hardly matter for the society if he were de-notified later (ANI 2019).
Section 35 of UAPA 2019 does not specify the requirement of furnishing detailed
grounds or reasons for terming an individual as terrorist. This arbitrariness amounts to
violation of Article 14 of the Constitution of India (ANI 2019).
Anti-terrorism laws world over has displayed the fact that they are being used
to target specific communities (Singh 2012). In this critical context it could be argued
that the laws of preventive detention and anti-terrorism laws are pushing Indian slowly
but definitely towards a path to security state. In ideal situations, the power and scope
of the legislature, executive, and judiciary are well defined and each of these exercises
a system of check and balance against the other. However, in extraordinary, exceptional
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and emergency situations, the executive gets asymmetrically greater powers, and the
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idea of balance loses its scope (Singh 2012). This increased power of the executive NOTES
stands in opposition to the democratic aspirations of the people. This indistinction
between the executive and the state essentially privileges security over human rights.
In the battle between justice and rights on one hand and security issues on the other,
security always wins. The abuse of human rights in the name of ensuring security
attains a level of normalization and leads to the establishment of a ‘permanent state of
exception’ (Agamben 1998). It would not be an exaggeration to argue the same in the
context of extraordinary laws in India.
In general, a state of exception should imply that an extraordinary situation
exists and requires immediate solution. Any law which is promulgated on the pretext of
addressing an extraordinary situation, it is expected that the after the solution to the
problem, the situation would no longer remain ‘extraordinary’ and normalcy would
prevail. The situation would no longer be exceptional. However, the emergence of
security state creates a permanent state of exception where the extraordinary becomes
the new normal (Hallsworth and Lea 2011). An emboldened and empowered executive
crushes the judiciary and the legislative arms of the state and the state begins to be
identified only with its punitive organ (Hallsworth and Lea 2011). Problem aggravates
even further when the state of exception becomes the new normal state, and the scope
of the executive becomes limitless. This tendency is visible in the armies and police
world over where a series of laws and acts are established that seek to provide special
protection in favour of the armed personnel (Hallsworth and Lea 2011).

12.6 CONCLUSION

Among all the criticism and commentaries, one important thing needs to be considered.
It is important for a developing country to protect its limited resources along with the
maintenance of peace and order. Since independence, India has faced many
insurgencies on the basis of language, caste, ethnicity and religion. These sub-national
movements have posed a strong challenge to the idea of single, unified India. Be it the
separatist movements in Khalistan or Kashmir, or the continuous menace of terrorism,
India has more or less been successful in maintaining its unity, integrity and sovereignty
through the use of such tools of preventive detention and national security laws. Some Self-Instructional
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NOTES criticisms posit security as fundamentally against the idea of human rights. India is a
country with a huge size and long boundaries and contains multicultural identities within
it. Along with this fact, the neighbouring countries exhibit hostility towards it. Under
such circumstances, the onus of maintaining India’s unity, integrity and sovereignty falls
on such laws, acts and provisions related to security. It is true, however, that in some
situations the provisions linked to the colonial past need to be changed or upgraded
with time. For a rising power such as India, security and human rights needs to go
hand in hand.

12.7 SELF-ASSESSMENT QUESTIONS

1. Examine how the central government is more powerful than states.

2. Write an essay on the changing nature of the Indian federalism in the context of
abolition of article 370.

12.8 REFERENCES

 Agamben, Giorgio. (1998) Homo Sacer: Sovereign Power and Bare Life,
Translated by D. Heller-Roazen, Stanford, California: Stanford University Press.
 ANI (2019), Asian News International, “Second plea in SC challenging
amendments to UAPA Act”, 24 August 2019, The Economic Times, New
Delhi.
 Chopra, Surabhi (2015), “National Security Laws in India: The Unravelling of
Constitutional Constraints”, Oregon Review of International Law, 17 (1):
1-70.
 Constitution of India, 1950, available at https://www.india.gov.in/hi/my-
government/constitution-india/constitution-india-full-text
 Hallsworth, Simon and John Lea (2011), “Reconstructing Leviathan: Emerging
contours of the security state”, Theoretical Criminology, 15 (2). pp. 141-157.
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 Hargopal, G. and B. Jagannatham (2009), “Terrorism and Human Rights: Indian NOTES
Experience with Repressive Laws”, Economic and Political Weekly, 44 (20):
76-85.
 Jinks, D.P. (2001), “-The Anatomy of an Institutionalized Emergency: Preventive
Detention and Personal Liberty in India”, Michigan Journal of International
Law, 22 (2), p. 324.
 Ministry of Finance (1974), COFEPOSA Act, The Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974, Department of
Revenue, Ministry of Finance, Government of India.
 Ministry of Finance (1984), The Conservation of Foreign Exchange and
Prevention of Smuggling Activities (Amendment Bill), 1984, Department of
Revenue, Ministry of Finance, Government of India.
 Ministry of Home Affairs (2008), The National Investigation Agency Act, 2008,
Ministry of Home Affairs, Government of India.
 Mishra, Anugrah (2018), “Aazadbharat ka sabsekukhyat kanoon bana MISA,
1 lakh log huye the arrest” (MISA became the most infamous act of independent
India, 1 lakh people were arrested), 26 June 2018, Aaj Tak, New Delhi.
 PTI (2015), Press Trust of India, “Seven years later, 17 ‘SIMI men’ acquitted”,
1 May 2015, The Indian Express, Bangalore.
 PTI (2019a), Press Trust of India, “Raj HC frees 6 lifers, upholds death penalty
to one in Samleti bomb blast case”, 23 July 2019, Business Standard, Jaipur.
 PTI (2019b), Press Trust of India, “Individuals can now be declared as terrorists:
President Kovind gives assent to UAPA amendments”, 9 August 2019, India
Today, New Delhi.
 PTI (2019c), Press Trust of India, “Parliament approves bill to give NIA more
teeth”, 17 July 2019, India Today, New Delhi.
 PUDR (1993), Lawless Roads: A Report on TADA: 1985-1993, People’s
Union for Democratic Rights, Delhi.
 Rahman, A. Faizur (2004), “Preventive detention an anachronism”, 7 September
2004, The Hindu, New Delhi.
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NOTES  Rajagopal, Krishnadas (2014), “Manorama ‘mercilessly tortured”, 14

November 2014, The Hindu, New Delhi.
 Singh, Ram (2013), “Justice Verma Committee recommendations are
comprehensive and visionary”, 18 February 2013, The Economic Times, New
Delhi.
 Singh, Ujjwal Kumar (2007), The State, Democracy and Anti-Terror Laws
in India, New Delhi, Sage Publications.
 Singh, Ujjwal Kumar (2008), “Anti-terror Law and Human Rights”, in Kamala
Sankaran and Ujjwal Kumar Singh (eds.) Towards Legal Literacy: An
Introduction to Law in India, New Delhi: Oxford University Press, p. 192.
 Singh, Ujjwal Kumar (2012), “Mapping Anti-terror Legal Regimes in India” in
Victor V. Ramraj et. al. (eds.) Global Anti-terrorism Law and Policy, second
edition, Cambridge: Cambridge University Press, pp. 420-446.
 TNN (2008), Times News Network, “UAPA retains most of POTA’s stringent
provisions”, 17 December 2008, The Times of India, New Delhi.

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