INDEX

NCERT
COMPILATION
(POLITY)

1
 INDEX

S. No TITLE PAGE NUMBER

1 CONSTITUTION 3

2 FEDERALISM 9

3 DEMOCRACY 14

4 SECULARISM 18

5 JUSTICE, LIBERTY AND EQUALITY 22

6 RIGHTS 30

7 LEGISLATURE 40

8 EXECUTIVE 47

9 JUDICIARY 54

10 ELECTIONS 63

11 LOCAL GOVERNMENTS 78

2
 CONSTITUTION

1. CONSTITUTION

A. DEFINING THE CONSTITUTION

The constitution of a country is a set of written rules (compact document) that are accepted by
all people living together in a country. Constitution is the supreme law that determines the
relationship among people living in a territory (called citizens) and also the relationship
between the people and government.

Functions of the Constitution are as follows:

 To provide a set of basic rules that allow for minimal coordination amongst members of a society. It
ensures that a dominant group does not use its power against other, less powerful people or groups;
 To specify who has the power to make decisions in a society. It decides how the government will be
constituted;
 To set some limits on what a government can impose on its citizens. These limits are fundamental in
the sense that government may never trespass them;
 To enable the government to fulfil the aspirations of a society and create conditions for a just
society;
 A constitution expresses the fundamental identity of a people. It provides a political and moral
identity.
B. MAKING OF THE CONSTITUTION
Our national movement was not merely a struggle against a foreign rule. It was also a struggle to
rejuvenate our country and to transform our society and politics. There were sharp differences of opinion
within the freedom struggle about the path India should take after Independence. As far back as in 1928,
Motilal Nehru and eight other Congress leaders drafted a constitution for India. In 1931, the resolution at
the Karachi session of the Indian National Congress dwelt on how independent India’s Constitution
should look like. Both these documents were committed to the inclusion of universal adult franchise,
right to freedom and equality and to protecting the rights of minorities in the constitution of independent
India. Thus, some basic values were accepted by all leaders much before the Constituent Assembly met
to deliberate on the Constitution. The experience gained by Indians in the working of the legislative
institutions proved to be very useful for the country in setting up its own institutions and that is why the
Indian Constitution adopted many institutional details and procedures from colonial laws like the
Government of India Act, 1935.
Formally, the Constitution was made by the Constituent Assembly which had been elected for
undivided India. It held its first sitting on 9 December1946 and re-assembled as Constituent Assembly
for divided India on 14 August 1947. Its members were elected by indirect election by the members of
the Provisional Legislative Assemblies that had been established in 1935. The Constituent Assembly
was composed roughly along the lines suggested by the plan proposed by the committee of the British

3
 CONSTITUTION

cabinet, known as the Cabinet Mission. The Assembly met for one hundred and sixty six days,
spread over two years and eleven months. Its sessions were open to the press and the public alike.
Composition of Constituent Assembly: Post
partition, the number in the Assembly was
reduced to 299 of which 284 were actually
present on 26 November 1949 and appended
their signature to the Constitution as finally
passed. Members of all religions were given
representation under the scheme described
above; in addition, the Assembly had
twenty-six members from what were then
known as the Scheduled Classes. In terms of
political parties, the Congress dominated the
Assembly occupying as many as eighty-two
per cent of the seats in the assembly after the
Partition.
Each member deliberated upon the
Constitution with the interests of the whole
nation in mind. Only one provision of the
Constitution was passed without virtually
any debate: the introduction of universal
suffrage. The Constituent Assembly had
eight major Committees on different
subjects. Usually, Jawaharlal
Nehru, Rajendra Prasad, Sardar
Patel, Maulana Azad or Ambedkar
chaired these Committees.
Perhaps the best summary
of the principles that the nationalist
movement brought to the
Constituent Assembly is the
Objectives Resolution (the
resolution that defined the aims of
the Assembly) moved by Nehru in
1946. This resolution encapsulated
the aspirations and values behind
the Constitution. Mahatma Gandhi was not a member of the Constituent Assembly. Yet there were
many members who followed his vision. Years ago, writing in his magazine Young India in 1931, he
had spelt out what he wanted the Constitution to do (fig):

4
 CONSTITUTION

C. PHILOSOPHY AND KEY FEATURES OF THE CONSTITUTION

Modern states are excessively powerful. They are believed to have a monopoly over force and coercion.
Experience of state power the world over shows that most states are prone to harming the interests of at
least some individuals and groups. If so, we need to draw the rules of the game in such a way that this
tendency of states is continuously checked. Constitutions provide these basic rules and therefore,
prevent states from turning tyrannical. Constitutions also provide peaceful, democratic means to bring
about social transformation. Moreover, for a hitherto colonised people, constitutions announce and
embody the first real exercise of political self-determination.

5
 CONSTITUTION

An important point to note about the Constitution is its commitment to individual freedom. It is
the product of continuous intellectual and political
activity of well over a century. Additionally, Indian
nationalism always conceived of a political order
based on the will of every single member of society.
The idea of universal franchise lay securely within
the heart of nationalism.
1) FEDERALISM: In India, we have governments
at the state level and at the centre. Panchayati
Raj is the third tier of government. The
Constitution contains lists that detail the issues
that each tier of government can make laws on.
Under federalism, the states are not merely
agents of the federal government but draw their authority from the Constitution as well.
2) PARLIAMENTARY FORM OF GOVERNMENT: The three tiers of the government consist of
representatives who are elected by the people. This means that the people of India have a direct role
in electing their representatives.
3) SEPARATION OF POWERS: There are three organs of the Government- the legislature, the
executive and the judiciary. In order to prevent this misuse of power by any one branch of
government, the Constitution says that each one of these organs should exercise different powers;
each organ thereby acts as a check on the other organ of government and this ensures a balance of
power.
4) SECULARISM: A secular state is one in which the state does not officially promote any one religion
as the state religion.
5) FUNDAMENTAL RIGHTS: This section has been referred to as the ‘conscience’ of our
Constitution. They protect citizens against the arbitrary and absolute exercise of power by the State.
The Constitution, thus, guarantees the rights of individuals against the State as well as against other
individuals.
6) FUNDAMENTAL DUTIES: This part lays down some moral obligations of citizens to help promote
patriotism and uphold unity of India.
It is a tribute to the wisdom and foresight of the makers of the Constitution that they
presented to the nation a document that enshrined fundamental values and highest
aspirations shared by the people. This is one of the reasons why this most intricately
crafted document has not only survived but become a living reality, when so many other
constitutions have perished with the paper they were first written on.

6
 CONSTITUTION

D. AMENDMENT OF THE CONSTITUTION

Constitution must be amended when required, but it also
must be protected from unnecessary and frequent changes.
The makers of the Constitution wanted the Constitution to be
‘flexible’ and at the same time ‘rigid’.

The two decades from 1970 to

1990 saw a large number of
amendments. Ten amendments
took place between a short span
of three years between 1974 and
1976. And again, in just three
years, from 2001 to 2003, ten
amendments took place. Till the

7
 CONSTITUTION

end of 2019, the country has seen over 100 amendments to the Constitution. Amendments made so far
may be classified in three groups:
 Amendments which are of a technical or administrative nature
and were only clarifications, explanations, and minor
modifications etc. of the original provisions. Ex- Increasing the
age of retirement of High Court judges from 60 to 62 years and
the advice of Council of Ministers will be binding on the
President.
 A number of amendments are a product of different
interpretations of the Constitution given by the judiciary and the
government of the day. In the period 1970-1975, the Parliament repeatedly made amendments to
overcome the adverse interpretations by the judiciary.
 Another large group of amendments that have been made as a result of the consensus among the
political parties. Consensus made it necessary that some changes had to be made in order to
reflect the prevailing political philosophy and aspirations of the society. Ex- Anti-defection
amendment and the 73rd and 74th amendments.

Basic Structure of the Constitution: The Kesavananda Bharati case contributed to the evolution
of the Constitution in the following ways-

 It has set specific limits to the Parliament’s power to amend the Constitution. It says that no
amendment can violate the basic structure of the Constitution;
 It allows the Parliament to amend any and all parts of the Constitution (within this
limitation); and
 It places the Judiciary as the final authority in deciding if an amendment violates basic
structure and what constitutes the basic structure

8
 FEDERALISM

2. FEDERALISM
Federalism is a system of government in which the power is divided between a central authority and
various constituent units of the country. It is distinguished from the Unitary form of government, where
the Central Government enjoys wider powers with respect to the other provincial organs.

Written Dual Supremacy Rigid

FEDERAL Independent
Constitut- Citizen- of amendment
FORM Judiciary
ion ship Constitution procedure

Dependence of
States on Integrated Single Flexible UNITARY
Union Judiciary citizenship Constitution FORM
Government

A. KINDS OF FEDERALISM

‘Coming together’ - All the constituent States usually have equal power and are
strong vis-à-vis the federal government. Example– USA, Australia and
Switzerland.

‘Holding together’ - A large country decides to divide its power between the
constituent States and the national government. The central government tends to
be more powerful vis-à-vis the States. Very often different constituent units of the
federation have unequal powers and some units are granted special powers.
Example- India, Spain and Belgium.

B. FEATURES OF FEDERALISM
1. There are two or more levels (or tiers) of government;
2. Different tiers of government govern the same citizens, but each tier has its own jurisdiction in
specific matters of legislation, taxation and administration;
3. The jurisdictions, existence and authority of each tier of government is constitutionally
guaranteed and spelt out in a written constitution (exact balance of power between the central
and the state government varies from one federation to another);
4. The fundamental provisions of the constitution cannot be unilaterally changed by one level of
government and require the consent of both the levels of government;
5. Courts have the power to interpret the Constitution and the powers of different levels of
government. The highest court acts as an umpire if disputes arise between different levels of
government;
6. Sources of revenue for each level of government are clearly specified to ensure its financial
autonomy;

9
 FEDERALISM

7. The federal system thus has dual objectives: to safeguard and promote unity of the country, and
to accommodate regional diversity.

C. FEDERALISM IN INDIA

INDIA IN 2020

India, a melting pot of cultures, religions and ethnicity, with its huge geographical territory needed a
system of governance which was unique, to suit its heterogeneous society. The framers of the
Constitution realizing this framed a structure appropriate for governance. Indian polity is thus,
neither unitary nor federal, but is considered to be ‘Quasi-Federal’ (K. C. Wheare) i.e. it contains
provisions of both forms of government.
Article 1: (1) India,
1. Three-Tier system: Constitution originally provided for a two-tier that is Bharat, shall be
system of government, the Union Government or what we call the a Union of States.
Central Government, representing the Union of India, and the State (2) The States and the
governments. Later, a third tier of federalism was added in the form territories thereof shall
of Panchayats and Municipalities (73rd and 74th Amendment Act, be as specified in the
1992). First Schedule.

2. Three Lists (Schedule VII): The Constitution provides a three-fold distribution of legislative
powers between the Union Government and the State Governments, containing three lists:
a) Union - includes subjects of national importance such as defence of the country, foreign
affairs, banking and currency. They are included in this list because we need a uniform
policy on these matters throughout the country. The Union Government alone can make laws
relating to the subjects mentioned in the Union List.

10
 FEDERALISM

b) State - contains subjects of State and local importance such as police, trade, commerce,
agriculture and irrigation. The State
Governments can make laws relating to
the subjects.
c) Concurrent – includes subjects like
forest, trade unions, marriage, adoption
and succession. Both the Union as well
as the State Governments can make laws
on the subjects mentioned in this list.

*If their laws conflict with each

other, the law made by the Union
Government will prevail.

3. Single Citizenship: The Indian Constitution

gives single citizenship to its citizens i.e. all
people irrespective of States in which they
reside, are the citizens of one Union – India.
This is unlike USA, where a citizen is a
citizen of USA and his/her State separately.

4. Strong Central Government: India is a

country of continental dimensions with
immense diversities and social problems.
The framers of the Constitution believed that we required a federal constitution that would
accommodate diversities. But they also wanted to create a strong centre to stem disintegration
and bring about social and political change.
 According to Article 2 and 3, the existence of a State including its territorial integrity is
in the hands of Parliament. The Parliament is empowered to ‘form a new State by
separation of territory from any State or by uniting two or more States’. It can also alter
the boundary of any State or even its name.
 Articles 33 and 34 authorise the Parliament to protect persons in the service of the Union
or a State in respect of any action taken by them during martial law to maintain or restore
order.
 Emergency Provisions (Part XVIII –Art 352 to 360) - During an emergency, power
becomes lawfully centralised. Parliament also assumes the power to make laws on
subjects within the jurisdiction of the States.
 The Central government has effective financial powers and responsibilities. Items
generating revenue are under the control of the central government and the States are
mostly dependent on the grants and financial assistance from the centre.

11
 FEDERALISM

 The Governor has certain powers to recommend dismissal of the State government and
the dissolution of the Assembly.
 According to Art 248, the residuary power of law-making rest with the Parliament.
Additionally, the Constitution clearly states that executive powers of the centre are
superior to the executive powers of the States.
 Art 249- There may be
occasions when the
situation may demand that
the central government
needs to legislate on matters
from the State list. This is
possible if the move is
ratified by the Rajya Sabha.
 Art 257 (1) - The executive
power of every State shall
be so exercised as not to
impede or prejudice the exercise of the executive power of the Union, and the executive
power of the Union shall extend to the giving of such directions to a State as may appear
to the Government of India to be necessary for that purpose.
 All India Services (Art 312), common to the entire territory of India and officers chosen
for these services are appointed by the Centre and serve in the administration of the
States. The officers are under the direct control of Central Government and States cannot
take disciplinary action nor can they remove these officers from service.

5. Integrated Judiciary: The Judiciary in India although Independent, is integrated. It means that the
decisions made by the Higher Courts (State and Union) are binding on the lower courts. An
appellate system is followed in the country; the highest court of appeal being the Supreme Court
of India.

6. Special Provisions: The most extra-ordinary feature of the federal arrangement created in India is
that many States get a differential treatment. The Constitution has some special provisions for
some States given their peculiar social and historical circumstances. Most of the special
provisions pertain to the north eastern States (Assam, Nagaland, Arunachal Pradesh, Mizoram,
etc.) largely due to a sizeable indigenous tribal population with a distinct history and culture,
which they wish to retain (Art 371). However, these provisions have not been able to stem
alienation and the insurgency in parts of the region. Special provisions also exist for hilly States
like Himachal Pradesh and some other States like Andhra Pradesh, Goa, Gujarat, Maharashtra
and Sikkim. The erstwhile State of J&K had also been granted special status, which was recently
repealed (Article 370).

12
 FEDERALISM

7. Flexibility in amendment of Constitutional provisions: The Constitution under Article 368 deals
with the power of the Parliament to amend the Constitution. Parliament however cannot amend
those provisions which form the ‘basic structure’ of the Constitution (Kesavananda Bharti case,
1973).

Amendments may require different kinds of majorities:

Simple Majority Special Majority Special Majority with consent of

 Admission or  Majority provisions
Establishment of new
State
 Salaries of MPs
 Abolition or creation
of Legislative Council
 V and VI Schedule
 Union Territories
States
in Constitution  Election of President
need this form of  Supreme Court and High Court
amendment  Distribution of Legislative
powers between Union and
State
 Lists in VII Schedule
 Power of Parliament to amend
Constitution (Article 368 itself)

Federalism is like a rainbow, where each colour is separate, yet together they make a harmonious
pattern. Federalism has to continuously maintain a difficult balance between the centre and the States.
No legal or institutional formula can guarantee the smooth functioning of a federal polity. Ultimately,
the people and the political
process must develop a culture
and a set of values and virtues
like mutual trust, toleration and a
spirit of cooperation. A
responsive polity, sensitive to
diversities and to the demands
for autonomy can alone be the
basis of a cooperative federation.

13
 DEMOCRACY

3. DEMOCRACY

FORMS OF GOVT.

Monarchy Dictatorship Theocracy Oligarchy Democracy

Direct
Sovereignty
of the
Basic people Rule of Representative
Human Law
Rights

Form of Govt.
where rulers are
elected by people

Limited Free and Fair

Government elections
Equality
before the
Law

A. WHY DEMOCRACY?
 It is a more accountable form of government
since the Rulers have to attend to the needs of
the people (Active political participation by
citizens)
 Based on consultation and discussion and
thus improves the quality of decision-making
 Considerably transparent and provides a
method to deal with differences and conflicts
amicably
 Based on Political equality and therefore
enhances the dignity of citizens
 Allows to correct its own mistakes through
public discussion

14
 DEMOCRACY

 Accommodation of social diversity.

B. POPULAR STRUGGLES, MOVEMENTS AND DEMOCRACY

 Democracy evolves through popular

struggles and movements that attempt to
influence politics rather than directly take
part in electoral competition. They may
involve conflict between those groups
who have exercised power and those who
aspire for a share in power; Ex- The
Bolivian Water War of the year 2000 and
the Movement for democracy in Nepal in
2006;
 Democratic conflict is resolved through Democracy
mass mobilization. When existing
institutions like judiciary fail to resolve
disputes, resolution may come from the
outside, the citizens.
 HOW DO THEY INFLUENCE?

Participate in
Campaigns, Employ
Organuse protest official bodies or
organising professional
activity like committees that
meetings, filing lobbyists/sponsor
strikes interact with
petitions advertisements
Government

15
 DEMOCRACY

 The conflicts and mobilisations are based on new political organizations, for example, pressure
groups and movement groups.
 India has witnessed many people’s movements including Narmada Bachao Andolan, Movement
for Right to Information, Anti-liquor Movement, Women’s Movement, Environmental
Movement etc.
 Pressure groups and movements deepen democracy and perform a useful role of countering this
undue influence and reminding the government of the needs and concerns of ordinary citizens.

C. CHALLENGES TO DEMOCRACY
 Constantly changing leadership may lead to instability.
 Extreme political competition and power play which reduces
scope for morality and free and fair elections (high corruption).
 Large public participation may lead to unnecessary delays.
 Election of popular/majoritarian leaders leads to poor decision
making and may undermine minority rights (Majority vs.
Minority debate).
 Political equality could backfire when citizens are not well-
informed.
 Democracies are not very successful in reducing income
inequalities and poverty.

Issue of
Inequality and
Poverty

Accomodation
of Social
Diversity

Securing
Dignity and
Freedoms

Issue of
Economic
Outcomes

16
 DEMOCRACY

D. REDEFINING DEMOCRACY
 Democratic rights are not limited to the right to
vote, stand in elections and form political
organizations. Some social and economic rights
must be ensured to the citizens;
 Decentralisation and Power sharing, among
different organs of Government, governments at
different levels, among social groups and pressure
groups, is the spirit of democracy;
 Democracy cannot be the brute rule of majority and
a respect for minority voice is necessary;
 Eliminating discrimination based on caste, religion
and gender is important in a democracy;

 Expectations of the people decide the future of a nation in a democracy.

E. OUTCOME OF DEMOCRACY
The most common form that democracy takes in our times is that of a representative democracy.
Other forms of government like monarchy, dictatorship or one-party rule do not require all citizens
to take part in politics. But democracy depends on active political participation by all the citizens.
Therefore, the most basic outcome of democracy should be that it produces a Government that is
accountable to the citizens, and responsive to the needs and expectations of the citizens.

17
 SECULARISM

4. SECULARISM
World history is full of examples of discrimination, exclusion and persecution on the grounds of
religion, including Jews in Germany, minorities in Israel and Saudi Arabia. In such cases, members of
one religious community either persecute or discriminate against members of other religious
communities. These acts of discrimination take place more easily when one religion is given official
recognition by the State at the expense of other religions.

The Indian Constitution allows

individuals the freedom to live by
their religious beliefs and Preamble
practices as they interpret these.
In keeping with this idea of
religious freedom for all, India Directive
Fundamental
also adopted a strategy of Principles of SECULARISM
Rights
separating the power of religion State Policy
and the power of the State.
Secularism refers to this
separation of religion from the Fundamental
State. Duties

A. SECULARISM – WHY AND WHAT?

Religion is believed to be the ‘opium of the masses’ and it is believed that once the basic needs of
man are fulfilled, they could lead a content life where religion would slowly disappear. In reality,
this would be an exaggerated sense of human potential. There would still be disease, discontent and
accident and humans would continue to struggle the world as we know it. Religion, art and
philosophy are responses to such sufferings. Secularism accepts this and therefore it is not ‘anti-
religious’. Secularism deals with an ‘equal respect for all religions’.

Need for Secularism

Freedom to
practice, Freedom of To secure Inculcate
Minority rights
propogate and thought and equality in progressive
secured
profess any expression democracy ideals
religion
18
 SECULARISM

Religion has some deep rooted problems:

 Inequality between genders.
 Some sections of society continue to face historic, persistent discrimination. Ex-Dalits,
untouchables.
 Conservative rituals, which include unsafe/prohibited acts.
 Some religions fragment into sects which leads to sectarian violence and persecution of
minorities.

Secularism aims to rid the nation of such disturbances which tag along with religions all over. The
most important aspect of secularism is its separation of religion from State power. Secularism is
opposed to all forms of institutionalized religious domination; it challenges inter-religious and intra-
religious domination. Positively, it promotes freedom within religions, and equality between, as well
as within, religions.

B. WESTERN MODEL OF SECULARISM

All secular States have one thing in common, they

are neither theocratic nor do they establish a
religion. However, most prevalent forms are
inspired by the American model, where separation
of religion and State is understood as ‘mutual
exclusion’:

 Liberty is the liberty of individuals and

there is little scope for community-based
rights;

 The Sate will not intervene in the affairs of

religion and similarly, religion will not
interfere in the affairs of State;

 Each has a separate sphere of its own with

independent jurisdiction;

 No policy of the State can have an

exclusively religious rationale;

 No religious classification can be the basis

of any public policy;

 The State cannot aid any religious

institution and cannot give financial
support to educational institutions run by

19
 SECULARISM

religious communities;

 State cannot hinder the activities of religious communities, as long as they are within the
broad limits set by the law of land, religion is thus a private matter and not a matter of State
policy or law.

C. SECULAR STATE – INDIA

According to the Constitution, only a secular State can realize its objectives to ensure inter-religious
and intra-religious harmony in a society, where State adopts the doctrine of a ‘Principled distance’
i.e. any interference in religion by the State must be based on the ideals laid out in the Constitution.
Indian model of Secularism deals with:

1. Diversity in India, which paved the way for inter-religious tolerance.

2. Western modern thoughts ushered ideas of inter-community equality to replace the notion
of hierarchy.

3. Religious freedom of individuals as well as minorities, to prevent persecution and

discrimination.

4. India made room for and is compatible with the idea of State-supported religious reform.
Ex- Child marriage, temple entry for women, inter-caste marriages etc.

5. The Indian State may engage with religion negatively to oppose religious tyranny. Ex-
untouchability, dowry, triple talaq etc.

Secularism may therefore be practiced in the following manner:

Preventing religious discrimination by working towards mutual enlightenment. Education is a

boon for the society.

The State must not become Theocratic; it must not be run by heads of any particular religion.
State must not have any formal, legal alliance with any religion; it must never favour or
discriminate one religion from another

A Secular State must remain committed to higher ideals and goals of universal peace,
harmony, religious freedom and brotherhood.

20
 SECULARISM

D. CRITICISM OF INDIAN SECULARISM

• Threatens/undermines religious identity

Anti-religious
• Questions religious ideals and thoughts

• Linked to Christianity and other progressive western

ideas which lay heavy reliance on new reasoning
Western Import and perceptions
• Dilution of Indian religious thought

• State is biased towards minority religious rights

Minoritism
• Majority v. minority rights often clash

• Sate becomes coercive and interferes with religious

Interventionist
freedom in the name of reform

• Religion being misused in the hands of a few to gain

Vote Bank Politics
profits

21
 JUSTICE, LIBERTY AND EQUALITY

5. JUSTICE, LIBERTY AND EQUALITY

A. JUSTICE – WHAT AND HOW?

In ancient Indian society, justice was associated with dharma and maintaining dharma or a just
social order, was considered to be a primary duty of kings. In China, Confucius, the famous
philosopher argued that kings should maintain justice by punishing wrong doers and rewarding the
virtuous. In fourth century B.C. Athens (Greece), Plato discussed issues of justice in his book ‘The
Republic’. Through a long dialogue between Socrates and his young friends, Glaucon and
Adeimantus, Plato examined why we should be concerned about justice.

The young people ask Socrates why we should be just. They observe that people who were
unjust seemed to be much better off than those who were just. Those who twisted rules to serve
their interests, avoided paying taxes and were willing to lie and be deceitful, were often more
successful than those who were truthful and just. Socrates reminds these young people that if
everyone were to be unjust, if everyone manipulated rules to suit their own interests, no one could
be sure of benefiting from injustice. Nobody would be secure and this was likely to harm all of
them. Hence, it is in our own long term interest to obey the laws and be just.

• Some rights include right to life, liberty and

property, political rights like right to vote and social
Equal treatment for rights like right to enjoy equal opportunities;
equals
• People shouldn't be discriminated against on
grounds of class, gender, race and caste.

• There could be instances where treating everyone

Proportionate Justice
equally would be unjust.
• In certain cases, it would be just to reward different
kinds of work differently if we take into account
factors such as the effort required, skills required,
possible dangers involved in work etc.

• It is a means of promoting social justice;

• People with special needs or disabilities could be
considered unequal in some particular respect and
deserving of special help;
Recognition of special
needs • Physical disability, age or lack of access to good
education or healthcare, are some factors which
may be considered.
• The Constitution has also allowed for reservations
for the SCs and STs.

22
 JUSTICE, LIBERTY AND EQUALITY

B. SOCIAL JUSTICE
“A Just society is that society in which ascending sense of reverence and descending sense of contempt is
dissolved into the creation of a compassionate society” – B.R. Ambedkar
To achieve social justice in society, governments might have to do more than just ensure that laws and
policies treat individuals in a fair manner. Social justice also concerns the just distribution of goods and
services, whether it is between nations or between different groups
and individuals within a society. If there are serious economic or
social inequalities in a society, it might become necessary to try and
redistribute some of the important resources of the society to provide
something like a level playing field for citizens.
Justice does not require absolute equality and sameness in the
way in which people live. But a society would be considered unjust if
the differences between rich and poor are so great that they seem to be
living in different worlds altogether, and if the relatively deprived
have no chance at all to improve their condition however hard they
may work. In other words, a just society should provide people with
the basic minimum conditions to enable them to live healthy and
secure lives and develop their talents as well as equal opportunities to
pursue their chosen goals in society. Securing basic amount of
nourishment needed to remain healthy, decent housing, supply of
clean drinking water, education and a minimum wage would
constitute an important part of some basic minimum conditions
needed by people.
Government must concentrate on the execution of laws meant to uplift
the weak. Laws that are weak and poorly enforced can cause serious
harm, as the Bhopal gas tragedy showed. Through making, enforcing and upholding these laws, the
government can control the activities of individuals or private companies so as to ensure social justice.
Many of these laws have their basis in the Fundamental Rights guaranteed by the Indian Constitution.
For instance, the Right against Exploitation says that no one can be forced to work for low wages or
under bondage. Similarly, the Constitution lays down “no child below the age of 14 years shall be
employed to work in any factory or mines or engaged in any other hazardous employment.”
C. JOHN RAWL’S THEORY OF JUSTICE
How do we reach a decision that would be both fair and just?
Rawls tried to answer this, and argues that the only way we can arrive at a fair and just rule is if we
imagine ourselves to be in a situation in which we have to make decisions about how society should be
organised although we do not know which position we would ourselves occupy in that society. That is,
we do not know what kind of family we would be born in, whether we would be born into an ‘upper’
caste or ‘lower’ caste family, rich or poor, privileged or disadvantaged.

23
 JUSTICE, LIBERTY AND EQUALITY

Rawls argues that if we do not know, in this sense, who we will be and what options would be
available to us in the future society, we will be likely to support a decision about the rules and
organisation of that future society which would be fair for all the members. Rawls describes this as
thinking under a ‘veil of ignorance’. The merit of the ‘veil of ignorance’ position is that it expects
people to just be their usual rational selves: they are expected to think for themselves and choose what
they regard to be in their interest.
Wearing the imagined veil of ignorance is the first step in arriving at a system of fair laws and
policies. Rawls therefore argues that rational thinking, not morality, could lead us to be fair and judge
impartially regarding how to distribute the benefits and burdens of a society.

D. LIBERTY AND FREEDOM

Stated simply, freedom is the ‘absence of restraints’
Aspects of freedom include, the absence of external constraints; and the existence of conditions in which
people can develop their talents. A free society would be one which enables all its members to develop
their potential with the minimum of social constraints.

In political theory these have been called negative and positive liberty.

1. ‘Negative liberty’ seeks to define and defend an area in which the individual would be
inviolable, in which he or she could ‘do, be or become’ whatever he or she wished to ‘do, be or
become’. This is a minimum area that is sacred and in which no external authority can interfere.
If the area is too small then human dignity gets compromised.
2. The arguments of positive liberty are concerned with explaining the idea of ‘freedom to’. They
are in response to the answer ‘who governs me?’ to which the ideal answer is ‘I govern myself ’.
It is concerned with looking at the conditions and nature of the relationship between the
individual and society and of improving these conditions such that there are fewer constraints to
the development of the individual personality. The individual to develop his or her capability
must get the benefit of enabling positive conditions in material, political and social domains.
Positive liberty recognises that one can be free only in society (not outside it) and hence tries to
make that society such that it enables the development of the individual whereas negative liberty
is only concerned with the inviolable area of non-interference and not with the conditions in
society, outside this area, as such.

HARM PRINCIPLE: John Stuart Mill in his essay On Liberty introduces an important distinction-

...the sole end for which mankind are warranted, individually or collectively, in interfering with
the liberty of action of any of their number, is self-protection. That the only purpose for which
power can be rightfully exercised over any member of a civilised community, against his will, is
to prevent harm to others.

He distinguishes between ‘self-regarding’ actions, i.e., those actions that have consequences only for the
individual actor and nobody else, and ‘other regarding’ actions, i.e., those actions that also have

24
 JUSTICE, LIBERTY AND EQUALITY

consequences for others. He argues that with respect to

actions or choices that affect only one’s self, self-
regarding actions, the state (or any other external
authority) has no business to interfere. In contrast, with
respect to actions that have consequences for others,
actions which may cause harm to them, there is some
case for external interference.
However, as freedom is at the core of human
society, is so crucial for a dignified human life, it
should only be constrained in special circumstances.
The ‘harm caused’ must be ‘serious’. For minor harm,
Mill recommends only social disapproval and not the
force of law. Constraining actions by the force of law
should only happen when the other regarding actions
cause serious harm to definite individuals. In the
constitutional discussions in India, the term used for
such justifiable constraints is ‘reasonable restrictions’.
The restrictions may be there but they must be
reasonable, i.e., capable of being defended by reason,
not excessive, not out of proportion to the action being
restricted, since then it would impinge on the general
condition of freedom in society.

E. FREEDOM OF EXPRESSION
At various times there have been demands to ban
books, plays, films, or academic articles in research
journals. Freedom of expression is a fundamental value
and for that society must be willing to bear some
inconvenience to protect it from people who want to
restrict it. Remember Voltaire’s statement — ‘I
disapprove of what you say but I will defend to death
your right to say it’. How deeply are we committed to this freedom of expression?
The book Ramayana Retold by Aubrey Menon and The Satanic Verses by Salman Rushdie were
banned after protest from some sections of society. The film The Last Temptation of Christ and the play
Me Nathuram Boltey were also banned after protests. Banning is an easy solution for the short term
since it meets the immediate demand but is very harmful for the long-term prospects of freedom in a
society because once one begins to ban then one develops a habit of banning.
Constraints of different kind exist and we are subject to them in different situations. While
reflecting on such situations we need to realise that when constraints are backed by organised social —

25
 JUSTICE, LIBERTY AND EQUALITY

religious or cultural — authority or by the might of the state, they restrict our freedom in ways that are

Even though Article 19(1) ensures Freedom of Speech and Expression, the Media is far from
independent. The government has a good control over media. When the government prevents either a
news item, or scenes from a movie, or the lyrics of a song from being shared with the larger public,
this is referred to as censorship. The worst of these was the Emergency between 1975 and 1977.

difficult to fight against.

F. EQUALITY
The commitment to the ideal of equality does not imply the elimination of all forms of
differences. It merely suggests that the treatment we receive and the opportunities we enjoy must not be
pre-determined by birth or social circumstance. The concept of equality implies that all people, as
human beings, are entitled to the same rights and opportunities to develop their skills and talents, and to
pursue their goals and ambitions.
The Indian Constitution recognises every person as
equal. This means that every individual in the country,
including male and female persons from all castes, religions,
tribes, educational and economic backgrounds are recognised
as equal:

1. Every person is equal before the law. What this means

is that every person, from the President of the country
to an ordinary citizen, has to obey the same laws;
2. No person can be discriminated against on the basis of
their religion, race, caste, place of birth or whether
they are female or male;
3. Every person has access to all public places including playgrounds, hotels, shops and markets.
All persons can use publicly available wells, roads and bathing;
4. Untouchability has been abolished.

• Emerge between people as a result of their different

NATURAL INEQUALITIES capabilities and talents
• Created by birth

• Emerge as a consequence of inequalities of

opportunity or exploitation of some groups in society
SOCIAL INEQUALITIES
• Created by society and include differences due to race,
caste, gender etc.

26
 JUSTICE, LIBERTY AND EQUALITY

G. DIMENSIONS OF EQUALITY
1) Political equality: In democratic societies, this would
normally include granting equal citizenship to all the
members of the state. equal citizenship brings with it
certain basic rights such as the right to vote, freedom of
expression, movement and association and freedom of
belief. These are rights which are considered necessary to
enable citizens to develop themselves and participate in
the affairs of the state. The inequalities are the result of
differences in resources and opportunity and there is often
a demand for a ‘level-playing’ field.
2) Social equality: The pursuit of equality requires that
people belonging to different groups and communities
also have a fair and equal chance to compete for those
goods and opportunities. For this, it is necessary to
minimise the effects of social and economic inequalities
and guarantee certain minimum conditions of life to all
the members of the society — adequate health care, the
opportunity for good education, adequate nourishment
and a minimum wage, among other things. The State
should, for example make policies to prevent
discrimination or harassment of women in public places
or employment, to provide incentives to open up
education or certain professions to women. But social
groups and individuals also have a role to play in raising
awareness.
3) Economic equality: Economic inequality exists in a society if there are significant differences in
wealth, property or income between individuals or classes. Another way could be to estimate the
number of people who live below the poverty line.
H. PROMOTING EQUALITY
Establishing formal equality
Equality through differential treatment
Affirmative action
The first step towards bringing about equality is, of course, ending the formal system of inequality and
privileges. Social, economic and political inequalities all over the world have been protected by customs
and legal systems that prohibited some sections of society from enjoying certain kinds of opportunities
and rewards. Since many of these systems have the sanction of law, equality requires that the
government and the law of the land should stop protecting these systems of inequality. This is what our

27
 JUSTICE, LIBERTY AND EQUALITY

Constitution does. The Constitution prohibits discrimination on grounds of religion, race, caste, sex or
place of birth. Our Constitution also abolishes the practice of untouchability.

Equality before law is necessary but not sufficient to realise the principle of equality. Sometimes
it is necessary to treat people differently in order to ensure that they can enjoy equal rights. For instance,
disabled people may justifiably demand special ramps in public spaces so that they get an equal chance
to enter public buildings.

Most policies of affirmative action are designed

to correct the cumulative effect of past inequalities.
Affirmative action can however take many forms, from
preferential spending on facilities for disadvantaged
communities, such as, scholarships and hostels to
special consideration for admissions to educational
institutions and jobs. In our country we have adopted a
policy of quotas or reserved seats in education and jobs
to provide equality of opportunity to deprived groups.
The communities who have suffered in the past and
been denied equal opportunities cannot be immediately
expected to compete with others on equal terms. Therefore, in the interest of creating an egalitarian and
just society they need to be given special protection and help.

Marxism and liberalism are two important political ideologies of our times. Marx was an important
nineteenth century thinker who argued that the root cause of entrenched inequality was private
ownership of important economic resources such as oil, or land, or forests, as well as other forms of
property. He pointed out that such private ownership did not only make the class of owners wealthy,
it also gave them political power. Such power enables them to influence state policies and laws and
this could prove a threat to democratic government. Marxists and socialists feel that economic
inequality provides support to other forms of social inequality such as differences of rank or
privilege. Therefore, to tackle inequality in society we need to go beyond providing equal
opportunities and try and ensure public control over essential resources and forms of property. Such
views may be debatable but they have raised important issues which need to be addressed.

Feminism is a political doctrine of equal rights for women and men. Feminists are those men and
women who believe that many of the inequalities we see in society between men and women are
neither natural nor necessary and can be altered so that both women and men can lead free and equal
lives. According to feminists, inequality between men and women in society is the result of
patriarchy. This term refers to a social, economic and cultural system that values men more than
women and gives men power over women. Feminists contend that the public/ private distinction and
all forms of gender inequalities can and should be eliminated.

28
 JUSTICE, LIBERTY AND EQUALITY

29
 RIGHTS

6. RIGHTS
‘Rights are reasonable claims of a person recognized by society and sanctioned by law, over other
fellow beings, over the society and over the government.’

Rights acquire meaning only in society. Every society makes certain rules to regulate our conduct. They
tell us what is right and what is wrong. What is recognised by the society as rightful becomes the basis
of rights. That is why the notion of rights changes from time to time and society to society. When the
socially recognised claims are written into law they acquire real force.

A list of rights mentioned and

protected by the constitution is
called the ‘bill of rights’. A bill
of rights prohibits government
from thus acting against the
rights of the individuals and
ensures a remedy in case there is
violation of these rights.

 FUNDAMENTAL RIGHTS UNDER

THE INDIAN CONSTITUTION
 During our freedom struggle, the
leaders of the freedom movement had
realised the importance of rights and
demanded that the British rulers
should respect rights of the people.
The ‘Motilal Nehru’ committee had
demanded a bill of rights as far back
as in 1928.

 The Constitution listed the rights that

would be specially protected and called them ‘fundamental rights’ (Part III).

30
 RIGHTS

Need for Rights in a Democracy

Securing
Protection Encourage
basic needs Ensure Smooth
of To maintain freedom of
- food, religious functioning
vulnerable equality speech and
shelter, freedom of Nation
groups expression
health etc.

 While ordinary legal rights are protected and enforced by ordinary law, Fundamental Rights are
protected and guaranteed by the constitution of the country.

 Ordinary rights may be changed by the legislature by ordinary process of law making, but a
fundamental right may only be changed by amending the Constitution itself. Additionally, no
organ of the government can act in a manner that violates them.

 Fundamental rights are not absolute or unlimited rights. Government can put reasonable
restrictions on the exercise of our fundamental rights.

 RIGHT TO EQUALITY (ARTICLE 14 TO 18)

‘Equality means giving everyone an equal opportunity to achieve whatever one is capable of’

 There cannot be any discrimination in this access on the basis of caste, creed, colour, sex,
religion, or place of birth;

 It provides for equal access to public places like shops, hotels, places of entertainment, wells,
bathing ghats and places of worship;
 It prohibits any discrimination in public employment on any of the above mentioned basis;
 Abolishes practice of untouchability;
 The state shall confer no title on a person except those who excel themselves in military or
academic field.

RULE OF LAW (A V Dicey)-

a) Supremacy of Law or absence of arbitrary power;

b) Equality before the law;
c) Predominance of legal spirit or primacy of rights of an individual.

31
 RIGHTS

Preamble mentions two things about equality:

Equality of ‘status’ and of ‘opportunity’. The
Constitution ensures this by providing for special
provisions and measures to improve the conditions
of certain sections of society: children, women,
physically handicapped and the socially and
educationally backward classes. Policy of
reservation forms a part of the Constitution after
applying the policy of ‘reasonable classification’
for identifying vulnerable sections.
STRUGGLES FOR EQUALITY:

 Poverty and the lack of resources continue to be a key reason why so many people’s lives in
India are highly unequal. Lack money implies poor education, health services, nutrition and
growth.
 Discrimination on the basis of a person’s religion, caste and sex is another significant factor for
why people are treated unequally in India. Example – Adivasi, Dalits,etc.

Sustainable Development Goal (SDG) www.in.undp.org

32
 RIGHTS

GENDER AND EQUALITY:

 The system of sexual division of

labour in families in India is
inevitably visible across the
spectrum. Women are assigned
indoor chores, like cooking,
cleaning, managing family, etc., and
men do the outdoor work to earn a
living for the rest. The potential of
the women continues to be
undermined and their work goes
unrecognized. Gradually women in
different parts organized and
agitated for equal rights. Such
movements are called ‘feminist’
movements have successfully
granted the basic right of equality to
women. Political agendas too have
taken notice of this issue and women
continue to progress in all spheres of
life today.
 Ours is still a male-dominated
‘patriarchal’ society and women
face oppression in various ways:
a) The literacy rate among women is
65.46 compared with 82.14 per ce nt
among men. Also, a small proportion
of girl students go for higher studies
and most drop out too.
b) The Equal Remuneration Act, 1976
provides that equal wages should be
paid to equal work. However in
almost all areas of work, from sports
and cinema, to factories and fields,
women are paid less than men, even
when both do exactly the same work.
c) Rampant sex-selection abortion in
India leads to a decline in child sex-ratio (Sex ratio at birth), which fell from 908 in 2012 to
877 in 2016.
33
 RIGHTS

d) In India, the proportion of women in legislature has been very low. The percentage of elected
women members in Lok Sabha has touched 14.36 per cent of its total strength for the first
time in 2019. Their share in the state assemblies is less than 5 per cent.

Rosa Parks (1913–2005) was an African–

American woman. Tired from a long day at work
she refused to give up her seat on a bus to a white
man on 1 December 1955. Her refusal that day
started a huge agitation against the unequal ways
in which African–Americans were treated and
which came to be known as the Civil Rights
Movement. The Civil Rights Act of 1964
prohibited discrimination on the basis of race,
religion or national origin. It also stated that all
schools would be open to African–American
children and that they would no longer have to
attend separate schools specially set up for them.
However, despite this, a majority of African–
Americans continue to be among the poorest in
the country.

 RIGHT TO FREEDOM AND PERSONAL LIBERTY (ARTICLE 19 TO 22)

Freedom means absence of constraints. In practical life it means absence of interference in our
affairs by others – be it other individuals or the government.

Freedom of speech and expression

•Via text, art, paintings, journals, newspapers etc
•Right to information
•Right to demonstration but not to strike

Assembly in peaceful manner

•Freedom to hold meetings, rallies etc. without causing harm to law and order

Form associations and unions

Move freely throughout the country

Reside in any part of the country

Practice any profession, or to carry on any occupation, trade or business

34
 RIGHTS

Article 21: The Constitution says that no person can be deprived of his life or personal liberty except
according to procedure established by law. Various judgments of Supreme Court have expanded the
scope of this right. The Supreme Court has ruled that this right also includes right to live with human
dignity, free from exploitation. The court has held that right
to shelter and livelihood is also included in the right to life
because no person can live without the means of living, that
is, the means of livelihood.

The Constitution of India recognises the right to

water as being a part of the Right to Life under Article 21.
This means that it is the right of every person, whether rich
or poor, to have sufficient amounts of water to fulfil his/her
daily needs at a price that he/she can afford. In Subhash
Kumar vs. State of Bihar (1991), the Supreme Court held
that the Right to Life is a Fundamental Right under Article
21 of the Constitution and it includes the right to the enjoyment of pollution-free water and air for full
enjoyment of life.

As per the Constitution, government or police officer cannot arrest or detain any citizen unless he has
proper legal justification. Even when they do, they have to follow some procedures:

a. A person who is arrested and detained in custody will have to be informed of the reasons for
such arrest and detention;
b. A person who is arrested and detained shall be produced before the nearest magistrate within a
period of 24 hours of arrest;
c. Such a person has the right to consult a lawyer or engage a lawyer for his defence.

Sometimes a person can be arrested simply out of an apprehension that he or she is likely to
engage in unlawful activity and imprisoned for some time without following the above mentioned
procedure. This is known as preventive detention. It means that if the government feels that a
person can be a threat to law and order or to the peace and security of the nation, it can detain or
arrest that person. This preventive detention can be extended only for three months. After three
months such a case is brought before an advisory board for review.

Rights of the accused have also been ensured under the Constitution to provide adequate opportunity to
an individual to defend himself/herself and prove his/her innocence. To ensure a fair trial in courts, the
Constitution has provided three rights:

i. No double-jeopardy: no person would be punished for the same offence more than once;
ii. No ex-post facto law: no law shall declare any action as illegal from a backdate;

35
 RIGHTS

iii. No self-incrimination: no person shall be asked to give evidence against himself or herself.

 RIGHT AGAINST EXPLOITATION (ARTICLE 23 AND 24)

India is home to millions of people who are underprivileged and deprived. They are subjected to
exploitation by their fellow human beings. Such acts are illegal and prohibited under the
Constitution and have been declared a crime.

These acts include: 86th Constitutional

Amendment Act, 2002:
a. Beggar or forced labour without payment; Right to Education is a
b. Selling and buying of human beings and using them as slaves; ‘fundamental right’
c. Child labour i.e. employment of children below the age of 14 under Article 21 A.
years in dangerous jobs like factories and mines.
 RIGHT TO FREEDOM OF RELIGION (ARTICLE 25 to 28)
According to our Constitution, everyone enjoys the
right to follow the religion of his or her choice.
Secularism is the bedrock over which the diversity
in our country thrives and flourishes.
 The individuals are free to profess, practice,
and propagate their religion; subject to
reasonable restrictions like public order,
morality and health;
 Right to establish and maintain religious and
charitable institutions and manage own affairs;
 Freedom from taxation for religion; however
there exists no prohibition to levy a fee;
 The institutions run by the state will not preach any religion or give religious education nor will
they favour persons of any religion.
 CULTURAL AND EDUCATIONAL RIGHTS (ARTICLE 29 AND 30)
Our Constitution believes that diversity is our strength. Therefore, one of the fundamental rights is
the right of the minorities to maintain their culture. These minorities include – religious, cultural and
linguistic minorities.
Minorities are groups that have common language or religion and in a particular part of the
country or in the country as a whole, they are outnumbered by some other social section. Such
communities have a culture, language and a script of their own, and have the right to conserve and
develop these.

36
 RIGHTS

 All minorities, religious or

linguistic, can set up their own
educational institutions;
 The government will not,
while granting aid to
educational institutions,
discriminate against any
educational institution on the
basis that it is under the
management of minority
community.

Communal politics is based on the idea that religion is the

principal basis of social community. Involves thinking along
the following lines:

 The followers of a particular religion must belong to

one community;
 Their fundamental interests are the same;
 The people who follow different religions cannot
belong to the same social community

Political mobilisation on religious lines is another frequent

form of communalism. This involves the use of sacred
symbols, religious leaders, emotional appeal and plain fear in
order to bring the followers of one religion together in the
political arena. Sometimes communalism takes its most ugly
form of communal violence, riots and massacre.

 RIGHT TO CONSTITUTIONAL REMEDIES (ARTICLE 32 AND 226)

Constitutional remedies are the means through which the rights granted under the Constitution could
be realized in practice and defended in case of any unreasonable attack. . Dr. Ambedkar considered
the right to constitutional remedies as ‘heart and soul of the Constitution’. It is so because this right
gives a citizen the right to approach a High Court or the Supreme Court to get any of the
fundamental rights restored in case of their violation.
The courts can issue various special orders known as writs:
 Habeas corpus: The court orders that the arrested person should be presented before it. It can also
order to set free an arrested person if the manner or grounds of arrest are not lawful or satisfactory.

37
 RIGHTS

 Mandamus: This writ is issued when the court finds that a

Other mechanisms for
particular office holder is not doing legal duty and thereby is
protection of rights:
infringing on the right of an individual.
National Commission
 Prohibition: This writ is issued by a higher court (High Court or
on Minorities, the
Supreme Court) when a lower court has considered a case going
National Commission
beyond its jurisdiction.
on Women, the
 Quo Warranto: If the court finds that a person is holding office but
National Commission
is not entitled to hold that office, it issues the writ of quo warranto
on Scheduled Castes,
and restricts that person from acting as an office holder.
etc
 Certiorari: Under this writ, the court orders a lower court or
another authority to transfer a matter pending before it to the higher
authority or court.

HUMAN RIGHTS COMMISSION

The real test of the rights given by any constitution is in their actual implementation. The poor,
illiterate and the deprived sections of the society must be able to exercise their rights. Independent
organisations like the People’s Union for Civil Liberties (PUCL) or People’s Union for Democratic
Rights (PUDR) have been working as watchdogs against the violations of rights. In this background,
the government has established in 2000 an institution, the National Human Rights Commission.

The commission’s functions include inquiry at its own initiative or on a petition presented to
it by a victim into complaint of violation of human rights; visit to jails to study the condition of the
inmates; undertaking and promoting research in the field of human rights etc. Complaints relate to
custodial death, custodial rape, disappearances, police excesses, failure in taking action, indignity to
women etc. The commission does not have the power of prosecution. It can merely make
recommendations to the government or recommend to the courts to initiate proceedings based on the
inquiry that it conducts.

 EXPANDING SCOPE OF RIGHTS

While Fundamental Rights are the source of all rights, our Constitution and law offers a wider range
of rights. Over the years the scope of rights has expanded. From time to time, the courts gave
judgments to expand the scope of rights:
 Certain rights like right to freedom of press, right to information, and right to education are
derived from the Fundamental Rights;
 School education has become a right for Indian citizens. The governments are responsible for
providing free and compulsory education to all children up to the age of 14 years;

38
 RIGHTS

 The Supreme Court has expanded the meaning of the right to life to include the right to food,
right to marry a person of choice, right to privacy, right to be left alone, right to a safe and
healthy environment etc.
.
The expansion usually takes place under the umbrella of
‘human rights’. These are universal moral claims that
may or may not have been recognised by law. In that sense
these claims are not rights going by the definition that we
presented earlier. With the expansion of democracy all
over the world, there is greater pressure on governments to
accept these claims.

39
 LEGISLATURE

7. LEGISLATURE

LEGISLATURE
 Basis of a
representative
democracy;
 Law-making
body;
 Centre of all
democratic
political
process.

A. PARLIAMENT

In India, a national assembly of elected representatives is called Parliament. At the State level, this
is termed as a Legislative Assembly. India has a bicameral system of legislature. Just as the
Parliament has two houses, the States too can have a second house under the Constitution. Created
after 1947, the Indian Parliament is an expression of the faith that the people of India have in
principles of democracy. These are participation by people in the decision-making process and
government by consent. It exercises political authority on behalf of the people in many ways;

Lok Sabha or House of people

Parliament
Rajya Sabha or Council of States
Legislature
Vidhan Sabha or State Legislative
Assembly
State Legislature
Vidhan Parishad or State
Legislative Council

40
 LEGISLATURE

 Parliament is the final authority for making laws in any country. Parliament can make new laws,
change existing laws, or abolish existing laws and make new ones. It is the highest forum of
discussion and debate on public issues and national policy.
 Exercise control over those who run the government. In India,those who run the government
can take decisions only so long as they enjoy support of Parliament.
 Control all the money that governments have. In most countries the public money can be spent
only when Parliament sanctions it.
Countries with large size and much diversity usually prefer to have two houses of the national legislature
to give representation to all sections in the society and to give representation to all geographical regions
or parts of the country. A bicameral legislature makes it possible to have every decision reconsidered.
This ensures a double check on every matter. The Constitution has given the States the option of
establishing either a unicameral or bicameral legislature. Six states with a Legislative Council – Andhra
Pradesh, Bihar, Madhya Pradesh, Karnataka, Uttar Pradesh and Telangana.

RAJYA SABHA

• Represents the States of India

• Indirectly elected body
• Residents of the State elect members to State Legislative Assembly. The elected
members of State Legislative Assembly in turn elect the members of Rajya
Sabha
• Asymmentrical representation
• States are given representation according to their population
• Permanent House of Parliament
• Members elected for a term of six years. Every two years, one-third members of
Rajya Sabha retire and elections are held for those one-third seats
• Maximum Strength: 250
• 238 representatives of States and UTs (indirectly elected) and Twelve members
are nominated by the President

LOK SABHA

• Directy elected by the people

• For elections, entire country is divided into constituencies of roughly equal
population
• One representative is elected from each constituency through universal, adult
suffrage where the value of vote of evry individual would be equal to another
• Members elected for a term of five years (max)
• Maximum Strength: 552

41
 LEGISLATURE

SPECIAL POWERS

1. Rajya Sabha: If the Union Parliament wishes to remove a matter from the State list (over which
only the State Legislature can make law) to either the Union List or Concurrent List in the
interest of the nation, the approval of the Rajya Sabha is necessary;
2. Lok Sahba:
 Any ordinary law needs to be passed by both the Houses. But if there is a difference
between the two Houses, the final decision is taken in a joint session in which
members of both the Houses sit together. Because of the larger number of members,
the view of the Lok Sabha is likely to prevail in such a meeting.
 Lok Sabha exercises more powers in money matters. Once the Lok Sabha passes the budget
of the government or any other money related law, the Rajya Sabha cannot reject it. The
Rajya Sabha can only delay it by 14 days or suggest changes in it. The Lok Sabha may or
may not accept these changes.
 The Council of Ministers is responsible to the Lok Sabha and not Rajya Sabha.
Therefore, Rajya Sabha can criticise the government but cannot remove it.
 If the majority of the Lok Sabha members say they have ‘no confidence’ in the
Council of Ministers, all ministers including the Prime Minister, have to quit.

In all other spheres, including passing of non-money bills, constitutional amendments, and impeaching
the President and removing the Vice President the powers of Lok Sabha and Rajya Sabha are co-equal.

42
 LEGISLATURE

B. FUNCTIONS OF PARLIAMENT

1. Legislative Function: The Parliament enacts legislations for the country. Despite being the chief
law making body, the Parliament often merely approves legislations. The actual task of drafting
the bill is performed by the bureaucracy under the supervision of the minister concerned.

2. Control of Executive and ensuring its accountability: Parliament ensures that the executive does
not overstep its authority and remains responsible to the people who have elected them.

3. Financial Function: Legislature controls taxation and the way in which money is used by the
government. If the Government of India proposes to introduce any new tax, it has to get the
approval of the Lok Sabha. The Financial powers of the Parliament, involve grant of resources to
the government to implement its programmes. The government has to give an account to the
Legislature about the money it has spent and resources that it wishes to raise. The legislature also
ensures that the government does not misspend or overspend. This is done through the budget
and annual financial statements.

4. Representation: Parliament represents the divergent views of members from different regional,
social, economic, religious groups of different parts of the country.

5. Debating Function: The Parliament is the highest forum of debate in the country. There is no
limitation on its power of discussion. Members are free to speak on any matter without fear.

6. Constituent Function: Power of discussing and enacting changes to the Constitution. The
constituent powers of both the houses are similar. All constitutional amendments have to be
approved by a special majority of both Houses.

7. Electoral functions: It elects the President and Vice President of India.

8. Judicial functions: The judicial functions of the Parliament include considering the proposals for
removal of President, Vice-President and Judges of High Courts and Supreme Court.

C. HOW DOES THE PARLIAMENT MAKE LAWS?

Some procedures of law-making are mentioned in the Constitution, while some have evolved from
conventions. A bill is introduced in either of the houses (depending on its nature) and sent to
committees of the houses, discussed and heavily debated in both houses respectively. Once the
president signs the same, it becomes a law.
Money
Ordinary
Non-Money
Types of Constitutional
Bills Government Amendment

Private member

43
 LEGISLATURE

Even before a bill is

introduced in the
Parliament there may be
a lot of debate on the
need for introducing such
a bill. Interest groups,
media and citizens’
forums may also
persuade the government
for a particular
legislation. Law making
is thus not merely a legal
procedure but also a
political course of action.
In the era of coalition
politics especially, a bill
proposed by the
government has to be
acceptable to all the
partners of the coalition.
Such practical
considerations can hardly
be ignored.

 The Cabinet considers all matters before arriving at a decision to enact a law. Once the Cabinet
approves the policy behind the legislation, the task of drafting the legislation begins.
 The draft of any bill is prepared by the concerned ministry. For instance a bill raising the
marriageable age of girls from 18 to 21 will be prepared by the law ministry. The ministry of women
and child welfare may also be involved in it.
 Within the Parliament, a bill may be introduced in the Lok Sabha or Rajya Sabha by a member of the
House; but often a minister responsible for the subject introduces the bill (First Stage). Once passed
there, it is sent to the Rajya Sabha. A large part of the discussion on the bills takes place in the
committees. The recommendation of the committee is then sent to the House. That is why
committees are referred to as ‘miniature legislatures’. (Second Stage)

44
 LEGISLATURE

 The bill is voted upon (Third and final Stage). If a non-money bill is passed by one House, it is sent
to the other House where it goes through exactly the same procedure.
 A bill has to be passed by both Houses for enactment. If there is disagreement between the two
Houses on the proposed bill, attempt is made to resolve it through Joint Session of Parliament.
 If it is a money bill, the Rajya Sabha can either approve the bill or suggest changes but cannot reject
it. If it takes no action within 14 days the bill is deemed to have been passed. Amendments to the
bill, suggested by Rajya Sabha, may or may not be accepted by the Lok Sabha.
 When a bill is passed by both Houses, it is sent to the President for his assent. The assent of the
President results in the enactment of a bill into a law.
No action can be taken
against a member for
D. PARLIAMENTARY CONTROL OVER EXECUTIVE
whatever the member may
In a parliamentary democracy, the executive is drawn from the have said in the legislature.
party or a coalition of parties that has a majority in Lok Sabha. This is known as
It is not difficult for the executive to exercise unlimited and parliamentary privilege.
arbitrary powers with the support of the majority party. In such The presiding officer of the
a situation, parliamentary democracy may slip into Cabinet legislature has the final
dictatorship, where the Cabinet leads and the House merely powers in deciding matters
follows. Only if the Parliament is active and vigilant, can it keep of breach of privilege.
regular and effective check on the executive.

1. DELIBERATION AND DISCUSSION

 Question Hour: held every day during the sessions of Parliament, where Ministers have to
respond to searching questions raised by the members. Most of the questions aim at eliciting
information from the government on issues of public interest such as, price rise, availability
of food grains, atrocities on weaker sections of the society, riots, black-marketing etc.;
 Zero Hour: members are free to raise any matter that they think is important (though the
ministers are not bound to reply);
 Half-an – hour discussion: on matters of public importance;
 Adjournment motion etc.
2. APPROVAL AND RATIFICATION OF LAWS
 A bill can become a law only with the approval of the Parliament. Such approvals however,
cannot be taken for granted. They are the products of intense bargaining and negotiations
amongst the members of ruling party or coalition of parties and even government and
opposition.
3. FINANCIAL CONTROL
 Preparation and presentation of budget for the approval of the legislature is constitutional
obligation of the government. This allows the legislature to exercise control over the purse
strings of the government. The legislature may refuse to grant resources to the government.

45
 LEGISLATURE

 Before granting money the Lok Sabha can discuss the reasons for which the government
requires money. It can enquire into cases of misuse of funds on the basis of the report of the
Comptroller and Auditor General and Public Accounts committees.
4. NO CONFIDENCE MOTION
 As long as the government has the support of its party or coalition of parties that have a
majority in the Lok Sabha, the power of the House to dismiss the government is fictional
rather than real.
 However, after 1989, several governments have been forced to resign due to lack of
confidence of the house. Each of these governments lost the confidence of the Lok Sabha
because they failed to retain the support of their coalition partners.
E. HOW DOES THE PARLIAMENT REGULATE ITSELF?
a) The presiding officer of the legislature is the final authority in matters of regulating the
business of the legislature.
b) An amendment to the Constitution was made (52nd amendment act) in 1985. This is known
as anti-defection amendment (subsequently modified by the 91st amendment). A legislator
who is elected on one party’s ticket must be restricted from ‘defecting’ to another party. If it
is proved that a member has ‘defected’, then such member loses the membership of the
House. Besides, such a person is also disqualified from holding any political office like
ministership, etc. The presiding officer of the House is the authority who takes final decisions
on all such cases.

46
 EXECUTIVE

8. EXECUTIVE

The word ‘executive’ means a

Forms of Executive
body of persons that looks after
the implementation of rules and
regulations in actual practice.
Executive is the branch of
Political Permanent
government responsible for the
implementation of laws and
Heads of policies adopted by the
Government and legislature. The executive is
Civil servants;
their ministers; often involved in framing of
appointed for
elected for a policy.
long term
specific period,
by the people

A. TYPES OF EXECUTIVE
 USA: Presidential system and
executive powers are in the hands
of the President.
 Canada: Parliamentary democracy
with a constitutional monarchy
where Queen Elizabeth II is the
formal chief of State and the prime
minister is the head of government.
 France: both the President and the
prime minister are a part of the
semi-Presidential system. The
President appoints the prime
minister as well as the ministers
but cannot dismiss them as they are
responsible to the Parliament.
 Russia: a semi-Presidential system
where President is the head of State
and prime minister, who is
appointed by the President, is the
head of government.
 Germany: Parliamentary system in which President is the ceremonial head of State and the
chancellor is the head of government.

47
 EXECUTIVE

B. PARLIAMENTARY EXECUTIVE IN INDIA

When the Constitution of India was written, India already had some experience of running the
parliamentary system under the Acts of 1919 and 1935. This experience had shown that in the
parliamentary system, the executive can be effectively controlled by the representatives of the
people. The makers of the Indian Constitution wanted a government that would have a strong
executive branch, but at the same time, enough
safeguards should be there to check against the
personality cult. In the parliamentary form
there are many mechanisms that ensure that the
executive will be answerable to and controlled
by the legislature or people’s representatives.
So the Constitution adopted the parliamentary
system of executive for the governments both
at the national and State levels.
 National Level = President (formal Head of the State) + Prime Minister and Council of Ministers
 State Level = Governor + Chief Minister and Council of Ministers

C. PRESIDENT
1) The Constitution of India vests the executive power of the Union formally in the President, but
he exercises these powers through the Council of Ministers headed by the Prime Minister;
2) Elected for a term of five years; he is indirectly elected through an electoral college;
3) This election takes place in accordance with the principle of ‘proportional representation’ with
single transferable vote;
4) President can be removed from office
only by Parliament by following the
procedure for impeachment. This
procedure requires a special majority
and the only ground for impeachment
is violation of the Constitution;
5) The President has wide ranging
executive, legislative, judicial and
emergency powers. In a parliamentary
system, these powers are in reality
used by the President only on the
advice of the Council of Ministers
(The Prime Minister and the Council
of Ministers have support of the majority in the Lok Sabha and they are the real executive).

48
 EXECUTIVE

6) All governmental activities

take place in the name of the
President. All laws and
major policy decisions of the
government are issued in her
name.
7) All major appointments are
made in the name of the
President, including the
Chief Justice of India, the
Judges of the Supreme Court
and the High Courts of the
states, the Governors of the
states, the Election Commissioners, ambassadors to other countries, etc.
8) The President is the supreme commander of the defence forces of India.

DISCRETIONARY POWERS

 President has a right to be informed of all important matters and deliberations of the Council of
Ministers. The Prime Minister is obliged to furnish all the information that the President may
call for (under the Constitution).
 President can send back the advice given by the Council of Ministers and ask the Council to
reconsider the decision (Although, the Council can still send back the same advice and the
President would then be bound by that advice, such a request by the President to reconsider the
decision, would naturally carry a lot of weight).
 President also has veto power by which he can withhold or refuse to give assent to Bills (other
than Money Bill) passed by the Parliament (there is no mention in the Constitution about the
time limit within which the President must send the bill back for reconsideration).
 When after an election, no leader has a clear majority in the Lok Sabha, the President has to
decide whom to appoint as the Prime Minister. He has to use his own discretion in judging who
really may have the support of the majority or who can actually form and run the government.

D. PRIME MINISTER AND COUNCIL OF MINISTERS

1) The President appoints the leader of the majority party or the coalition of parties that commands
a majority in the Lok Sabha, as Prime Minister.
2) Fixed tenure. He continues in power so long as he remains the leader of the majority party or
coalition.
3) After the appointment of the Prime Minister, the President appoints other ministers on the advice
of the Prime Minister. The Ministers are usually from the party or the coalition that has the

49
 EXECUTIVE

majority in the Lok Sabha. The Prime Minister is free to choose ministers, as long as they are
members of Parliament.
4) A person who is not a member of Parliament can also become a minister. But such a person has
to get elected to one of the Houses of Parliament within six months of appointment as minister.
5) Council of Ministers is the official name for the body
The Council of Ministers is
that includes all the Ministers. It usually has 60 to 80
collectively responsible to the Lok
Ministers of different ranks. The Prime Minister
Sabha. This provision means that a
decides who will be the ministers in the Council of
Ministry which loses confidence of
Ministers. The Prime Minister allocates ranks and
the Lok Sabha is obliged to resign.
portfolios to the ministers.
Collective responsibility is based on
 Cabinet Ministers are usually top level
the principle of the solidarity of the
leaders of the ruling party or parties who are
cabinet. It implies that a vote of no
in charge of the major ministries. Cabinet is
confidence even against a single
thus the inner ring of the Council of
minister leads to the resignation of the
Ministers. It comprises about 25 ministers.
entire Council of Ministers. It also
 Ministers of State with independent charge
indicates that if a minister does not
are usually in-charge of smaller Ministries.
agree with a policy or decision of the
They participate in the Cabinet meetings only
cabinet, he or she must either accept
when specially invited.
the decision or resign.
 Ministers of State are attached to and required
to assist Cabinet Ministers.
* Since it is not practical for all ministers to meet regularly and discuss everything, the decisions are
taken in Cabinet meetings. That is why parliamentary democracy in most countries is often known
as the Cabinet form of government. The Cabinet as a team is assisted by the Cabinet Secretariat.
This includes many senior civil servants who try to coordinate the working of different ministries.
6) The Council of Ministers
comes into existence only
after the Prime Minister has
taken the oath of office. The
death or resignation of the
Prime Minister
automatically brings about
the dissolution of the
Council of Ministers but the
demise, dismissal or
resignation of a minister
only creates a ministerial
vacancy.

50
 EXECUTIVE

7) The Prime Minister acts as a link between the

Council of Ministers on the one hand and the
President as well as the Parliament on the other. It is
this role of the Prime Minister which led Pt. Nehru to
describe him as ‘the linchpin of Government’.
8) The power wielded by the Prime Minister flows from
various sources: control over the Council of
Ministers, leadership of the Lok Sabha, command
over the bureaucratic machine, access to media,
projection of personalities during elections,
projection as national leader during international
summitry as well as foreign visits.

The position of the Prime Minister and Council of Ministers has been unassailable
whenever a single political party has secured majority in the Lok Sabha. Since 1989, we
have witnessed many coalition governments in India. Many of these governments could
not remain in power for the full term of the Lok Sabha. They were either removed or
they resigned due to loss of support of the majority. These developments have affected
the working of the parliamentary executive:

 The developments have resulted in a growing discretionary role of the President in

the selection of Prime Ministers;
 The coalitional nature of Indian politics in this period has necessitated much more
consultation between political partners, leading to erosion of prime ministerial
authority;
 it has also brought restrictions on various prerogatives of the Prime Minister like
choosing the ministers and deciding their ranks and portfolios;
 The policies and programmes of the government cannot be decided by the Prime
Minister alone. Political parties of different ideologies come together both as pre-poll
and post-poll allies to form a government. Policies are framed after a lot of
negotiations and compromises among the allies. In this entire process, the Prime
Minister has to act more as a negotiator than as leader of the government.

State Level - The most important variation is that there is a Governor of the State
appointed by the President (on the advice of the central government). Though the Chief
Minister, like the Prime Minister is the leader of the majority party in the Assembly, the
Governor has more discretionary powers.

51
 EXECUTIVE

E. PERMANENT EXECUTIVE: BUREAUCRACY

 Executive organ of the government includes the Prime Minister, the ministers and a large
organisation called the bureaucracy or the administrative machinery OR ‘civil services’.
 Trained and skilled officers who work as permanent employees of the government are assigned
the task of assisting the ministers in formulating policies and implementing these policies.
 The administrative officers cannot act in violation of the policies adopted by the legislature. It is
the responsibility of the ministers to retain political control over the administration.
 The bureaucracy is also expected to be politically neutral. This means that the bureaucracy will
not take any political position on policy matters.
 The Indian Bureaucracy consists of the All-India services, State services, employees of the local
governments, and technical and managerial staff running public sector undertakings.
Makers of our Constitution were aware of the importance of the non-partisan and professional
bureaucracy. They also wanted the members of the civil services or bureaucracy to be impartially
selected on the basis of merit. So, the Union Public Service Commission has been entrusted with the
task of conducting the process of recruitment of the civil servants for the government of India. Similar
public service commissions are provided for the States also. Members of the Public Service
Commissions are appointed for a fixed term. Their removal or suspension is subject to a thorough
enquiry made by a judge of the Supreme Court.
The Constitution has provided for reservation of jobs for the Dalits and Adivasis. Subsequently,
reservations have also been provided for women and other backward classes. These provisions ensure
that the bureaucracy would be more representative and social inequalities will not come in the way of
recruitment to the civil service.

Persons selected by the UPSC for Indian Administrative Service and Indian Police Service constitute the
backbone of the higher level bureaucracy in the States. The IAS or IPS officers are appointed by the
central government, they can go back into the service of the central government and most importantly,
only the central government can take disciplinary action against them. This means that the key
administrative officers of the States are under the supervision and control of the central government.

52
 EXECUTIVE

Apart from the IAS and the IPS officers appointed by the UPSC, the administration of the State is
looked after by officers appointed through the State Public Service Commissions. The bureaucracy is an
instrument through which welfare policies of the government must reach the people.

Bureaucracy is often perceived as being insensitive to the expectations of the ordinary citizens. Only if
the democratically elected government controls the bureaucracy, some of the problems could be handled
effectively. On the other hand, too much political interference turns the bureaucracy into an instrument
in the hands of the politician.

53
 JUDICIARY

9. JUDICIARY

WHY IS JUDICIARY NEEDED?

In any society, disputes are bound to arise between individuals, between groups and between
individuals or groups and government. All such disputes must be settled by an independent body
in accordance with the principle of rule of law. This idea of rule of law implies that all
individuals — rich and poor, men or women, forward or backward castes — are subjected to the
same law.

The principal role of the judiciary is to protect rule of law and ensure supremacy of
law. It safeguards rights of the individual, settles disputes in accordance with the law and
ensures that democracy does not give way to individual or group dictatorship. In order to
be able to do all this, it is necessary that the judiciary is independent of any political pressures.

A. INDEPENDENT JUDICIARY
 The other organs of the government like the executive and legislature must not restrain the
functioning of the judiciary in such a way that it is unable to do justice.
 The other organs of the government should not interfere with the decision of the judiciary.
 Judges must be able to perform their functions without fear or favour.

Independence of the judiciary does not imply arbitrariness or absence of accountability. Judiciary is a
part of the democratic political structure of the country and is therefore accountable to the Constitution,
to the democratic traditions and to the people of the country.

Independence of Judiciary has been ensured in the following manner:

1. The legislature is not involved in the process of appointment of judges; doctrine of ‘separation of
power’ is being implemented in India.
2. The judges have a fixed tenure. They hold office till reaching the age of retirement. Only in
exceptional cases, judges may be removed.
3. The judiciary is not financially dependent on either the executive or legislature. The Constitution
provides that the salaries and allowances of the judges are not subjected to the approval of the
legislature.
4. The judiciary has the power to penalise those who are found guilty of contempt of court.

B. STRUCTURE OF THE JUDICIARY

The Constitution of India provides for a single integrated judicial system. This means that unlike some
other federal countries of the world, India does not have separate State courts. The structure of the

54
 JUDICIARY

judiciary in India is pyramidal with the Supreme Court at the top, High Courts below them and district
and subordinate courts at the lowest level. The lower courts function under the direct superintendence of
the higher courts.

S. NO CRIMINAL LAW CIVIL LAW

1. Deals with conduct or acts that law defines Deals with any harm or injury to rights of
as offences. For example, theft, harassing a individuals. For example, disputes relating to sale
woman to bring dowry, murder. of land, purchase of goods, rent matters, divorce
cases.
2. Begins with the lodging of an FIR (First A petition has to be filed before the relevant court
Information Report) with the police who by the affected party only. In a rent matter, either
investigate the crime after which a case is the landlord or tenant can file a case.
filed in the court.
3. If found guilty, the accused can be sent to The court gives the specific relief asked for. For
jail and also fined. instance, in a case between a landlord and a
tenant, the court can order the flat to be vacated
and pending rent to be paid.

55
 JUDICIARY

C. APPOINTMENT AND REMOVAL OF JUDGES

As far as the appointment of the Chief Justice of India (CJI) is concerned, over the years, a convention
had developed whereby the senior-most judge of the Supreme Court was appointed as the Chief
Justice of India. This convention was however broken twice. In 1973 A. N. Ray was appointed as CJI
superseding three senior Judges. Again, Justice M.H. Beg was appointed superseding Justice H.R.
Khanna (1975). The other Judges of the Supreme Court and the High Court are appointed by the
President after ‘consulting’ the CJI.
Initially, the court felt that role of the Chief Justice was purely consultative. Then it took the view
that the opinion of the Chief Justice must be followed by the President. Finally, the Supreme Court has
come up with a novel procedure: it has suggested that the Chief Justice should recommend names of
persons to be appointed in consultation with four senior-most judges of the Court. Thus, the Supreme
Court has established the principle of collegiality in making recommendations for appointments. At the
moment therefore, in matters of appointment the decision of the group of senior judges of the Supreme
Court carries greater weight. Thus, in matters of appointment to the judiciary, the Supreme Court and
the Council of Ministers play an important role.

A judge of the Supreme Court or High Court can be removed only on the ground of proven
misbehaviour or incapacity. A motion containing the charges against the judge must be approved by
special majority in both Houses of the Parliament. It should also be noted that while in making
appointments, the executive plays a crucial role; the legislature has the powers of removal.

D. JURISDICTION OF SUPREME COURT

The Supreme Court of India is one of the very powerful
courts anywhere in the world. However, it functions within
the limitations imposed by the Constitution. The functions
and responsibilities of the Supreme Court are defined by the
Constitution.
1) Original Jurisdiction (Article 131)
Original jurisdiction means cases that can be directly
considered by the Supreme Court without going to the
lower courts before that. The Original Jurisdiction of
the Supreme Court establishes it as an umpire in all disputes regarding federal matters. It is called
original jurisdiction because the Supreme Court alone has the power to deal with such cases.
Neither the High Courts nor the lower courts can deal with such cases. In this capacity, the
Supreme Court not just settles disputes but also interprets the powers of Union and State
government as laid down in the Constitution.
2) Writ Jurisdiction (Article 32)
Any individual, whose fundamental right has been violated, can directly move the Supreme Court
for remedy. The Supreme Court can give special orders in the form of writs. The High Courts can

56
 JUDICIARY

also issue writs, but the persons whose rights are violated have the choice of either approaching the
High Court or approaching the Supreme Court directly.
3) Appellate Jurisdiction (Article 132 to 134)
The Supreme Court is the highest court of appeal. A person can appeal to the Supreme Court
against the decisions of the High Court. However, High Court must certify that the case is fit for
appeal, that is to say that it involves a serious matter of interpretation of law or Constitution. In
addition, in criminal cases, if the lower court has sentenced a person to death then an appeal can be
made to the High Court or Supreme Court. Appellate jurisdiction means that the Supreme Court
will reconsider the case and the legal issues involved in it. If the Court thinks that the law or the
Constitution has a different meaning from what the lower courts understood, then the Supreme
Court will change the ruling and along with that also give new interpretation of the provision
involved.
The High Courts too, have appellate jurisdiction over the decisions given by courts below them.
4) Advisory Jurisdiction
The President of India can refer any matter that is of public importance or that which involves
interpretation of Constitution to Supreme Court for advice. However, the Supreme Court is not
bound to give advice on such matters and the President is not bound to accept such an advice.
 It allows the government to seek legal opinion on a matter of importance before taking
action on it. This may prevent unnecessary litigations later;
 In the light of the advice of the Supreme Court, the government can make suitable changes
in its action or legislations.

Article 144 … All authorities, civil and Article 137 …….the Supreme Court shall
judicial, in the territory of India shall have power to review any judgment
act in aid of the Supreme Court. pronounced or order made by it.

E. ACCESS TO COURTS AND JUDICIAL ACTIVISM

In principle, all citizens of India can access the courts in this country. This implies that every citizen has
a right to justice through the courts. If any citizen believes that their rights are being violated, then they
can approach the court for justice to be done. While the courts are available for all, in reality access to
courts has always been difficult for a vast majority of the poor in India. Legal procedures involve a lot of
money and paperwork as well as take up a lot of time. For a poor person who cannot read and whose
family depends on a daily wage, the idea of going to court to get justice often seems remote.
In response to this, the Supreme Court in the early 1980s devised a mechanism of Public Interest
Litigation or PIL to increase access to justice. It allowed any individual or organisation to file a PIL in
the High Court or the Supreme Court on behalf of those whose rights were being violated.

Public Interest Litigations or Social Interest Litigations are the chief instruments through which judicial
activism has flourished. In 1979, the Court set the trend when it decided to hear a case where the case

57
 JUDICIARY

was filed not by the aggrieved persons but by others

on their behalf. As this case involved a
consideration of an issue of public interest, it and
such other cases came to be known as public interest
litigations. Around the same time, the Supreme
Court also took up the case about rights of
prisoners. This opened the gates for large number of
cases where public spirited citizens and voluntary
organisations sought judicial intervention for
protection of existing rights, betterment of life
conditions of the poor, protection of the
environment, and many other issues in the interest
of the public. PIL has become the most important
vehicle of judicial activism.
 Through the PIL, the court has expanded the
idea of rights. Clean air, unpolluted water,
decent living etc. are rights for the entire society.
 Through PIL
and judicial
activism of
the post-1980
period, the
judiciary has
also shown
readiness to
take into
consideration
rights of
those sections
who cannot
easily
approach the
courts. For
this purpose,
the judiciary
allowed
public spirited citizens, social organisations and lawyers to file petitions on behalf of the needy
and the deprived.
 Judicial activism has had manifold impact on the political system. It has democratised the
judicial system by giving not just to individuals but also groups access to the courts. It has also

58
 JUDICIARY

made an attempt to make the electoral system much more free and fair. The court asked
candidates contesting elections to file affidavits indicating their assets and income along with
educational qualifications so that the people could elect their representatives based on accurate
knowledge.
*The mid-day meal that children now
receive in government and
government-aided schools is also the
result of a PIL. For the common
person, access to courts is access to
justice. The courts exercise a crucial
role in interpreting the Fundamental
Rights of citizens and as you saw in
the above case, the courts interpreted
Article 21 of the Constitution on the
Right to Life to include the Right to
Food. They, therefore, ordered the
State to take certain steps to provide food for all including the mid-day meal scheme.

Criticism of Judicial Activism: The idea of pro-active judiciary has overburdened the courts. Secondly,
judicial activism has blurred the line of distinction between the executive and legislature on the one hand
and the judiciary on the other. The court has been involved in resolving questions which belong to the
executive.

F. JUDICIARY AND RIGHTS

The Constitution provides two ways in which the Supreme Court can remedy the violation of rights.
First. It can restore fundamental rights by issuing writs of Habeas Corpus; mandamus etc.
(article 32). The High Courts also have the power to issue such writs (article 226).
Second. The Supreme Court can declare the concerned law as unconstitutional and therefore
non-operational (article 13) – Judicial Review.

Judicial Review means the power of the Supreme Court (or High Courts) to examine the
constitutionality of any law if the Court arrives at the conclusion that the law is inconsistent with the
provisions of the Constitution, such a law is declared as unconstitutional and inapplicable. The term
judicial review is nowhere mentioned in the Constitution. However, the fact that India has a written
constitution and the Supreme Court can strike down a law that goes against fundamental rights,
implicitly gives the Supreme Court the power of judicial review.

Supreme Court can use the review powers if a law is inconsistent with the distribution of powers laid
down by the Constitution. Suppose the central government makes a law, which according to some
States, concerns a subject from the State list. Then the States can go to the Supreme Court and if the
court agrees with them, it would declare that the law is unconstitutional. In this sense, the review power

59
 JUDICIARY

of the Supreme Court includes power to review legislations on the ground that they violate fundamental
rights or on the ground that they violate the federal distribution of powers. The review power extends to
the laws passed by State legislatures also.

Together, the writ powers and the review power of the Court make judiciary very powerful. In
particular, the review power means that the judiciary can interpret the Constitution and the laws passed
by the legislature.

G. JUDICIARY AND PARLIAMENT

Apart from taking a very active stand on the matter of rights, the court has been active in seeking to
prevent subversion of the Constitution through political practice.
Thus, areas that were considered
beyond the scope of judicial
review such as powers of the
President and Governor were
brought under the purview of
the courts. There are many other
instances in which the Supreme
Court actively involved itself in
the administration of justice by
giving directions to executive
agencies, like giving direction to
CBI to initiate investigations
against politicians and
bureaucrats.
The Indian Constitution is based on a delicate principle of limited separation of powers and
checks and balances. This means that each organ of the government has a clear area of functioning.
Despite such clear cut division of power the conflict between the Parliament and judiciary, and
executive and the judiciary has remained a recurrent theme in Indian politics.

During the period 1967 and 1973, this controversy became very serious. Apart from land reform
laws, laws enforcing preventive detention, laws governing reservations in jobs, regulations acquiring
private property for public purposes, and laws deciding the compensation for such acquisition of private
property were some instances of the conflict between the legislature and the judiciary.

In 1973, the Supreme Court gave a decision that has become very important in regulating the relations
between the Parliament and the Judiciary since then. This case is famous as the Kesavananda Bharati
case. In this case, the Court ruled that there is a basic structure of the Constitution and nobody—not

60
 JUDICIARY

even the Parliament (through amendment)—can violate the ‘basic structure’. Court mentioned two
more things:
 Right to property (the disputed issue) was not part of basic structure and therefore could be
suitably abridged.
 The Court reserved to itself the right to decide whether various matters are part of the basic
structure of the Constitution.

H. CRIMINAL JUSTICE SYSTEM

Key components of Criminal Justice system: Police, the Public prosecutor, the defence lawyer and the
judge.
One important function of the police is to investigate any complaint about the commission of a crime.
An investigation includes recording statements of witnesses and collecting different kinds of evidence.
On the basis of the investigation, the police are required to form an opinion. The police can file a
chargesheet in the court if the evidence points to guilt of the accused person.
*Additionally, it isn’t the job of the police to decide whether a person is guilty or innocent.
As per the rule of law, police investigations always have to be conducted in accordance with law and
with full respect for human rights. The Supreme Court has laid down guidelines that the police must
follow at the time of arrest, detention and interrogation. The police are not allowed to torture or beat or
shoot anyone during investigation. They cannot inflict any form of punishment on a person even for
petty offences.

Article 22 of the Constitution and criminal law guarantee to every arrested person the following
Fundamental Rights:
• The Right to be informed at the time of arrest of the offence for which the person is being arrested.
• The Right to be presented before a magistrate within 24 hours of arrest.
• The Right not to be ill treated or tortured during arrest or in custody.

61
 JUDICIARY

• Confessions made in police custody cannot be used as evidence against the accused.
• A boy under 15 years of age and women cannot be called to the police station only for questioning.
A criminal offence is regarded as a public wrong, and in court it is the Public Prosecutor who
represents the interests of the State. The role of the Prosecutor begins once the police has conducted the
investigation and filed the chargesheet in the court. He/she has no role to play in the investigation. The
Prosecutor must conduct the prosecution on behalf of the State. As an officer of the court, it is his/ her
duty to act impartially and present the full and material facts, witnesses and evidence before the court to
enable the court to decide the case.
The judge is like an umpire in a game and conducts the trial impartially and in an open court.
The judge hears all the witnesses and any other evidence presented by the prosecution and the defence.
The judge decides whether the accused person is guilty or innocent on the basis of the evidence
presented and in accordance with the law.

FAIR TRIAL: For a trial to be fair, several different procedures have to be observed. Article 21
of the Constitution that guarantees the Right to Life, states that a person’s life or liberty can be
taken away only by following a reasonable and just legal procedure. A fair trial ensures that
Article 21 of the Constitution is upheld. Following is an excerpt from an example provided in
the NCERT to elaborate on the process of fair trial:
Shanti was given a copy of the chargesheet and all other evidence that the prosecution presented
against her. Shanti was charged with the offence of theft that was defined as a crime in the law.
The trial was held in an open court, in public view. Her brother, Sushil could attend the court
hearings. The trial was held in the presence of the accused. Shanti was defended by a lawyer.
Shanti’s lawyer, Advocate Roy was given an opportunity to cross-examine all the prosecution
witnesses. Advocate Roy was given an opportunity to present witnesses in Shanti’s defence.
Although the police filed a case of theft against Shanti, the judge assumed her to be innocent. It
was the responsibility of the prosecution to prove beyond reasonable doubt that Shanti was
guilty. In this case the prosecution failed to do so. It is significant that the judge decided the
matter only on the basis of the evidence before the court. The judge did not jump to the
conclusion that Shanti was the thief just because she was a poor maidservant. Instead, the judge
remained impartial and since the evidence showed that some young men and not Shanti was the
thief, he set Shanti free. In Shanti’s case, justice was finally done to her because she was given a
fair trial.

62
 ELECTIONS

10. ELECTIONS
‘The ballot is stronger than the bullet’ – Abraham Lincoln

A. ELECTIONS AND DEMOCRACY

In any large democracy, as India, all citizens cannot

take direct part in making every decision. Therefore,
representatives are elected by the people. Elections
have today become the most visible symbol of the
democratic process. Elections are now exercised all
over the world, both in democratic and non-
democratic countries.

a. Direct Democracy: where the citizens directly

participate in the day-to-day decision making
and in the running of the government. Ex-
Ancient city-states in Greece and present day
local governments. Like gram sabha. This form
of democracy cannot be practiced when a
decision has to be taken by lakhs and crores of
people;
b. Indirect Democracy: People elect representa-
tives to make decisions on their behalf. In such
an arrangement citizens choose their
representatives who, in turn, are actively
involved in governing and administering the
country. The method followed to choose these
representatives is referred to as an election.

What makes an election democratic?

First. Everyone should be able to choose. This means that everyone should have one vote and
every vote should have equal value.
Second. Parties and candidates should be free to contest elections and should offer some real
choice to the voters.
Third. The choice should be offered at regular intervals. Elections must be held regularly after
every few years.
Fourth. The candidate preferred by the people should get elected.
Fifth. Elections should be conducted in a free and fair manner where people can choose as they
really wish.

63
 ELECTIONS

To ensure that elections in a country
would be conducted in a democratic
way, the Constitution of a democratic
country lays down some basic rules
about elections. The details are
usually left to be worked out by laws
passed by the legislatures. These rules
include- who is eligible to vote, to
contest, who is to supervise elections
etc.
Lok Sabha and Vidhan Sabha (Assembly) elections are held
regularly after every five years. After five years the term of
all the elected representatives comes to an end. The Lok
Sabha or Vidhan Sabha stands ‘dissolved’. Elections are
held in all constituencies at the same time, either on the
same day or within a few days. This is called a general
election. Sometimes election is held only for one
constitutency to fill the vacancy caused by death or
resignation of a member. This is called a by-election.

B. ELECTION SYSTEM IN INDIA

 Electoral Constituencies
The country is divided into different areas for purposes of elections. These areas are called electoral
constitutencies. The voters who live in an area elect one representative. The representative elected
from each constituency is called a ‘Member of Parliament’ or an MP. Our Constitution requires that
each constituency should have a roughly equal population living within it.
Each State is divided into a specific number of Assembly constituencies and the elected
representative is called the ‘Member of Legislative Assembly’ or an MLA. Each Parliamentary
constituency has within it several
DELIMITATION COMMISSION
assembly constituencies. The same
principle applies for Panchayat and Appointed by the President of India, it works in
Municipal elections. Each village or collaboration with the Election Commission of India.
town is divided into several ‘wards’ that It is appointed for the purpose of drawing up the
are like constituencies. Each ward elects boundaries of constituencies all over the country. A
one member of the village or the urban quota of constituencies to be reserved in each State is
local body. Sometimes these fixed depending on the proportion of SC or ST in that
constituencies are counted as ‘seats’, for State. After drawing the boundaries, the Delimitation
each constituency represents one seat in Commission looks at the composition of population
the assembly. in each constituency. Those constituencies that have
the highest proportion of Scheduled Tribe population
 Reserved Constituencies are reserved for ST. In the case of Scheduled Castes,
Makers of our Constitution thought of a the Delimitation Commission looks at two things. It
special system of reserved constituencies picks constituencies that have higher proportion of
for the weaker sections, who may not Scheduled Caste population. But it also spreads these
have the required resources, education constituencies in different regions of the State. This is
and contacts to contest and win elections done because the Scheduled Caste population is
against others. This would ensure an generally spread evenly throughout the country.
open and fair electoral competition. These reserved constituencies can be rotated each
time the Delimitation exercise is undertaken.

64
 ELECTIONS

Some constituencies are reserved for people who belong to the Scheduled Castes [SC] and
Scheduled Tribes [ST]. In a SC reserved constituency only someone who belongs to the Scheduled
Castes can stand for election. Similar is the case for Scheduled Tribes. This number is in proportion
to their share in the total population. This provision was made initially for a period of 10 years and
as a result of successive constitutional amendments, has been extended up to 2010. The Parliament
can take a decision to further extend it, when the period of reservation expires.

65
 ELECTIONS

In many states, seats in rural (panchayat) and urban (municipalities and corporations) local bodies are
now reserved for Other Backward Classes (OBC) as well. However, the proportion of seats reserved
varies from state to state. Similarly, one-third of the seats are reserved in rural and urban local bodies for
women candidates.

 Voters’ List
The list of those who are eligible to vote is prepared much before the election and given to everyone
and is officially called the Electoral Roll or the Voters’ List. The principle of universal adult
franchise adopted by India ensures an equal opportunity to all to choose their representatives. It
means, everyone should have one vote and each vote should have equal value.
- In our country, all the citizens aged 18 years and above can vote in an election. Every citizen has
the right to vote, regardless of his or her caste, religion or gender. Some criminals and persons
with unsound mind can be denied the right to vote, but only in rare situations. It is the
responsibility of the government to get the names of all the eligible voters put on the voters’ list.
A complete revision of the list takes place every five years.
- In the last few years a new system of Election Photo Identity Card [EPIC] has been introduced.
The government has tried to give this card to every person on the voters list. The voters are
required to carry this card when they go out to vote, so that no one can vote for someone else.

 Nomination of Candidates
Anyone who can be a voter can also become a candidate in elections. The only difference is that in
order to be a candidate the minimum age is 25
years (21 years for Panchayat), while it is only 18 A new system of declaration has been
years for being a voter. There are some other introduced on direction from the Supreme
restrictions on criminals etc. but these apply in Court. Every candidate has to make a legal
very extreme cases. Political parties nominate declaration, giving full details of:
their candidates who get the party symbol and
support. Party’s nomination is often called party 1. Serious criminal cases pending
‘ticket’. Every person who wishes to contest an against the candidate;
election has to fill a ‘nomination form’ and give 2. Details of the assets and liabilities
some money as ‘security deposit’. of the candidate and his or her
family; and
 Election Campaign 3. Educational qualifications of the
Campaigns take place for a two-week period candidate.
between the announcement of the final list of This information has to be made public.
candidates and the date of polling. During this This provides an opportunity to the voters
period the candidates contact their voters, political to make their decision on the basis of the
leaders address election meetings and political information provided by the candidates.
parties mobilise their supporters. In election
campaigns, political parties try to focus public

66
 ELECTIONS

attention on some big issues. They want to attract the public to that issue and get them to vote for
their party on that basis.
Some successful slogans in various elections are as follows:
1) The Congress party led by Indira Gandhi gave the slogan of Garibi Hatao (Remove poverty) in
the Lok Sabha elections of 1971.
2) Save Democracy was the slogan given by Janata Party under the leadership of Jayaprakash
Narayan, in the Lok Sabha election held in 1977.
3) The Left Front used the slogan of Land to the
MODEL CODE OF CONDUCT
Tiller in the West Bengal Assembly elections held
in 1977. According to this, no party or
4) ‘Protect the Self-Respect of the Telugus’ was the candidate can:
slogan used by N. T. Rama Rao, the leader of the
Telugu Desam Party in Andhra Pradesh Assembly 1. Use any place of worship for
elections in 1983. election propaganda;
2. Use government vehicles,
According to our election law, no party or candidate aircrafts and officials for
can: elections; and
3. Once elections are announced,
 Bribe or threaten voters;
Ministers shall not lay
 Appeal to them in the name of caste or religion;
foundation stones of any
 Use government resources for election
projects, take any big policy
campaign; and
decisions or make any
 Spend more than 25 lakh in a constituency for a
promises of providing public
Lok Sabha election or 10 lakh in a constituency
facilities.
in an Assembly election.

*If they do so, their election can be rejected by the court even after they have been declared elected.

 Polling and Counting of votes

The final stage of an election is the day when the voters cast or ‘poll’ their vote - election day. Every
person whose name is on the voters’ list can go to a nearby ‘polling booth’, situated usually in a
local school or a government office. Once the voter goes inside the booth, the election officials
identify her, put a mark on her finger and allow her to cast her vote. An agent of each candidate is
allowed to sit inside the polling booth and ensure that the voting takes place in a fair way.
Earlier, a ballot paper was used where vote was recorded by putting a stamp on it. A ballot paper
is a sheet of paper on which the names of the contesting candidates along with party name and
symbols are listed. Nowadays electronic voting machines (EVM) are used to record votes. The
machine shows the names of the candidates and the party symbols. Independent candidates too have
their own symbols, allotted by election commission. All that the voter has to do is to press the button
against the name of the candidate she wants to give her vote.
Post voting, EVMs are sealed and taken to a secure place. On a fixed date, all the EVMs from a
constituency are opened and the votes secured by each candidate are counted. The agents of all

67
 ELECTIONS

candidates are present there to ensure that the counting is done properly. The candidate who secures
the highest number of votes from a constituency is declared elected. In a general election, usually the
counting of votes in all the constituencies takes place at the same time, on the same day.

C. SYSTEM OF ELECTION

1. First Past the Post System –

The entire country is divided into 543 constituencies; each constituency elects one
representative; and the candidate who secures the highest number of votes in that constituency is
declared elected. In this system whoever has more votes than all other candidates, is declared
elected. The winning candidate need not secure a majority of the votes. In the electoral race, the
candidate who is ahead of others, who crosses the winning post first of all, is the winner. This
method is also called the ‘Plurality System’. This is the method of election prescribed by the
Constitution.
2. Proportional Representation-
Once the votes are counted, each party is allotted the share of seats in the parliament in
proportion to its share of votes.
Each party fills its quota of seats
by picking those many of its
nominees from a preference list
that has been declared before the
elections. This system of elections
is called the Proportional
Representation (PR) system. In
this system a party gets the same
proportion of seats as its
proportion of votes. There could
be two variation:
- In nations like Israel or
Netherlands, the entire
country is treated as one
constituency and seats are
allocated to each party
according to its share of votes
in the national election;
- When the country is divided
into several multi-member
constituencies as in Argentina
and Portugal. Each party
prepares a list of candidates for each constituency, depending on how many have to be
elected from that constituency.

68
 ELECTIONS

In both these variations, voters exercise their preference for a party and not a candidate. The seats in
a constituency are distributed on the basis of votes polled by a party. Thus, representatives from a
constituency, would and do belong to different parties. In India, we have adopted PR system on a
limited scale for indirect elections. The Constitution prescribes a third and complex variation of the
PR system for the election of President, Vice President, and for the election to the Rajya Sabha and
Vidhan Parishads.

Why did India adopt the

FPTP system?

The entire election system is

extremely simple to understand
even for common voters who
may have no specialized
knowledge about politics and
elections. There is a clear choice
presented to voters. This system
offers a choice between parties
and specific candidates. In
constituency based syste, like
the FPTP, the voters know who
their own representative is and
can hold him or her accountable.
Finally, the FTPT system
encourages voters from different
social groups to come together
to win an election in a locality.

D. ELECTION COMMISSION – FREE AND FAIR ELECTIONS

The creation of an independent

Election Commission to ‘supervise and
conduct’ elections was an important
step towards creating a free and fair
election system. To assist the Election
Commission of India there is a Chief
Electoral Officer in every state. The
Election Commission is not responsible

69
 ELECTIONS

for the conduct of local body elections. The State Election Commissioners work independently of
the Election Commission of India and each has its own sphere of operation.

- Initially there were many apprehensions about a multi-

The Election Commission of
member Commission. There was a sharp difference of
India can either be a single
opinion between the then Chief Election Commissioner and
member or a multi-member
the other Commissioners about who had how much power.
body. Till 1989, the Election
The matter had to be settled by the Supreme Court. Now
Commission was single member.
there is a general consensus that a multi-member Election
Just before the 1989 general
Commission is more appropriate as power is shared and
elections, two Election
there is greater accountability.
Commissioners were appointed,
- The Chief Election Commissioner (CEC) presides over the
making the body multi-member.
Election Commission, but does not have more powers than
Soon after the elections, the
the other Election Commissioners. The CEC and the two
Commission reverted to its
Election Commissioners have equal powers to take all
single member status. In 1993,
decisions relating to elections as a collective body. They are
two Election Commissioners
appointed by the President of India on the advice of the
were once again appointed and
Council of Ministers.
the Commission became multi-
- The Constitution ensures the security of the tenure of the
member and has remained multi-
CEC and Election Commissioners. They are appointed for a
member since then.
six year term or continue till the age of 65, whichever is
earlier. The CEC can be removed before the expiry of the
term, by the President if both Houses of Parliament make such a recommendation with a special
majority. This is done to ensure that a ruling party cannot remove a CEC who refuses to favour it
in elections. The Election Commissioners can be removed by the President of India.

FUNCTIONS OF ELECTION COMMISSION OF INDIA

 It supervises the preparation of up-to-date voters’ list;

 It determines the timing of elections and prepares the election schedule. The election schedule
includes the notification of elections, date from which nominations can be filed, last date for filing
nominations, last date of scrutiny, last date of withdrawal, date of polling and date of counting and
declaration of results;
 During this entire process, the Election Commission has the power to take decisions to ensure a free
and fair poll. It can postpone or cancel the election in the entire country or a specific State or
constituency on the grounds that the atmosphere is vitiated. The Commission also implements a
‘model code of conduct’ for parties and candidates. It can order a re-poll in a specific constituency.
 The Election Commission accords recognition to political parties and allots symbols to each of them.

EC has very limited staff of its own. It conducts election with the help of administrative machinery.
However, once the election process has begun, the commission has control over the administration as far
as election related work is concerned. During the election process, the administrative officers of the

70
 ELECTIONS

State and central governments are assigned election related duty and in this respect, the Election
Commission has full control over them. The EC can transfer the officers, or stop their transfers; it can
take action against them for failing to act in a non-partisan manner. The commission has emerged as a
powerful authority which has asserted its powers to ensure fairness in electoral process.

CHALLENGES TO FREE AND FAIR ELECTIONS

1. Candidates and parties with a lot of money may not be sure of their victory but they do enjoy a
big and unfair advantage over smaller parties and independents.
2. Candidates with criminal connection have been able to push others out of the electoral race and
to secure a ‘ticket’ from major parties.
3. Some families tend to dominate political parties; tickets are distributed to relatives from these
families.
4. Very often elections offer little choice to ordinary citizens, for both the major parties are quite
similar to each other both in policies and practice.
5. Smaller parties and independent candidates suffer a huge disadvantage compared to bigger
parties.

The EC has faced many difficult situations such as holding elections in militancy affected areas like
Assam, Punjab or Jammu and Kashmir. It has also faced the difficult situation of having to postpone the
election process mid-way in 1991 when the ex-Prime Minister Rajiv Gandhi was assassinated during
campaigning. In 2002, the Election Commission faced another critical situation when the Gujarat
Assembly was dissolved and elections had to be conducted. But the Election Commission found that
unprecedented violence in that State had made it impossible to hold free and fair elections immediately.
The Election Commission decided to postpone elections to the State Assembly by a few months. The
Supreme Court upheld this decision of the Election Commission.

E. PARTICIPATION AND NEED FOR REFORMS

A way to check the quality of election process is to see whether people participate in it with enthusiasm.
If the election process is not free or
fair, people will not continue to
participate in the exercise.

 People’s participation in
election is usually measured by
voter turnout figures. Turnout
indicates the per cent of
eligible voters who actually
cast their vote. Over the last
fifty years, the turnout in
Europe and North America has

71
 ELECTIONS

declined. In India the turnout has either

remained stable or actually gone up.
 In India the poor, illiterate and
underprivileged people vote in larger proportion
as compared to the rich and privileged sections.
This is in contrast to western democracies. For
example in the United States of America, poor
people, African Americans and Hispanics vote
much less than the rich and the white people.

 Common people in India attach a lot of

importance to elections. They feel that
through elections they can bring pressure on
political parties to adopt policies and
programmes favourable to them. They also
feel that their vote matters in the way things
are run in the country.

 The interest of voters in election related activities has been

increasing over the years. During the 2004 elections, more
than one-third voters took part in campaign-related activities.
More than half of the people identified themselves as being
close to one or the other political party. One out of every
seven voters is a member of a political party.

SUGGESTIONS FOR ELECTORAL REFORM

1. System of elections could be changed from the FPTP to some variant of the PR system. This
would ensure that parties get seats, as far as possible, in proportion to the votes they get.
2. There should be a special provision to ensure that at least one-third women are elected to the
parliament and assemblies.

72
 ELECTIONS

3. Stricter provisions to control the role of money in electoral politics. The elections expenses should
be paid by the government out of a special fund.
4. Candidates with any criminal case should be barred from contesting elections, even if their appeal
is pending before a court.
5. A complete ban on the use of caste and religious appeals in the campaign.
6. Creation of a law to regulate the functioning of political parties and to ensure that they function in
a transparent and democratic manner.

F. POLITICAL PARTIES
A political party is a group of
people who come together to
contest elections and hold power in
the government. They agree on
some policies and programmes for
the society with a view to promote
the collective good. Since there can
be different view on what is good
for all, parties try to persuade
people why their policies are better
than others. Parties reflect
fundamental political divisions in a
society. Parties are about a part of the
society and thus involve
PARTISANSHIP.

*Main components of a political party: Leaders, active members and followers.

FUNCTIONS
i Contesting elections - In most democracies, elections are fought mainly among the candidates put
up by political parties. In India, usually the top party leaders choose candidates for contesting
elections.
ii Putting forward policies and programmes- In a democracy, a large number of similar opinions
have to be grouped together to provide a direction in which policies can be formulated by the
governments. A party reduces a vast multitude of opinions into a few basic positions which it
supports. A government is expected to base its policies on the line taken by the ruling party.
iii Decisive role in making laws- Formally, laws are debated and passed in the legislature. But since
most of the members belong to a party, they go by the direction of the party leadership,
irrespective of their personal opinions.

73
 ELECTIONS

iv Form and run governments- The big policy decisions are taken by political executive that comes
from the political parties. Parties recruit leaders, train them and then make them ministers to run
the government in the way they want.
v Role of opposition- The losing parties have a crucial role to play, by voicing their views and
criticizing the government. Opposition parties also mobilise opposition to the government.
vi Shape public opinion- Parties raise and highlight issues. Many of the pressure groups are the
extensions of political parties among different sections of society. Parties sometimes also launch
movements for the resolution of problems faced by people.
vii Provide people access to government machinery and welfare schemes- implemented by the
government. Parties have to be responsive to people’s needs and demands; else people can reject
those parties in the next elections.

The rise of political parties is directly linked to the emergence of representative democracies. As we
have seen, large societies need representative democracy. As societies became large and complex, they
also needed some agency to gather different views on various issues and to present these to the
government. Political parties fulfill these needs that every representative government has.

HOW MANY PARTIES ARE NEEDED?

In a democracy any group of citizens is free to form a political party. In this formal sense, there are a
large number of political parties in each country. More than 750 parties are registered with the Election
Commission of India.

 In some countries, only one party is allowed to control and run the government. These are called
one-party systems. Ex – in China, only the Communist Party is allowed to rule.
 Any democratic system must allow at least two parties to compete in elections and provide a fair
chance for the competing parties to come to power. In some countries, power usually changes
between two main parties. Several other parties may exist, contest elections and win a few seats in
the national legislatures. But only the two main parties have a serious chance of winning majority of
seats to form government. Such a party system is called two-party system. The United States of
America and the United Kingdom are examples of two-party system.
 If several parties compete for power, and more than two parties have a reasonable chance of coming
to power either on their own strength or in alliance with others, we call it a multiparty system.

In India, we have a multi-party system. The governments are formed by various parties coming together
in a coalition. When several parties in a multi-party system join hands for the purpose of contesting
elections and winning power, it is called an alliance or a front. It is difficult to decide which system
works better. Party system is not something any country can choose. It evolves over a long time,
depending on the nature of society, its social and regional divisions, its history of politics and its system
of elections. These cannot be changed very quickly. Each country develops a party system that is
conditioned by its special circumstances. For example, if India has evolved a multiparty system, it is

74
 ELECTIONS

because the social and geographical diversity in such a large country is not easily absorbed by two or
even three parties. No system is ideal for all countries and all situations.

Every party in the country has to register with the
Election Commission. While the Commission treats
all parties equally, it offers some special facilities to
large and established parties. These parties are given
a unique symbol – only the official candidates of that
party can use that election symbol. Parties that get
this privilege and some other special facilities are
‘recognised’ by the Election Commission for this
purpose. That is why these parties are called,
‘recognised political parties’.
NATIONAL PARTY: A party that secures at
least six per cent of the total votes in Lok
Sabha elections or Assembly elections in four
States and wins at least four seats in the Lok
Sabha is recognised as a national party.
STATE PARTY: A party that secures at least
six per cent of the total votes in an election to
the Legislative Assembly of a State and wins
at least two seats is recognised as a State
party.

All India
Trinamool
Congress
(AITC)
National Bahujan
Congress Samaj Party
Party (NCP) (BSP)

NATIONAL
Indian PARTIES Bharatiya
National
Janata Party
Congress
(BJP)
(INC)

Communist Communist
Party of India- Party of India
Marxist (CPI- (CPI)
M)

CHALLENGES TO POLITICAL PARTIES

 Lack of internal democracy within parties;

 Dynastic succession;
 Growing role of money and muscle power in parties, especially during elections; and

75
 ELECTIONS

 Very often parties do not seem to offer a meaningful choice to the voters.

76
 ELECTIONS

RECENT REFORMS FOR PARTIES

1. Anti-defection law to prevent instability and corruption in politics.

2. Supreme Court mandated that every candidate who contests elections must file an ‘affidavit’
giving details of his property and criminal cases pending against him.
3. The Election Commission passed an order making it necessary for political parties to hold their
organisational elections and file their income tax returns.

SUGGESTIONS FOR REFORM

 A law should be made to regulate the internal affairs of political parties. It should be made
compulsory for political parties to maintain a register of its members, to follow its own
constitution, to have an independent authority, to act as a judge in case of party disputes, to hold
open elections to the highest posts.
 It should be made mandatory for political parties to give a minimum number of tickets, about
one-third, to women candidates. Similarly, there should be a quota for women in the decision
making bodies of the party.
 There should be state funding of elections. The government should give parties money to support
their election expenses.
 People can put pressure on political parties. This can be done through petitions, publicity and
agitations. Ordinary citizens, pressure groups and movements and the media can play an
important role in this.
 Political parties can improve if those who want reform join political parties. The youth and
newer generations must be motivated towards the cause of growth, prosperity and service for the
nation.

77
 ELECTIONS

11. LOCAL GOVERNMENT

A. MEANING AND SIGNIFICANCE

Local government is about government closest to the common people. It is the government at the village
and district level. It involves the day-to-day life and problems of ordinary citizens and believes that local
knowledge and local interest are essential ingredients for democratic decision making. They are also
necessary for efficient and people-friendly administration. It is convenient for the people to approach the
local government for solving their problems both quickly and with minimum cost.
Strong and vibrant local
governments ensure both active
participation and purposeful
accountability. Common people are
more familiar with their local
government than with the government
at the State or national level. They are
also more concerned with what local
government does or has failed to do as
it has a direct bearing and impact on
their day-to-day life. Thus,
strengthening local government is like
strengthening democratic processes.

B. GROWTH OF LOCAL GOVERNMENT IN INDIA

a) It is believed that self-governing village communities existed in India from the earliest times in
the form of ‘sabhas’ (village assemblies). In the course of time, these village bodies took the
shape of Panchayats (an assembly of five persons) and these Panchayats resolved issues at the
village level. Their role and functions kept on changing at different points of time.
b) In modern times, elected local government bodies were created after 1882. Lord Rippon, who
was the Viceroy of India at that time, took the initiative in creating these bodies. They were
called the local boards. Following the Government of India Act 1919, village panchayats were
established in a number of provinces. This trend continued after the Government of India Act of
1935.
c) Mahatma Gandhi had strongly pleaded for decentralisation of economic and political power. He
believed that strengthening village panchayats was a means of effective decentralisation.
d) When the Constitution was prepared, the subject of local government was assigned to the States.
It was also mentioned in the Directive Principles as one of the policy directives.
e) Community Development Programme in 1952 sought to promote people’s participation in local
development in a range of activities. In this background, a three-tier Panchayati Raj system of

78
 ELECTIONS

local government was recommended for the rural areas. Some States (like Gujarat, Maharashtra)
adopted the system of elected local bodies around 1960.
f) After 1987, a thorough review of the functioning of local government institutions was initiated.
In 1989 the P.K.Thungon Committee recommended constitutional recognition for the local
government bodies. Local governments got a fillip after the 73rd and 74th Constitution
Amendment Acts.

C. 73RD AND 74TH AMENDMENTS OF 1992

The 73rd Amendment is about rural local governments (which are also known as Panchayati Raj
Institutions or PRIs) and the 74th amendment made the provisions relating to urban local
government (Nagarpalikas). The 73rd and 74th Amendments came into force in 1993.
 PANCHAYATI RAJ INSTITUTIONS

Zila Panchayat
• Covers the entire rural area of the District
Mandal Panchayat or Taluka or Block
• Intermediary level body; need not be constituted in smaller states
Gram Panchayat
• Covers a village or group of villages

 The amendment made a provision for the mandatory creation of the Gram Sabha. The Gram
Sabha would comprise of all the adult members registered as voters in the Panchayat area. Its
role and functions are decided by State legislation.
 All the three levels of Panchayati Raj institutions are elected directly by the people. The term of
each Panchayat body is five years. If the State government dissolves the Panchayat before the
end of its five year term, fresh elections must be held within six months of such dissolution.
 One third of the positions in all panchayat institutions are reserved for women. Reservations for
Scheduled Castes and Scheduled Tribes are also provided for at all the three levels, in proportion
to their population. If the States find it necessary, they can also provide for reservations for the
backward castes (OBCs). Further, reservation of one-third of the seats for women is not merely
in the general category of seats but also within the seats reserved for Scheduled Castes,
Scheduled Tribes and backward castes.
 Twenty-nine subjects, which were earlier in the State list of subjects, are identified and listed in
the Eleventh Schedule of the Constitution. These subjects are to be transferred to the Panchayati
Raj institutions. Each State decides how many of these twenty-nine subjects would be transferred
to the local bodies.

79
 ELECTIONS

 The provisions of the 73rd amendment

were not made applicable to the areas
inhabited by the Adivasi populations in
many States of India. In 1996, a separate
act was passed extending the provisions
of the Panchayat system to these areas.
The new act protects the rights of these
communities to manage their resources in
ways acceptable to them.

The State government is required to

appoint a State Election Commissioner
who would be responsible for
conducting elections to the Panchayati
Raj institutions. Earlier, this task was
performed by the State administration
which was under the control of the State
government. Now, the office of the
State Election Commissioner is
autonomous like the Election
Commissioner of India.

 The State government is also required to appoint a State Finance Commission once in five years.
This Commission would examine the financial position of the local governments in the State. It
would also review the distribution of revenues between the State and local governments on the
one hand and between rural and urban local governments on the other.

 NAGARPALIKAS OR URBAN LOCAL BODIES

The Census of India defines an urban area as having:

(i) a minimum population of 5000;
(ii) at least 75 per cent of male working population engaged in non-agricultural occupations
and
(iii)a density of population of at least 400 persons per sq. km.
*As per the 2001 census, nearly 28% of India’s population lives in urban areas.

 All the provisions of the 73rd amendment relating to direct elections, reservations, transfer of
subjects, State Election Commission and State Finance Commission are incorporated in the 74th
amendment also and thus apply to Nagarpalikas. The Constitution also mandated the transfer of a

80
 ELECTIONS

list of functions from the State government to the urban local bodies. These functions have been
listed in the Twelfth Schedule of the Constitution.

D. IMPLEMENTATION OF 73RD AND 74TH AMENDMENTS

All States have now passed a legislation to implement the provisions of the 73rd and 74th amendments.
During the ten years since these amendments came into force (1994- 2004) most States have had at least
two rounds of elections to the local bodies. Today there are nearly 500 Zilla Panchayats, about 6,000
block or intermediary Panchayats, and 2,50,000 Gram Panchayats in rural India and over 100 city
Corporations, 1400 town Municipalities and over 2000 Nagar Panchayats in urban India.
 More than 32 lakh members are elected to these bodies every five years. Of these, at least 10
lakhs are women. The presence of these local institutions is by itself a significant achievement
and would create an atmosphere and platform for people’s participation in government.
 The provision for reservation for women at the Panchayats and Nagarpalikas has ensured the
presence of a significant number of women in local bodies. As this reservation is also applicable
for the positions of Sarpanch and Adhyaksha, a large number of women elected representatives
have come to occupy these positions. There are at least 200 women Adhyakshas in Zilla
Panchayats, another 2000 women who are Presidents of the block or taluka panchayats and more
than 80,000 women Sarpanchas in Gram Panchayats. In many cases, they have brought a new
perspective and a greater sensitivity to discussions at local bodies.
 While reservations for Scheduled Castes and Tribes are mandated by the constitutional
amendment, most States have also made a provision to reserve seats for Backward Castes. As the
Indian population has 16.2 per cent Scheduled Castes and 8.2 per cent Scheduled Tribes, about
6.6 lakh elected members in the urban and local bodies hail from these two communities. This
has significantly altered the social profile of local bodies. These bodies have thus become more
representative of the social reality they operate within.

CRITICISM: The experience with the functioning of local government in the past
decade has shown that local governments in India enjoy limited autonomy to perform
the functions assigned to them. Many States have not transferred most of the subjects to
the local bodies. This means that the local bodies cannot really function in an effective
manner. Therefore, the entire exercise of electing so many representatives becomes
somewhat symbolic. Some people criticise the formation of the local bodies because this
has not changed the way in which decisions are taken at the central and the State level.
Local bodies have very little funds of their own. The dependence of local bodies
on the State and central governments for financial support has greatly eroded their
capacity to operate effectively. While rural local bodies raise 0.24% of the total revenues
collected, they account for 4% of the total expenditure made by the government.

81