PSIR

Paper 1B
Notes

By
Mridul Shivhare, IAS
 Table of Contents

1. Perspectives on Indian National Movement: Liberal, Socialist, and Marxist; Radical

humanist and Dalit.

2. Salient Features of the Indian Constitution:

a) The Preamble

b) Fundamental Duties

c) Directive Principles of state policy

d) Parliamentary System and

e) Amendment Procedures and Basic Structure doctrine.

f) Judicial Review

3. Principal Organs of the Union Government: Envisaged role and actual working of the
Executive, Legislature, and Supreme Court.

4. Principal Organs of the State Government: Envisaged role and actual working of the
Executive, Legislature, and High Courts.

5. Grassroots Democracy: Panchayati Raj and Municipal Government; the significance

of 73rd and 74th Amendments;

6. Statutory Institutions/Commissions: Election Commission, Comptroller and Auditor

General, National Commission for Scheduled Castes, National Commission for
Scheduled Tribes, National Commission for Women; National Human Rights
Commission,

7. Federalism: Constitutional provisions; changing nature of center-state relations;

integrationist tendencies and regional aspirations; inter-state disputes.

8. Planning and Economic Development: Nehruvian and Gandhian perspectives; the role
of planning and public sector; Green Revolution, land reforms and agrarian relations;
liberalization and economic reforms.
 9. Caste, Religion, and Ethnicity in Indian Politics.

10. Party System: National and regional political parties, ideological and social bases of
parties; patterns of coalition politics; Pressure groups, trends in electoral behavior;
changing socio-economic profile of Legislators.

11. Social Movements: Civil liberties and human rights movements; women’s
movements; environmentalist movements.

Following topics of Paper 1B are not covered in these notes-

1. Political Strategies of India’s Freedom Struggle: Constitutionalism to mass

Satyagraha, Non-cooperation, Civil Disobedience; Militant and
revolutionary movements, Peasant and workers’ movements. (covered in
modern history notes)

2. Making of the Indian Constitution: Legacies of the British rule; different social and
political perspectives.

3. Fundamental Rights

4. Grassroot movements.

5. Finance Commission, Union Public Service Commission, National Commission for

Minorities, National Backward Classes Commission
 History

Perspectives on INM
Colonial Perspective on INM
JOHN STRACHEY— 1st & most essential thing to learn about India is that there is not & never was
any country of India
John SEELEY—India is not a political name, but “a mere geographical expression”.
Valentine Chirol (Indian Unrest)— India was a ‘mere Geo expression’ & even this Geo was forged by
British—India is ‘an antithesis to all that the word “national” implies
Colonial discourses considered India’s cultural, linguistic & religious diversity as a barrier to for dev
of Indian nationhood.

NATIONALIST VIEWS
LIBERAL Nationalists
Accepted that India was not yet a formed nation despite common history, Geo, culture.
But they denied that India could not become a nation.
They regarded India as ‘a nation-in-the-making’ (S.N Banerjee)
They argued that India was old civilization, but a new nation.
Acc to them, the task of INM was to nutture nationhood
Cultural Nationalists
Radha Kumud Mookerji in Fundamental Unity of India (1914)—idea of Indian Nationalism
existed since ancient times. Lajpat Rai asserted in his Young India that ‘fundamentally India has
been a nation for the last 2,000 years’
Lajpat Rai asserted in Young India that India has been a nation for the last 2,000 years’
Aurobindo held that India was always a nation. Nation has a spirit and spirit never dies.
Bipan Chandra—INM Was a result of spread & realization of idea or spirit of nationalism’
R.N Tagore—India possessed a much broader civilizational & cultural unity.
Bose—India possessed ‘a fundamental unity’ despite endless diversity.
Ranajit Guha—criticised 3 main trends in Indian historiography –(Colonialist, Nationalist, Marxist)—for
not incorporating subaltern domain of politics

Liberal perspective
Highlighted imp of modern Western ideas in making India a nation state
SN Banerjee—India was a nation in making.
Considered British rule as
‘Blessing in disguise’—Intro virtues of law & order, liberty & justice
Providential nature
‘Sine qua non’ for India’s progress as a civilized nation.
Criticism by by cultural nationalists
 Ghosh—India is not a nation in making, rather India was always a nation and is like a immortal
spirit due to strength of God in it.

Marxist perspective
Nature
Perceive that there was a basic contradiction b/w imperialism & Indian society
Informed by a class approach related to politics & ideology. They were critical of both colonialist as
well as nationalists.
Their analysis is based on understanding role of economic factors & classes in INM
Although INM was an exp of antagonism b/w Indians & imperialist Govt, it was a mov either directly
influenced by bourgeoisie or indirectly working in direction of capitalist dev.
Although various classes participated but its basic character remained bourgeois.
What they says?
Dev on ideas of Marx, who himself has analysed 1857 Revolt—called it as a revolt by feudal
elements. He considered nationalism as an ideology of ‘Upper-class’ indigenous bourgeoisie.
Benedict Anderson considers nation as an invented concept to serve needs bourgeoise class.
M.N. Roy—‘India in transition’—
Referred congress as a bourgeoise party & Gandhi as a bourgeoise leader.
Calls Indian nationalism as political ideology of native capitalism dev in the shadow of
imperialism.
AR Desai—founder of Marxist historiography on Indian nationalism—
criticised class character of Indian nationalism
calls INM as “bourgeoise mov”—mov of Indian elite exclusively—Interests of peasantry & other
lower-class people were ignored by nationalist elite.
Instead of working for masses, used masses to advance interest of bourgeoisie class
‘Peaceful & bloodless’ approach was adopted by nationalists as ‘a basic guarantee for interests
of propertied classes
Masses never became an independent political force & their activities were rigidly controlled
from the top.
R.P. Dutt (India Today)—
Safety valve theory
INC leadership remained in hands of propertied classes—They prevented any radicalisation of
mov
Calls Gandhi as ‘the mascot of bourgeoisie’.
NCM was withdrawn bcz masses were becoming too militant & a threat to propertied classes
Congress had a ‘2-fold character’—On one hand contradictions with imperialism & on the
other hand, its fear of a militant mob made it to co-op with imperialism.
INC played a vacillating role throughout INM
 Moderate phase was dominated by ‘big bourgeoisie’ while extremist phase by ‘urban petty
bourgeoisie’.

However this instrumentalist approach was criticized by later Marxists— Sumit Sarkar & Bipin Chandra.
SN Mukherjee—Indian nationalism was a complex process with multiple layers & cannot be
understood by a reductionist class analysis.
Sumit Sarkar (Modern India)—
INC had no conscious or planned strategy against masses.
Marxist interpretation suffers from ‘defect of assuming too direct an economic motivation for
political action & ideals’.
Actions of nationalist leaders could be better understood by using Trotsky’s concept of
‘substitutism’ whereby intelligentsia acts as proxy for passive social forces with which it had
little organic connection
Gandhi was not a bourgeois tool although his leadership had ‘a certain coincidence of aims
with Indian business interests at specific points’
Bipin Chandra—
INM was ‘a bourgeois democratic mov, that is, it rep interests of all classes but under the
hegemony of industrial bourgeoisie’.
He says ‘the hegemony of bourgeoisie over INM was even more firmly clamped down in
Gandhian era than before’.
For resolving primary contradiction b/w Indians & British rule, other secondary contradictions
based on classes, caste etc were compromised & all sections came together under nationalist
ideology.
Nationalist leaders were acting above interests of their narrow class or group
Considers freedom struggle led by INC as the most spectacular mass mov

Dalit perspective
Dalit intelligentsia was critical of lack of commitment of INC to share power with Dalits & expressed
doubt about commitment of upper caste leadership to bring social equality.
Ambedkar condemned notion of a nation in a caste-divided society & felt that oppressive
brahmanical hegemony was worse than foreign rule. He held that INM was wrongly aimed resulting
in a life of contradiction of political democracy w/o social democracy which is sine qua non for a
nation to exist.
Dalit scholars like Phule acknowledged +ve aspect of colonial rule—‘Peshwa Raj’ was worse than
British Raj.
Ambedkar (Book—‘What Congress & Gandhi had done to Untouchables’)—
Gaining political freedom has no meaning unless internal oppression is abolished + dignity of life &
equal rights ensured to all its citizens.
Supported British for sharing power as upper caste leaders were not inclined to share power with
 Dalits.
Gail Omvedt—Analyesed Dalit mov in MH,AP etc ‘Dalit mov & overall anti-caste mov were a crucial
expression of democratic rev in India, more consistently democratic & end more consistently
“nationalistic” – than the elite controlled INC’
Relevance of Dalit perspective of INM
Reject Nationalist view that INM was a broad-based & all-inclusive mov
INM failed to achieve its objective of Nation making—creation of a qualitatively diff society, devoid
of caste antagonism
Rejected the very basis of INM that India was a nation
Criticism of Dalit perspective
For being Narrowly conceived.
Ambedkar is criticised as anti-national by nationalists & right wing historians.

ALL these approaches r nothing more than sectional at least segmented in their nature. One cannot
grasp the entire gamut of INM by using anyone of them singularly.
Preamble
Introduction
‘Preamble’ refers to the introduction or preface to the Constitution that
embodies the fundamental values, guiding principles and basic philosophy of
the constitution
It contains the summary, essence and spirit of the Constitution.
It contains the grand & noble vision of C.A and reflects the dreams &
aspirations of founding fathers. SC held that Preamble is the key to
understanding the mind of constitution makers.
It is based on the ‘Objectives Resolution’, drafted & moved by Nehru
Commentaries
A.K Iyer--‘The Preamble expresses what we had thought or dreamt so long’.
K.M. Munshi-- Preamble is the ‘horoscope of our sovereign democratic
republic’.
Pt Thakur Das Bhargava-- ‘The Preamble is the most precious part of
Constitution. It is the soul of Constitution. It is a key to the Constitution. It is a
jewel set in the Constitution'
Ernest Barker-- Described the Preamble as the ‘key-note’ to the Constitution.
Nani Palkhivala--called Preamble as the ‘identity card of the Constitution.’
Significance of PREAMBLE
It is a majestic expression of constitutional morality
It embodies the ultimate and conclusive objective of the framers
It highlights--
1. Source of authority of the Constitution-- The phrase "We the people of
India" shows that Constitution have originated out of collective will of
Indians-- Sovereignty resides in and flows from the people
2. Nature of Indian State--Sovereign, socialist, secular. democratic &
republican polity
3. Objectives of the Constitution-- Justice, liberty, equality & fraternity
Philosophical key to constitution
1. Minerva Mills case--Edifice of our Constitution is built upon the concepts
crystallised in Preamble
2. Golaknath Vs State of Punjab--Preamble is all about the democratic
aspirations & ideals of the people of India
3. J. B. Kriplani-- Preamble not only contains legal & political principles, but
also the great moral & spiritual principles
 Guide for the state in its functioning whether it is the socialist nature or secular
government functioning.
Amplifies DPSPs
Beacon light for judiciary
PREAMBLE AS PART OF THE CONSTITUTION
Berubari Union case (1960)-- Preamble shows the general purposes behind
several provisions in Constitution, and is thus a key to the minds of
Constitution makers. It can be a guiding light for interpretation of any
ambiguous article. But Preamble is not a part of the Constitution.
Kesavananda Bharati case (1973)--
1. SC held Preamble as a part of the Constitution.
2. Preamble can be amended, subject to the condition that no
amendment is done to ‘basic features’.
3. Constitution should be read and interpreted in the light of grand and
noble vision expressed in the Preamble.
LIC of India case (1995)-- Preamble is an integral part of the Constitution.
Conclusion
It will not be wrong to say that the spirit or the ideology behind the
Constitution is sufficiently crystallized in the preamble.
It embodies the Soul, Conscience & Spirit of the Constitution
Important words in the Preamble
"We the people of India"-- It means that Constitution is created by & for the
people of India,
Sovereign--India is an independent state and is free to conduct its own affairs
Socialist--
1. Even before 42nd CAA, Constitution had socialist content in form of DPSPs
2. Congress adopted resolution to est a ‘socialistic pattern of society’ in its
Avadi session (1955)
3. "Democratic socialism"--Mixed economy + Aims to end poverty,
ignorance, disease & inequality of opp
4. However LPG diluted the socialist credentials of Indian State.
Secular-- Declared as part of basic structure in S. R. Bommai Vs UoI
Democratic--
1. Est a form of Govt which derives its authority from the will of the people.
2. Used in broader sense-- Not only political democracy but also S-E
democracy.
 3. Ambedkar-- Political democracy cannot last unless there lies at the base
of it social democracy. What does social democracy mean ? It means a way
of life which recognises liberty, equality and fraternity.
Republic--
1. Head of state is elected for a fixed term
2. Political sovereignty is vested in the people and not in a single individual
like a king
3. Absence of any privileged class & hence all public offices being opened to
every citizen without any discrimination.
Justice (S, E, P-- Russian Revolution)
1. Social justice-- Equal treatment of all citizens w/o any social distinction
based on caste, colour, race etc
2. Economic justice-Non-discrimination on basis of economic factors +
Elimination of glaring inequalities in wealth, income and property.
3. Political justice-- All citizens should have equal political rights, equal access
to all political offices & equal voice in Govt government. The ideal of
justice–social, economic and political–has been taken from the (1917).
Liberty
1. Absence of restraints on the activities of individuals
2. Providing opp for dev of individual personalities
Equality
1. Absence of special privileges to any section of the society
2. Equal opp for all individuals without any discrimination.
Fraternity
1. Promoted by the system of single citizenship.
 Fundamental Duties
Introduction
Moral & socio-civic duty that every R/S citizen should follow & practice.

 42nd CAA--Part IV A-- Inspired from Russian Constitution

 Indian tradition of “kartavya”
 Their imp recog by SC in Re Ramlila Maidan Incident case & AIIMS Students Union
Vs AIIMS

Commentaries— Rights & Duties Go Hand in Hand—

 Gandhi—“Rights are inherent in ‘Embroyinic sense’ in the duties performed.
 Laski—One man’s right is also his duty.
 UDHR (Art 29)— “Everyone has duties to community in which alone free & full dev
of his personality is possible.”
 Venkaih Naidu—FRs are critically dependent on discharge of FDs since both flow
from each other.

Importance & Present Relevance of FDs

 FDs-->“Responsible Citizenship”-->Democratic Deepening--Democratic
consciousness of vigilant citizenery determine the calibre of any
democracy.
 Will propel India's dev trajectory
 FRs--strengthens Democracy, FDs-- Imp to strengthen society—Harmony, unity,
fraternity & Tolerance
1. Art 51A(e)—To forge common brotherhood
2. Art 51A(g)—To protect & improve env—But severe pollution & CC
in India
3. Art 51A(h)—Scientific temper, secular attitude—But social prejudices,
growing intolerance
 Preserve composite culture
 Prez Kovind— Crimes against women is the menifestation of our failure of fulfilling
FDs.
 In M.C. Mehta vs UoI— SC introduced compulsory learning of lessons on protection
& improvement of env in all edu inst as a part of FD under Art 51-A (g).
 Way forward
 Promote culture of duty & a “duty-bound lifestyle” by Introducing FDs in curriculum
& new KYC of Modi
 Venkaih Naidu— “Let us perform our duty to make India mighty”
 Jus Kurien Joseph--FDs constitute the conscience of our Constitution; they should
be treated as constitutional values that must be propagated by all citizens.
 Directive Principles of State Policy
Introduction

 Ideals that State should keep in mind while formulating policies & enacting laws--
‘Instrument of Instructions’ to State in L, E & A matters.
 DPSPs are the principles of Rajya Dharma.
 Based on Phil of Democratic Socialism
 Ambedkar—

o ‘Novel features’ of Indian Constitution.

o DPSPs along with FRs contain the philosophy of Constitution & is the soul of
the Constitution.
 Granville Austin—
o DPSPs & FRs r the ‘Conscience of the Constitution’-- They connect India’s
future, present & past & are the Tools to realise aim of social revolution.

Origin

 Granville Austin—“DPSPs had their origins in INM, which strove to achieve social
welfare as goal of independent Indian State.”
 Nehru Report.
 Sapru Report of 1945– Distinction b/w justiciable & Non-justiciable rights.

Features

o Constitute a very comprehensive S, E & P Prog for a modern democratic State.

o Aimed at realising high ideals of justice, liberty, equality & fraternity enshrined
in Preamble.
o Embody the concept of a ‘welfare state’ & seek to est S & E democracy in India.
o Consists of the larger goal of Constitution-- Egalitarian society while preserving
Human Dignity

Criticisms of DPSPs

 Lack of Legal sanction— Nothing more than a set of “Moral precepts"

o KT Shah— “Pious superfluities” + compared them with bank cheque to be
payable only when resources of bank permits
o TT Krishnamachari—“Dustbin of sentiments"
o Ivor Jennings— ‘Pious aspirations’.
 Constitutional Conflict — B/w Centre & states, Prez & PM, Governor & CM

K Santhanam— Centre can give directions to state to implementation of DPs, and in case of
non-compliance, can dismiss state govt. (Destroys federal structure)

 Vague & Illogically arranged— Ivor Jennings—DPSPs have no consistent

philosophy.

Are DPSPs unnecessary appandages to the Constitution?

  Mere Non-enforceability do not makes them Unnecessary Appandages—

o Sir B.N Rau — These “Moral precepts”, atleast have an “Educative value”—
remind those in power that the very goal of Indian Republic is Welfare State.
o Dr.Ambedkar— Political sanctions
o Beacon light for Courts

Role played by SC in realising DPSPs

1. Unni Krishnan vs State of AP

2. Protection of Monuments—Taj Trapezium Case
3. Enforcing Env. safety: Banning crackers, setting up EPCA.
4. In Rajoo Ramakant vs state of MP, SC held that free legal aid to poor’s is
provided as mentioned in Art 39A.

However, at instances SC itself dilutes the spirit of the DPSPs, by Violating Art 50.
Should DPSPs be made enforceable? ---Not necessarily.

 They have been otherwise implemented by successive Govts.

 Their provisions are not very secular, as Granville Austin pointed out “Art 48 shows
that Hindu sentiment predominated the C.A.”
 Prof Vankatarangaiah argued that S-E rights cannot be accomplished through
decrees of Courts, rather they requires positive action from the state.

Relevance of DPSPs in the era of liberalization & globalization.

They r Anti-thetical

 Neo-liberalism is based upon competition & consumerism--

o less regards to Env, gender sensitivity, labour concerns etc--which goes

against the spirit of DPs
o ↑ Inequalities-- Oxfam--PBM--Plutocracy
o ↑ Regional disparities
o Declining rank in HDI, GGR

 Rolling back of the state--Dilution of S&E rights + strengthening of property rights

DPSPs r still relevent--Bedrocks for good governance & S-E justice in the society.

1. Sustainable development--Protect Env

2. S&E equity-- Dev as Freedom--Human capital & Social capital
3. For Inclusive growth, Growth with Justice & BRD--SS, SV. SV
4. To reduce inequities through welfare schemes etc.
5. Allows citizen to fix Govt’s A/C
6. To provide a humane work milieu, equal wages for equal work & increase stds
of living of workers, protect labour rights.
7. Empowerment of Women & Marginalised
8. For Ensuring social security of citizen in globalisation era.
Govt steps in Post LPG

1. 73rd, 74th & 86th CAA

2. MUDRA
3. NITI AYOG

Way Forward

 ‘Fundamentalization’ of Directive Principles

 They are indispensable as India is yet to become full fledged welfare state & est vibrant
S-E Democracy--Political Democracy will be meaningless unless there lies at the base
of it Social Dem
 Parliamentary Committes
Intro

 Their imp can be gauged as Woodrow Wilson—“Congress in session is Congress on

public exhibition, while Congress in its committee rooms is Congress at work.”
 Brain of Parliament + forms Intellectual compass for good governance in the country.

Role & Imp of PCs

 "Miniature Parliaments"—
o Deliberative core of Parl—Year round forum
o Strengthens Parl A/C of Govt
o Lawmaking—Detailed scrutiny of bill + solicit domain expert advice & elicit
public opinion
 Forum for building—
o cross party & Inter-Ministerial consensus on legislation
o ↑ engagement with Opposition & relevant stakeholders
 Financial Prudence & 3Es--E.C—scrutiny of budget estimates—Help in Economic
growth
 Work in non-partisan way— Not bound by populistic demands + closed door
Meetings + members not whip bound
 Ensure Answerability of Executives—Committee on Govt Assurance

Present perspetive— Gradual marginalisation

 Bypassing PCs— Only 25% bills referred in 16th LS , (71% in 15th & 60% in 14th) +
Bypassed in Matters of Great Public Imp— 370, Agri bills
 Politicization of proceedings— MPs follow party lines + Declining attendance of MPs
 Ordinance route, Money bill, Decline of Parl
 Short tenure of 1 yr—so Lack of specialisation & expertise

Way

 NCRWC—All Bills shd be referred + Avail research support to PCs + 3 new

committees be set up—On National Economy, To scrutinise CAB, On Legislations
 Venkaiah Naidu—Longer tenure for MPs in committees—To ↑ expertise &
specialisation

Public Accounts committe

Intro—

 Parl’s core financial oversight body

Imp of PAC / How it help in A/C?

 Watchdog of public purse— Financial a/c of Govt by—

o Examining CAG’s audit report on appropriation & finance a/c + on execution
of projects & prog by various ministries-- reports its finding to Parl.
 o Examining public exp not only from legal & formal point of view but also
from point of view of economy, prudence, wisdom & propriety
 It scrutinise the appropriation account to verify:
o If the funds were legally available.
o If a competent authority sanctioned it’s use.
o If the rules laid by procedure were followed.

Issues & Limitations

 Not able to enforce a/c of Govt in true sense bcz—

o Even if it brings out irregularities in public exp—No mechanisms to enforce

them—Its recommendations are only advisory in nature
o Post mortem work—Examines Exp which has already been done by Govt
 However PAC at times, through its criticism of inefficient public exp creates a strong
public opinion against Govt— Pressurises Govt to rectify defects

Estimates committee
Its role

o To examine the budgetory estimates & suggest economies in public exp.

o Suggests alternative policies in order to bring about efficiency & economy in
adm.
o Brings to Parl’s notice—ineffectiveness of policy & need for changes in it—
Prevent executive from misappropriation or diversion of funds.

Issues & Limitations

o Post mortem—can only examine budget after it is voted upon

o Nowhere the power to question policies of Parl has been conferred upon it.
o Recommendations are advisory in nature

Way Forward:

1. Need for full-time, sector-specific research staff.

2. Est a Parliamentary budget office—↑ Parl’s financial oversight.
1. CAG performs retrospective audits, only after the fact— But PBO will provide
a prospective, forward-looking economic & fiscal projections
2. ↑quality of debate & scrutiny

Parliamentary privilages
Arguments for not legislating

 Proceedings r very dynamic—thus FoS & vote necessary to express sovereign will of
people
 Codification will—

o Create a frame that cannot be crossed.

o subject to judicial scrutiny—impinge on SoP.
 o Committee on Privileges of LS (2008)— No

Arguments for Codifying

 Rampant misuse—

o To hide misdeeds like corruption. Ex—SC in P.V. Narasimha Rao case held
that bribe takers for raising question & voted r immune from prosecution
o Misused as a tool against critics—civil society & media—violates FoSE. Ex—
In KN, journalists sent to jail for for writing defamatory articles against
legislators
o Gross misbehavior—Violence etc—go unpunished for anything said or done
in House

Why such misuse—

1. No rules on what constitutes this

2. Judiciary Cannot interfere (Art 121)
3. Also it allow politicians to become judges in their own—Conflict of interest +
violates R2E

 Fault lies in comparison with British Parl—In India Constitution is supreme, not
Parliament. Thus too wide impunity impinges on constitutionalism.
 To remove vagueness, uncertainty

Way forward

 Est an independent committee to scrutinise house proceedings on regular basis

 Though they are must in P.D, yet check & regulation needed—Self-regulation by
Houses
1. Punish MPs for hateful speeches & derogatory remarks
2. Be subjected to R.R—Public order, incitement of offence or defamation

Conclusion

 CA envisaged system of uncodified privileges as only a temporary measure— so

codify clearly defining privileges, conditions of breach & penalties.

Ex—Australia passed PP Act 1987

 Restriction on FoSE of The 'sovereign people of India' While free speech to their rep
needs to be revisited to est a greater balance b/w FRs & PP

Role of Opposition
Introduction

 Integral part of “P.D”—Ivor Jennings—"If there is no opposition, there is no

democracy”
  Walter Lippman—In a democracy, Opposition is not only constitutional but also
indispensable.
 Vote share of Govt—44.2%, whereas vote share of all opposition parties combined is
55.8%— Thus this large section should legitimately be rep
 SALOP Act 1977-- Gives Statutory recognition to LoP + accords him a status
of Cabinet minister.

Evolution of Opposition

 Congress system— Opposition was at the margins— its status was like a Pressure
group
 Coalition era— Its stature increased
 Present era—2nd Dominant party system-- LoP not appointed

Significance of Opposition

 Lowell—Opposition is a “Bulwark against tyranny of a fanatical majority"—↑ A/C &

legislative oversight
 Constructive criticism of Govt + To ↑ ethos of constitutionalism
 For Bipartisanship & neutrality in App of— CVC, CBI, CIC, Lokpal etc.
 Significance of LoP is quite evident as, Ivor Jennings calls LoP as “Alternative
PM”.

Critical

 Rajni Kothari— Opp in India continues to be poorly organised & a divided force
 Opp More often use Parl as a site of protest
 Reflexive anti-govt approach— ↑“ordinance raj” & contributed to “Decline of
Parliament"

Reforms needed

 If no party secures 1/10 seats- Then leader of largest opp party, be recognised as LoP.
 Strenghten role of opposition:-

o Be given space in deciding business of house

o Marking out days when opp determine topics to be discussed—UK Parl
reserves 20 days/yr
o Inst of "Shadow cabinet" can be formed

 Vice prez’s 15-Point Reforms Charter for Parliament

o Govt shd +vely act on concerns of Opp & need for R/S & constructive opp

Conclusion

 For success of P.D, an effective Opposition is a categorical imperative. Thus, If no

Opposition exists, one should be created.
 Parl ethics shd be adhered to, whereby Opp should have a say & Govt should have a
way.
 Anti defection law
Need

 For 'combating the evil of political defections'—prevent “Aaya Rams & Gaya Rams”

Issues

 Loopholes enables formation of Govt by the Defectors, Govt of the Defectors &
Govt for the Defectors.
 Defection vs Dissent-- Restricts a legislator from voting acc to conscience + impedes
legislative oversight
 Wholesale Resignation—> Politics of sequestration
 It is often flouted in spirit, if not in letter.

o Legislatures switch sides using lacuna in 2/3 clause

o Speaker’s inertia & legislators’ resignations.

 Partisan role of Speaker-- Delay etc

 Violate democratic rights of FoS, vote & Conscien of elected MPs & MLAs—
excessively empowers Party high command (Kihota Hollohon case & Parkash
Singh Badal Vs UoI— ADL does not violate their freedom of speech, vote &
conscience).
 It has rendered Individual positioning of MP toothless—Converts MPs from Rep of
people to agents of party-- Parl A/C decreases-- "Hollowing out of legislature

Way forward w.r.t Anti-Defection Law

 Dinesh Goswami Committee—It should be applied only to confidence & no-

confidence motions
 NCRWC—

1. Question of disqualification be decided by President on advice of ECI

2. Defectors should be barred from holding any public office.

 Law Commission (170th Report )—Limit issuance of whip only when Govt is in
danger.
 A line shd be drawn b/w “crossing over” & intra-party dissent
 SC in Keisham Meghachandra Singh case recommended to est a ‘permanent
Tribunal headed by a retired SC judge or CJ of HC for ADL
 UK Model— Expulsion from party but continue to remain independent member.

Conclusion

 ADL shd only be used as an insurance against betrayal of people’s mandate & not as a
tool to suppress dissents.
 Parties shd respect constitutional propriety as law cannot ensure everything.
 o Gautam Bhatia—ADL has resulted in destruction of democratic process.
Members are switching sides not bcz of ideological compulsions but bcz of
political blackmail.”

Rajya sabha
What reforms are needed?
Recently VP held that RS has played a significant role in S-E transformation of country but
there are “Miles to go” w.r.t proper functions

YES needed

 James Madison—Role of Upper House is to be a deliberative body besides

balancing “fickleness & passion” of elected House.
 Montesquieu—“The legislative body having 2 parts checks one another by the mutual
privilege of rejecting”.
 N.Gopalaswami Ayenger-- To hold dignified debates & to delay legislations which
might be the outcome of passions of the moment

Not needed

 Prof Shibban Lal Saksena-- Would only prove to be a “clog in the wheel of progress”
of nation.

+ve role of RS

 Progressive legislations-
o Penalise untouchability (1954), prohibit dowry (1959), RTE (2009).
o Passed Women’s Reservation bill (2010) though LS didn’t take it up.
 Revising Chamber, Federal Chamber, Deliberative Chamber, Chamber of
Continuity & Ventilating Public Grievances
 House for sobriety & second thought--During passage of GST Bill
 JS Mill-- . A majority in a single assembly when assurem powerful character easily
becomes despotic & overweening.
 Jeremy Waldron explained virtues of bicameralism—

o Offers opp for 2nd legislative scrutiny

o very imp in Westminister form of Govt where lower house is dominated by
executives

Reforms in Post of Speaker

 Nehru-“Speaker rep dignity & freedom of house & bcz House rep nation, Speaker
becomes a symbol of nation’s freedom & liberty. Thus, it should be an honoured
position & should be occupied always by persons of outstanding ability and
impartiality”
 Neutrality can be achieved by adopting British Model—Once elected, Speaker gives
up all partisan affiliation
 FPTP
 Hamid Ansari—It encourage candidates to cultivate vote banks —Reinforce social
divisions based on narrower considerations
 Venkaih Naidu—

o Though it has problem, but TINA at present—As electorate move away from
'Identity Quotient' to 'Devt Quotient' more & more would win with majority
support of voters.
o PR would lead to promotion of further social & political cleavages besides
being not practical due to implementation issues.

 Ashutosh Varshney-- Vote-seat paradox of FPTP system generates an illusion—

winners begins to believe that they have not only won a majority of seats, but also a
majority of vote.

Stuff
 Credibility, capability & capacity should be the yardstick for anyone to enter legislature
& not caste, cash and criminality.
 Indian Dem is witnessing a paradoxical phase —Respect towards parliamentarians is ↓
whereas towards democracy is ↑.
 Judicial Backlog
 NJDG—2.93 cr in Sub-ord court, 49 lakh in HCs, 58000 in SC—3.5
cr ( 88% in lower jud)

Reasons for Backlog

 Understaffed—20 judges/ml (120th LC-50 judges/ml) + 38% vacant in HCs

 Less working hours— Judges Vacation + Frequent Adjournments
 Lack of court management system--Lack of modernisation and digitisation
 Malimath committee— Reason for backlog are—
o Archaic laws requiring judicial interpretation
o Litigation explosion--PILs
o Unnecesarry adjournments
o Indiscriminate resort to writ petition
 Increased Constitutional awareness + New rights granted to Public-- RTI, PILs
 SC entering into Uncharted territory— SLP, J.A
 Burden of Govt cases— Centre & State Govt responsible for 46% backlog
 Low Budgetary Allocation leads to poor Infra— only 0.09% of GDP

Impacts of Judicial Backlog

 Soli Sorabjee— “Justice delayed will not only be justice denied, it will be the rule of
law destroyed”.
 Denial of “Timely Justice” amounts to Denial of Justice itself— violates Right
to speedy trial under Art 21.
 Social cost— Higher crime rate, poverty, Criminalization of politics, Erodes
faith in RoL
 Overcrowding of Prisons— 68% undertrials— violation of HRs
 Economic cost— ES 2017-18— Judicial pendency discourages investment,
hampers tax collection, decreases EoDB--Judicial delays cost India an
estimated 1.5% of its GDP annually.

Steps taken

o App--‘JustIS’ for efficient court management--intro by Central Govt

o Intro of FTCs, jail-adalats (“prison courts”), and plea-bargaining.
o SC launched an app— National Service & Tracking of Electronic Processes
(NSTEP)— Forexpeditious service of notice & summons

Way forward to tackle Judicial Backlog

 Address Vacancy—
1. 120th report of LCI recommended for Judges Fixation Formula
2. AIJS
 Strengthen ADR + Initiatives like Gram Nyayalaya, Mobile Village
courts, Lok Adalats
 Capitalise over IT —
o P.S.C Recommended for e-courts
 o Digitizing courts records
 Better case & Court Management system— '

 13th FC & ES 18-19 introduced the concept of Professional Court Managers

 Computerisation & Automation

 Regional Benches, Increase working hours of courts.

 Economic Survey 2018-19—

 Est of Indian Courts & Tribunal Services to focus on the adm aspects of legal
system
 Deployment of tech to improve efficiency — e-courts.

CJI Bobde—Public trust is “only legitimate source of power for judicial system"

All India Judicial Services

 Aimed at creating a centralised cadre of District Judges who will be recruited
centrally through an all-India exam & allocated to each State along the lines of AIS
 Recommended by--

1. 1st proposed by 14th Report of L.C (1958)

2. Jus Jagannath Shetty Commission 1996
3. Provision of AIJS was also included in Art 312 through 42nd CAA
4. NITI Aayog‘s its ‘Strategy for New India@75’ also mooted for making appointments
to the lower judiciary.

+ves

 To fill vacancies—PSC on Law & Justice (2013)— It would help fill approx 5k
vacancies across the District & Subord Judiciary-- Address Judicial pendency
 Recruitment in lower judiciary happens state-wise--so low stds--AIJS will improve
Efficiency of lower judiciary
 A meritocratic judiciary is the need of the hour which is possible with a competitive
recruitment process.
 To standardise process of appointments to lower judiciary.
 Rep for marginalised & attract best legal talent based on merit—Efficiency of
judiciary would be increased.
 Address issue of judicial pendency, Corruption & nepotism

Arguments against AIJS

 Centre-State conflict-- will mean transferring recruitment & app powers of from
State Govt (Art 233) to centre
 Issue of differences in local laws of each state.
 Against IoJ as some other body will have a control in app
 AIJS no panacea— Vidhi legal service study
 Local languages and dialects would pose problems
 ONLINE JUSTICE DELIVERY
+ves—

o Address High pendency + reduce time & cost involved—Promote EoDB

o Enhanced efficiency of courts—Reduction of paperwork will relieve judges &
court staff from adm duties
o Tackling Infra constraints
o Improving T/P & A/C in judicial system

Initiatives:

o e-Courts Mission Mode Project—For Dist Courts—for ICT enablement of all

dist & subordinate courts
o e-Courts Services Mobile app & e-Courts National Portal
o NJDG—Web portal that provides data related to no. of cases pending
o Judicial Service Centre—est at all computerised courts which serve as a single
window for filing petitions by litigants/ lawyers + obtaining information on
ongoing cases
o e-Committee of SC—Constituted by GoI in SC to assist CJI in formulating a
National policy on computerization of Indian Judiciary

Challenges

o Lack of of investment in IT infra & State of art tech

o Lack of tech knowhow among court officials & absence of dedicated in-house
tech support.
o Low awareness amongst litigants & advocates
o Digital divide in access to justice
o Cyber security threats

Contempt of Court
Introduction

 Offense of being disobedient or disrespectful towards the

dignity or authority of court of law.
 CoCA 1971--Civil contempt & Criminal Contempt
 274th LC report—recommended its continuance
o TT krishnamacharii — advocated CoC as a reasonable restriction under
Art 19
o Pt Thakurdas Bhargava— believed possibility of misuse`— as who will
judge the judges

Need / objectives for Contempt Law

 To uphold majesty & dignity of courts + insulate from motivated

& unwarranted criticism that lower its authority & erodes public Trust in it—
sine qua non for RoL
Source of Contempt Law:

 Art 129, Art 215, Art 141, Art 142

 CoC Act 1971
 CoC (Amendment) Act 2006— Introduced “Truth & good faith”as a
valid defence, if it was in public interest and was invoked in a bona fide
manner-Punish only when there is "substantially interference” in Adm of
justice

Issues with Contempt Law

 Stifle FoSE Art 19(1)(a) + Misused

 Vague & wide jurisdiction—Jus Krishna Iyer— Law of contempt has
a vague & wandering jurisdiction with uncertain boundaries
 Against principle of Natural Justice— No one shall be the judge in his own case
 International practice—Abolished in US, UK, Canada

Judicial cases

o Auto shankar’s case, 1994– Court invoked “Sullivan

doctrine” that public can make comments & accusations as
long as made with bonafide diligence.
o Arundhati Roy Case: fair criticism may not amount to cont
if made in good faith & in public interest.

Recent instances of CoC:

 Bombay HC in 2018 sentenced a journalist for posting

defamatory allegations against judges on social media.
 SC invoked against Prashant Bhusan for posting tweets.

Way-forward:

 Jus Kurian Joseph—Intra court appeal should be introduced as a safeguard in a

suo motu contempt case
 USA SC in Bridges vs California— “an enforced silence would engender more
resentment, suspicion & disrespect for judiciary, not the respect it
seeks”.

ADR Mechanisms
 Conflict Mgt in civil cases via a mechanism of dispute resolution that is alternative to
traditional adversarial litigation.
o Sec 89 of CPC--Settlement of disputes outside court through—Arbitration,
Conciliation, Mediation, settlement through Lok Adalat
o Arbitration & Conciliation Act, 1996 -
 o LSA Act 1987— To encourage out-of-court settlements

+ves-- less formal, Less time consuming, flexible, cost-effective and expeditious

o Ease burden on courts & ↓ backlog of cases

o Speedy & expeditious resolution of disputes in Cost effective manner with ↑
efficacy
o Informal—Free from technicalities of courts—So fewer procedural delays
o Make Justice 4AQ to ordinary people
o Promotes Amiable settlement / Harmonious resolution of disputes
o Confidentiality— which is imp in business or family matters

Shortcomings of ADR Mechanisms

 Wastage of Time/ Money if Case Not Resolved—Then parties have to approach

court—Ayodhaya mediation
 Limited Judicial Review—Arbitral award is final & binding on parties & excluded
from appeal to courts
 Lack of awareness & legal literacy.
 Lack of appropriate arbitrators

Mediation

o Settlement b/w parties with help of impartial & unbiased 3rd party mediator
o Commercial Courts Amendment Act 2018—Gave great impetus to Pre-inst
Mediation & Settlement

Arbitration

 Consent based adjudication processes outside traditional judicial system by an

independent person or inst
 Dispute is submitted (By agreement of parties) to arbitrators who make a binding
decision on dispute—Parties opt for a Pvt dispute res procedure instead of going to
court.

Arbitration and Conciliation Act, 1996—Amendment 2019–On recommendation of B.N.

Srikrishna Committee
Aims to make India a hub of inst arbitration for both domestic & Intl arbitration.

Conciliation

 Res achieved by compromise or voluntary agreement.

 Unlike arbitration, it does not render a binding award-Parties are free to accept or
reject recommendations

Negotiation
  Self counseling b/w the parties to resolve dispute.
 Settlement by exchange of views & issues concerning parties.
 No statutory recognition

Post -Retirement Appointment issue

-ves

 Erodes public trust & confidence in IoJ, on which legitimacy of Judiciary rests.
 Raises suspicion over Sanctity of Pre-retirement judgments, irrespective of their
merits.
 Conflicts of interest & ? over his Integrity
 Violates fundamentals of SoP—as Govt is largest litigant—so Law Commission
Said— Ban them
 KT Shah:- Judges should not take executive offices with Govt.

Argument in favour

 No legal/ const bar— Art 124(7) restricts post-ret app in Judiciary itself, not in Other
posts.
 Presence of judges in Parl—expertise

Conclusion:

 Judicial credibility rest on— ‘Not only Justice being done but also seen to be
done’.
 Consider a “cooling off” period of 2 yr as mooted by former CJIs Kapadia & Justice
Thakur.
 Judiciary & Executive should remain mutual watchdogs and not the mutual
admirers
 Rojer Mathew case—Tribunals should not be a heaven for retired judges.There
should be restriction on Post-Retirement app

Needed Judicial Reforms

 Regional Benches of SC—
o Venkaih Naidu suggested for 4 regional Benches to tackle enormous
backlog & ensure speedy disposal.
o 229th report of LC— SC should consist of 2 Divisions (a) Constitutional
Division (b) Legal Division-Only Const matters be assigned to Const Division
in Delhi + 4 Benches be set up to deal with all appels from HCs judgments
o SC in 1986 recom est of National Court of Appeal with regional Benches at
Chennai, Mum & Kol.
o In V. Vasantha Kumar case, 2016–SC referred this matter to a Constitutional
Bench
 Women in Judiciary

 Vidhi Centre for Legal Policy— Since 1950–only 8 women judge in SC & HCs 9%
+ no women CJI till now + Only 1 woman so far in SC collegium
 PSC on L&J (2015)—Reservation for women in higher judiciary.
 MASTER Of ROSTER
 Campaign for Judicial A/C & Reforms vs UoI (2017)—There cannot be
any “Presumption of Mistrust” As CJI is “inst in itself" with ‘exclusive
prerogative’ to allocate cases.
 Its purpose is to ensure the disciplined & efficient transaction & not to assert superior
authority.
 CJI as 1st among equals should exercise his powers reasonably + consult colleagues.
 App an administrator to help in carrying business of inst.
 Collegium for allocating cases.

Quasi-Judicial Bodies
Introduction

 Org on which powers resembling a court of law have been conferred but it is not a
court
 They deal basically with disputes with Adm
 Their powers are usually limited to a particular area of expertise, such as financial
markets (SEBI), HRs (NHRC)
 Ex—NHRC, Lok Adalats, CIC, CVC, CAT, Consumer Disputes Redressal Commission

Reasons for emergence of QJBs

 Overburdening of judiciary—So alternative justice system to lessen the burden of the

courts.
 Complexity of laws—demanding more technical knowledge about specific sectors.
 Conventional judiciary have procedural rigidity + costly.

Shortcomings

o Their decisions appealable in court

o Their recommendations r mostly advisory in nature like NHRC and CIC.
o They can’t even award compensation or relief to the victims directly, but can
only recommend it.
o Not as independent as the judiciary. Frequent interference from the executive
is evident.

Tribunalisation of Justice
Intro—

 Quasi-judicial inst, created by 42nd CAA—added Part XIV-A—Tribunals—Art 323 A,

B
 Specialised dispute resolution mechanism
  Their Constitutional Validity was legitimised in L. Chandra Kumar case vs UoI
(1997)


Need / Significance--

 For Unburdening of judiciary

 Expeditious resolution of complex matters—
o Specialisation through expert involvement—↑ effectiveness & quality
of justice delivery
o Adm & logistical support from executive
o Flexibility of procedure—Not restrained by Rigid provisions of CPC, CrPC,
rather follows Principle of natural justice.
 To adjudicate on complex & Tech matters of 21st cen—Special courts with domain
expertise r required.
 Less formal, less expensive & a faster way to resolve disputes.

Issues

 Lack of Autonomy & independence—Dependent for app, funding, infra, removal on

Executive - the largest litigant—creates conflict of interest
o App of retired judges as CP—shows favouritism
 Adm concerns—
o Non-uniformity in app process, qualification of members, age of retirement,
infra etc
o Diff tribunals working under diff ministries which hampers their overall
efficiency.
 Pendency & vacancy—272nd LC Report
o Pendency in CAT is 44k+ cases.
o Lacks adequate infra to work smoothly
o Vacancy—74th PSC (2014)— 40% of sanctioned strength were lying vacant
 Appeal—Tribunals were created to provide specialized justice delivery + ↓
burden on courts—But appeals from tribunals have inevitably managed to enter
mainstream judicial system.
 Against SoP— Tribunalisation is seen as encroachment of judicial branch by
Govt.

How Tribunals curtail jurisdiction of ordinary courts?

 Being a QJB- Tribunals go against SoP + allows dilution of judicial mechanism—

Executive entering in arena of ordinary courts.
 L. Chandra Kumar case—Power of HC under Art 226 & 227 to exercise J.R over
decisions of tribunals is a part of Basic structure. However, decisions of some of
tribunals, like NGT continue to be taken on appeal only before SC bypassing HC
as Court of Appeal, depriving them of their power of judicial review.
 Conferring a direct right of appeal to SC from tribunals has changed SC from a
constitutional court to a mere appellate court & also resulted in a backlog of cases
SC cases

 Sampath Kumar vs UoI (1987)—Appeals from tribunals would lie directly to SC

 L. Kumar Case vs UoI (1997)—Appeals would 1st lie to Division bench of HC then
to SC
 Rojer Mathew case—Tribunals should not be a heaven for retired judges.There
should be restriction on Post-Retirement app

New Rules for Tribunals 2020--

 Defined Qualifications for members—Only persons having judicial or legal

experience eligible
 App—By Central Govt on recommendations of “SCSC" having—CJI (or a judge
nominated by him), Prez/CP of concerned tribunal, 2 Govt secy from concerned
min/Dept
 Removal—SCSC recommend removal+ conduct inquiry into allegations of
misconduct
 Fixed Term—4 yr
 Independence—Not eligible for re-app

Way

 SC in Madras Bar Ass vs UoI & 272nd LC report of—Est a National Tribunal
commission—as an independent supervisory body to oversee working Of tribunals—
app, eligibility, functioning, adm & infra etc
 Qualifications—R. Gandhi vs UoI (2010)—Tribunal members shd be persons
of a rank, capacity & status as nearly as possible equal to that of court.

Conclusion

o Tribunals should be revamped keeping in mind 272nd LC report

o Tribunals are meant to supplement ordinary courts & cannot supplant them.

National Green Tribunal (2010)

 For effective & expeditious disposal of cases related to protection & conservation of
env, forests & other natural resources.

Challenges

 2 Imp acts - WPA, FRA— have been kept out of NGT’s jurisdiction
 Lack of clarity on its position in relation to HC— Decisions frequently challenged in
HCs under argument that HC are superior to NGT
 Moving from a judicial forum to an oversight body:- By shutting down the
redressal mechanism through court-room argumentation, the NGT seems to have
limited its role to merely an oversight body, rather than a judicial forum.
  Excessive delegation to committees—To oversee compliance of diff env laws
etc—Committee Raj is taking over the Tribunal.
 Its Decisions often criticised & challenged due to their repercussions on
economic growth & Dev
 Lack human & financial resources—high pendency

Landmark cases:

o Almitra H. Patel case—Complete prohibition on open burning of waste on

lands
o Manoj Misra Vs DDA—Art of Living Foundation was penalised for
damaging Yamuna plains
o Ordered prohibiting all diesel vehicles over 10 yr old to ply in Delhi-NCR

Water Disputes Tribunal

 For settling disputes b/w states on ? of water-sharing of rivers

 Governed by ISWDA 1956
 ISWDA (Amendment) 2019— Single water disputes tribunal be set up, with multiple
regional benches

Income Tax Appellate Tribunal (ITAT)—1941

 1st experiment of tribunalization in Indian history.

 Deals with appeals under Direct taxes acts.
 Panchayati Raj Institutions
Role of PRIs in deepening of democracy
 Decentralization of Power—Direct participation of people— Participative &
deliberative democracy + R/S Gov, ↑ A/C—↑ India’s democratic density
 Principle of subsidiarity
 Participatory G.P Dev Plan— annual roadmaps For local economic dev & social
justice in villages—SDGs
 Gandhi, Gram sabha, Art 243-A,D,G
 Lord Bryce—"The best school of democracy & the best guarantee for its success
is practice of LSG”

Pol Decentralization has not been matched by Adm Decentralization

(2019)
 Adm Dec—Redistribution of authority , R/S & financial resources among diff levels
of Govt for providing public services
 Political Dec—give citizens or their elected Rep more power in public decision
making
 T.R. Raghunandan (“Throttled at Grassroots”) –
o D.D is barely alive in India
o LGs have remained hamstrung & ineffective, mere agents to do bidding for
higher level of Govt .
 WB study “Overview of Rural Dev ”—India is best performer in political Dec ,
middle performer in fiscal but worst on Adm Dec

Inherent weakness in inst of D.D—

o Created Inst structures, but powers & functions have been left with state Govt.
o Provisions on which states have objections, have been made voluntary & left
on states will.
o Activity mapping has not been done—Their roles & R/S remain ill-defined
o Gram Sabha doesn’t have significant powers
o No perceptible hand-holding & support by States to foster decentralized
governance.
o States control 3Fs making autonomous governance almost impossible.
o Parastatal agencies. Ex—HR RDA
o Not mandatory to create a DPC to draft DDP
o MPLADS & MLALADS
o ES 2017-18–“low equilibrium trap“
o functioning of SFCs has not been satisfactory.
o Despite reservation—Dalits & women remain on periphery rather than as
active agents of social change.

2nd ARC—LSG is the lowest tier of Govt, but not the least imp—So need for ‘Principle of
subsidiarity’ & devolution of 3Fs
 PRIs & Covid-19
 Front warriors in collective fight against covid-19
 Helped in “Flattening the curve”— Kerela
 Panchayats worked in 3 areas—

1. Awareness generation
2. Setting up isolation conditions,
3. Streamlining social security measures
4. Community policing & Community kitchens

Minimum Education Qualification

Introduction

 Paralyses fabric of “Inclusive Democracy” & promotes the notion of “Exclusive

Democracy”

Criticism

 will potentially disenfranchise a substantial propotion of pop & in particular

marginalised section—defeats very spirit of PRIs + Reservation for them would be
rendered meaningless
 Ambedkar—“Those who insist on making literacy as a precondition for
enfranchisement, commit 2 mistakes. First, in their belief an illiterate person is
necessarily an unintelligent person & second- literacy necessarily imports a higher level
of intelligence ”
 Against mandate of C.A which do not prescribed M.E.Q even for MPs & MLAs
 violates a citizen’s right to contest

Merits

 Upheld in Rajbala vs State of Haryana—“It is only edu which gives person the power
to discriminate b/w right & wrong, good & bad”.
 Will encourage people for education.
 It will lead to betterment of other social indicators

Conclusion

 “Down Filtration” model starting from Parliamentary elections.

Finances of PRIs
 ES 2017-18—LSGs suffer from “Low equilibrium trap”—
1. Overwhelmingly depend on devolved funds (95%)—generate only 5% reve-
nue from own sources (40% in Brazil & Germany)
2. Tied nature of a funds—constrains spending autonomy
3. Recommendations of SFCs very sparingly implemented by states
4. “Yawning gap” b/w tax potential & actual collection—resulting in colossal
underperformance.
  PRIs in Coimbatore—Raise funds by generating wind energy

PRI & Women

 UNDP defines Women empowerment--Increasing access of women in strategic life
choices
 “I raise up my voice not so that I can shout , but so that , those without voice can be
heard ….e cannot succeed when half of us are held back ” Malala Yousoufzai

+ve

 Women leaders are less corrupt , better at providing public goods

 Nirmala Buch – Book--"From oppression to assertion"--Strengthened leadership in
new panchayats

Challenges

 No policy operates in vacuum.--Patriarchal & caste ridden society makes difficult for
women to actively participate in Public sphere
 MSA Report-- Around 1 ml women Rep but w/o empowerment of panchayats …then
How panchayats will contribute to women empowerment
 It may have given sense of achievement but sense of empowerment is yet to reach
at equal level
 Certain legislative measures also adversely impact women participation

 MEQ
 2 child norms
 Functional toilets at home

Financial constraints of ULBs

 Financially dependent on state Govt—GST regime further increased this dependency
 15th FC-

 Share of municipality’s own revenue declined from 55% in 2007-08 to 43% in 2017-
18 .
 In India, property tax is their only major tax base , whereas in the world , they have
access to wider taxes– tax on urban land use , real estate tax .
 Municipal borrowing is very low— Only 1% of their need is met by municipal bonds
as opposed to 10% in USA.

 ES 2017-18–ULGs generate 44% of revenue from own sources—“low equilibrium

trap” .
 15th Finance Commission suggestion

Way

 Municipal bonds—by Credit rating of cities

  Property tax reform
 Capacity building in terms of financial planning and accounting
 Innovative financing like venture capital etc.

2nd ARC

 They shd be encouraged to borrow w/o Govt Guarantees.

 For small municipalities— Pooled financing mechanisms
 Land banks should be leveraged for generating resources
 PPPs
 Review property tax system which suffers from undervaluation; non-
availability of database; lack of indexation of property values—Use of GIS
 Explore alternative sources of revenue generation — user charges for solid waste,
water, parking etc

Economic Survey of 2017-18— 1/3 population now lives in urban areas which
produce 3/5 of GDP. But India’s overflowing cities lack capacity, infra &
leadership

Stuff
 RGSY—"SS, Sabka Gaon, SV”
 e-GramSwaraj—To strengthen e-Gov in PRIs + ↑ T/P in decentralised planning
 Although PRIs are the lowest tier but shd not be seen as least imp, as they r the key to
G.G & S.D .
 Sarkaria & Punchhi Commission—G.D is essential to deal with regional threats
 In era of globalization, decentralization is a principal countervailing trend which can
ensure that the growth process is inclusive.
 Even after 3 decades, local Govt’s seems ‘local’ only in ‘form’ but ‘central & state in
content’.
Constitutional morality & its linkages with transformative
constitutionalism .
 As Indian const is a transformative const, const morality is seen as guiding spirit to
achieve transformation in society.
 This phrase existed in Indian constitutional debate since times of Ambedkar—He
invoked George Grote to explain its sig

o Grote described it as a "paramount reverence for the forms of the

constitution".
o Ambedkar defines it as a foundational value of any constitutional form of
Govt

Imp of Constitutional morality

 Only way to realize objectives of constitution in country like India with inequality &
inequity.
 Guiding light for judiciary

o Used in KBC & S.P. Gupta case.

o Manoj Narula Vs UoI—C.M is to ensure RoL
o Govt of NCT vs UoI—It provides an enabling framework that allows a society
possibility of self renewal
o Navtez Singh Johar Case—"C.M cannot be altered at the altar of social
morality
o Sabrimala caser

-ves

o Manu Singhvi (Book "The Trenches")—calls it as dangerous bcz of its

subjectivity
o seen as another controversial doctrine like "Basic Structure"
o K.K. Venugopal & Tushar Mehta also considered it as dangerous which will
give judiciary an opportunity to emerge as 3rd Chamber.

Indian constitution as transformative constitution—Tectonic shift in phil of governance

 Transformed legal Rel b/w individual & state.

 British subjects became citizens of Republic.
 SC in many cases clarified transformative nature of constitution—

o NALSA case (2014)— called const as a living organism

o Navtej Singh Johar Case—Purpose of having const is to transform society for
better & the objective is transformative constitutionalism

 To correct historical wrongs + key for more equitable future .

Thus constitutional morality provides the basis to transformative constitution . Constitutional
morality is imp for const to be effective & protect Indian democracy from being a "Tyranny
of majority."

Identity politics has trumped Developmental Politics

 R&R—India is an ex of ‘coexistence of modernity (democracy) & traditionality
(caste, religion etc)
 Systems approach—Politics doesn’t operate in vacuum but gets shaped by systemic
factor
 Identity politics Based on social cleavages is conspicouos feature of post
colonial prismatic societies like India, as explained by Political sociology
approach.
 Communitarians like Charles Taylor says—Individuals r
situated self with there identity embedded within them
 At the same time as Aristotle said—Man is “Political
animal”—Thus there is always an overlap of identity &
politics. This overlap is particularly great in Indian politics.
 Since 1990s—Identity politics became a worldwide phen—MANDAL &
KAMANDAL become idioms of Indian politics.
 Imp of Development
o Austin - Pol rev ended — S & E rev began
o Gandhi—Obj of Swaraj was not just political independence - but
empowerment of masses

Identity politics—Bad
Marxist
Liberal School
 Identity politics
 Adversely effects dev Paul Brass & Andre Bete
dilutes solidarity of
in Prismatic society Conferres greater imp on d
poor
like India consider identity politics as
 Eg : Kerala -
 Eg : Backwardness of reasons of communal viole
ideologically very strong
UP, Bihar
- developed

Caste Politics
 Caste-ridden feature of politics--Rep by process of mobilisation & voting on basis
of caste factor.
 Politicization of caste--Evident as caste has become an imp factor for acquiring
secular benefits such as access to education, employment through instrument of
reservation.

Caste politics w.r.t last 2 general elections

  General impression bcz of BJPs victory— Nationalism is new discourse & caste
factor is getting marginalized.

But

 Christophe Jaffrelot ( ‘Do Indians vote their castes?’)— Beneath the nationalist
discourse & claims of politics of Dev, there’s also exist ‘caste calculus’—But caste is
now more imp at ‘Jati-Level'
 Gill Vernier—Caste plays an imp role but it is itself also getting transformed.

Has Development overshadowed role of caste?

o Suhash Palasikar— Although BJP won on issue of Dev But, it will

be too early to say voting preference of Indian voters is changing
from caste to Dev—BJP has also gone for formulation of Caste
coalition .
o Yogendra Yadav— Dev has not overshadowed, yet voters are
looking for caste plus politics.
o Recent victory of Nitish Kumar is seen as victory of Dev & G.G
away from caste calculus of RJD.

Reservation introduces a form of identity politics that makes caste visible,

whereas the goal ought to be the eradication of caste .Comment. Discuss the
politics of reservations in India .

o Ramchandra Guha--“Reservation debate generates more heat than light.”

o SC in NEET case ruled that reservation is not a FR
o Reservation, far from helping to reduce the power of caste, strengthens caste
divisions.
o Prof. Satish Deshpandey-- Reservation necessary to bring marginalized
sections into the mainstream.
o Yogendra Yadav-- Need of reservation but also acknowledge that reservation
policy in India has reached a dead end and raises more questions than
providing answers.

Electoral behaviour
 Elections are bedrock of Rep democracy—Their imp is evident as the elitist
theory does not look at democracy beyond elections.
 Behavioural Rev—Growth of study of electoral behaviour-- Imp area for
Political sociology
 Recent works on changing trends—
o ADR survey 2018—Preference to criminal candidates—2x
o Christophe Jaffrelot—Caste politics is reaching to its end—Saturation
of Reservation politics
o Milan Vaishnav—Following trends are evident – Good economics
makes good politics & Caste remains imp but not entrenched.
 o Dynastic politics mayn’t be popular, but dynastic
politicians are
o Mukulika Banerjee’s ethnographic survey
 Distributive politics of Indian state—
o Reservations, other welfare measures & freebies . (Politics of Mandalisation)
 Role of ethnicity—Atul Kohli— It is natural in prismatic society like India
 Deinstitutionalisation of parties—
o Yogendra Yadav— Indian parties reflect Inst as well as De-inst. on one hand
, their reach is increasing, But their disconnect with the voters is also growing
.
o Zoya Hasan— De-inst of parties has reduced them to singular role as
electoral machines .
 Subnational dynamics—
o Paul Brass calls regionalism as the long term trend of Indian politics ,
whereas nationalism is a short term trend .

Demand For smaller states

 Internal political map of India has been continuously evolving. At present,
there is a demand for creation of Vidharba, Bodoland, Gorkhaland etc.

Arguments in favour (Bibek Debaroy, Sudha Pai, Ramchandra Guha)

o Bibek Debroy suggest that India should have at least 50 States.

o Smaller but compact geo entities ensure better democratic
governance— Better Dev + Dev in neglected areas—BRD & Inclusive
growth (SDG-10,11)—can moderate anti-state mov.
o Reduced Adm complexity
o Efficient utilization of central funds:
o Enable marginal social groups to articulate & raise their
voices— Empowerment of common people

Arguments Against

o Acceptance of Such sub-regional Demands Will open Pandora box—

may lead to Balkanisation of Nation
o may lead to regional and linguistic fanaticism
o Division vs governance—Much more than the size of a state—it is
the leadership’s drive & vision, Devolution of powers & A/C
bureaucracy that is needed for quality of governance
o Cost of Infra—needed for A new small state
o A small state is likely to face resource limitations—so it is likely to be
more dependent on Centre for financial transfers & CSS

Conclusion
  Strengthen LSGs, promote RoL, multiculturalism and deliberative
democracy.
 A systematic & planned approach for Dev within current state can handle
issue of growth better than division.

Scholars

o Asha Sarangi & Sudha Pai (Book “Interrogation Re-organising

States: culture, identity & politics in India”)--Provides conceptual
framework for understanding Indian democracy through perspective
of Re-org of states.
o Louise Tillin’s “Re-mapping India: New states and their political
origins”--She gives political origin of creation of new states in India.
o Christophe Jaffrelot (Article “The caste based mosaic of Indian
politics”)-- Though demand for linguistic states was spelt in terms of
language it was mostly articulated by dominant castes in their
interest.

Grassroots movements
 A mov that develops organically at a local level before spreading
throughout the state or country.
 Not org by political forces but springs up spontaneously due to some
pressing issue that a community feels needs to be changed or
enhanced—NBA, IAC, RTI mov, Anti-Sterlite mov.
 GRMs have ensured that imp issues become the common parlance of
people & reinforced belief in power of masses.

How GRMs are changing the discourse of Indian Democracy?

o Rajni Kothari—Such mov aimed at repoliticizing dev & thereby

reinventing participative democracy.
o Occurred due to decline of inst politics after 1960s & failure of
political parties to attract youth.
o Also relates such mov to growth of Globalization
o Jennifer Russell calls such mov as upcoming symbols of
participatory democracy in addition to existing electoral
democracy.
o D L Sheth—GRMs emerged in response to market democracy.

Politics of land reforms

  Atul Kohli (“The State of Poverty in India”)— Alliance of Bussiness &
political elites has led to inst patterns of domination which have resulted in
Indian states’ inability to mitigate poverty. These regimes did not have
political or org capacity to implement redistributive goals. The poor have
largely remained politically immobilized and are thus not a political threat
 Pranab Bardhan—found LR most successful where left parties ruled—
Shows LR is clearly driven by political-ideological factors.
 Francine Frankel (Article “The Paradox of Accommodative Politics and
radical change”)-- Congress party’s class character made it extremely
difficult to push policies like LR. The fundamental of paradox of India’s
political economy that leaders had committed themselves to carry out
basic changes in the pattern of economic and power relations as an integral
part of development, while they were equally determined to avoid the
political cost of a direct attack upon the existing social order

Pressure groups in Indian politics

o Given greater imp by pluralist democracy--Robert Dahl
o Mill & Alex De Tocquille also appreciated their role in developing a
democratic political culture.
o Rajni Kothari--PGs acted as agents of modernisation & have provided
reservoir of leadership. He calls politics of PGs as 'non-party political process'
.
o In Almond’s ‘structural functional’ approach, PGs perform vital input function
of interest articulation.

India does not present a strong example of pressure group politics.

 It is held that in India we see a state dominated pluralism

 Neo pluralist scholars like Eric Nordlinger have emphasised that in societies like
India, state itself is a powerful pressure group.
 Being a prismatic society & overdeveloped post colonial state, PGs have remained
peripheral.

Farmer Pressure groups in India

 AIKS, AIKC, BKU, etc have been effective at state level.
 Rise of peasants groups in India has been mainly due to abolition of Zamindari
System, implementation of PRI, LR & GR
 Demands-- MSP, Subsidy, tenancy rights, electricity charges, etc.
 Sudha Pai-- Post GR period, the rich farmer org acted as a PG to extract benefits from
the state.These new Bullock capitalists (Rudolph&Rudolph) became the new power
holders.
 Methods used-- Offering support to parties during the elections, staging protests
challenges

o Their Overall political voice & influence have been less.

o Limited territorial reach + Org around regional & ethnic issues
o Have become a tool for the vote bank politics

Farmer movement.
 S-E transformations post-LPG—Shift in PE--Agri is passing through a
crisis phase—Agrarian distress, as evident in increasing farmer’s
protests.
 Recurring feature of India polity. It has a long history dating back to colonial time.
 NCRB—11370 farmers’ suicide in 2016-17.

Why?

 S-E transformations Post-LPG created a dual identify crisis among farmers—Present

protests are political manifestation to recover & consolidate dignity & S-E grievances.
This emerges from interplay between agrarian crisis and anti-urban sentiments.
 Present mobilisations rep the anger against Political economy of Agri reforms—There
is a fear of corporate takeover & withdrawal of state from Agri marketing.
 Due to a paradigm shift of policies from land reforms to land acquisition, the welfare
state emerged as a ‘venture capitalist’.

Scholars

 D.N Dhanagare (‘Populism and power: Farmers’ movement in

Western India)—maps history of FMs from several parts of country
for last 2 decades.
 Sudha Pai classified FMs into 3 phases.

1. Anti-feudal mov-demanding redistribution of land – Naxalite movements

2. Mov by rich farmers following GR—Acted as PGs to extract benefits from state—
Bullock capitalists
3. Since 1990s—SAP—FMs entered into a new phase.

 Utsa Patnaik & P. Sainath—State’s inability to prioritise Agri dev is primary factor
for agrarian crisis.
 Sudha Pai—Though Agri is a state subject, yet framer’s frequent marches to Delhi
show that it has become a complex mesh of interest groups
 Prof Mridula Mukherjee—draw parallels b/w present farmers protests & peasant
mov of 1st half of 20th cen

+ves

 Helped keeping intact Agri issues at centre of political debates

Challenges

 Lack of oragnic Intellectual & charismatic leadership

 More of issue based rather than ideological.
 Excessive dependency on political parties—So FMs are over shadowed with political
question & remains fragmented along political affiliations
 Lack radical agenda .
 Demands--Generally limited to remunerative prices & non-inclusive of long term
structural changes

Environmental Movements
 Anil Agarwal— Coined term—“Gross nature product”
 Sunita Narain— Reasons for early EMs were not “Greenie green”— their cause
were selfish as they perceived their culture & survival at stake.
 Arundhati Roy— Draws parellel b/w Big dams & Big Bombs

Impact of ‘Chipko Movement’ (1973) on Indian EMs

 Reni village under Gaura Devi
 Based on Non-violence, cooperation & self-help

+ve Impacts

 It for the first time catapulted Env into political discourse & shaped understanding of
environmentalism in India
 Guha (‘The Unquiet Woods’)— trace origin of modern EMs to Chipko mov. It led to
emergence of new env consciousness
 Prompted Govt to amend IFA 1927 & intro FCA 1980
 Led to other similar mov like Appiko, Silent Valley
 Had Intl impact even beyond south Asia
 Inspired eco-feminism in India & worldwide.
 Vandana Shiva—It stands out as eco-feminist mov. It was a struggle to recover
invisible, i.e, value of natural resources & right of women.
 It can also be seen as a peasant & women’s mov in evolution of India’s SMs And
also as a cultural response of people's love for their env

-ve Impacts

 Shekhar Pathak—It failed in providing sustainable livelihood . However, he thinks,

the movement is far from over.

1991 LPG Reforms

 India started with Socialistic pattern-- But due to license-raj- “Hindu rate of
growth”--Economic stagnation--BoP Crisis
  The then FM MMS while presenting Budget in 1991, quoted Victor Hugo
as “No power on earth can stop an idea whose time has come”--Referring to
idea of economic liberalisation in India.
 Varshney— it marked a fundamental transformation of India’s economic
strategy.

+ves

 8x increase in GDP + Annual avg growth rate of almost 5% (shift

from “Hindu rate of growth”)—one of the fastest growing major economy
in the world.
 Delicensing & trade liberalisation have benefitted society at large.
 9th largest FDI recipient + 5th largest FOREX
 PCI rose from Rs 6,270 in 1991 to Rs 86,659.

WHY 2nd reforms needed?

 Esther Duflo & Abhijit Banerjee – ‘Good Economics for Hard Times’--
There has been increase in overall wealth but equitable distribution has
lacked behind .
 High poverty, inequality (Oxfam--Top 10% of Indian pop holds 77% of the
total national wealth)
 Economic reform is a continuing process & not a one-time action.
 Structural problems in economy—Jobless growth, Poor Mfg sector, poor
performance in health, edu etc.
 Agri crisis

Done reforms in right direction

 4 Labour codes
 GST

Roadmap for 2nd reforms

 Agri growth for equitable distribution of wealth + Land reforms 2.0

 Push in labour intensive Mfg sector
 It shd be sustainable in nature in line with SDGs
 Re-org of Tax regime
 Address the digital apartheid
 Atmanirbhar Bharat
 Ensure equal access in edu, Health

Impacts of LPG—On process of Democratisation

+ves
  Bhagwati & Pangariya--Market economy—poverty ↓, growth—People’s
interests in pluralistic ass increased—can be seen in—
o Civil society Mov—RTI, IAC--Evolution of a mature civil society.
o Grassroots mov
o Assertion by backward & marginalized castes—Yogendra Yadav—
2nd Dem upsurge
 Niraja Gopal Jayal—Frontiers of Dem have been stretched like never
before
 73rd & 74th CAA--Grassroot Democracy
 Dalit capitalism

-ves

 Rolling back of state

 Post democracy—Unelected non rep Inst gained imp

 Rolling back—Dilution of spirit ot S-E Dem

 Atul Kohli
o Consensus on LPG—made ideological diff redundant--led to
Identity based Mobilisation
o Dem widened but ethos has not deepened

India as a developmental state

 States which play a role in dev & modernisation--As opposed to lassez Faire
state
 First used in context of Japan—Extraordinary role played by Japan in post-
World War economic miracle
 Features
o Relative autonomy of state
o Competent and powerful bureaucracy
o Based on ideology of welfare
 India
o Preamble
o DPSPs
o Govt programs
 Land Reforms
 Green Revolution
 Industrial revolution

Election Commision of India

Once regarded as the ‘global gold standard’, ECI is said to have witnessed
inst decay in recent times. Discuss.

 PUCL vs UoI, 2003-- Free & fair elctions r basic structure

 Hillary Clinton--Indian election is the gold standard.
 Sunil Khilnani—Elections in India carry ‘the entire society’s aspirations’ to the
extent that as the ‘sole bridge b/w state & society’--They have come to ‘stand for
democracy itself.’
 Highly trusted inst
 1970s-- submissive role
 1990s--Activist role under T.N. Seshan, M.S. Gill etc--showed great authority in
restoring democratic balance.

+ves

 Inst MCC
 Empowered by Mohinder Singh Gill vs CEC-- ECI under Art 324 vested with plenary
powers to ensure free & fair election
 Electoral integrity

Challenges

 Divisive politics, Political violence, Money power, hate speeches

 Concerns over EVMs
 PBM-- Just like SC, CAG-- The neutrality of ECI has come under a scanner.

Yogendra Yadav--‘Third Electoral System’-- when ‘unbridled mobilisation’ unleashed by

mass politics seemed to ‘exceed institutionalisation’

 Alistair McMillan-- ECI has an Adm remit , but the outcomes have imp political
consequences
 Rudolph and Rudolph--EC has a key position at the heart of new regulatory
centrism of Indian state acting as enforcer of rules which safeguard democratic
legitimacy . While duties of EC are technical , yet it can have decisive partisan
implications.
 Ujjwal Kumar Singh & Anupama Roy (ECI: Institutionalising Democratic
Uncertainties)--

o Currently facing the challenges due to Massification of electoral democracy.

o ECI provided procedural certainty & electoral integrity
o Its role should be analysed beyond legal institutional framework into the
matrix of political democracies .

 Citizen’s Commission on Elections Report--ECI is not using plenipotentiary power

under Art 324 because members are the appointees of the government of the day.
 PMO
Study of inst has gained Again currency with Rise of “Neo-institutionalism”(March & Olsen)

 Parl Govt—Prime ministerial Govt (Crossman), though decline in PM’s inst during
coalition .
 If PM is the pivot of Parl system, it is natural that PMO will emerge as “fulcrum of
Indian Adm ”.
 Initially— PMO was a low profile inst , but over time it has aquired a formidable
influence to extent that the experts call it as “a parallel Govt” (S. R. Maheshwari)

o Every PM has shaped the inst in their own unique way--“the office is what ,
the holder make of it .”

CAG
 Dr S Radhakrishnan--CAG is not responsible to the government rather he serves the
people.
 Vinod Rai (“Not Just an Accountant”)-- CAG has played a sig role as the 5th pillar.
However , the institution must be reformed so that it can fulfill its constitutional
obligations more effectively

Indian Constitution
 PBM — I.C is a revolutionary document— basis for transformation of
India’s Traditional society into a modern society.
 Incorporated idea of UDHR
 Transformative constituion
 Ambedkar—

o However a good constitution may be, if those who are

implementing it are not good, it will prove to be bad'
o The Constitution is not a mere lawyers’ document, it is a vehicle of
life & its spirit is always the spirit of age
o Our is a battle; Not for wealth, nor for power, Ours is battle ; for
freedom ; For reclamation of human personality.

 Ivor Jennings—All Constitutions are heirs of the past as well as the

testators of future— thus our Constitution is primarily based on GoI Act
1935
 Granville Austin—

1. C.A was ‘greatest political venture’ since adoption of U.S. Constitution

in 1787.
 2. Social revolution could not be pursued w/o democracy, but also that
democracy would be meaningless in the former’s absence.

 Myran Weiner—The success of democracy in India is seen as a miracle

considering the absence of essential pre- requiistes for the success of
democracy
 Andre Beteille- A constitution may indicate the direction in which we have
to move, but social structure will decide how far we are able to move and at
what pace.
 Jus A.P Shah— India is moving towards “a form of elected autocracy”
 Pranab Bardhan, in his article “Political economy” suggests that the
purpose of land reforms was the redistribution of political and economic
power but the paradox is that state in India on one hand very strong on
regulatory and interventionist role but cannot be described so as far as
developmental record is concerned.
 Leg.council in states
Arguments in Favour

 It acts as a Talent hunting chamber & as a Gateway to bring

specialisation in the working of State Govt, by giving rep to
intellectuals across diverse shades.
 As 1/3 voting rights are with local bodies, SLC acts as a Safety valve to
pacify the grievances of local bodies at state level.
 With the inception Anti-Defection law, SLA is no longer in a position to check the
Govt.Thus it is SLC which being independent of Govt serves as an effective check.

Arguments against SLC

 Back door for discredited party functionaries & an inst for offering
patronage.

Thus instead of being an Intellectual house, has become the

“House of Celebrities”

 Due to huge Heterogenity, the council in spirit neither serves as a revisory chamber
nor as an effective brake against hasty legislation & only as an unnecessary Drain on
Exchequer.
 Recent Ruckus in Karnataka LC—DC was dragged out—shows indecency of SLC

Critical Perspective

 There was no unanimity of opinion in C.A with regard of having second chamber in
S.L.
 Unlike RS,Legislative Councils lacks the constitutional mandate to play a
substantial role in legislative enactments.
 It seems that SLC exists at the mercy & whims of ruling dispention, as any
opposition to populist agenda of Govt leads to its abolition. Ex-AP(Jagan to
abolish SLC as it blocked 3 capitals bill)

Way Forward

 Parl. standing committee recommended for a National policy for creation of L.C in
States.
 2nd ARC recommended that voting role of teachers & graduates should be done
away with and more say should be given to local bodies.

Art 356
Issues

 H.V. Kamath termed it as a surgical operation for a mere cold— But He criticised
the word ‘otherwise’ & said only god knows what ‘otherwise’ means.
 Shibban Lal Saksena—‘we are reducing the autonomy of the states to a farce.’
  ‘otherwise’ negates the ideals of constitutionalism by giving unlimited powers to
the Centre
 Its invocation more than 125 times belied Ambedkar’s idea of it being a “Dead
letter"

Sarkaria Commission on Art 356

 Art 356 should be used sparingly, as a matter of last resort, when all the alternatives
fails to ractify the Breakdown of Constitutional machinery.
 Art 356 should be amended to ensure that S.L.A is dissolved only after Parliamentary
approvel.
 Report of Governor should be a “Speaking Document”, containing all material facts
 Inter-state council can be consulted before proclaimation of Art 356, to preserve the
spirit of "Cooperative federalism"

Death penalty
Argument for Abolition of death penalty

 Death penalty is error-ridden ( SC admitted it had erred in 25% cases

) & Judge-centric (likelihood of institutional bias)
 Most of the civilised world abolished it. Death penalty has failed to serve as an
deterrance.
 It unfairly targets poors—Those without capital gets capital
punishment. (NLU-Delhi- 76% poors).
 Judicial system is not properly geared to identify rarest of rare cases.
 Due to the adoption of Adversarial legal, poors are often not well represented in
courts + at times there is fallout in police investigations.
 Micarriage of Justice is inherent part of indian criminal justice system.
 Rarest of Rare failed to prevent arbitrary awards
 A societal quest for “quick”, populist justice imperils the checks & balances in the
legal system.

Arguments for Retaining Death Penalty:

 Courts have restricted to only rarest of rare cases that shock the conscience of
society(13 yr 4 executed
 The hanging of Kasab & Yakub Memon strongly affirms India’s commitment to the
protection of life & fight against terrorism.
 Bachan Singh case— “Rarest of rare”
 Problem with Death penalty in india is not esential but it is incidental.Thus faith
in due process, Rule of law, wisdom of courts can be the remedy.
 There is no harm in retaining death penalty as if it is miscarried then ultimately
can be commuted by President.— safety valve.

Reports of commissions

 J.S Verma Committee—

 Rigorous life imprisonment instead of death penalty for rape

  Repeal AFSPA
 Criminalisation of marital rape

 262nd Report of LCI (2015) Abolish death penalty except in terror cases

In 2012, India upheld its stance on capital punishment by voting againt UNGA resolution
that called for its global abolition.
Death Penalty & Rape cases

 POCSO (Amendment) Act 2019 Provided for Death penalty for the rape with
minors.
 SC in Machhi Singh (1983) & Devender Pal Singh (2002) -Death penalty only in
RoR cases.
 Robin Conley in his book, Confronting the Death Penalty— Death penalty may
seem just in abstract but practicality, it is less appealing.

Prison Reforms
Issues—

 Rampant Overcrowding—NCRB’s “Prison Statistics India”(2015)— Avg occupancy

rate is 114%.

1. No segregation of serious & minor offenders

 Delay in Trials—67% inmates in 2016 were undertrials

 Torture & ill -treatment—Custodial deaths + Women prisoners are more vulnerable to
abuse.
 Severe staff crunch
 Inadequate prison infra— Violation of dignity & basic living conditions—against
UN’s standard Minimum Rules for Treatment of Prisoners

Reform needed—
[]Mulla Committee—All India Prison Service—with appropriate job requirements, sound
training
[]Model Prison Manual 2016–To bring uniformity in laws, rules & regulations governing
Prison adm

 Access to free legal service

 Additional provisions for women prisoners
 Modernization & prison computerization
 Focus on after care services
 Provisions for children of women prisoners
 Inspection of Prisons, etc.

[]Training & correctional activities—

 Involve NGOs for educating & vocational training of prisoners

 Library facilities.
 Recreational activities
[]Strengthening PLVs— NALSA brought out a scheme called Para- Legal Volunteers
Scheme aimed at imparting legal training to volunteers to act as intermediaries b/w common
people & Legal Services Inst to remove impediments in access to justice ensure legal aid
reaching all sections of people.
[]Report on ‘Women in Prisons’ by MoW&CD (2018)—

 Access to female counsellors or psychologists

 Separate accommodation for mothers in post-natal stage

[]Law commission—Amend bail provisions in CrPC

 Who have completed 1/3 of max sentence for offences up to 7 yr be released on bail.
 Those awaiting trial for offences punishable with >7 yr be bailed if had completed 1/2
of sentences.
 Comprehensive anti-torture legislation

[]Draft National Policy on Prison Reforms and Correctional Administration, 2007

 Aftercare & rehabilitation services.

 Community-based alternatives to imprisonment for offenders convicted for relatively
minor offences

 Telangana model of Prison reforms—

 Aimed to take system from security based to a more human-centric one.

 24×7 Ambulances service
 Prison staff is made a/c for every death
 Collaboration with behavioural psychologists for collective behaviour therapy

 Swadhar Greh scheme—For rehab of women victims including women prisoners

released from jail

SC's observation On Internet

shutdown
 FoSE through internet is part of Art 19(1)(a)
 It’s Suspension for indefinite period not permissible—can only be for a reasonable
duration & periodic review should be done.
 Restrictions on internet should follow the Principles of proportionality under Art
19(2).

1. DoP is a principle used for Judicial review in case

of adm action
Signifies that punishment should not be disproportionate to the offence committed or the
nature & extent of State’s interference in exercise of a right must be proportionate to the goal
it seeks to achieve.
SC On Section 144 of CrPC:
  Cannot be used to suppress legitimate expression of opinion or grievance or exercise
of any democratic rights
 Imposition of Sec 144 must strike a balance b/w rights of individual & concerns of the
state.
 Should be exercised in a reasonable & bona fide manner & based on material facts

Internet shutdowns

1. India tops list of shutdowns globally— Software Freedom Law Center’s tracker—
381 shutdowns since 2012
2. Under IT Act, CrPC, Telegraph Act, 1885 & Temporary Suspension of Telecom
Services Rules 2017
3. +ve—Based on intelligence inputs—Preventive measure used as a last resort to deal
mass protests, civil unrest, so as to ensure peace + tackle issue of rumours spread
4. -ve—makes HRs hostage to the whims of executives + An information blackout can
also create hysteria, panic

UN resolution on Internet shutdown (2016)—

Condemned intentional disruption of internet access by Govt
Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules
2017

 By Min of communications under sec 5(2) of ITA 1885–interception of msg in

“interests of sovereignty & integrity of India”.
 Empowers Govt to block transmission of msg in case of a public emergency or for
public safety in any part of country.
 Order under Rules, can be only for a temporary duration & not for an indefinite
period.
 Directions to suspend telecom services shall not be issued except by Union Home
Secy & secy of a state’s home dept

Quotes
 Ambedkar—"Constitution is not a mere lawyer’s document; it is a vehicle of life and
its spirit is always the spirit of age”.
 Rationale for citizens’ duties can be summarised in the words of Gandhi: “The best
way to find yourself is to lose yourself in the service of others.”
 John .F. Kennedy—"Do not ask what the country can do for you, but ask what you
can do for the country”
 Modi-- ‘We need a new KYC campaign – Know Your Constitution’
 Ambedkar— “Working of Const does not depend wholly on its nature, but on
people & the political class”
 Indian Constitution-- Ethical document that defines our values & guiding principles.
 “The best argument against Democracy is five minute conversation with an average
voter”— Churchill.
 "Democracy is not a state in which people act like sheep. Under democracy individual
liberty of opinion and action is jealously guarded”.— Gandhi
 Astra Taylor - Democracy May Not Exist, But We’ll Miss It When It’s Gone
 Winston Churchill—For Representatives first came the nation, then the
constituents & then the party.
 Indian Constitution of 1950 may be viewed
 1st truly transformational constitution.
 Aimed not only to restructure the state, but also to unleash social rev by transcendent
constitutional values such as L,E & F.
 SC in ADR vs UoI—“One-sided information, disinformation, misinformation & non
information, all equally create an uninformed citizenry which makes democracy a
farce.
 Separation of Power
Introduction
 It means exe, legislative & judicial powers of Govt shd be divided
into diff branches & not concentrated in one.
 1st propounded by Montesquieu in "The spirit of laws"
 Part of Basic structure—KBC (1973)
 Functional separation—Art 50, 121 & 211, 122 & 212, 361

India vs USA
 US--Watertight SoP (Due to Presidential system)
 Indian constitution embraces idea of SoP in an implied
manner—Reasonable & flexible SoP—Principle of “Checks &
balances”
 Bcz of Parliamentary Govt-- India does not follow an
Absolute separation-- Exe is part of legislature & also is
responsible to legislature + courts can strike down
unconstitutional amendments made by legislature.
Objectives
 To ensure that diff branches of Govt shd work autonomously
with minimal interference from others.
 Reduces over-centralisation of power in any branch + ensure
checks & balance

Importance of SoP
 Imperative for smooth functioning of vibrant democracy--
checks & balances prevent abuse of power

o GRM through Independent judiciary.

o Executive remains A/C to Leg for implementation of
policies

 Rule of law + Checks arbitrariness

 Functional Overlap
 Overlapping Powers Of Legislature

With Judiciary With Executive

 Impeach of Prez  Ministers are members of

 Removal of judges. leg.
 Punish for breach of its  Prez Impeachment
privilege

 Overlapping Powers Of Executive

With Judiciary With Legislative

 Judicial app  Ministers r

 Art 72 members of Leg.
 Tribunals & QJBs— discharge  Ordinance
judicial functions.  Delegated
legislation.

Judicial pronouncements
 KBC -- SoP is part of basic structure
 Indira Gandhi vs Raj Narain-- In Indian Const, there is SoP
in a broad sense only—A rigid SoP as in America does not
apply to India

Venkaih Naidu—All 3 organs should respect “jurisdictional

sanctity enshrined in Const instead of arrogating to themselves a
sense of supremacy”.