Mains 2024 by Saurabh Kumar (Polity and Governnace)

“This booklet contains 300 questions with detailed explanation
‘POLITY &
and notes on Polity and governance covering the basic and
static concepts and other current updates from various sources”.
GOVERNANCE’
Specially designed for UPSC Mains 2024
By
Saurabh Kumar
For all current updates on polity and governance, please follow Saurabh Sir's Telegram Channel
"Polity by Saurabh Kumar”
TOPICS COVERED
1. Transformative Constitutionalism
2. Film and FOSE
3. Press and FOSE
4. Regulation of social media
5. Defamation
6. Preventive Detention
7. Doctrine of Basic Structure
8. Digital age, Privacy and Models
9. Rights and Duties
10. Need of amendment in Seventh Schedule
11. NEET and Federalism
12. Fiscal Federalism
13. States capability: A Concern
14. Understanding Sixth Schedule
15. Jurisdictional Conflict in UT
16. Panchayat: Women and Finance
17. Role of President: Comparison of India and US
18. Suspension AND Expulsion of MP
19. FPTP vs PR System
20. Delimitation: A new crisis in Federalism
21. Parliamentary Privileges
22. Election of Speaker and Deputy Speaker
23. Tribunal
24. Assessment of Supreme Court
25. Judiciary and Food safety Regulation
26. Consumer Right
27. CAG
28. NHRC, NCW
29. Aadhar and Issues
30. Comparison of Judicial system: USA, UK, FRANCE
31. France Election Procedure
Transformative constitutionalism
Transformative constitutionalism is based on the fundamental goal of transforming

society for the better, i.e., making it more progressive and inclusive. Achieving
transformative constitutionalism means infusing the values of liberty, equality,
fraternity, and dignity into the fabric of society.
Indian Experience
• In India, people struggled not only against colonialism, but also against social
ills such as untouchability, caste discrimination, gender inequality, and
discrimination against the LGBTQ community.
• It was with the goal of overthrowing and changing India's colonial past, as well
as bringing about a new social and political order founded on democratic
values, that the country embarked on its constitution-making process.
• In the Indian constitution, various provisions are used to demonstrate the
constitution's transformative intent. Liberty, equality, fraternity, and justice
are some of the aspirations of the people expressed in the Preamble of the
Constitution.
Court’s Intervention
➢ SC in Navtej Johar case said: The goal is to have a constitution that guides the
nation through the process of transforming itself from a medieval and hierarchical
society to an egalitarian democracy. A constitutional court's job is to protect its
citizens from humiliation and discrimination, and the court cannot do so by
providing a static interpretation of the rights to liberty and equality.
➢ SC in BK Pavitra II, recognized the Constitution's transformative potential in
addressing historical caste-based inequities. In this case, the Court upheld the
validity of the Karnataka Extension of Consequential Seniority to Government
Servants Promoted on the Basis of Reservation (to the Posts of the Civil Services
of the State) Act 2018.
➢ Similar observations can be found in the Supreme Court's 2018 decision on
decriminalizing adultery. Despite acknowledging the error of treating women
as the property of men, which served as the foundation for former Indian adultery
law, the Supreme Court stated that "the hallmark of a truly transformative
Constitution is that it promotes and engenders societal change."
Transformative constitutionalism is motivated by an objective to continuously seek

better ways to transform society in ways that continuously improve the lives of people
Policy of Reservation
What is the Policy of GOI?
Answer: - The Policy is based on the provision mentioned in the Constitution,
manifested in Article 15(4) and Article 16(4).
• Reservation for the meaning of Article 15 (4) should be based on caste factor solely
(Indra Sawhney Case)
• However, in the Maratha Reservation case, SC has said Reservation can’t be

caste centric always, the Government needs to find a new Yardstick for
reservation.
• In the Indra Sawhney Case, SC has said, Backwardness contemplated in Article
16(4) is mainly social backwardness. It should not be correct to say that the
backwardness under Article 16 (4) should be both social and educational.
• There is no constitutional bar to classify the backward classes of citizens into
backward and more backward categories.
• The reservation contemplated in clause (4) of Article 16 should not exceed 50 %.
However, in extraordinary situations, this % may be exceeded. But every excess
over 50 % will have to be justified on valid grounds. Recently, after providing
reservations to EWS, it has exceeded.
Some Observations of the Court: (Can be used in exam directly)

1. In K.C Vasanth Kumar VS State of Karnataka:
• The Reservation for Backward class should be comparable to SC/ST in the
matter of Backwardness.
• They should satisfy means test: State Government should show economic
conditions of the Backward class.
2. M. Nagraj Case: It was held that inadequacy of representation is a constitutional
requirement without which the structure of inequality of opportunity would
collapse.
3. Reservation should qualify the test: Width Test and Identity Test.
Width Test:
➢ There should be no violation of the 50 % ceiling.
➢ Administrative efficiency should not be hampered.
Identity Test:
➢ Identity of the Constitution should not be changed.
Question on Reservation Policy:

1. How far have benefits percolated down the ladder: Only one of the 89
secretaries posted at the Centre belongs to the Scheduled Castes (SC), while three
belong to the Scheduled Tribes. According to the 2018 data analysis (DOPT) of
1.3 lakh central jobs and admissions to central higher education institutions
given under OBC quota:
• 24.95% of these jobs and seats have gone to just 10 OBC communities.
• 983 OBC communities have zero representation in jobs and educational
institutions.
2. Has an elite within SC/ST monopolized all benefits of reservation: -Among
the 275 joint secretaries, 13 (4.73 per cent) are SCs, nine (3.27 per cent) are STs
and 19 belong to the OBC category.
3. Should we extend creamy layer to SC/ST? SC in recent case of Jarnail Singh:
• Various reports indicate that Scheduled Castes and Scheduled Tribes do not
constitute a homogenous group.
• The social realities cannot be ignored and overlooked while the Constitution
aims at the comprehensive removal of the disparities. The very purpose of
providing reservation is to take care of disparities. The Constitution takes care
of inequalities.
• A five-judge Bench of the Supreme Court has held that States can sub-classify
Scheduled Castes and Scheduled Tribes in the Central List to provide
preferential treatment to the “weakest out of the weak”.
4. Should benefits of reservation be confined to admission or jobs:
5. Should reservation at Promotion be withdrawn:
6. How do we define backwardness: Justice Katju: While OBCs may have been
backward at the time of independence, reservation was not implemented then but
in the late nineties when it was not necessary. While the Kaka Kalelkar
Commission identified 2399 backward castes, the Mandal Commission
enhanced it to 3743. In January 2000, on the recommendation of the National
Commission for Backward Classes, 132 castes were added to the list of OBCs.
7. Should social backwardness be replaced with economic backwardness: This
debate started after EWS reservation. Matter is pending before SC.
Overall Criticism of Reservation Policy:

• The policy of reservation was designed as an ad hoc policy for ten years. But it is
continuing and getting extension after the end of every ten years. It is creating
some sort of frustrations among the high caste people evident in Jat, Maratha,
Gujjar, Patidar calls for reservation.
• The Reservation Policy actually has created a “new class of vested interest” in the
society.
• The policy of reservation is contrary to the principle of equality. Special privileges
and extra protection to certain classes of people is against the policy of equality.
It violates the very spirit of democracy.
• The policy of reservation of jobs is violating the efficiency and merit system of
recruitment.
• The policy of reservation has given rise to the politics of casteism in Indian
political system.
• Antithetical to the classless society.
• Social backwardness is not always about caste, it can be related to occupation,
residence.
Why there is a rising demand for Reservation?

➢ Structural factors i.e. Fall in agricultural income.
➢ Political factors i.e. Vote bank Politics.
➢ Inter community variations. Ex: Between the farmers of Vidarbha and
western Maharashtra.
What to do?
• Reveal SECC Data and start a new discourse on Reservation Policy.

• In and Out Approach: We can think of excluding those whose earlier generation
has taken its benefit.
• Alternative- “National Knowledge Commission” has recommended
alternatives Like scholarship, Free Residential hostel robust education system.
• Developmental Approach: Can check new kind of Protest from well off
community from Haryana, Gujarat and Rajasthan.
• Sub Categorization within OBC & SC/ST: Committee constituted under G
Rohini Committee.
• SC/ST Sub Categorisation: Justice Arun Mishra in State of Punjab v Davinder
Singh (2020), contrary to E.V. Chinnaiah case held that merely giving preference
in quota to specific castes in the conglomeration of castes in the state’s SCs does
not tinker with the Presidential list of SCs under Article 341. Thus paves the way
for Sub Categorisation within SC/ST.
Added Information: -
The P Ramachandra Raju Commission recommended steps to distribute the

benefits equitably amongst the SCs, by dividing the 15 percent reservation
proportionately according to the population amongst them. Accordingly, the
state government categorised them broadly into Relli, Madiga, Mala, and Adi
Andhra group of communities. The SC quota was apportioned as 1, 7, 6, and
1 percent among the four, categorised as A, B, C, and D respectively. However,
it was rejected by NCSC in 1998. Ans also such sub categorisation is rejected
by SC in E.V. Chinnaiah case.
Film and Freedom of Speech and Expression (FOSE)

• The “Tandav” series was targeted and blamed for "misrepresenting" Hindu gods
and hurting the religious sentiments which further led to a plethora of FIRs being
filed.
• Recently the screening of film" Hamare Barrah" was banned in Karnataka, which
raised a question on fine balance between societal interest and FOSE.
In this context, let us see recent amendment in Cinematography act.
Current provisions of the Act:
• The Central Board of Film Certification (CBFC) grants certification to films if they
meet all of the criteria mentioned in section 5 A of the act.
• The CBFC can reject a film if it is against “the interests of the sovereignty and
integrity of India, security of the State, friendly relations with foreign States,
public order, decency or morality, or involves defamation or contempt of court or
is likely to incite the commission of any offence (Section 5(B))
• Section 5B also empowers the union government to issue directions to the
authority who grants certificates to the films.
Amendment in the act:
• The new provisions include a jail term extending up to three years for piracy, and
a fine of not less than ₹3 lakhs.
• The amendment vests the union government with revisionary powers to review a
film after it has been given a certificate by the CBFC
• The categories for classification of films would now include U, or universal, U/A
7+, U/A 13+, and U/A 16+, besides an A rating for content restricted to adults.
This is in line with new IT rules 2021.
Concerns:
• Government as Super Censor: Revisional powers of Union govt. will effectively

make it supreme power over cinema exhibition in the country
• Freedom of Speech: The encroachment of the central government on creative
independence, in mandating what films can be produced and consumed,
potentially endangering freedom of expression and weakens the scope of a mature

democracy.
• Increasing Regulatory role of Govt: The Cinematograph (Amendment Bill) 2021,
subsequent restrictions on OTT platforms and the abolishment of the FCAT only
add further fuel to the fire.
• Not a broken system: The Central Board of Film Certification (CBFC) has a
robust mechanism for film certification and there is no need to fix something that
is not broken.
• Public Consultation: The government has not provided enough time (only 14
days) for meaningful consultation and the proposed changes ignore suggestions
of reports by two committees of experts on CBFC reform.
Filmmakers believe that the proposed amendments will make them powerless at the
hands of the state and more vulnerable to threats, vandalism and intimidation of mob
censors.
Additional Understanding
The court made two important observations in “Humare Barah films”:
➢ Reiterated "Jagjivan ram vs Rangarajan" case: FOSE can't be

suppressed on account of threat of law-and-order problem. It means any
state should not make an excuse of disturbing law and order situation for
banning the screening of film.
➢ Secondly, film makers should also understand, content should not be
distasteful or obnoxious. In this film Humare Barrah, its criticism is
justified, one can't show Muslim community responsible for population
growth and Muslim men force women to bear more women.
Lastly producer of the movie offered to remove some controversial dialogues and
now films will be screened everywhere.
Supreme Court in K A Abbas case has said:

➢ Films have to be treated separately from other forms of art and expression
because a motion picture is ‘able to stir up emotions more deeply than any
other product of art’.
➢ Application of Articles 19(2) and 19(4) for restricting some contents with
reasonability: Since rights always come with a bundle of duties to protect
the rights of others and no fundamental rights are absolute in nature,
reasonable restrictions could be implied for protecting security,
sovereignty, and maintaining peace, tranquilly, and public morality.
Freedom of Press and speech
CASE STUDY
The Supreme Court has ruled refusal to renewal license to Malayalam channel
Media One amounted to restricting the freedom of the press, and that criticism of
government policy does not constitute a “reasonable restriction” under Article 19(2)
of the Constitution.
Dr. Ambedkar, Chairman of the Drafting Committee, said that no special mention of
the freedom of press was necessary at all as the press and an individual or a citizen
were the same as far as their right of expression was concerned.
Freedom of press has three essential elements. They are:
• Freedom of access to all sources of information,

• Freedom of publication, and
• Freedom of circulation.
However, The Hon’ble Supreme Court observed in Union of India v/s Association
for Democratic Reforms, “One-sided information, disinformation, misinformation
and non-information, all equally create an uninformed citizenry which makes
democracy a farce.
Why Freedom of Press comes under Scanner?
• Handful ownership of Media: As per the reports of Data LEADS and Reporters
Without Borders, Most of the Indian media houses are owned or controlled by
politically affiliated people.
• Hyper commercialization and Price war. Ex Republic TV TRP controversy
• Media today from news to advertising rely on spectacle, simplification and
exaggeration to grab and hold audiences.
• Steady growth of Pseudo scribes who take to journalism to gain access to power,
position and institutions.
• Lack of Integrity and Impartiality
• The problem of hate speech is compounded when propagated by members of the
press. This appears to be true in case of the attacks on Umar Khalid and perhaps,
even in case of the activists arrested in relation to the Bhima Koregaon incident.
Regulation of Media in India:
• Press Council of India: The PCI has the power to receive complaints of violation
of the journalistic ethics, or professional misconduct by an editor or journalist.
• Cable television network Regulation act 1995 content code / Advertisement code
is there in India for programmers and advertisements appearing in cable TV
Network.
• The News Broadcasting Standards Authority (NBSA), of the NBA, is empowered
to warn, admonish, censure, express disapproval and fine the broadcaster a sum
up to Rs. 1 lakh for violation of the Code.
• No Specific Law for Electronic media
Why is there a need to regulate electronic media?
• This will bring a level playing field for all kinds of digital players running
independent news digital organizations.
• This will also provide a kind of credence to digital platforms of all shapes and
sizes.
• Independent journalism will get recognition not only by the government but
various other arms of the government at state and central level.
• It will be able to bring some kind of difference between serious and no serious
news provider.
• When it comes to social media platforms, it becomes very difficult to regulate the
content as the source is undefined. The news disseminated by the WhatsApp of
Facebook could be cross checked by the digital content of the registered website.
Conclusion: In the words of Judge Pillay, ‘the power of the media to create and
destroy fundamental human values comes with great responsibility. Those who
control such media are accountable for its consequences.
Regulation of Social Media

Context:
➢ India Rebuked Twitter after US Social media giant didn't fully comply with a
government order to take down over 1100 accounts that the government says
spread misinformation about the farmer protest.
Why Should social media be regulated?
• Shadow Banning: It is an act where a social media portal can partially block a
user from their online community. Users have experienced that their content does
not reach the desired number of users.
• Hate and Fake messages: A Microsoft study found that over 64% of Indians
encounter fake news online There are a staggering number of edited images,
manipulated videos and fake text messages spreading through social media
platforms and messaging services like WhatsApp making it harder to distinguish
between misinformation and credible facts.
• Political Manipulation: “Oxford Internet Institute” has found that social media
manipulation is getting worse, with rising numbers of governments and political
parties making cynical use of social media algorithms, automation and big data
to manipulate public opinion at scale, with hugely worrying implications for
democracy. Ex: Cambridge Analytica scandal.
• They are “Narrowcaster”: It means targeting audiences using Algorithms and
making decisions based on browsing behavior.
• Maximising User Time: There is an adage in Media: “If it bleeds, then it leads”.
This refers to the fact that sensationalist, violent content provokes emotions
simply increases the sale.
• Data Colonialism: Data colonisation is basically the concentration of data in the
hands of a few like Microsoft, Google, Facebook, Amazon.
CASE STUDY WHICH CALLS FOR ITS REGULATION
Facebook-Google News feed issue in Australia, France, India

A new regulation sought by Australia that forces Facebook, google to pay the news
publisher, as we know today most of the news are flashed at these platforms, but the
news is of publisher, editor and reporters of newspapers. More than half of the
population finds news on these platforms, and they are collecting vast amounts of
data about the readers along with monetary benefits by selling advertisements.
Examples from European Countries:
• Google and a group of French publishers have announced a framework agreement

for the American company to negotiate licensing deals with individual publishers.
The company has deals with outlets including the newspaper Le Monde and the
weekly magazine l’Obs.
• Last year, Facebook announced it would pay U.S. news organizations including
The Wall Street Journal, The Washington Post, and USA Today for headlines. No
financial details were released.
• In Spain, Google shut down its news website after a 2014 law required it to pay
publishers.
What are the Laws/Rules for Regulating Social Media?
➢ Section 69 A of IT Act: Section 69A of the IT Act, empowers the Central

Government to order that access to certain websites and computer resources be
blocked in the interest of the defence of the country, its sovereignty and integrity,
the security of the State, friendly relations with foreign States, public order or for
preventing incitement to the commission of an offence.
➢ Section 69 A (3) of IT Act: It provides for jail term of 7 years if intermediaries does
not comply with the government regulations.
The Information Technology [Intermediaries Guidelines and Digital Media

Ethics Rule] 2021:
• Classification of Social Media Intermediaries: The guidelines call upon the

categories of social media intermediaries:
• Regular Social Media Intermediaries (RSMIs)
• Significant Social Media Intermediaries (SSMIs):- The SSMIs are the
intermediaries having more than 5 million (or 50 lakh users.
• Appointment of Officers: The SSMIs are required to appoint following officers, all
of whom shall be the residents of India:
➢ A Chief Compliance Officer
➢ A Nodal Contact Officer who should be available 24*7
➢ A Resident Grievance Officer.
• Grievance Redressal Mechanism: The guidelines ask the social media platforms
to have a grievance redressal mechanism so that any content shared violates the
public order or is not regulatory, a complaint regarding the same can be lodged
to the Grievance Redressal Officer.
• The officer will be required to acknowledge the complaint within 24 hours and
resolve it within 15 days.
• In the cases specifically related to crime against women, the obligation is to

resolve the complaint within 24 hours.
• Monthly Reports: The SSMIs are also required to publish a monthly report
mentioning the number of complaints received and the actions taken in response.
• Identifying Originators of Messages: The new rules make it mandatory for
platforms such as WhatsApp, Signal and Telegram to aid in identifying
“originators” of “unlawful” messages, while also requiring social media networks
to take down such messages within a specific time frame.
• Non-compliance of these laws can result for the SSMIs in losing the ‘safe harbour’
protection offered under the Section 79 of the IT Act.
The new IT Rules has been challenged
Apprehension of Petitioner:
• Rules 12, 14 and 16 of the Rules give the Secretary, I&B, emergency powers to
block, as an interim measure, public access to any information or a part of it
without giving the intermediary hosting the information any opportunity of
hearing.
• The petition also challenged the Code of Ethics and argued that the rules intend
to regulate content on “undefined, vague, and subjective” standards such as
“half-truth, good taste, decency”, which provide a “broad scope for imminent
misuse” by government agencies.
Court's Response
Bombay HC: Stays on operation of Rule 9 subclause (1) & ( 3). It mandates adherence
to the Code of Ethics which is annexed to the IT Rules, 2021 and provides for a three-
tier structure for addressing the grievances of Publishers.
What are the issues with such Law and Rules?
• Violation of Fundamental Rights: Article 19 (1) Guarantees Right to speech and

expression to every individual and such regulation is not reasonable restrictions
if not based on material facts.
• Placing a burden on users to go to the court: Ban is an easy and costless option
for the government as the Government does not need to go to the court and prove
a violation of law and places a burden on users to go to the court.
• Lack of Procedural Safeguards: There is no opportunity for hearing of affected
parties. Thus, violated Principles of Natural Justice
• Doctrine of Proportionality is not followed: In the Anuradha Bhasin case, the
courts asks for this doctrine to be followed in which there must be reasonable
relation between the objective which is sought to be achieved and the means used
to that end, or where punishments imposed by administrative bodies or inferior
courts are wholly out of proportion to the relevant misconduct.
Suggestion to Regulate Social Media:

• Intermediaries should deploy automated tools for proactively removing or

disabling public access to unlawful information, and to have a 24×7 mechanism
to deal with requisitions of law enforcement.
• Implementing "circuit breakers" so that newly viral content is temporarily stopped
from spreading while it is fact-checked.
• Forcing social networks to disclose in the news feed why content has been
recommended to a user.
• Making it illegal to exclude people from content on the basis of race or religion,
such as hiding a spare room advert from people of colour.
• Banning the use of so-called dark patterns - user interfaces designed to confuse
or frustrate the user, such as making it hard to delete your account
Regulation of OTT:
Context: A bench headed by the Chief Justice of India asked the government to
submit a reply to the public interest litigation (PIL) seeking the establishment of an
autonomous body to regulate web shows and films.
What is OTT?
Ans: An over the top (OTT) platform is nothing but the streaming service directly
offered to viewers through the medium of internet. OTT consists of streaming
platforms such as Netflix, Amazon Prime Video, Disney plus Hotstar etc. which can
be accessed on Smart TV platforms, on smartphones via apps and on personal
computers or laptops via websites.
Why should OTT Platforms be regulated?
• These platforms due to non-regulation exhibited 'vulgar, immoral and religiously

forbidden' content which can be harmful to society at large.
• There is no law or autonomous body governing the digital content to monitor and
manage these digital contents and it is made available to the public at large
without any filter or screening,
• Mirzapur web series had tarnished the image of Mirzapur by depicting it as a city
of goons.
• There are enough court cases and FIRs against several web series. FIRs were
registered against the makers of political thriller Tandav, which was released on
Amazon Prime Video.
Does OTT come under any Law
The content released on OTT platforms are not regulated either by the CBFC or under
any specific statute. Thus, the movies can skip the censorship process if they are
being released directly on OTT platforms.
• But the Ministry of Electronics and Information Technology (MEITY) believes that
OTT platforms fall under its Jurisdiction and must be regulated by the
Information Technology Act, 2000.
• However, on the contrary, OTT platforms contend that they fall under the purview
of 'private exhibition' since they are an on-demand service and the laws related
to theatrical releases and TV broadcasts will not be applicable to them.
Regulation of OTT platforms in other countries
• The Australian Communication and Media Authority regulates content matters;

the ad content is governed by the Industry Codes of Practice.
• OTT TV for content viewing is regulated in Singapore by the Info-Communications
Media Development Authority (IMDA), a statutory body that regulates the
converging info-communications and media sectors.
• However, there is no specific legislation that governs OTT platforms in any of the
countries.
Similarly, OTT platforms in India have recently adopted a code for Self-Regulation of
Online Curated Content Providers to regulate the issues and provide redressal for
consumer discrepancies.
What the Court says on Regulation of OTT?
• Delhi High Court: Dismissed the petition of Justice for Rights Foundation stating
that OTT platforms need not acquire a license to operate.
• Karnataka High Court: The court refused to do so stating that transfer of files i.e.,
exhibiting content such as films, serials etc through the medium of internet
cannot be regulated by the said Act.
Conclusion TRAI in its consultation paper on regulation of OTT platforms analysed

this issue and highlighted the regulatory Imbalances with respect to such platforms
as follows:
• OTT platforms have no licensing regulations.

• No regulations with respect to spectrum charges.
• No regulations with respect to guarantee to the government.
• No regulations with respect to quality-of-service parameters.
Thus, OTT should be regulated, if Self-regulation advocated by these platforms fails

to check the reason for the need of statutory regulation
Any type of deliberate false communication, either written or spoken, that can harm a
person’s reputation or decreases the respect, regard or confidence of a person; or
induces disparaging, or a hostile or disagreeable opinion or feeling against a person is
known as defamation.”
Defamation law in India

Defamation is an offence under both the civil and criminal law.
• In civil law, defamation is punishable under the Law of Torts by imposing
punishment in the form of damages to be awarded to the claimant.
• Under the Criminal law, Defamation is a bailable, non-cognizable offence and
compoundable offence. Hence a policeman may arrest only with an arrest warrant
issued by a magistrate.
Civil defamation
Monetary compensation can be claimed from the defendant for defamation. There
are certain requirements for successful defamation suits. They are:
• The presence of a defamatory statement is required. Defamatory content is one
calculated to injure the reputation of a person or a class of persons by exposing
them to hatred, contempt or ridicule. The test whether it damages reputation has
to be calculated from the eyes of a common man and his comprehension of the
matter.
• Secondly, the statements must purport to a person or a class of persons. General
statements like all “politicians are corrupt” is too broad and no specific politician
can gain compensation for the same.
• It must be published either in oral or written form. Unless the content is made
available to a third person, there can be no defamation
Criminal Defamation
It is nothing but a defamation for which simple imprisonment may be awarded.
Under a criminal suit, intention to defame is necessary. The allegation should be
made with malice intent to defame another or at least the knowledge that the
publication is likely to defame another is essential.
Persons who make defamatory statements are exempted from punishments if :-
• Attribution of any truth made for public good. Truth is seldom defended unless
made for a public good.
• Any opinion made in good faith regarding the conduct of a public servant in the
discharge of his public functions.
• Any opinion made in good faith respecting the conduct of any person which
relates to a public question.
• Publication of true reports of the proceedings of the Courts or the result of the
proceedings is not a defamation.
• Any opinion made in good faith regarding the merits of any civil or criminal case
decided by the Court of Justice, or the conduct of any person as a party, witness
or agent to that case and no further.
Landmark judgements in India

• Ram Jethmalani vs. Subramanian Swamy: The court held Dr. Swamy guilty for
defaming Ram Jethmalani by saying that he received money from a banned
organization to protect the then Chief Minister of Tamil Nadu from the case of
assassination of Rajiv Gandhi.
• Chintaman Rao vs. The State of Madhya Pradesh: The Supreme Court
explained the meaning of “reasonable restrictions” imposed in Article 19 (2). It
implies intelligent care and deliberation and that is required in the interests of
the public.
Constitutionality of Defamation Laws:

The Supreme Court has ruled that the criminal provisions of defamation are
constitutionally valid and are not in conflict with the right to free speech. The court
also held that the freedom of speech and expression is “absolutely sacrosanct” and
is not absolute. The right to life under Article 21 shall also include the right to
reputation of a person and cannot be allowed to be crucified by other’s right of free
speech.
Right of Reputation VS Right to Dignity
SC in Subramanian Swamy vs Union of India, 2014,
The right of reputation cannot be protected at the cost of the right of life and dignity
of women.
Right to Reputation:
• As per the SC, the right to reputation is an integral part of Article 21 of the
Constitution.
• Further, existence of Section 499 (Criminal Defamation) of the Indian Penal Code,
1860 is not a restriction on the freedom of speech and expression because it
ensures that the social interest is served by holding a reputation as a shared
value of the public at large.
Law Commission
• It acknowledged that criminal defamation laws violated international norms, and
that the penalty of imprisonment up to two years was clearly disproportionate.
• International bodies such as the UN had recognised the threat posed by criminal
defamation laws and have recommended that they should be abolished.
Preventive Detention
Preventive Detention can be understood as imprisonment of a person without trial,
an act that is supposedly justified for non-punitive ends and is often described as a
preventive measure rather than a punitive one.
Provision:
• Article 22(3) provides that if the person who has been arrested or detained under
preventive detention laws then the protection against arrest and detention
provided under article 22 (1) and 22 (2) shall not be available to that person.
• Clauses (4) to (7) provide for the protections in accordance with preventive
detenue.
Laws for Preventive Detention

• The first Preventive Detention Act was passed on 26 February 1950, abolished in
1971.
• In 1971 Maintenance of Internal Security Act, was instituted to establish internal
security in India and finally removed in 1977.
• TADA in 1985 was brought in the regard of Khalistan’s separatist movement,
abolished in 1995.
• POTA was introduced in 2002 and repealed in 2004.
• UAPA
• NIA
Purpose of Preventive Detention:

1. In the case of Mariappan v. The District Collector and Others, the Court held
that the aim of detention and its laws is not to punish anyone but to stop certain
crimes from being committed.
2. In the case of Union of India v. Paul Nanickan and Anr, the Supreme Court said
that the reasoning for such detention is based on suspicion or reasonable
possibility and not a criminal conviction, which can be justified only by valid
proof.
3. Rising Internal and external threats
4. To protect Reputation.
5. To ensure Free and fair election
Misuse:
1. Runs contrary to ICCPR.
2. Against Article 21.
3. No Standard procedure to determine the satisfaction of the Detaining Authority
Test.
4. The Advisory Board review procedure prescribed by the Constitution involved an

executive review of executive decision-making. The absence of judicial
involvement violates detainees' right to appear before an "independent and
impartial tribunal", in direct contravention of international human rights law
including the ICCPR (Article 14 (1) and the Universal Declaration of Human
Rights (Article 10).
5. Detainees do not have the right to legal representation or cross-examination in
Advisory Board hearings. This is contrary to the U.N. Human Rights Committee
has stated that any person arrested must have immediate access to counsel".
6. It is required only to communicate the grounds of detention to the detainee "as
soon as may be" after the arrest. This is contrary to Article 9 (2) of the ICCPR
provides that reasons for his arrest shall be informed, at the time of arrest
Safeguard: SC in K Puttaswamy case, established threefold conditions in the case of

an infringement of personal liberty of individuals: (i) validity, which presupposes the
presence of law; (ii) need, identified as a valid purpose of the State; and (iii)
proportionality, which guarantees a fair relationship between the objects and the
ways pursued to attain them.
SC Observation:
Ahmed Noor Mohamad Bhatti V. State of Gujarat: While upholding the validity of
the power of the Police under section 151 of the Criminal Procedure Code 1973 to
arrest and detention of a person without a warrant to prevent the commission of a
Cognizable offence ruled that a provision could not be held to be unreasonable as
arbitrary and therefore unconstitutional merely because the Police official might
abuse his authority.
Abhayraj Gupta v. Superintendent, Central Jail, Bareilly: The Allahabad High
Court quashed a detention order issued against a murder suspect by exercising
powers under the National Security Act, 1980, stating that if a person is in custody
and there is no imminent possibility of his release, the power of preventive detention
should not be exercised.
Andhra HC:
• Preventive detention could be used only to prevent public disorder.
• The State should not arbitrarily resort to “preventive detention” to deal with all
and sundry “law and order” problems, which could be dealt with by the ordinary
laws of the country.
Recommendation of South Asia Human Rights Documentation Centre:
1. Deleting those provisions of the Constitution that explicitly permit preventive
detention.
2. Particular procedural protections are urgently needed:
• To reduce detainees' vulnerability to torture and discriminatory treatment.
• To prevent officials misusing preventive detention to punish dissent from
Government or from majority practices.
Conclusion: In any case, Article 22 (3) (b) of the Indian Constitution grants
preventive detainment, we can’t hold it unlawful yet we should restrict the intensity
of preventive detention within very narrow limits, else, we will encroach upon a
person’s entitlement to liberty.
Doctrine of Basic Structure
A judicial doctrine, which has evolved through a series of judgments of the Supreme
Court on cases related to the amending power of the Parliament.
The Evolution of this Doctrine over the years can be seen as follows:
Shankari Prasad Case, 1951
• In this case, the Supreme Court ruled that the term ‘law’ in Article 13 includes
only ordinary laws and not Constitutional Amendment Acts. Thus, Parliament
can take away or abridge any of the Fundamental Rights by enacting a
Constitutional Amendment Act.
Golak Nath Case, 1967
• In this case, the Supreme Court reversed its earlier stand and held that the term
‘law’ in Article 13 also includes Constitutional Amendment Acts. Hence, the
Parliament cannot take away or abridge a Fundamental Right through a
Constitutional Amendment Act.
24th Constitutional Amendment Act, 1971
• To counter the Supreme Court verdict in the Golak Nath Case, the Parliament
passed the 24th Constitutional Amendment Act, 1971, which amended Article 13
and Article 368.
• It declared that the Parliament could take away or abridge any of the
Fundamental Rights through a Constitutional Amendment Act under Article
368 and such an act will not be considered a law under the meaning of Article 13
Benefits
• The basic structure doctrine is a testimony to the theory of Constitutionalism to

prevent the damage to essence of COI by brute majority of the ruling majority.
• It saved the Indian democracy as it acts as a limitation of constituent power or
else unlimited power of parliament might have turned India into a totalitarian.
• It helps us to retain the basic tenets of our constitution so meticulously framed
by the founding fathers of our Constitution.
• It strengthens our democracy by delineating a true separation of power where
Judiciary is independent of other two organs.
• Being dynamic in nature, it is more progressive and open to changes in time
unlike the rigid nature of earlier judgements.
Zia Modi in her book “The ten Judgements that changed India” has said:
Judiciary is wrong from academic point of view, but from the practical point of
view, it was the need of time.
Issues:
• The doctrine does not have a textual basis.

• There is no definite elucidation on what exactly constitutes basic structure,
thereby, making the doctrine ambiguous.
• Making judiciary authoritarian.
• Justice Mathew noted in the case of Indira Nehru Gandhi V Raj Narain, the basic
structure concept is vague and indefinite, making it difficult to determine the
validity of an ordinary law based on this concept.
• Justice Ray observed that all provisions of the Constitution are essential, and no
distinction can be made between essential and non-essential features from the
point of view of amendment unless explicitly stated in the Constitution.
• Jurist Fali S. Nariman agrees with the criticism that, having propounded the
basic structure theory, the guardians of the Constitution have become
guardians over the Constitution.
The Doctrine of Basic Structure of the Constitution stands as a cornerstone of

constitutional jurisprudence, providing a framework for the preservation of
fundamental principles and values inherent in the Constitution. It is a testament to
the visionary foresight of the Indian judiciary that safeguards the foundational
principles of the constitution from arbitrary changes.
Digital age, Privacy and models

Digital technologies do not exist in a vacuum. They can be a powerful tool for
advancing human progress and contribute greatly to the promotion and protection
of human rights.
However, data-intensive technologies, such as artificial intelligence applications,

contribute to creating a digital environment in which both States and business
enterprises are increasingly able to track, analyze, predict and even manipulate
people’s behaviour to an unprecedented degree. These technological developments
carry very significant risks for human dignity, autonomy and privacy and the exercise
of human rights in general, if applied without effective safeguards.
Right to Privacy” has been considered as an integral part of “Right to Life and
Personal Liberty” guaranteed in Article 21 of the Constitution. When we talk of
privacy online, it is easy to narrow the discussion to something that can be described
as “anti-wiretapping”. But privacy is a much more diverse and important concept
than that. The scope of Fundamental Rights in the context of Right to Privacy is: -
1. Bodily Privacy: The Privacy of Body means that your body is your own, and
governmental agents may not examine or invade it without the individual
consent.
2. Spatial Privacy: Right in Family space, intimate relation.
3. Communicational Privacy: Right against access against communication or
control over it.
4. Intellectual Privacy: Privacy of thought, Mind, Opinion and beliefs.
5. Decisional Privacy: The ability to make intimate decisions.
6. Associational Privacy: Privacy of choice of who to interact with.
The publication of important, private documents regarding health-related problems

that can lead to social discomfort and worse are also under the Right to Privacy.
Sexuality and Privacy, reproductive rights are safeguarded under the verdict, and at
the same time any unauthorized phone call tapping has been declared violative to
fundamental rights.
Situation of Right to Privacy

Privacy always comes in conflict with transparency.
• RTI VS RTP- When the Government collects information from the citizens for
different purposes like for tax evaluation, Identification Proofs, then if any citizen
files for access to the records, then it is in contradiction with each other as the
citizens' Right to Privacy is violated if Right to Information is followed.
• In Girish Ramchandra Deshpande v. Central Information Commission: The
issue before the Supreme Court was whether the Central Information
Commission can deny the information relating to the personal matters of a public
servant, pertaining to his service career and the details of his assets, liabilities,
movable and immovable properties on the basis of exception mentioned in Section
8(1)(j) of the RTI Act, 2005. The court answered in an affirmative tone and yes, it
is exempted.
• In Unique Identification Authority of India v. Central Bureau of
Investigation, CBI sought access to the Unique Identification Authority database
for investigation which was ruled against by the Supreme Court of India. It was
observed that no information can be transferred, even by Government entities
without the prior consent of the individuals who are the owners of that
information.
• The administration displayed banners in the city of Lucknow which had all the
details of those protestors including their photographs, name and address,
against whom the administration had initiated actions to claim compensation for
public vandalism. The Allahabad High Court had taken a suo motu cognizance of
such a move considering it to be a gross violation of right to privacy as enshrined
under Article 21 of the Constitution.
• Right to Fair Trial over and above Right to Privacy? Right to bring evidence
to prove the case is above RTP, else the accused would be denied the right to fair
trial guaranteed under Article 21 of the Constitution.
• Investigation is an Intrusion to Privacy, but the Unearthing of Truth must
Happen in the Interest of Justice: In R M Malkani VS State of Maharashtra,
it has been held that conversation that is tape-recorded by an external device,
without tampering or interrupting telephone lines, is admissible in evidence. In
this case the Supreme Court has spelt out three conditions for admissibility of a
tape recording, namely, (a) relevance (b) voice identification and (c) proof of
accuracy.
Right to life is now no more limited to the wider interpretation given in Maneka
Gandhi case, it reached to a micro level where each and every single entity of life
becomes an important Thus, the legitimate aims of the state while encroaching
Privacy should be “protecting national security, preventing and investigating crime,
encouraging innovation and the spread of knowledge, and preventing the dissipation
of social welfare benefits.” These matters should be considered by the Union
government while designing the regime for the protection of the data.
Looking into these, it is important to understand the concept of Data Sovereignty:

Data sovereignty is the premise that data should be subject to the laws and
regulations of the country where it is collected or stored. As a legal and political
concept, this ensures that data is controlled by the pertinent entities and that they
have the authority to determine its usage, storage, and dissemination.
For individuals and organizations, this means ownership under the law over the data
they generate or handle, thereby preventing unauthorized access, misuse, or
exploitation. On a national level, countries have the legal right and authority to
control access, storage, processing, and movement of data within its borders.
Models of Data Protection:
• The EU has opted for strong data protection laws (through policies encouraging
the right to be forgotten and data minimisation), but fundamentally approaches
the issue from a prevention-of-harm perspective rather than through the lens of
individual empowerment through data. GDPR applies to any organisation
operating within the European Union, as well as any organisation outside of the
EU which offers goods and services to customers or businesses in the EU.
• The United States follows a sectoral approach to data privacy protection. There is
no all-encompassing federal legislation that ensures the privacy and protection of
personal data. Instead, legislation at the federal level primarily protects data
within sector-specific contexts. In contrast to Europe’s comprehensive Data
Protection Directive, the United States relies on a combination of legislation at
the federal and state levels, administrative regulations, as well as industry
specific self-regulation guidelines.
• India’s model can be understood by its Digital Data Protection Act 2023:
➢ The DPDP Act applies to Indian residents and businesses collecting the data
of Indian residents. It also applies to non-citizens living in India whose data
processing “in connection with any activity related to offering of goods or
services” happens outside India.
➢ Entities responsible for collecting, storing, and processing digital personal
data are defined as data fiduciaries and have defined obligations. These
include: (a) maintaining security safeguards; (b) ensuring completeness,
accuracy, and consistency of personal data; (c) intimation of data breach in a
prescribed manner to the Data Protection Board of India (DPB); (d) data
erasure on consent withdrawal or on the expiry of the specified purpose; (e)
the data fiduciary having to appoint a data protection officer and set up
grievance redress mechanisms; and (f) the consent of the parent/guardian
being mandatory in the case of children/minors (those under eighteen years
of age).
➢ Act allows personal data to be processed for any lawful purpose. The entity
processing data can do so either by taking the concerned individual’s consent
or for “legitimate uses,”. Legitimate uses are defined as: (a) a situation where
an individual has voluntarily provided personal data for a specified purpose;
(b) the provisioning of any subsidy, benefit, service, license, certificate (c) Any
purpose of sovereignty of the country.
➢ The government may restrict Data flows to certain countries by notification.
Analysis of the law:

• The abandonment of a “regulatory” law: The 2018 and 2019 bills created a
legislative framework that had a high degree of regulatory intensity to Data
protection board. However, in the law, the board is not a regulatory entity and
does not have any powers to frame regulations or codes of conduct or to call for
information to supervise the workings of businesses. It can only do so during the
process of conducting inquiries.
• Second, the discretionary rule-making powers that the government has under the
law could, in some cases, undermine the protections provided in the law. For
example, under Section 17(5), the government has the power to declare that any
provisions of this law will not apply to any business or class of businesses within
five years of the commencement of the law.
• The government has some unguided rule-making powers for exempting
businesses from certain requirements regarding the processing of children’s
data.
Suggestion:
India needs a paradigm shift in personal data management that transforms the
current organisation-centric data sharing system to an individual centric approach
that promotes user control on data sharing for empowerment.
The Niti Aayog’s mission of the Data Empowerment and Protection Architecture is
therefore to provide individuals and small businesses with the practical means to
access, control, and selectively share personal data that they have stored across
multiple institutional datasets - to maximise the benefits of data sharing for
individual empowerment whilst minimising privacy risks and data misuse. By giving
people, the power to decide how their data can be used, DEPA enables an individual
to control the flow of and benefit from the value of her personal data, relying on not
only institutional data protection measures but also restoring individual agency over
data use.
Rights and Duties

As there is a close relationship between the body and soul, so there is a relationship
between the rights and duties.
Manifestation of Relation:
• The right of one is related to the duty of the other: If one has the right, the other
has the duty related to that right. If one enjoys the right, it becomes the duty of
the other not to prove an obstacle in the enjoyment of his right.
• The duty of one is the right of the other and vice versa: If I possess rights, I owe
duties also. As we treat others, others will treat us.
• The state guarantees the enjoyment of certain rights to every individual. But at
the same time, it becomes the duty of the individual that he should make the use
of those rights for promoting the common welfare.
• If the State Protects me in enjoying my rights, it becomes our cardinal duty that
we should pay taxes regularly and remain faithful and loyal to the state.
How Fundamental Duties are a means of achieving responsible Citizenry?
Answer: A responsible citizen is the one who performs his social, moral, ethical
obligations and his duty towards state and fellow citizens. Fundamental duties are
the guiding principles for citizens to perform their duties and be responsible towards
the State. Though these duties are not themselves enforceable in courts but if a
court, before which a fundamental right is sought to be enforced, will read all parts
of the Constitution, and it may refuse to enforce a fundamental right if an individual
has violated any of the duties specified in Article 51-A. In Javed v. State of Haryana,
the Supreme Court held that fundamental rights have to be read with fundamental
duties and the Directive Principles of State Policy and they cannot be read in
isolation.
Drawbacks of enforcing Fundamental Duties
• It provides opportunity to implant political propaganda in the disguise of

protecting culture.
• Futility of legal enforcement without will and aspirations of the citizens.
• Difficulty in determining scope. Ex Fundamental duty such as to value and
preserve the rich heritage of composite culture leaves the scope of such duties
open ended.
• Lack of adequate awareness.
Do you think FD should be expanded?
JS Verma Committee has recommended for:
• Duty to vote at elections, actively participate in the democratic process of

governance and to pay taxes should be included in Article 51-A of the
Constitution”.
• Duty to pay taxes.
• Duty to keep premises clean: Article 21 has been interpreted by the Supreme
Court to include the right to a clean environment.
• Duty to raise voice against injustice: The victim can report the crime and aid the
society and bring the offender to book. The Protection of Children from Sexual
Offences Act, 2013, imposes a duty to report a sexual offence on specified classes
of people.
• Duty to support Bonafide Civil Society: When the underprivileged are too in-
equipped to stand up and fight for their rights, it becomes the moral obligation of
us citizens to support genuine civil society movements and fill in the gap left by
the executive in implementation of the government policies.
In the absence of fundamental rights and duties complimenting each other, it is

impossible to establish deep roots of Democracy in the society. If everyone wants the
privilege of rights and no one wants to take the responsibility to follow the duties,
the government will end up as anarchy.
Need of amendment to 7th Schedule

Context: Finance commission Chairman has advised to revisit the 7th schedule of
the constitution. The Puncchi commission in 2010 has also recommended that the
Union should only transfer those subjects into the concurrent list which were central
to achieving demonstrable national interest.
Why is the amendment needed?

Ans: -
• Changes both in terms of political stability, technology and emerging new
challenges of national priority like climate change.
• The national priorities encompass a number of areas where the federal
government has taken initiatives, like education, health, electricity and
infrastructure.
• The dealings with the recent COVID pandemic has highlighted the issues with
the distribution of subjects between the centre and states. The fragmented
manner in which the laws have been invoked highlighted a lack of clarity in how
the Centre and States have interpreted their roles under the Constitution as it
stands.
• The needs of governance are not static and are bound to change over time.
• Removing Entries that are outlived now: - Entry 27, List III: Relief and
rehabilitation of persons displaced from their original place of residence by reason
of the setting up of the Dominions of India and Pakistan: The entry has outlived
the reason for its inclusion, i.e. the partition of India in 1947.
• Adding new entries like Disaster management, Consumer protection,
Environmental protection.
• Rising court cases and Court is solving the issue via application of different
doctrines like
Doctrine of Pith and Substance, Doctrine of Colourable legislation.
Analysis by Vidhi centre for Legal Policy

The old principles that favour the allocation of legislative power to the Union
Government are:
• Ensuring the unity and integrity of India.
• Achieving balanced economic development.
The new principles that favour the allocation of legislative power to the State
Governments are
• Promoting cultural autonomy and diversity.
• Enabling responsive governance.
However, in case of a tie between the centre list and state list, a concurrence analysis
is required to be performed considering the following principles:
1. Interests of uniformity
2. Encouraging state effort for innovation
3. Matters that may have an impact outside the State
If any entry meets any of the above three criteria, the entry will be placed under the
Concurrent List otherwise it will remain in the State List.
Case Study
Niti Aayog suggested putting `` public order" in the Concurrent List. It is because
of the:
1. Rise of Interstate crimes
2. In light of the rapid growth in internet, communication and mobile
technologies, organized crimes and terrorism can be best tackled through a
unified legal, administrative and operational framework for the police forces
across the nation.
However, as per the Vidhi Centre, Entry 2 under List II i.e. Police (including
railway and village police) should remain under State List. Reasons:
1. Police should be equipped to respond to local needs and maintain law and
order in the area within their jurisdiction. This is a decentralised task and
seeking nation-wide uniformity in this regard may not be desirable.
2. Concerns of efficiency with regard to inter-state policing must be dealt with a
suitable entry on federal crimes rather than encroaching on the domain of the
local police.
Sarkaria Commission
1. Residuary powers are transferred from the Union List to the Concurrent List,
except for the residuary power to impose taxes which should be retained in the
Union List.
2. States should be consulted by the Centre before the latter exercises its power over
Concurrent List entries.
NEET and Federalism

What is NEET?
Answer: The National Eligibility Entrance Test (NEET), formerly the All India Pre-
Medical Test (AIPMT), is the qualifying test for MBBS and BDS programmes in Indian
medical and dental colleges. It is conducted by the National Testing Agency (NTA).
Why NEET?
Answer:
• To create an umbrella or single entrance exam for all medical aspirants in India.
• Till now admission to these seats was done through national state level entrance
exams. There were over 25 such different Medical Entrance Examinations in India
for admission into various Govt. & Pvt. Medical Colleges.
• On an average a student appeared in 7-9 entrance exams, thereby causing
unnecessary stress on them as well as on parents.
• Moreover, giving so many exams creates a lot of financial burden for the parents
since each examination involves expenses like Application Fee & commuting to
appear for the entrance test in various cities / at various test centres. So, NEET
will avoid unnecessary wastage of time, effort & money.
• Moreover, multiple exams also pose the challenge of preparing for different syllabi
and patterns for students. This further increases the stress among students
What are the issues with NEET
Not Student Friendly:
• It prospers Coaching institutes and most of them are in cities. Thus, students
from rural backgrounds face disadvantage.
• NEET paper has been leaked twice in the last 4 years.
• Errors in Translation leading to Madras HC awarding marks for wrongly
translated questions.
• Students in Tamil Nadu who seek admission to MBBS courses are admitted on
the basis of their 12th standard final examination marks. A similar criterion is
followed in Kerala as well. These States believe that there’s a huge difference, in
terms of content, in the State and Central Board’s syllabus.
Debate on Meritocracy:
• It is argued that NEET Promotes Meritocracy, but the idea of meritocracy requires
equality of opportunity and fair competition. Empirical research in the US, on
standardised common tests has found that these tests are biased against the
poorer and underprivileged sections of population, women and minorities.
Minority Rights vs NEET
• Article 30 gives Right to administer the minority institution of their own choice.
• SC termed Article 30 as an “article of faith” in Lily Kurian Case and “conscience
of the nation '' in Kerala Education Bill case and also the part of Basic structure
in Kesavananda Bharati case.
• In this context, if minority institutions want additional and superior
qualifications, over and above NEET, they must be granted.
Suggestions:
• It is the best “coached”, not the best “talent”, who cracks such a type of exam,
Central and state governments must provide best in class coaching for such
exams.
• Vacant seats can be later through a central counselling such that all the
candidates are allotted seats as per their merit.
Conclusion: A common national test for professional courses is faultless, in principle.

In this connection, it will address the problem of private institutions selling medical
courses at astronomical prices to candidates who may lack aptitude. Yet, it is
important that the ground is properly prepared before the implementation of a
common test.
A Classic case of federalism
Against Federalism
• A centralised test ignores the composition-based structure of a federal state

even though federalism is designed to protect diversity.
• State medical entrance tests allow a state government to choose the kind of
workforce it wants for its public health system. “A student writing an entrance
test for an undergraduate programme has a 12-year legacy of being aligned to
a board that is reflective of the state’s socioeconomic realities and priorities.
• Its syllabus is closely aligned with the Central Board of Secondary Education
syllabus and diverges from those followed by the state boards. This clearly
favours rich, urban students with access to elite schools under the central
board.
Why is Tamil Nadu opposing?
• State has invested heavily in medical infrastructure, so the state shoy recruit
students.
• In the future, the state will face shortage of manpower, then how the state will
run primary secondary and tertiary health care.
• It is disadvantageous to rural and urban poor.
• Before NEET, Tamil Nadu govt reserved 85% of seats for students of state board
which is not possible now.
Legal analysis
• Now Tamil Nadu govt said, medical college education can make law as it falls
in entry 25 of concurrent list. But the Tamil Nadu govt does not know there
also, lastly centres will prevail constitutionally.
• But the Tamil Nadu govt has brought a bill to exempt it for NEET, after the
recommendation of AK Rajan committee, but nothing will happen.
• In Modern Dental College vs Madhya Pradesh government, SC said that the
State government has the power to legislate on student admissions to higher
education institutions.
• In another judgement delivered by Justice Banumathi in the same case, the
court ruled that the law regulating student admission was within the
jurisdiction of the State government.
• So, by introducing the NEET exemption bill, the TN government is using the
legislative power of the State legislature.
• Section 10 of the IMC act says uniform education examinations to all medical
educational institutions. So, now medical education being the part of
concurrent list, the State govt can make law, but can the state govt bypass
section 10 of Central Act (IMC Act).
Fiscal Federalism
Fiscal Federalism Division of taxation power between centre and state.
What is the scenario of Fiscal Federalism in India?
1. The assignment of revenues and expenditures according to the principle of
comparative advantage results in the Central governments having access to
most broad-based taxes resulting in Vertical Imbalances.
2. There are wide differences among the States in the capacity to raise revenues as
the size of the tax base varies widely resulting in Horizontal Imbalances.
To address these differences, there are two types of transfer: General Purpose
transfer and Specific Purpose Transfer.
What is the current state of Fiscal Position in India?
• Backward states have a limited resource due to a small economy and a weak
market structure. Therefore, they rely heavily on funding and tax sharing support
from the central government.
• In the light of revenue deficit grants provided by the FC14, eight states have
shown revenue deficits in their budgets for 2015–16. But surprisingly, all these
states are high-income or average-income states.
• States that have not followed FRBMA norms are awarded with revenue deficit
grants.
• GST Compensation issue: Centre refused from its legal duty to pay
compensation to the states in case of shortfall in GST. Cess which was supposed
to check these shortfalls have also been retained by the central government as
highlighted by CAG.
• State do not have representation in Terms of reference of Finance Commission.
What has been a positive Change in Fiscal Federalism recently?

• Replacement of planning commission by Niti Aayog.
• Removal of Distinction between Plan and Non-Plan expenditure.
• Introduction of GST.
• Increase in devolution of taxes from 32% to 42% by 14th Finance commission
and 41% by 15th Finance Commission
• Outcome Based Budgeting: - An important expenditure reform was introduced in
2017-18 with the formulation of outcome framework for 68
Ministries/Departments along with the Union Budget document. It is an
important transition from mere outlays of schemes to result oriented outputs.
• Allowing State entities to borrow directly from ODA Partners: In April 2017, the
Union Cabinet gave nod to financially sound State government entities to borrow
directly from the bilateral Official Development Assistance (ODA) partners, like
JICA, for implementation of vital infrastructure projects.
What are the challenges of Fiscal Federalism?
1. Borrowing Limit of State:

➢ Centre moves to limit the Kerala state’s borrowing limit. In this context: Article
293 of the Constitution grants fiscal autonomy to states and mandates them to
borrow only from within the territory of India on guarantee from the Consolidated
Fund of the State. For the states, the extent of borrowing is defined in the fiscal
responsibility Acts of each state.
➢ Centre moves to limit the Kerala state’s borrowing limit. In this context: Article
293 of the Constitution grants fiscal autonomy to states and mandates them to
borrow only from within the territory of India on guarantee from the Consolidated
Fund of the State. For the states, the extent of borrowing is defined in the fiscal
responsibility Acts of each state.
➢
➢ Kerala contends that the Centre is infringing upon its fiscal autonomy by
amending the Fiscal Responsibility and Budget Management Act (FRBM), 2003,
to curtail its borrowing limit. The Centre last amended the Act in 2022 to “reduce
the fiscal deficit to below 4.5% of GDP by 2025-26”. The state also contends that
the Centre has cut its borrowing limit from Rs 32,422 crore to Rs 15,390 crore,
and Rs 26,000 crore.
➢ It is important to understand that on the recommendation of the 15th Finance
Commission, the normal Net Borrowing Ceiling (NBC) of the States including
Kerala have been fixed at 3 per cent of the Gross State Domestic Product for the
financial year 2023-24. Accordingly, the normal NBC of the State of Kerala has
been arrived at Rs 32,442 crore for the Financial Year (FY) 2023-24”.
➢ Central Govt argument: "Kerala's financial stress is due to its mismanagement.
Kerala has been categorised by the Reserve Bank of India as among the five highly
stressed states requiring urgent corrective measures. "If the state indulges in
reckless borrowing to finance unproductive expenditure or poorly targeted
subsidies, it will crowd out private borrowing from the market. This will lead to
an increase in the borrowing costs of private industries and adversely impact the
production and supply of goods and services in the market.
➢ Attorney General: "Increase in the state's debt servicing liabilities as a
consequence of higher borrowing by it will reduce the availability of funds for
development, leading to impoverishment of people and loss of state income, and
hence also loss of national income."
2. If we look into the structure of expenditure in key sectors, viz, education, health
and agriculture, state expenditure is more than 75 % of the combined expenditure
of the union and the states. Thus, Role of State should be increased.
3. There is an increasing tendency of the central government to finance transfers to
states through borrowings. This gives rise to a paradoxical situation where, on
the one hand, the centre is spending on State and Concurrent List subjects, and,
on the other hand, it has to resort to borrowings to transfer resources to states
on subjects that are the primary responsibility of the states.
4. The union government has increasingly relied on cess and surcharge revenue to
meet its expenditure requirements. There is an allegation that the centre is doing
so as not to share the revenues with States.
5. Though the central government has rationalised Centrally Sponsored Schemes,
but 45 Central Sector schemes are facing challenges:
➢ The grants for 5 schemes out of 45 constitute 66 per cent of total grants under
central schemes.
➢ There are too many schemes and within each scheme, too many sub-schemes
with different objectives to be financed. This results in the thin spread of
resources.
➢ The grants for the schemes are not determined on the basis of the shortfall in
the prescribed standard of services.
6. There is considerable difference between the approved allocation and actual
grants given.
7. Compliance and Enforcement costs are entirely borne by States like the
Environment Protection act and Wildlife Conservation Act.
Transforming Financial Governance through Finance Commission
15th FC has recommended grants of RS 4,36361 crore to Local Bodies ( 2.4 lakh
crore for rural local bodies, and 1.2 lakh crore for Urban Local Bodies) which is
an increase of 52% when compared to 14th FC recommendation.
Some important points related to this:
• A separate Health grant will be provided for conversion of rural sub centre
and primary health centres into health and wellness centres.
• Other than these health grants, grants to local bodies will be distributed
among states based on population and area with 90% of and 10%
weightage respectively.
• These grants are conditional: No grants will be done after 2024 is state
does not constitute the State Finance commission and act upon the
recommendation of Finance commission.
For ULB:
• It will increase the overall outlay for the municipality. Expected outlay is
1.5 lakh - 2 lakh crore in next 5 years.
• In order to receive FC Grants, Municipal body needs to:-Publish Audited
annual accounts and Notification of floor rates for property tax.
• It will also make a distinction between million plus urban agglomeration
and other cities, so that targeted goals can be made based on
requirements.
• Finance commission has Recommended for a common digital platform for
municipal accounts.
Conclusion: - The complex political economy around devolution of funds from

state government to municipalities should be further strengthened and the State
finance commission should emulate the 15th FC.
What is the demand of the State?

• Role of States in determining ToR, appointment of Finance Commission members.

• Article 270 mentions that any surcharge or cess levied on taxes are exempted
from the divisible pool. States expect that at least 50 % share is to be given to
States.
• Deficit reduction targets have been uniforming across the states. It has
constrained fiscally strong States to raise more resources.
The share of Public Investment in aggregate investment has gone below 20%. So,
there should be a paradigm shift in the role of States from being undertaking direct
investment to that of facilitating investment. This calls for the State to improve
infrastructural facilities.
State’s Capability: A Concern

Context: A recent book “State Capability in India” by two IAS offers solutions for
improving the deficient capacity of public systems in India for effective policies and
their better implementation.
Role of State:
• Security Role: Providing security and protecting territorial integrity is the

foremost function of a state.
• Developmental Role: The state should be able to provide conditions for
development of individual personality as well as providing opportunities for
growth and development.
• Resource generation/redistribution role: Resource generation should be
efficient enough in a state for it to function well. At the same time, redistribution
of resources is an essential component for reducing inequality and discontent in
the society.
• Delivery of services: Service delivery is an important objective of a state. These
services are in the form of public order, rule of law, primary healthcare, basic
infrastructure, etc.
Challenges in State’s capability
• Centralised nature of state: Devolution of power to Panchayat and rural local

bodies has been found to be insufficient.
• Bureaucratic inefficiency: The Indian bureaucracy suffers from indecision and
risk aversion, resulting in coordination failure, process overload, motivational
issues and a deterioration in the quality-of-service delivery.
• Poor Accountability: The functioning of institutions like the Enforcement
Directorate and the Central Bureau of Investigation have been questioned and
termed as politically motivated.
• Inadequate use of Third sector: Civil society is being termed as the “fourth
frontier” of war as it can be subverted, suborned, divided, manipulated to hurt
the interests of a nation.
• Ineffective regulation: For example, the Commission for Air Quality Management
in the National Capital Region (NCR) have failed in checking pollution.
• Ambiguity: Ex: Goods and Service Tax: According to the data, as of 2022, the law
has been amended over 900 times since its implementation.
Steps Taken:
• Political Reforms: Steps for decriminalisation of politics include disqualification

of a convicted person from contesting elections for six years under the
Representation of People Act 1951. Educational criteria for election at Panchayat
election in Haryana.
• Bureaucratic reforms: transparent and merit-based appointment mechanism for
key positions. Additionally, lateral entry has been introduced and , schemes like
National Health Mission, Digital India mission is being implemented with
separate authority.
• Agencification: 73rd and 74th CAA, GST, JAM trinity, 360-degree appraisal,
perform or perish, etc are other such steps.
• Legal Reform: Introduction of Jan Vishwas Law, BNS.
• Minimum Government and Maximum Governance: Ex My Gov.in, Single window
clearance.
Suggestion:
• Decentralisation: The decentralisation process should be implemented in letter

and spirit for more effective outcomes. This requires political will.
• Capacity Building: Mission Karmayogi program of the government has been a
step in right direction. Adequate staffing should also be ensured to yield the best
results.
• Establishing Transparency & Accountability: transparency serves to achieve
accountability as high degree of scrutiny at the social level acts as a deterrent
against corruption. For this to be achieved, Right to Information Act should be
strengthened, and initiatives like e-chaupal, e-procurement should be promoted.
• Conducive Space For The Third Sector: A supportive political environment is
necessary for the civil society to work which acts as catalyser and implementer of
government programs.
• Consultative Law-Making: More Bills should be sent to Parliamentary
Committees for better scrutiny and inclusion of views of diverse stakeholders.
Also focus should be on Pre and Post legislative impact assessment.
• Addressing Policy-Implementation Gap: It also requires engagement of the
people and community in policy formulation and implementation, while also
ensuring timely disbursal of funds. Ex: Social Audit in Andhra Pradesh.
Over the years, the role of state has changed considerably —due to the emergence of
the concept of welfare state, digital economy, etc — and that necessitates increasing
and improving the state capacity accordingly. That will ensure “Sabka Sath Sabha.
Inter State Council

The Inter-State Council was established under Article 263 of the Constitution, which
states that the President may constitute such a body if a need is felt for it.
Function of ISC:
• It plays a role as a forum for conversation and debate. And as a result, it holds
central and state governments more responsible for their activities.
• It provides an ideal environment for discussing the needs of the people, dealing
with their issues, and making decisions that benefit everyone.
• The council aids in bridging the gap in trust between the Federal government and
the states. It served as a safety valve if not always a problem solver.
Limitation of ISC:
• It is just a recommendatory body.

• It is proposed to meet at least thrice in a year, but the last time ISC met in 2017.
In the last 22 years of its existence, the Council has only convened 10 meetings.
• ISC lacks Permanent Secretariat.
• It lacks the autonomy necessary for efficient operation as well as technical and
managerial professionals. The lack of civil society participation in the council
makes it less cooperative and participatory.
Suggestion
• Bills of national importance should be placed before the Council before being
tabled in Parliament.
• A more empowered Inter-State Council should have a voting structure like the
GST council.
• The council should have professionals from the fields of law, management,
finance and economics, and political science.
• One of the key recommendations of the Sarkaria Commission was that the council
be constituted as a permanent body.
The Inter State council is the most dynamic platform to discuss and strengthen the
centre state relations. This works as an instrument for cooperation, coordination and
evolution of common policies.
Understanding of Sixth schedule

What are the various features of administration in the 6th Schedule?
The various features of administration contained in the Sixth Schedule are as follows:
• The tribal areas in the four states of Assam, Meghalaya, Tripura and Mizoram
have been constituted as autonomous districts. But, they do not fall outside the
executive authority of the state concerned.
• Each autonomous district has a district council consisting of 30 members, of
whom four are nominated by the governor and the remaining 26 are elected on
the basis of adult franchise.
• Each autonomous region also has a separate regional council.
• The governor is empowered to organise and re-organise the autonomous districts.
• The district and regional councils administer the areas under their jurisdiction.
They can make laws on certain specified matters like land, forests, canal water,
shifting cultivation, village administration, inheritance of property, marriage and
divorce, social customs and so on.
• The district and regional councils within their territorial jurisdictions can
constitute village councils or courts for trial of suits and cases between the tribes.
• The district council can establish, construct or manage primary schools,
dispensaries, markets, ferries, fisheries, roads and so on in the district.
• It can also make regulations for the control of money lending and trading by non-
tribals.
• The district and regional councils are empowered to assess and collect land
revenue and to impose certain specified taxes.
What is the issue of working on administrative Councils?
• Power of nomination is frequently abused for narrow party gains. The concerned
Ministers often recommend persons for nomination on political considerations.
• State’s Reluctance: The Karbi Anglong District Council could not create a
judiciary because of reluctance of the State Government to release fund. Most of
the courts at the District Councils level are manned by rejected politicians or
people without any judicial background or training.
• Recruitment Conditions: Qualification is no criteria and considerations of political
patronage, nepotism and favouritism in the matter of recruitment are rampant in
the District Councils.
• Mismanagement of Funds: The grants-in-aid are misused by diverting under
different heads, particularly in non-plan expenditure. Most of the Councils are
unable to balance their budgets and often overspend.
• The regional Council has no share in the royalties from licences or leases granted
by the State Government for the extraction of minerals within its areas.
• Land management: The Sixth schedule prohibits the transfer of land from a tribal
to non-tribal. The District Councils have not been able to protect the common
lands or to codify customary system of land tenure and any of other social
customs.
• Vagueness: The Sixth Schedule has a vague provision that creates a

confusion/complication. The lands under the control of the Chiefs were placed
under the control of the District Councils. When the Mizo Hills District was
elevated to the status of Union Territory of Mizoram and subsequent to State, the
Mizo Hills District Council stood abolished, and the lands came directly under
the control of the State as the areas of the erstwhile Mizo Hills District council
after its abolition also became non-Sixth Scheduled. However, the villages have
traditional economic, social and Political set up.
Suggestions:
• There is a need for inclusion of democratic elements like gender justice into these
institutions.
• Capacity building of the ADCs members is vital for healthy governance.
• The functioning of the ADCs should be amended to make them accountable
through the insertion of a clause that makes mandatory the creation of village
councils/ bodies with a degree of representation to the traditional institutions of
chiefs.
• Creation of an effective watch dog with the powers of Lokayukta in monitoring
and keeping a track of the activities undertaken by the ADCs.
• Adequate accountability and transparency of funds generated should be
entrusted to authorities such as the Comptroller-General and Auditor-General of
Accounts to prevent misuse.
• Documentation and codification of traditional laws is an essential step.
• Stringent laws regarding frequent reviewing of financial position of the ADCs like
the Panchayati Raj System will enhance the status of the ADCs.
125th Constitutional Amendment Bill:
• At least one-third of the seats will be reserved for women in the village and
municipal councils in the Sixth Schedule areas of Assam, Mizoram and Tripura
after the amendment is approved.
• The proposed amendments provide for elected village municipal councils,
ensuring democracy at the grassroot level.
• The village councils will be empowered to prepare plans for economic development
and social justice.
• The Finance Commission will be mandated to recommend devolution of financial
resources to them.
Conclusion: If the benefits of the Sixth Schedule have to flow to the poor and if the
poor are to be empowered democratically, it is necessary that their position is
strengthened by efficient governance.
Ladakh, a case study
NCSC recommended for including Ladakh in 6th schedule because of tribal majority and
unique cultural heritage.
“Ladakh’s inclusion in the Sixth Schedule would be difficult. The Constitution is very clear,
Sixth Schedule is for the Northeast. For tribal areas in the rest of the country, there is the
Fifth Schedule. However, it remains the prerogative of the government, it can, if it so
decides, bring a Bill to amend the Constitution for this purpose.
Arguments in Favor of Sixth Schedule Status for Ladakh:
➢ Importance of Preserving Ladakh’s Unique Cultural Heritage

➢ Empowerment of Local Communities to Manage Cultural and Social Affairs.
➢ Ladakh’s Fragile Ecosystem and the Need for Sustainable Management.
➢ Potential for Local Laws and Policies to Protect Natural Resources.
➢ The Sixth Schedule can facilitate the growth of community-led economic initiatives,
such as eco-tourism, traditional crafts, and sustainable agriculture, which are aligned
with local needs and capabilities.
➢ Empowering local councils ensures that decisions are made closer to the people they
affect, leading to more responsive and effective governance.
Arguments Against Sixth Schedule Status for Ladakh
➢ Legal and Administrative Challenges: The process of amending the Constitution is

complex and requires a two-thirds majority in both houses of Parliament, which can
be challenging to achieve given the diverse political interests.
➢ Governance Overlap: The introduction of Autonomous District Councils (ADCs) in
Ladakh could lead to overlaps and conflicts with the existing administrative framework,
including the Ladakh Autonomous Hill Development Council (LAHDC) and the Union
Territory administration.
➢ Regional Inequality: Granting Sixth Schedule status to Ladakh could create disparities
between regions within the Union Territory, particularly between Leh and Kargil, which
have different demographic and cultural compositions.
The central government has proposed alternative measures, such as extending Article 371-
like protections to Ladakh, which can offer special provisions for the protection of land,
culture, and resources without the need for Sixth Schedule status.
Jurisdictional Conflict of Union Territory

Context: - The Constitution Bench of the Supreme Court in Government of NCT of
Delhi vs. Union of India (2018) said: “The exercise of establishing a democratic and
representative form of government for NCT of Delhi by insertion of Articles 239AA
and 239AB would turn futile if the Government of Delhi that enjoys the confidence
of the people of Delhi is not able to usher in policies and laws over which the Delhi
Legislative Assembly has powers to legislate for the NCT of Delhi.
Why is there always a tussle between Delhi Government and Central

Government?
• Due to the co-existence of Article 239 and 239AA, there is a jurisdictional conflict
between the government of NCT and the Union Government and its
representative, the Lieutenant Governor.
• According to the Union government, New Delhi being a Union Territory Article
239 empowers the Lieutenant Governor to act independently of his Council of
Ministers.
• However, the state government of Delhi held that the Article 239AA of the
Constitution bestows special status to Delhi of having its own legislatively elected
government.
What are the issues between these two Governments?

1. Recently, the Delhi government has appointed the public prosecutors for
conducting the Delhi riot cases in the High Court. However, the Lieutenant
Governor (LG) has stalled this decision, by referring it to the President under
provision to Article 239AA (4).
2. Demand of Statehood by the Delhi Government.
3. Appointment of Chief Secretary by the Delhi Government was Rejected by Lt
Governor. What the Rule Says? Transaction of Business Rules states that
proposals of Delhi Government have to be submitted to the Governor. But
nowhere it is written that Lt Governor can reject or Cancel it.
4. Case of Sending back Bill by Home Ministry: Bill passed by Delhi legislative
assembly was sent back and the ground was it requires sanction of Home
Ministry. However, Transaction of Business Rules provides for this, but only when
a bill is reserved for President assent under Article 239 AA (3).
5. Amendment to NCT of Delhi Act:
• It provides that the Rules made by the Delhi Legislative Assembly to regulate
the procedure and conduct of business in the Assembly must be consistent
with the Rules of Procedure and Conduct of Business in the Lok Sabha.
• The amendment also prohibits the Legislative Assembly from making any rule
to enable itself or its committees to: (i) consider the matters of day-to-day
administration of the NCT of Delhi and (ii) conduct any inquiry in relation to
administrative decisions. Further, any provision in force having the above said
effect will be void.
• Further, the act provides that the opinion of the LG must be obtained before
taking any executive action on decisions of Delhi Government, on such
matters as may be specified by the LG.
Impact of such amendment:

• The basic function of the legislature is to hold the executive accountable, how
it will be possible if they can't even discuss things freely in the house.
• The committee who works freely without any interference of the political party
will also get impacted.
6. Discretionary Power of the LT Governor is a critical issue. SC directives on his

power is mentioned below:
• “The words ‘any matter’ employed in the proviso to Article 239AA (4) cannot
be inferred to mean ‘every matter’.”
• “The power of the Lieutenant Governor under the said proviso represents the
exception and not the general rule which has to be exercised in exceptional
circumstances by the Lt. Governor. “The Supreme Court says, “Article 239AA
(3)(a) reserves the Parliament’s legislative power on all matters in the State
List and Concurrent List but clause (4) explicitly grants to the Government of
Delhi executive powers in relation to matters for which the Legislative
Assembly has powers to legislate.”
• The only occasion when the Union Government can overrule the decision of
the State government is when the Lt. Governor refers a matter to the President
under the proviso to clause (4). But this proviso cannot totally override the
executive decisions of the State government.
7. The Delhi government and Lieutenant Governor have been in a legal battle since
2015 over control of “services” in Delhi. Central government passed the National
Capital Territory of Delhi (Amendment) Act 2023. The act excluded “services” from
the purview of the Delhi legislature and conferred LG with more powers.
• The act introduces the National Capital Civil Services Authority (NCCSA) to
provide recommendations to the LG on service matters. NCCSA consists of
the Chief Minister of Delhi (Chairperson), Principal Home Secretary, and Chief
Secretary of the Delhi Govt.
• It expands the discretionary role of the LG by giving him powers to approve
the recommendations of the Authority or return them for reconsideration. In
the case of a difference of opinion between the LG and the Authority, the
former’s decision will be final.
• The concerned Department Secretary must bring certain matters to the notice
of the LG, the Chief Minister, and the Chief Secretary.
• These include matters which may bring the Delhi Government into
controversy with the central or any state government, the Supreme Court, or
High Court of Delhi.
Challenges of amendment:
• SC says democratic government rest upon triple chain of accountability: Civil
servants are accountable to ministers; minister is accountable to the house
and house is accountable to the electorate. The act contradicts the first link
of accountability.
• It violates the Doctrine of collective responsibility: There is a chance that
departmental secretaries may send the matter directly to LG, bypassing the
minister.
• The act says the matter that may bring controversies between GNCT, and
central government should be brought in notice of Lt Governor. But
Controversial matter is not defined.
Conclusion: - Elected Government should not be undermined by unelected

authority.
Comparison of Delhi and Puducherry
• While the LG of Delhi is also guided by the Government of National Capital

Territory of Delhi Act, 1991, and the Transaction of Business of the
Government of National Capital Territory of Delhi Rules, 1993, the LG of
Puducherry is guided mostly by the Government of Union Territories Act,
1963.
• National Capital Territory of Delhi Act, 1991, clearly underlines that Delhi is
a UT, where the Centre, whose eyes and ears are the LG, has a much more
prominent role than in Puducherry While UT Act 1963 says Puducherry will
be administered by the President of India through an Administrator (LG).
• Under the constitutional scheme, the Delhi Assembly has the power to
legislate on all subjects except law and order and land. However, the
Puducherry Assembly can legislate on any issue under the Concurrent and
State Lists.
• The LG of Delhi has Executive power with respect to public order, Police and
Law and Order While the LG of Puducherry has no such “Executive Functions
or powers”. The Puducherry legislative assembly deals with all these matters.
• Article 239AA imposes several restrictions on the legislature of Delhi While no
such restriction is there in case of Puducherry.
Panchayat and Finances

The 73rd Amendment has been enacted to give Constitutional status to the
Panchayati Raj as per the directives of Article 40. It seeks to provide
‘Democracy at the roots’ and ‘Power to the People’.
Assessment after 25 Years of Panchayati Raj
• There are about 2.5 lakh panchayats in India, which are represented by
about 32 lakh people.
• This is greater than the sum total of elected representatives from all other
countries.
• Uniquely, SC/ST representation in elected bodies is another big push
towards their empowerment. There are about 1 lakh SC/ST sarpanches.
• Also, about 14 lakh women elected representatives and heads have now
got political representation as the constitution has mandated 33%
reservation for them.
ISSUES:
FUNDS:
• Panchayats received 95 per cent of their revenues from the devolved funds
from the centre/state, while generating only 5 per cent from their own
resources.
• Panchayats in states like Kerala, Andhra Pradesh and Karnataka do collect
some direct taxes, while villages in states like Uttar Pradesh almost entirely
depend on transfer funds". This is because some state governments have
not devolved enough taxation powers to the Panchayats - permissible taxes
for Panchayats include property and entertainment taxes but not land
taxes or tolls on roads.
• As per the survey, land revenue collection remained low between 7 to 19

per cent due to low base values applied to properties and low rates of taxes
levied.
• The share of property tax in India is only 0.14% of GDP as against 2.1% in
the Organisation for Economic Co-operation and Development (OECD)
countries.
Working of State Finance Commission:
• They are not submitting the reports in time, lacking the proficiency.
• They face a crucial problem of reliable data.
• The SFCs are mainly dominated by the presence of bureaucrats rather
than academicians.
• The Union Finance Commissions have not analysed SFC reports properly
and have not taken adequate steps to strengthen SFCs.
• By this time all the state should have constituted 6 SFC, but only 9 states
have constituted 6 SFC. Some States have even not constituted 4th and 5th
SFC.
ADDITIONAL INFORMATION:
Sources of Revenue for Panchayat:
➢ Some of the taxes that are imposed by the village Panchayats are the
Taxes on land and houses, toll tax, the customs duty, License fees on
transport and communication etc.
➢ Grants-in-aid from the State or Central government is another important
source of revenue for the Gram Panchayats.
➢ Village Panchayat on devolving power by the State can impose additional
stamp duties on the entry fee of different functions of entertainment and
sub-taxes on transfer of immovable property, or on gifts, mortgage or
lease out of the same within its territorial jurisdiction.
➢ Grants from State and central government through SFC and Finance
commission. 15th FC has recommended for 90% of basic grant and 10%
of performance-based grants to PRI.
FUNCTIONS:
• The items mentioned in the Eleventh Schedule have not been devolved to
the Panchayats by the States.
• Lack of Capacity Building of gram Sabha.
• Mani Shankar Aiyar Committee said there has been Decentralisation of
Corruption.
• Working of State Election Commission:
➢ The removal of the SEC by the ordinance route raises the question over
the legality of the move of the Andhra Government.
➢ The Chief Minister has no legal right to terminate the SEC’s tenure. The
Constitution makes the holder of that post removable only in the same
manner as a High Court judge.
➢ SC Judgement in Aparmita Prasad Singh Case:
Cessation of term vs. removal: In that judgement the Allahabad High

Court ruled that cessation of tenure does not amount to removal and
upheld the State Election Commissioner’s term being cut short. The
Supreme Court, while dismissing an appeal against the order, kept
open the legal questions arising from the case.
FUNCTIONARIES: Highlighted by Sumit Bose Committee

• At the gram panchayat level, the Committee noted several deficiencies such
as: (i) insufficiency of staff; (ii) inadequacy of qualifications; (iii) lack of rigor
in recruitment; (iv) poor terms and conditions of service; (v) low incentives
for performance; (vi) and lack of adequate training.
• There is a lack of proper cooperation and
coordination between the people and the officials like Block Development
Officers, the District Officers etc.
• The indirect election of most of the members to Panchayat Samiti only
increases the possibility of corruption and bribery.
WOMEN ISSUE IN PANCHAYAT

The basic objective behind giving power to women at the local level is to
sensitize them on gender issues and to fortify them with the capabilities so
that they could work as agents of rural development.
Role of Women in Panchayats
• Participation in election: It is an attempt to ensure greater participation
of women in the election process and nursery of creating women politicians
for national politics. Even the participation of common women citizens in
various activities such as attending Gram Sabha meetings, etc. has
reportedly increased (68-78 percent).
• Participation in rural development: Women are actively participating in
rural development as per their capacity right from labourers to policy-
makers.
• Participation in decision-making: The participation of women as elected
as well as non-elected members are rising due to reservation for women.
• Agent of social revolution: Women are acting as an agent of change in
the society and raising voice against injustice and atrocities.
• Reducing corruption and violence: Due to women representatives’ nexus
of officers and male elected representatives are breaking, which has a
direct impact on reducing corruption.
• Reduction in violence against women: Domestic violence has
substantially declined due to women Pradhan or sarpanch. These women
representatives pro-actively take up such violence. The victims also feel
free to share their grievances to women representatives.
• Reduction in violence against Dalits: The dominance of upper caste
patriarchs is substantially declined; hence the shackle of caste is
subsiding.
• Practising participatory democracy: Growing participation of
marginalised sections in general and women in particular, is transforming
our democratic setup from representative democracy to participatory
democracy.
Profile of New Women

• Chhavi Rajawat: Often hailed as the changing face of rural Rajasthan,
Chhavi also addressed delegates at the UN's 11th Info poverty World
Conference in 2011.
• Arati Devi: Arati launched a campaign to revive traditional folk art in her
village, and also ensured that the benefits of the various government
schemes reach the people who need it most.
• Radha devi dropped out of school when she was in Class 5. But she has
ensured a fall in the dropout rate in the three institutions under the
panchayat, and increased enrolment as well as the literacy rate of
Rajasthan.
What are the issues in Women participation?

Ans:
• Domestic violence: In some cases, it has increased because of male ego.
• Leadership issues: The Society, which is controlled and dominated by
patriarchal values, recognizing the legitimacy of male domination over
social resources, means of production, land and labour etc., turns the
gender relation into a scenario of domination and subordination.
• Quality of education and its impact: Lack of training, less theoretical
knowledge in regard to public administration.
• Problems arising due to Alcoholism hinder women’s participation in
governance.
• Elected women representatives are dual mind- family role vs governance
role.
• Women are expected to execute 100% value-based politics within the
existing system.
• Caste System: Hierarchical caste system in rural India makes it difficult
for women from SC and ST communities to function independently and
effectively.
• Lack of Cooperation from Line/Sectoral Departments: Elected Women
Representatives, particularly the first timers find it very difficult to deal
with officials of block/district administration.
• Rotation of Terms: Policy of reservation for only one term and rotation of
reserved seats and posts of chairperson also hinders consolidation of
leadership qualities among EWR. So far only five States namely
Chhattisgarh, Kerala, Himachal Pradesh, Odisha and Karnataka have
already made provisions for two term reservation of seats and offices of
chairpersons.
Case Study:
Muktaben Patel, a backward caste woman who became sarpanch had to face
several no-confidence motions against her by a higher caste.
Suggestion:
➢ 6th report of 2nd ARC, ‘Local Governance: An inspiring journey into the
future’’, had recommended that there should be a clear-cut demarcation
of functions of each tier of the government. States should adopt the
concept of ‘activity mapping’, wherein each state clearly delineates the

responsibilities and roles for the different tiers of the government in respect
to the subjects listed in the Schedule XI.
Sumit Bose Committee:

➢ The Committee recommended that a system of quality monitoring should
be put in place for all programmes being monitored by panchayats.
➢ Committee recommended that panchayats should be encouraged to use
only transaction-based software for: (i) carrying out their functions in
delivering local services; (ii) maintaining databases related to local
planning and monitoring progress; (iii) financial management including e-
procurement.
Dr Venugopal Committee:
➢ The Committee recommended that state governments should put a
quorum in gram Sabha meetings for participation of panchayat
representatives, including women.
Mani Shankar Aiyar Committee: CCTV to record Gram Sabha Meetings.

For Finance, what to do?
➢ Special Purpose Vehicles (SPVs) can be created by local communities in

situations such as if there is an infrastructure need and the community is willing
to pay for it. For example, Budhannoor village in the Alappuzha District of Kerala
has collated its efforts through the activities such as the constitution of the
Standing Committee on Finance, enlisting all the institutions, persons, and
traders liable to pay taxes, advising the defaulters, engaging Kudumbashree
volunteers and employees for door-to-door collection of taxes, organizing tax
collection camps, etc.
➢ Access to debt capital markets can be a viable solution for sources of financing,
providing them the scope for planned infrastructure development.
CASE STUDY:
➢ Karnataka has created a separate bureaucratic cadre for Panchayats to
get away from the practice of deputation of officials who often overpowered
the elected representatives.
➢ Kerala has almost transferred all the subjects of 11th schedule.
➢ The MP Government has allowed Gram Sabha to spend up to 3 Lakh
without any approval.
➢ Bihar has Provided for 50 % Reservation for women.
➢ Haryana and Rajasthan have provided for minimum qualification for
election in Local Self-Government.
Role of President, US President VS Indian President

President:
Constitutional Position: The President of India occupies a peculiar position in the

Indian Constitution. On paper he is vested with a lot of authority, but in reality he is
supposed to be a mere rubber stamp who endorses and thus legitimises every
decision of the executive, however illegitimate it may be. Unlike the Governor, who
has the powers to recommend the dismissal of a state government, the President
doesn’t have the same authority as the Union government.
Relation between PM and President
• The PM acts as the main communication channel in between the council of

ministers and the President of India.
• It is based on his sheer advice that the President appoints The Attorney General
of India, CAG, Chairman of various commissions etc.
• He gives advice to the President concerning the proroguing, summoning and
dissolving of Parliament sessions.
Active Presidents of India:
• Giani Jail Singh: In 1987, he withheld assent from a controversial bill (Post Office
Amendment Bill) passed by the parliament.
• Shankar Dayal Sharma: Returned two executive orders to the cabinet in 1996
because they had been "inappropriately" issued before a general election.
• K R Narayanan: Mr Narayanan also sent back a proposal to impose direct rule in
the northern state of Uttar Pradesh to the cabinet, asking the ministers to
reconsider it. He bluntly said: "I am not a rubber stamp. He has asked the Central
government on the manhandling of opposition in Tamil nadu by the police on the
support of the ruling party.
• APJ Abdul Kalam didn’t give his assent to the office of profit bill.
• Pranab Mukherjee: He rejected 28 mercy pleas during his tenure, Mr Mukherjee
defied the advice of the government and commuted the death sentence of four
convicts. Pranab Mukherjee posed some questions pertaining to the imposition of
the President Rule in Arunachal Pradesh and Home Minister Rajnath Singh had
to personally go and explain the situation to him.
The powers of the President flow from the oath he takes under Article 60 to ‘preserve,
protect and defend the Constitution and submit himself to the service and well -being
of the people of India’. Therefore, new norms can be devised and used to preserve the
faith and belief of the common man in the system. These norms can be:
• The Constitution is silent on the limitations on the President’s activities in public

affairs.
• Public speaking of the president can initiate the debate in the society.
• Use of pocket veto in the cases which are considered to be undermining the
Constitution.
• Reaching out to the people of India.
US PRESIDENT VS INDIAN PRESIDENT
• Manner of election: The US president is more or less directly elected whereas the
Indian president is indirectly elected.
• Head of the State: The US President is both the Head of the State and Head of the
Government, whereas the Indian president is only the head of the State.
• Term of office- The American President holds the office for 4 years and he can
seek re-election only once, while the Indian president holds the office for 5 years
and is eligible for re-election any number of times.
• Responsibility to Legislature: The US president is not part of any legislature and
is not responsible to the legislatures. In India, the Parliament includes the
President and the two houses- Lok Sabha and Rajya Sabha.
• Removal process: Both the American and Indian Presidents can only be removed
from the office through impeachment. In India either house can initiate
impeachment proceedings against the president and with the concurrence of the
other house can impeach the President. In the US the power to impeach solely
lies with the Senate (upper house).
• Veto power: Indian President has comparatively lesser veto power than the
President of US. The President of the US can veto a bill passed by the Congress.
He needs to sign the bill if it is once again passed by two-thirds majority of both
the houses. The Indian President on the other hand can send the bill for
reconsideration only once. If the bill is passed again even by a simple majority in
the Parliament, he is obliged to sign the bill.
• Pocket veto: The US President can exercise his pocket veto power by not signing
the bill for 10 days if he knows the session of the congress will end within 10
days. In such cases the bill dies. Indian President can keep the bill for indefinite
period as there is no constitutionally prescribed time limit to give his assent
• Independence of office: The Indian President needs to act as per the advice of the
Council of Ministers (CoM) while discharging his duties. In the US, the members
of the cabinet are not members of the Congress and are not responsible to it.
INDIAN VS US Federalism
• Indian Federalism is called the Indestructible Union of Destructible States, While

US Federalism is called Indestructible Union of Indestructible States.
• The Constitution of the US is more rigid than the Indian Constitution: The
Constitution of the US is very precise and rigid, running into only a few pages,
whereas the Constitution of India is very bulky.
• Union of States VS Federation of State: In India, Federation is not the result of
the agreements between the States.
• While the US has the Presidential form of Government, India has the
Parliamentary form of Government.
• Difference in citizenship: The Constitution of India recognises single citizenship.
On the other hand, the US Constitution provides for a double citizenship that a
US citizen can have citizenship of two countries, USA and some other country.
• Differences in the judicial system between US and India: A Judge in the US holds
office as long as he is capable of performing his duties. Indian Constitution on
the other hand states a High Court judge holds till the age of 62 and a Supreme
court Judge retires at the age of 65.
• Cabinet: The Prime Minister appoints members of his cabinet from his party or
from those supporting his coalition While in the US The cabinet members need
not be Congress members, they could just be industry experts.
• Residuary Power: In the US, it rests with the State, while in India, it rests with
the centre.
Election Process of US and India
Difference:
• The date of election is fixed on the first Tuesday after the first Monday of
November since 1845.
• There is no centralised election management body like ECI. The US has two
federal bodies: Federal Election Commission and US election assistance
commission.
• The FEC consists of six members, three appointed by two political parties. A
decision requires four votes to make it nonpartisan.
• The hours of voting are longer-13 hours as compared to the minimum 8 hours in
India.
• Voting technology varies from direct recording Electronic voting machines to
Paper ballots. But in India, it is EVM Only.
• In India, elections are held separately for Parliament, State Legislature, President,
and VP.
Suspension of MP
Context: 146 MP (100 from Lok Sabha and 46 from Rajya Sabha) have been
suspended, largest in the history. MPs are required to adhere to certain rules of
parliamentary etiquette. For example, the Lok Sabha rulebook specifies that MPs are
not to interrupt the speech of others, maintain silence and not obstruct proceedings
by hissing or making running commentaries during debates.
The action of suspension, targeting the opposition members, raised questions about
maintaining order versus silencing dissent.
Lok Sabha:
• Rule 373: It empowers presiding officers to direct an MP to withdraw from the

House for any disorderly conduct. This rule says that any Member so ordered to
withdraw shall remain absent during the remainder of the day’s sitting.
• Rule 374: The Speaker can name an MP who disregards the Chair’s authority,
abuses the House’s rules, or disrupts proceedings. The House then votes on a
motion to suspend the MP for a period not exceeding the remaining session.
• Rule 374A: Introduced in 2001, this rule enables the Speaker to automatically
suspend an MP for five consecutive sittings or the remaining session, whichever
is shorter, for gross misconduct.
Rajya Sabha:
• Rule 255: Similar to Lok Sabha’s Rule 374, the Chairman can direct an MP
behaving disorderly to withdraw.
• Rule 256: The Chairman can name an MP disobeying the Chair or abusing rules.
The House then votes on a motion to suspend the MP for a period not exceeding
the remaining session.
Terms of suspension:
1. The maximum period of suspension is for the remainder of the session.
2. Suspended members cannot enter the chamber or attend the meetings of the
committees.
3. He will not be eligible to give notice for discussion or submission.
4. He loses the right to get a reply to his questions.
Impact of Suspension
• Undermining the Principles of Representative Democracy: MPs are elected
representatives, and their absence hinders the voice of their constituencies in
Parliament.
• The absence of MPs impacts Robust debates, a diversity of opinions, and rigorous
scrutiny of bills.
• Suspension could be used as a political tool to silence dissenting voices.
• This could foster an environment of confrontation rather than cooperation in the
Parliament.
• It can lead to a cycle of actions and reactions that detract from the primary
purpose of Parliament, which is governance and law-making.
• Financial Repercussions: Suspended MPs lose their daily allowances and other
financial benefits associated with their position, potentially causing hardship and
impacting their ability to fulfill their duties effectively.
• Reputational Damage: Being suspended can be seen as a mark of misconduct or
disrespect for parliamentary decorum, potentially damaging the MP’s public
image and hindering their political career.
• Erosion of Morale: The act of suspension itself can be demoralizing for the
suspended MP, potentially affecting their motivation and engagement in
parliamentary activities.
Suggestion
• Equip MPs with training on parliamentary procedures, conflict resolution, and

constructive debate techniques to prevent misunderstandings and maintain
decorum.
• Consider temporary removals from specific committees for disruptive behaviour,
allowing continued participation in other aspects of parliamentary work.
• Implement a graduated system of warnings and reprimands before resorting to
suspension.
Disregarding the presiding officer’s instructions or violating established

parliamentary rules is a serious matter. Proponents of the suspensions view them as
a necessary consequence of disobedience to maintain the authority of the Chair and
uphold the sanctity of Parliament. But This can ultimately undermine the democratic
principle of open and robust debate.
Expulsion of MP
The Ethics Committee report found Moitra guilty of “unethical conduct" and
contempt of the House by sharing her Lok Sabha credentials — User ID and
Password of Lok Sabha Member’s Portal, with unauthorised persons which had an
irrepressible impact on national security.
Procedure for Suspension
The house accepted the recommendations of ethics committee and then motion is
moved in the matter, which is to be passed by simple majority.
Issues highlighted in Suspension:
➢ The report of the Committee of Ethics in the case of Ms Mitra was tabled in the
Lok Sabha at noon, and a motion for the expulsion of the said member was moved
at 2 pm barely giving any time to Members to read the voluminous report.
➢ While the Ethics Committee does have the power to hold a person guilty or
innocent, the quantum of punishment has to be decided by the House collectively
sitting as a quasi-judicial body or as a jury.
➢ Whip can ‘t be issued on a report of the Privileges Committee, which has
recommended action against a particular member or a report of the Committee of
Ethics, which may involve harsh measures, including the expulsion of a member
from a House.
Options that MP have after expulsion.
➢ Firstly, one can file an appeal against the Ethics Committee's decision. This could
be done by approaching the Supreme Court or the High Court, pleading to
overturn or provide an order against the decision. The plea would be based on
the grounds of natural justice and principles of fair hearing.
➢ Secondly one can argue that the committee overstepped its mandate, that the
proceedings were irregular, or whether they were conducted with malice or
prejudice.
➢ Thirdly one can seek relief through the defamation suit already filed by her before
the Delhi High Court. If one can prove that the accusations a were slanderous,
fabricated, damaging reputation, in defamation case against several individuals,
she can hope for a reversal of the Ethics Committee's decisions.
The words disqualification and expulsion have sometimes been used interchangeably
but are Different. If a Member of Parliament is disqualified after conviction or on the
grounds of defection, he is debarred from contesting election for a period of six years
or more. However, after expulsion, there is no such debarment. The Election
Commission is required to fill up the vacancy in either case within six months.
Constitutional Aspect of Expulsion
➢ Article 101 of the Constitution lists grounds for vacation of a seat by an MP.
➢ Expulsion is not explicitly mentioned in the Constitution.
➢ Conflicting Supreme Court judgments: In Raja Ram Pal versus Hon’ble Speaker
(2007), it upheld Parliament's power to expel members for breach of privilege;
however, in Amarinder Singh versus Special Committee, Punjab Vidhan Sabha
(2010), the Court held expulsion by the State Assembly as unconstitutional.
Suggestion for MP:
'Fourth Report of the Ethics Committee' of the Rajya Sabha, a 14-point Code of
Conduct for members of the House was recommended as following:
➢ If members find that there is a conflict between their personal interests and the
public trust which they hold, they should resolve such a conflict in a manner that
their private interests are subordinated to the duty of their public office.
➢ Members must not do anything that brings disrepute to the Parliament and
affects their credibility.
➢ Members holding public offices should use public resources in such a manner as
may lead to public good.
➢ Members should always see that their private financial interests and those of the
members of their immediate family do not come in conflict with the public
interest.
FPTP VS Proportional Representation

Article 81 of the constitution stipulates for FPTP in which the candidate with the
highest number of voters is declared as a winner.
Advantages:
• Simplicity: The election system is straightforward, even for common voters who
may lack specialized knowledge about politics and elections.
• Choice to vote for party and/or candidate: Depending on the prevailing
political climate, voters may prioritize either the political party or the individual
candidate or strike a balance between the two. The FPTP system provides voters
with the option to choose not only between political parties but also specific
candidates. Conversely, in PR systems, voters are required to elect a political
party, and representatives are then chosen based on the party's list, as per Media
reports.
• Smooth functioning and stability: The FPTP system typically grants the largest
party or coalition some bonus seats, more than their share of votes would allow.
Consequently, this system enables the parliamentary government to operate
smoothly and effectively by facilitating the formation of a stable government. In a
PR system, which encourages coalition governments, there is a fear of indecision,
excessive compromises, and legislative paralysis.
The Supreme Court in RC Poudyal v. Union of India (1994) had categorized the
FPTP system as possessing ‘the merit of preponderance of decisiveness over
representativeness’. This implies that the FPTP system presents the advantage of
producing a majority government at a general election by being decisive, simple and
familiar to the electorate.
Limitation of FPTP:
• Not a true representation: For example, the Indian National Congress won only
about 49.10% of the total vote share in the 1984 General Elections to the Lok
Sabha but had a sweeping majority of 405 out of 515 seats in the House.
• It leads to the exclusion of small or regional parties from the Parliament.
• Encourages caste, religion, Ethnicity and regional politics.
• Exaggerates the phenomenon of ‘regional fiefdoms.
Proportional Representation characterizes electoral systems in which divisions in

an electorate are reflected proportionately in the elected body. If n% of the electorate
supports a particular political party as their favourite, then roughly n% of seats will
be won by that party.
Should India move towards Proportional representation:
NO and reasons are:
• It makes things easier for extreme parties to gain representation.

Under the system of proportional representation, any party with a high enough
percentage of the vote will receive a seat in the government.
• It can create political gridlock, just like in any other system of government.
Coalition governments are encouraged to compromise and pursue centrist views.
The reality of this type of governing, however, is that each party wants to have its
own way with things.
• It does not provide direct representation to specific communities.
Under the system of proportional representation, seats are not awarded based on
community or district voting. That means those who serve in the government are
less likely to focus on local issues as they have no local representation
responsibilities.
• It can be an unstable form of government.
Italy has proportional representation built into their government structures. Over
the last 4 decades, the government has been forced to dissolve its parliament 8
times. In Belgium, the negotiations required after their 2010 election to form a
governing coalition took 18 months to complete.
The Law commission in 255th report has suggested for hybrid system followed in
Germany. Increase the total seat by 25% and fill these by Proportional representation
and rest by FPTP.
The difference between first past the post and proportional representation, are:
• First Past the Post (FPTP) system, can be understood as the voting method
in which the citizens of a constituency cast their votes for a candidate and
the one getting majority votes win the elections. As against, Proportional
Representation (PR) is an electoral system wherein citizens cast their votes
to the political parties and seats are allocated to the parties according to the
voting strength they possess.
• In first past the post system, the whole country is divided into different small
geographical areas, i.e. constituencies. In contrast, proportional
representation, large geographical units are considered as a constituency.
• In first past the post system, from each constituency one candidates get
elected. Unlike, proportional representation, where more than one candidate
can be selected from a constituency.
• In first past the post system, the citizens cast their votes for the candidate of
their choice. In contrast, votes are cast for political party by the citizens of
the constituency.
• In FPTP system, the total seats allotted to a political party may or may not
be equal to the votes. As opposed, in PR system, the party gets seats in
proportion to the votes polled for them.
• In first past the post system, accountability exist, as people know the
candidate whom they voted and if he/she does not serve them or work for
their betterment, they can ask questions. On the contrary, accountability is
absent, in the sense that people cast their vote for a party and not to a
candidate.
• In first past the post system, the majority votes may or may not be secured
by the winning candidate, whereas in the proportional representation
system, the candidate who won the elections gets the majority votes.
• In proportional representation, the political parties with a small number of
votes get elected in the Parliament, which leads to the disagreement of ideas,
due to many political parties in the parliament. Conversely, in first past the
post, the candidates getting the maximum votes wins the elections, and the
political party gets seats in the Parliament, and so, there is no clashing of
ideas.
DELIMITATION A new crisis in Federalism

If federalism is the glue that has kept the world’s largest democracy together, there
are growing signs that this adhesive is becoming unstuck. The primary culprit is not
relations between the centre and the states, but disparities between the states
themselves. For instance, the wealth gap between India’s states has exploded in
recent decades. India’s three richest states were three times richer than its three
poorest states. Population growth has also been highly skewed. Differences in wealth
and demography fuel interstate migration, largely from poorer and younger northern
states to more prosperous southern and western states. Collectively, these
inequalities raise new questions about India’s federal design and create a potentially
explosive wedge between the country’s leading and laggard regions. Another
troubling dimension of interstate inequality is “Political Representation” of different
states in Lok Sabha.
Article 81 of the Indian Constitution requires that each state receive Lok Sabha seats
in proportion to its population and allocate those seats to constituencies of roughly
equal size. However, the unwillingness of the political class to reallocate seats in light
of the country’s changing demographics has led to severe malapportionment. In
2002, parliament delayed reallocation even further, passing the 84th Amendment
and extending this freeze until the next decennial census after 2026 (which will take
place in 2031). If India’s parliamentary seats are to be re-allocated across states on
the basis of population after the 2031 census, the Gangetic belt would send 275 of
548 MPs to the Lok Sabha. India’s Constitution has fixed the number of MPs per
state, based on the 1971 census, although it allows periodic delimitation exercises--
changing constituency boundaries to adjust for population growth, so that each Lok
Sabha MP represents a fairly equal number of people. States that had lower birth
rates wanted to protect their political say at the Centre, and so, the numbers of MPs
per state have been frozen for the last 45 years.
Recently a study has been done using Webster method, a standard formula proven
to provide an unbiased allocation of seats.
• The report says Four North Indian states (Bihar, Madhya Pradesh, Rajasthan,
and Uttar Pradesh) would collectively gain 22 seats, while four southern states
(Andhra Pradesh, Kerala, Telangana, and Tamil Nadu) would lose 17 seats.
• Reapportionment affects SC- and ST-reserved seats in two ways: by updating the
population shares of SC and ST communities in each state (last done in 2008),
and by updating the total number of seats for each state (which has stayed
constant since 1971). Revising both of these numbers to match 2011 Census
figures would result into slower-growing southern states would lose reserved
seats while faster-growing northern states would gain them.
• Parties with bases concentrated in fast growing northern states would gain power
at the expense of southern regional heavyweights.
Solution:
• To increase the number of seats in the Lok Sabha: This has two clear advantages.
First, increasing the number of MPs would address the ballooning size of
constituencies, which hamstrings MPs’ responsiveness to constituents’ needs. At
present, Indian MPs represent an average of 2.5 million citizens – over three times
the number represented by members of the House of Representatives in the
United States, which ranks second.
• Secondly, Expanding the size of the house may also be more politically feasible
than reapportioning the current number of seats.
Parliamentary Privileges
What are Parliamentary Privileges?
Answer: Parliamentary privileges are referred to as the rights and the immunities
enjoyed by the members of the Parliament in their capacity. Some of the peculiar
rights enjoyed by each house collectively as a constituent part of the Parliament and
by the members of each house individually.
Source of Examples
Privileges
Constitution Article 105 and 194
Law The Code of Civil Procedure, 1908,
Rules of House Rule No 222 in Chapter 20 of the Lok Sabha Rule Book and
correspondingly Rule 187 in Chapter 16 of the Rajya Sabha
rulebook
Parliamentary
convention
Judicial Searchlight case

Interpretations
Why is there a provision for Parliamentary Privileges?

1. The exemptions, rights or immunities provided to the members of each house of
the parliament and the parliament committees secure the independence and
effectiveness of the actions taken by them.
2. The parliamentary privileges help maintain the dignity, authority and honour of
the members of parliament.
3. The parliamentary privileges help secure the members of the houses from any
obstruction in their discharge of actions.
What constitutes parliamentary breach or contempt of the house?

1. Giving any misleading statement in the house: The acts which are done solely
with the purpose to mislead are considered as the contempt of the house. If the
statement is made by a person who believes the information to be true then, there
is no breach involved. It has to be proved that the statement was made with an
intention to mislead the house.
2. Disturbance by the outsiders: Any disruption created by shouting slogans or
throwing leaflets etc. with the purpose of disturbing the proceedings of the court
is regarded as a major contempt by the house. The person is imprisoned by the
house for a specified period of time or a warning is given depending on the
seriousness of the case.
3. Any kind of assault on the members: Here, the privilege is available when the
member is performing his duties. An assault done by any person on the member
of the parliament in the course of performing his duties is treated as contempt of
the house.
4. Writings or speeches about the character of the member: Any speech
published, or libel made against the character of the member is regarded as the
contempt of the house. These are regarded to be necessary because it affects the
performance and function of the member by reducing the respect for him.
What are the concerns associated with these Privileges?
1. Misuse of Power:
1. Clear display of the doctrine of ‘sky-high powers’: Journalists of the

Hindu, used the expressions ‘incensed’, ‘fumed’ and ‘high pitched tone’
for the conduct of the members in the session of the assembly, and were
sent to jail for this act.
2. In 2019, the Speaker of Maharashtra Legislative Assembly, Nana Patole
ordered action of arrest against the man for creating a parody video of the
speech made by one of the members of the Assembly named Devendra
Fadnavis.
2. Protecting own Man: Kerala government filed a plea to withdraw criminal cases
against its MLAs who were charged in the assembly. The government claimed
parliamentary privilege, arguing that the incident occurred inside the Assembly Hall.
3. With more power the members of the parliament will become too arrogant
and likely to abuse power: While a parliamentary system may seem to always
promote good governance, it will also make members of the parliament too powerful,
arrogant and this might also lead to the abuse of political powers
What is the controversy in relation to Fundamental Rights?
Parliamentary privileges are referred to as independent rights, with no reasonable

restrictions, but the fundamental right of Article 19(2) is an absolute individual right
with reasonable restrictions.
Few questions that arise amidst the conflict between the two are:
• If there is a conflict between the parliamentary privileges and the fundamental
rights, which one of the two will prevail?
• Can the parliamentary privileges be struck down if they are conflicting with the
fundamental rights? Or
• Do the courts have the right to exercise their judicial power in the case of
parliamentary privileges?
These can be reviewed and interpreted through various judgments: -
• G.K. Reddy v. Union of India (1954): GK Reddy, an editor of the magazine, was
held for the contempt of a privilege and was under illegal detention. The Supreme
Court held that the failure to produce the arrested person before the Magistrate
within twenty-four hours amounted to an illegal arrest, which would act as a
violation of his right guaranteed under Article 22(2)of the Constitution.
• M.S.M. Sharma vs. S.K. Sinha (1959): On being sentenced to imprisonment, the
editor moved the Supreme Court, arguing that the publication was protected
under Article 19(1)(a). Rejecting his stand, the Court held that the power of
judicial review, applicable to ordinary law, could not be invoked to challenge an
order made under Article 194, a Constitutional provision.
• K. Anandan Nambiar v. Chief Secretary Government of Madras (1966): The
Supreme Court held that if a person was detained under valid detention, he could
not claim parliamentary privilege and should not be given special status under
that of an ordinary citizen and that he was liable to be arrested and determined
under it as any other citizen.
• Keshav Singh v. Speaker, Legislative Assembly (1965): - In Keshav Singh’s
case, the Supreme Court clarified that Article 21 (Right to Life and Personal
Liberty) would be applicable even when Legislatures exercised their powers in
respect of their privilege.
• Raja RamPal vs Speaker (2007): - The Court held that Fundamental Rights
under Articles 20 and 21 could prevail over privileges under Articles 105 and 194.
However, no mention was made of rights under Article 19 (1) (a) relating to
Freedom of Speech.
Don’t you think these Privileges should be codified?

1. Against the Idea of Constitutionalism: There is an absence of defined powers
in the Constitution for the members of the Parliament, and these undefined
privileges or unlimited powers pose before it a threat to the rights of the citizens.
2. Misusing Privileges: Members Misused these privileges by framing false
accusations and charges to tarnish the representation of the citizen with a
fraudulent intention.
3. Supremacy of Constitution: Unlike the British Parliament, the Constitution of
India is the supreme authority and has the power to introduce and enact new
laws and legislation, and eventually can codify these privileges to prevent misuse.
4. Against the very idea of Democracy: Constructive criticism and dissent are the
essentials of democracy. Thus, restraining the citizens from exercising their
fundamental rights of freedom of speech and expression would be amounting to
infringement of their fundamental rights and against the ideals of democracy.
5. If parliamentary privileges are codified, the accountability and the administration
of the members would increase thereby benefiting the democracy.
NCRWC recommends that time has come to define the privileges as it is deemed to
be necessary for the free and independent functioning of Parliament”.
Election of Speaker & Deputy Speaker

Context:
• Maharashtra Governor Bhagat Singh Koshyari and the Maha Vikas Aghadi (MVA)
government are locked in a tussle over the election of the Speaker of the
Assembly.
• Delhi High Court directed the central government to explain its stand over the
issue of not holding elections to the post of Deputy Speaker of LS. The position
has remained vacant.
How has this controversy evolved?

Ans: -
It is not that the Maharashtra legislative assembly had not elected a speaker since
the establishment of the government.
Earlier, the Speaker was from the congress party who had resigned and thereafter
there was no elected speaker, and all the proceedings of the house were being run
by the Deputy Speaker.
Then the opposition party (BJP) started asking for election of Speaker and this
message has been sent by the Governor to the CM who has implicitly denied and
said the election will be done on proper time.
The major question is: - Why is the approval of the Governor required to elect
the Speaker of the Assembly?
Article 178 of the Constitution states: “Every Legislative Assembly of a State shall,
as soon as may be, choose two members of the Assembly to be respectively Speaker
and Deputy Speaker thereof and, so often as the office of Speaker or Deputy Speaker
becomes vacant, the Assembly shall choose another member to be Speaker or Deputy
Speaker, as the case may be.”
The Constitution does not specify the process of holding these elections; that is left
to the state legislatures. It also does not set a timeframe other than to say the
elections should be held “as soon as may be”.
Good Rules in some states:

1. UP: Election of speaker must be concluded within 15 days if the post falls vacant
during the term of assembly.
2. Haryana: Election for the Post of speaker must be held as soon as possible after
the assembly election, and the Deputy speaker must be elected within 7 days.
3. Maharashtra: Maharashtra Legislative Assembly Rules, “The Governor shall fix a
date for the holding of the election and the Secretary shall send to every member
notice of the date so fixed.
But recently the Govt brought an amendment in the rules which now says, The
recommendation of CM is required for election of speaker.
1. Article 93 and article 178 says the election of speaker and Deputy speaker in Lok
Sabha and state legislative assembly respectively is mandatory and should be
held as early as possible.
2. The practice is Election of deputy speaker usually takes place in the second
session, but there is no bar on having his election in the first session of the newly
constituted house.
3. The election of Deputy Speaker is governed by Rule 8 of The rules of procedure
and conduct of Business in Lok Sabha.
4. A person who has been elected Speaker/Deputy speaker shall not be disqualified
under anti defection law.
5. All the power of the Speaker is extended to the Deputy speaker when he is
performing the role of speaker.
6. The House can adopt a resolution requesting the Speaker to fix the date for
election of the deputy speaker. Such a resolution is admissible under the rules of
the House (Rules 171 and 173).
Tribunal
What do you mean by Tribunalisation of Justice?
The debate on the Tribunalisation of Justice can be seen from this perspective: - Can
judicially functioning courts be replaced by quasi-judicial tribunals, which do not
follow defined court procedures? Does it tantamount to the encroachment of judicial
independence?
Why is it being said so?
• Against the separation of powers: Tribunalisation is seen as encroachment of the

judicial branch by the government. In Gujarat Urja Vikas Nigam Ltd. v Essar
Power Limited, the Supreme Court stated that direct appeals to it from tribunals
resulted in denial of access to the High Court’s thereby becoming a substitute for
them.
• The Law Commission of India has also deliberated on the issue of direct appeals
to the Supreme Court and recommended that an appeal from the decision of
tribunals, should necessarily lie before a division bench of the High Court within
whose jurisdiction the tribunal is located.
• In Union of India vs. R. Gandhi (2010), the Supreme Court looked at the working
of tribunals closely. It said that when the existing jurisdiction of a court is
transferred to a tribunal, its members should be persons of a rank, capacity and
status as nearly as possible equal to the rank, status and capacity of the court.
• L Chandra Kumar Case 1997: The right of the High Courts to exercise judicial
superintendence over the judgments of all courts and tribunals is part of the
constitution's basic structure. It also claimed that "all Tribunals ' decisions,
whether created pursuant to Article 323A or Article 323B of the Constitution,
shall be subject to the written jurisdiction of the High Court’s pursuant to Article
226 of the Constitution, before a High Court Division Bench under whose
territorial jurisdiction the specific tribunal falls."
Issues with Tribunal
• Independence: In NCLT Case, the court observed that the independence of the
tribunals was compromised by the inclusion of the secretary of the ‘sponsoring
department’ in the selection committee.
• High Pendency: Many tribunals also do not have adequate infrastructure to work
smoothly and perform the functions originally envisioned leading to high
pendency rates thus proving unfruitful to deliver quick justice. The 272nd Law
Commission Report highlighted worrying pendency figures for the CAT (44,333
cases), AFT (18000 cases).
• In some tribunals, technical members don’t have requisite qualifications.
• Reappointment: Out of the 37 tribunals analysed, only five tribunals have
expressly barred reappointment. However, 15 tribunals contain no provision on
reappointment. Arguably, this creates a situation of ambiguity where
reappointment of members is potentially possible.
• Appointments: Appointments to tribunals are usually under the control of the

executive. Not only does the government identify and appoint the members of the
tribunals, but it also determines and makes appropriate staffing hires. This is
problematic because often there is a lack of understanding of the staffing
requirements in tribunals.
Suggestion
• National Tribunal Commission: The 74th report of the Parliamentary standing

committee on Law recommended the creation of a National Tribunal Commission
(NTC) to regulate issues linked with tribunals such as oversee the selection
process, set eligibility criteria for appointment, etc.
• Timely appointments: It is important to ensure that appointments to tribunals
are made in a timely manner to avoid the delays in justice delivery.
• Independence and autonomy: Appointment, removal, and terms of service of
tribunal members must be free from political interference.
• Rationalization of tribunals: There are currently many tribunals in India, leading
to duplication of functions and overlapping jurisdictions. A rationalization of
tribunals could help to streamline their functioning and make them more
effective.
Government effort to rationalise the Tribunal.

• The government has said that analysis of data of the last three years has
shown that tribunals in several sectors have not necessarily led to faster
justice delivery and they are also at a considerable expense to the exchequer.
Thus, Intellectual property appellate board and 7 other tribunals have been
dissolved.
• The Tribunal Reform act 2021 provides for transparent system for
appointment, Reappointment, removal.
1. Chairpersons and judicial members of tribunals are former judges of High
Courts and the Supreme Court.
2. The Chairperson and Members of the Tribunals will be appointed by the
central government on the recommendation of a Search-cum-Selection
Committee.
3. The Committee will consist of:
➢ the Chief Justice of India, or a Supreme Court Judge nominated by him,
as the Chairperson (with casting vote),
➢ two Secretaries nominated by the central government,
➢ the sitting or outgoing Chairperson, or a retired Supreme Court Judge,
or a retired Chief Justice of a High Court, and
➢ the Secretary of the Ministry under which the Tribunal is constituted
(with no voting right).
4. Four-year term of office (subject to the upper age limit of 70 years for the
Chairperson, and 67 years for members).
5. Further, it specifies a minimum age requirement of 50 years for
appointment of a chairperson or a member.
Assessment of supreme court and need of regional

bench.
Supreme court can be assessed from multiple perspective, but here assessment
is done on two fronts only:
1. Tussle between Judiciary and Government

➢ The first constitutional amendment (1951) started the long-drawn battle between
the executive and the judiciary, which was started from Champakam Dorairajan
case and ended with Keshvananda Bharti case in 1973.
➢ In 1970, the President using power conferred to him under Article 366(2) of the
Constitution passed an order abolishing the Privy Purses. In H. H.
Maharajadhiraja Madhav Rao vs. Union of India upheld the validity of the Privy
Purses. Now, again the executive was blown up by the judiciary in this judgement.
➢ In Maneka Gandhi vs. Union of India when the arbitrary action of the executive
stopped Maneka Gandhi from going foreign by seizing her passport, the court
quashed such order by saying that the right to travel foreign comes under the
ambit of Article 21 of the Constitution. The concept of judicial review, and judicial
activism after implementation opened a larger scope for the Courts to intervene
in any kind of action by the Executive.
➢ In 2015, the Supreme Court struck down the NJAC legislation as
unconstitutional, paving the way for the latest round of confrontation. With the
Memorandum of Procedure (MoP) for judicial appointments still stuck, almost
every appointment is fraught with tension.
➢ Centre’s interference in appointment of Judges: In 2018, Government
returned the recommendation of the Collegium of elevating Uttarakhand Chief
Justice K.M Joseph to the Supreme Court back for reconsideration.
2. Achievements and Challenges of Judiciary
Achievements
Upholding Equality:
• KS Puttaswamy (2017): Equality and Liberty can’t be separated, and equality
encompasses the inclusion of dignity and freedoms.
• Navtej Johar Case (2018): Transgender as third Gender.
• Joseph shine Case (2018): Decriminalising adultery
Upholding Liberty: D.Y. Chandrachud gave a thoughtful speech, titled “The

Hues of India: From Plurality to Pluralism", about protecting India’s pluralism by
protecting individual rights and liberty.
• The 1976 ADM Jabalpur case, when it held that personal liberties were not
guaranteed in a state of Emergency, is invoked and mourned as its lowest
point. In 2017, the Supreme Court in Puttaswamy case reversed itself on ADM
Jabalpur.
• Two-judge Supreme Court Bench in Arnab case: If state govts target
individuals, they must realise that there is apex court to protect the liberty of
citizens. The Bombay HC was wrong in denying bail.
Complete Justice under article 142:
• SC in Bhanwari Devi case, provided Vishakha guidelines that finally led to
Prevention of sexual harassment at workplace act.
• In Vineeta Sharma vs Rakesh Sharma, daughters have been provided with
coparency rights.
• In Babita Puniya case, provided Permanent commission to women in army.
However, Article 142 is always criticised for its subjectivity and case to case
application, devoid of guidelines on its use.
Challenges:
➢ Pendency of cases: According to National Judicial Data grid, 5 crore cases are
pending in the court. And also due to this backlog, most of the prisoners in India’s
prisons are detainees awaiting trial.
➢ Judicial Limitation: The Supreme Court is called upon to decide a large number
of cases in which the government has a direct interest (mostly politically
sensitive). It often results into Judicial overreach.
➢ Master of roaster issue Roaster is defined as a systematic planner to allocate
different tasks to all the members in order to achieve higher efficiency. ‘Master of
Roster’ refers to the privilege of the Chief Justice to constitute Benches to hear
cases. The allegation was made on former CJI to allocate political cases to a single
favourite bench.
➢ Judge Population Ratio: The judge-population ratio in India stood at 21.03
judges per million people in 2022. On the other hand, this ratio stood at 107 for
the USA, 75 in Canada and 41 in Australia per million people.
➢ Corruption in judiciary: Justice Narayan Shukla, who retired from the service
in July 2020, is accused of taking a bribe for passing an order that favoured the
Lucknow-based medical college, which was disbarred in May 2017 from admitting
students by the Medical Council of India (MCI), the country’s medical education
regulator.
➢ Infrastructure: Of the total sanctioned strength of 24,280 judicial officers in
India, there are only 20,143 court halls, including 620 rented premises, and 26
per cent of the court premises have no separate toilets for women and 16 per cent
do not even toilets, while only 54 per cent courts have purified drinking water
facility.
➢ Transfer of Judges: Since October 2017, 8 percent of High Court judges (about
86), including some 60 percent of High Court Chief Justices (about 15 of them),
have been transferred (an average of over 20 judges per year). In September 2021
alone, 32 judges were transferred.

Transfer orders become controversial:
• When sections of the public feel that there is a punitive element behind the
decision to move a judge from one High Court to another.
• As a matter of practice, the Supreme Court and the government do not
disclose the reason for a transfer. For, if the reason is because of some adverse
opinion on a judge’s functioning, disclosure would impinge on the judge’s
performance and independence in the court to which he is transferred.
• On the other hand, the absence of a reason sometimes gives rise to speculation
whether it was affected because of complaints against the judge, or if it was a
sort of punishment for certain judgments that inconvenienced the executive.
The speech of Dr. B R Ambedkar in the Constituent Assembly regarding this

provision will help us in understanding why this power was given. Dr Ambedkar
gave two instances where the power could be validly exercised:
1. "It might be necessary that one judge may be transferred from one High Court
to another in order to strengthen the High Court elsewhere by importing better
talents which may not be locally available.
2. Secondly, it might be desirable to import a new Chief Justice because it might
be desirable to have a man unaffected by local politics or local jealousies."
SC on the matter of Transfer
Justice Bhagwati reiterated the minority view in UOI v Sankalchand Himatlal

Sheth that a judge could not be transferred without his consent. In any case, he said
that the transfer of a judge could be exercised only in public interest and that transfer
of a judge by way of punishment could never be in public interest. However, Justice
Fazl Ali did not agree with Bhagwati and said consent of the judge is not necessary.
However, it has been said here that: An order of transfer would become a justiciable
issue and be liable to be quashed if (a) it was not in public interest, or (b) it was
passed without full and effective consultation; and (c) if the opinion of the Chief
Justice was brushed aside or ignored without cogent reasons.
The question of transfer of high court Judges has been considered again by the
Supreme art in the Supreme Court Advocates-on-Record vs UOI.
• According to the majority opinion, the proposal for the transfer of a Judge/Chief
Justice should be initiated by the Chief Justice of India alone.
• The power can be exercised only in "public interest.
• The transfer ought not to be punitive in nature.
➢ Sealed Cover Jurisprudence: The practice of providing information by the

government agencies in sealed envelope that can be accessed by Judges only is
sealed cover jurisprudence.
Instances of Sealed Cover Jurisprudence: NRC report asked by SC, Rafale jet
deal, BCCI Reform case, Bhima Koregaon case.
Criticism:
• Against the principles of transparency and accountability of the Indian justice
system.
• Enlarge the scope for arbitrariness in court decisions.

• Not providing access to such documents to the accused parties obstructs their
passage to a fair trial and adjudication. This is contrary to what SC has said
in P. Gopalakrishnan vs The State of Kerala: - That disclosure of documents
to the accused is constitutionally mandated, even if the investigation is
ongoing.
• Violates Principles of Natural Justice - as it creates bias against the accused
and the accused is kept in dark on the charges framed against him.
• Results in arbitrariness in judicial decisions - because the judge is taking

decisions based only on the information provided by the government agencies.
• Judgments in such instances cannot be said to be Reasoned Order
Suggestion
1. All India Judicial Service (AIJS)
About: It is a reform push to centralize the recruitment of judges. It would work
at the level of additional district judges and district judges for all states.
Significance
• Ensures Efficient Judiciary By addressing structural issues such as varying

pay and remuneration across states, to fill vacancies faster, and to ensure
standard training across states.
• Addresses the issue of Judges To Population Ratio: A Law Commission report

(1987) recommended that India should have 50 judges per million population.
• Higher Representation of Marginalized Sections of Society
• Help in Attracting Talent Pool
• Follows Bottoms-Up Approach
Criticism:
• Dichotomy Between Articles 233 and 312: As per Article 233, recruitment to
subordinate judiciary is the prerogative of the State. Due to this, many states and
high courts have opposed the idea on the ground that it would go against
federalism.
• Language of Business: Judicial business is conducted in regional languages,
which could be affected by central recruitment.
• Against Separation of power: The opposition is also based on the constitutional
concept of the separation of powers.
2. Focus on infusing transparency by passing Standards and accountability bill.
3. Judicial Performance index should be devised to see the effectiveness.
4. Focus on technology like live proceedings of all HC and even Subordinate court.
5. The 10th Law Commission proposed to divide the Supreme Court into a
Constitutional Division and a Legal Division, focusing on specific areas of law to
streamline cases.
6. Focus on Alternative Dispute Resolution.
7. Increase the use of Plea Bargaining which is a process under which a person who
is charged with a criminal offence negotiates with the prosecution for a lesser
punishment than what is provided in law by pleading guilty to a less serious
offence.
8. Parliamentary Standing committee on Personnel, Grievances, Law and Justice
has made following recommendations:
• Enacting a law requiring judges of the Supreme Court and high courts to
declare assets annually
• Currently, only a few HCs release their annual report. SC should direct HCs
to publish Annual Reports in a unified format.
• Suggest doing away with long court vacations to address the perception of
inconvenience to litigants
• Reassess judges’ performance based on health, judgment quality, and
quantity delivered. This can contribute to impartiality and quality in post-
retirement assignments.
National Court of Appeal

Recently the report of Parliamentary standing committee on Personnel, Public
grievance and Law and Justice regarding the setting of regional bench has been
accepted by the government.
Currently, all appeals must be heard in New Delhi, which is inconvenient for cases
originating elsewhere in the country. A five-judge bench of the Supreme Court
considered the establishment of the NCA "very desirable" and stated that the current
highest court should only hear cases involving constitutional and public law issues.
The National Court Appeal, which has regional benches in Chennai, Mumbai, and
Kolkata, is tasked with hearing appeals from High Court and tribunal
decisions in civil, criminal, labour, and tax matters under its jurisdiction.
In such a scenario, the Supreme Court of India, which is currently based in Delhi,
would only hear constitutional and public law cases.
Significance:
• The Supreme Court was created with the intention of being a Constitutional
Court. The court's case backlog, on the other hand, leaves it with little time to
perform its basic tasks.
• The Supreme Court will keep its position as the highest court in the land,
ruling exclusively on matters of constitutional importance or setting new legal
precedent, as it does in England, Wales, and the United States.
• The Court will be able to devote more time to developing the law as a result of
this.
• Different benches to hear appeals will make sense from a geographical
standpoint.
• It will also solve the issue of language in the court, high cost of travel and staying
in Delhi.
Criticism:
• This proposition would necessitate a change to Article 130 of the Constitution,

which is unconstitutional because it would fundamentally alter the Supreme
Court's constitution.
• It will only add another layer of decision-making.
• The establishment of the NCA will raise the burden on the government's budget.
• The Supreme Court's aura as an apex court may be diluted, which may not be
consistent with the concept of the Supreme Court envisioned by
the Constitution's architects.
• The verdict by the regional benches on the same issue may create contradicting
precedents in the matter of legal and constitutional interpretation.
Suggestion:
• Online adjudication.
• Increase the number of Judges in the Supreme Court.
• Explore the possibility of separating constitutional and appellate cases of the SC.
Judiciary and Food Safety Regulation

Context: While hearing the Patanjali case, Supreme court broadened its scrutiny to
include misleading advertisements by Fast-Moving Consumer Goods (FMCG)
companies. It also requested three Union ministries to detail the actions taken to
combat deceptive advertising practices, which negatively impact public lives.
• In Centre for Public Interest Litigation vs UOI, the writ petitioner alleged the
adulteration of soft drinks. The Supreme Court observed that people are protected
under Article 21 against the hazardous and injurious food Article 21, and it is the
duty of the state to ensure such rights are protected under Article 47.
• In Swami Achuytananad Tirth case, public interest litigation highlighting the
concern about the growing sale of adulterated and synthetic milk, all over India.
1. The State Food Safety Authority should identify high-risk areas and times
when there are high chances of ingesting milk and milk products and collect
samples from those areas.
2. State Food Safety Authorities should ensure that all laboratories should
obtain NABL Accreditation.
• In Nestle India Ltd case 2015, the company was ordered to stop the
manufacturing, distribution, etc of the 9 types of a variant of products of noodles
manufactured by the company. And it was also realised that the laboratories
where the products were tested for high quantities of lead, were not accredited
and recognised under the Act, and relying on their test result would not be
justified.
• In Patanjali case, the court stressed the need to evaluate the implementation of
relevant provisions under various acts and rules, including the Drugs and Magic
Remedies (Objectionable Advertisements) Act, the Drugs and Cosmetics Act, and
the Consumer Protection Act.
FSSAI
FSSAI issued quality checks on popular spice brands MDH and Everest after Hong
Kong and Singapore found two products containing traces of ethylene oxide above
permissible levels.
Challenges:
• Retailers and hawkers” are exempted from FSSAI ambit.

• An acute shortage of licensing and enforcement officers in the states
• Lack of food testing laboratories. There are only 87 National Accreditation Board
for testing and calibration Laboratories (NABL) accredited Labs.
• FSSAI is highly underfunded to monitor the widening ambit of food laws. Also,
there are no standard practices for food inspection, the process being mostly
discretionary.
• According to a CAG Report, FSSAI is yet to frame regulations and guidelines to
govern different procedures. The CAG also found that "licenses were issued on
the basis of incomplete documents in more than 50 per cent of cases, checked in
Audit"
Consumer Rights
As per the Consumer Protection Act, 2019, a consumer has a right to participate in
a transparent marketplace. Let’s take a look at the main 6 Consumer Rights in India:
• Right to Safety
• Right to be Informed
• Right to Choose
• Right to be Heard
• Right to Seek Redressal
• Right to Consumer Education
Consumer Responsibilities
• Responsibility to be aware – A consumer has to be mindful of the safety and

quality of products and services before purchasing.
• Responsibility to think independently– Consumer should be well concerned about
what they want and need and therefore make independent choices.
• Responsibility to speak out- Buyer should be fearless to speak out their
grievances and tell traders what they exactly want
• Responsibility to complain- It is the consumer’s responsibility to express and file
a complaint about their dissatisfaction with goods or services in a sincere and fair
manner.
• Responsibility to be an Ethical Consumer- They should be fair and not engage

themselves with any deceptive practice.
Measures for consumer protection in India
• Consumer protection act 2019:

➢ The Act establishes consumer protection councils to protect the rights of the
consumers at both the national and state levels.
➢ The state government shall establish a District Consumer Protection Council
for every district known as the District Council.
➢ The Central Government shall establish a Central Consumer Protection
Authority which is known as the Central Authority to regulate matters relating
to violation of the rights of consumers, unfair trade practices and false or
misleading advertisements.
➢ The state government shall establish a District Consumer Disputes Redressal
Commission to entertain complaints where the value of the goods or services
paid as consideration does not exceed one crore rupees.
➢ A product liability action may be brought by a complainant against a product
manufacturer, product service provider or product seller.
• Consumer Protection Rules 2021: The rules revised the pecuniary jurisdiction
of Central commission to more than 2 crores, state commission to 50 lakh-2 crore
and district commission to 50 lakhs.
• Certification markers: A certification mark certifies the nature or origin of the
goods or the services to which it has been applied. Ex: BIS, ISI.
• INGRAM Portal: Launched by the Department of Consumer Affairs to create
awareness, advise and redress consumer grievances and act as a central registry
for lodging consumer grievances.
Challenges in Consumer Protection:
➢ Pendency of cases: Nearly 5 lakh cases are pending with the authority.
➢ Rising vacancy and Poor Infrastructure
➢ Nexus between officer, sellers and manufacturers.
➢ Lack of enforcement: Ex FSSAI failed in case of maintaining checking the sale
of spurious items.
➢ Lack of clarity regarding the role of central consumer protection authority with
respect to search and seizure.
Suggestion:
➢ Awareness of consumer rights using NGO and civil society.

➢ Collaborate with regulatory organisation like Advertising council of India.
➢ Reviewing the standards of quality at a fixed frequency.
CAG OF INDIA
The number of CAG audits on the Union Government tabled in Parliament has been
decreasing for some years. In the year 2023, only 18 audit reports on the Union
government’s accounts, has been tabled in the Parliament. The Comptroller and
Auditor General (CAG) of India has not conducted a Union level performance audit
of the implementation of the Mahatma Gandhi National Rural Employment
Generation Act (MGNREGA) since 2013
Reasons:
• The budget allocated to the Indian Audit & Account Department has declined
from 0.19 in 2017-18 to 0.13 percent in 2023-24.
• A notable downsizing of staff strength within the CAG can be seen as in 2021-
22, the IA&AD had a staff strength of 41,675 which is a steady decline from the
peak of 48,253 in 2013-14.
• The officer who has highlighted major irregularities on Ayushman Bharat and the
Dwarka Expressway project have been transferred.
• It has been reported that ‘verbal orders’ were issued by CAG to stop field audit
work.
• Declining auditing of government schemes impedes the public trust and
confidence of the office.
• CAG reports have been of special interest since it tends to highlight the prevalent
corruption in the system. For example, the UPA government came under fire for
alleged scams in 2G spectrum and coal block allocations.
• Audit reports provide valuable insights for policymakers, aiding in informed
decision-making for better governance. Timely audit can act as guiding light for
future policy decisions for better outcomes.
What ails the Auditing system?
• There are numerous instances of chief ministers and other senior state
functionaries trying to intimidate the AG when he has brought out uncomfortable
facts during the course of an audit. He/ she has no protection of the law against
unwarranted attacks.
• In many states, the PAC meets just a few times in a year and bulk of the audit
reports get relegated as records without any action.
• There are huge ‘excess expenditure’ and ‘over-budgeted grants’ which remain
unregularized for years, sometimes decades, in blatant violation of Article 205(b)
of the Constitution.
• Large numbers of autonomous bodies, which are funded or controlled by the
central or state governments deliberately evade CAG audit.A typical case is of
Noida, Greater Noida and Yamuna Expressway authorities, who have been
refusing to subject themselves to audit by CAG.
Recent Observation by the CAG in the field of Financial Accountability:
• CAG has strengthened the engagement efforts through various innovative

products such as departmental appreciation notes and management letters.
• Centre -State Issues: Cess which was supposed to check GST shortfalls have been
retained by the central government as highlighted by CAG.
• Defence Offset Policy: CAG has observed Dassault, the French manufacturer of
Rafale has not fulfilled its offset commitment to transfer technology to India as
part of the 2016 contract for 36 combat jets.
• The PAC of Karnataka State legislative assembly asked CAG to audit into the
purchase of COVID 19 equipment under State Disaster Response Fund. Thus,
CAG has issued an order creating a new vertical-Health, welfare, and rural
development.
• In the wake of the Big Data revolution, CAG came out with a Big Data
management policy in 2016 and also established a Centre for Data Management
and Analytics in Delhi. This is a welcome step.
• In 2017, CAG of India hosted the Commonwealth Auditors General Conference.
Leveraging technology in public audit and environment audit were the two themes
of the conference. Conference helped in fostering partnerships amongst
Commonwealth countries for capacity development in public audit.
Suggestion
• CAG’s appointment should be made in a bipartisan manner through a Collegium

composed of the PM, the Chief Justice of India, and the Leaders of the Opposition
of Rajya Sabha and Lok Sabha.
• Empowered CAG like in New Zealand: CAG in New Zealand is empowered to ask
for liability of the loss from the government and another party.
• It is advisable that CAG Act 1971 should be amended to include:
➢ Pre-Audit of Defence expenditure of more than 3000 crores.
➢ The State Accountant General should be given the status of judge of the High
Court.
➢ Just like the citizen’s right to get the information within a month under RTI
Act 2005, auditors should be provided access to records on priority basis
within seven days, failing which, heads of departments should be required to
explain the circumstances that caused the delay.
• Adopt Best Model: Continental European countries such as France, Germany,
Italy, Belgium and Austria have a system of audit courts. These courts are
equipped with wide powers and can order recovery of illegally spent money from
public officials. In Germany and Japan, private companies in which the
government has invested substantially can be audited by the Supreme Audit
Institution (SAI), irrespective of majority holding, but not so in India.
Conclusion: An independent and empowered CAG is a prerequisite in the 21st

century to achieve the goal of Dr B R Ambedkar.
Lokpal and Lokayukta Act, An analysis

Jurisdiction and power:
• The Lokpal is vested with the power of search and seizure and powers under civil
procedure code or the purpose of conducting preliminary inquiry & investigation
and power of attachment of assets and taking other steps for eradication of
corruption.
• Lokpal has jurisdiction to Inquire allegations of corruption against Prime
Minister, Ministers, members of Parliament, officers belonging to Group A, B, C
and D and officials of Central Government.
• In respect of public servants belonging to Group A and Group B - shall submit its
report to the Lokpal.
• In case of public servants belonging to Group C and Group D - CVC shall proceed
in accordance with the provisions of the Central Vigilance Commission Act, 2003.
• Lokpal can also inquire against any society or trust or body that receives foreign
contribution above Rs.10 lakhs.
• Lokpal Act creates Special Courts to hear and decide the cases arising out of the
Prevention of Corruption Act, 1988 or under the Lokpal Act involving public
servants.
• The Special Courts shall ensure completion of each trial within a period of one
year from the date of filing of the case in the Court.
Challenges of Lokpal
• No Suo moto Power: Lokpal cannot initiate Suo moto action and also there is
focus on form of complaint rather than the substance.
• False and Frivolous against Public servants: May deter public officials for action
especially who are at decision making position.
• No Provision of Anonymous complaints: An individual cannot drop complaint in
the box with supporting documents.
• Limited Time Frame: Lokpal cannot take case after 7 years of commission of
corruption.
• Exception for PM: Very Non-Transparent procedure for dealing with complaints
received against PM.
• Functional challenges:
➢ The chairperson and members of Lokpal were appointed only in 2019 and that
after after a petition was filed in the Supreme Court.
➢ The Four-member selection committee having a preponderance of
representatives of the ruling party with an inherent bias towards
recommending candidates.
➢ The central government failed to formulate the guidelines regarding asset
disclosure by public servants.
➢ According to statistics available on the Lokpal website, a majority of the
complaints so far have been frivolous or outside the jurisdiction of the
ombudsman. There has also been a sharp decline in the number of
complaints, even frivolous ones, over the years. Just 30 complaints were
lodged in the first seven months of 2021.
➢ Justice Dilip B. Bhosale one of the members resigned after taking oath, citing
personal reasons and lack of enough work.
➢ Two out of the four judicial posts in the Lokpal have been vacant since 2020.
The crucial positions of director of inquiry (tasked with overseeing preliminary
inquiries into corruption complaints) and director of prosecution are still
vacant.
Success of Lokpal:
Lokpal Complaint Rules 2020
➢ A complainant has to give a valid proof of identity, as specified therein.

➢ Foreign nationals can also lodge complaints. Only a copy of their passports will
be accepted as proof of identity.
➢ The complaint can be filed electronically, by post or in person.
➢ No complaints can be filed against a public servant under the Army Act, Navy
Act, Air Force Act and the Coast Guard Act.
➢ A complaint may ordinarily be made in English, provided that the Lokpal may
also entertain a complaint in any of the languages referred to in the Eighth
Schedule to the Constitution.
➢ The identity of the complainant or the accused official will be protected by the
Lokpal till the conclusion of inquiry or investigation. However, the protection will
not be applicable in cases where the complainant herself reveals her identity to
any other office or authority while making the complaint to Lokpal.
NHRC
As per UN definition these rights are inherent to all human beings, regardless of race,
sex, nationality, ethnicity, language, religion, or any other status.
Functions and Powers of NHRC
➢ NHRC investigates grievances regarding the violation of human rights either suo
moto or after receiving a petition.
➢ It has the power to interfere in any judicial proceedings involving any allegation
of violation of human rights.
➢ It can visit any jail or any other institution under the control of the State
Government to see the living conditions of the inmates and to make
recommendations thereon.
➢ It can review the safeguards provided under the constitution or any law for the
protection of human rights and can recommend appropriate remedial measures.
➢ NHRC undertakes and promotes research in the field of human rights
➢ NHRC works to spread human rights literacy among various sections of society
and promotes awareness of the safeguards available for the protection of these
rights through publications, media, seminars and other means.
➢ The Commission takes an independent stand while providing opinions for the
protection of human rights within the parlance of the Constitution or in law for
the time being enforced.
➢ It has the powers of a civil court and can grant interim relief.
Instances of success
• Took Action for settlement of Refugees (Chakma and Hojang)

• NHRC was vocal for repealing of TADA and POTA.
• NHRC Special Rapporteurs have been assigned to look into extreme poverty
in Kalahandi and Koraput region of Odisha.
Criticism: National Human Rights Commission (NHRC) chairman Justice H L Dattu

recently said the rights watchdog needed some teeth to enforce its orders on remedial
measures in cases relating to violations. He said NHRC is a toothless tiger.
• It has been termed as ‘India’s teasing illusion’ by Soli Sorabjee (former Attorney-
General of India) due to its incapacity to render any practical relief to the
aggrieved party.
• NHRC can only make recommendations, without the power to enforce decisions.
• Government often outright rejects recommendations of NHRC or there is partial
compliance to these recommendations.
• National Human Rights Commission powers related to violations of human rights
by the armed forces have been largely restricted.
WHAT CAN BE DONE?
• The effectiveness of commissions will be greatly enhanced if their decisions are

immediately made enforceable by the government.
• It is essential that the commission should be able to summon witnesses and
documents.
• If it is to play a meaningful role in society, it must include civil society human
rights activists as members.
• NHRC needs to develop an independent cadre of staff with appropriate experience.
• A culture of human rights ought to be promoted through education. The strategy
for inculcating human rights culture among the people needs to be based on a
number of factors: social, legal, political, judicial, and institutional.
• A M Ahmadi Committee: - The limitation of 1 year on the NHRC for admissibility
of human right abuse cases should be removed.
Instances of Criticism
• Handling of Muzaffarpur Riots: NHRC has not recommended anything.

• Chhattisgarh Police Gang Rape Case: NHRC has delayed response and didn’t
take appropriate intervention like FIR and Compensation.
NCW
NCW was established to appraise the constitutional and legal protections for women;
recommend remedial legislative measures, facilitate redressal of grievances and
advise the Government on all policy matters affecting women. It is assessed that
within a short span, the Commission has managed to fulfil the directive to a great
extent.
Functions of NCW
Inquiry and Investigation: The National Commission of Women enjoys the powers of
a civil court. It took complaints suo moto notice of matters related to the non-
implementation of laws and non -compliance of policy decisions, guidelines enacted
and aimed at mitigating hardships ensuring the welfare and then taking up issues
arising out of matters with the concerned authorities.
Complaints and Counselling Unit of National Commission for Women
This cell is the Core unit of the commission and processes the complaints received
oral, written or Suo motu under Section 10 of the NCW Act.
The complaints received relate to domestic violence, harassment, dowry, torture,

desertion, bigamy, rape, and refusal to register FIR, cruelty by husband,
derivation, gender discrimination and sexual harassment at workplace.
• Action Research: NCW members take part in the planning process of socio-
economic development of women. It also reviews the safeguards provided for
women in the Constitution and other laws, studies their working, recommends
amendments to meet any inadequacies
• Legal Intervention: The Parivarik Mahila Lok Adalat, (PMLA) is an innovative
component, created by NCW for the redressal and speedy disposal of cases. It has
taken up 7500 cases so far. The essential feature of PMLA is cordial mutual
settlement and flexibility in implementation, aiming to empower women in the
justice delivery mechanism.
Performance of NCW:
• The commission has sought to amend the Indian Penal Code, 1860 in order to
curb the sale of minor girls; the Hindu Marriage Act, 1955, in order to omit
epilepsy as grounds for divorce; the Dowry Prohibition Act of 1961, in order to
bring the problems of Dowry deaths in to the limelight and deal with them
properly and the NCW Act, 1990.
• The Commission has proposed a total of seven bills and has drafted one
convention for SAARC relating to trafficking of women and children.Ex:- Criminal
Law Amendment Bill.
• Research cell of NCW: This cell has also organized various special studies and
establishes expert committees to look into and propose solutions for problems,
which have evolved recently. Currently, the cell tackle issues related to Gender
and Law Enforcement, Impact of Displacement of Women, Sexual Harassment at
Workplace, Issues concerning Prostitution and Political Empowerment of Women.
• The Commission intervened in Bhateri gang rape case and supported the victim
and provided for her protection. In the Maimon Baskari's Nuh case the
Commission fought for the right of the victim to marry a person of her own choice
and against outdated customs.
Drawbacks of NCW:
• It only has the powers to suggest amendments and submit reports which are not
obligatory on state or Union Governments.
• The power of selecting members is vested with the Union Government and the
nature of the country's volatile political scenario tends the commission to be
politicized.
• It is reliant on financial assistance from the Union Government and this could
compromise the independence of the Commission.
• It is active in High profile cases and silent when High profiles individuals are
involved.
Instances of Drawback of NCW: -
• NCW’s recommendations regarding section 497 of the Indian Penal Code that
women were “the victim and not offenders” in adulterous cases also came under
fire.
• Members of NCW has revealed the name of accused in Assam Molestation case.
• Disgraceful remark by NCW Chief: If someone says women sexy, there is no any
issue OR Recent remark on 21 Nov 2020 :- There is a rise in Love Jihad
AADHAR AND ISSUES

Aadhar is a 12-digit individual identification number issued by the Unique
Identification Authority of India (UIDAI) on behalf of the Government of India.
ISSUES
• In 2015, a SC order halted the National Election Roll Purification and

Authentication Programme, which asked to link Aadhaar with voter ID. Now, The
ECI claims that the SC permitted the voluntary use of Aadhaar if there is a law
authorising it. So, now there is a law, so it is not an issue. However, if you look
into such exercises in Telangana, it has a disastrous effect like: In 2018, 55 lakh
voters had been deleted from the voter database.
• Secondly, within a year of the Aadhar verdict, Govt amended the Aadhaar Act to
permit the use of Aadhaar authentication for telecom and banking services, which
the SC had categorically struck down. The government claimed that the Court’s
only objection was the lack of a law, so now there is an amended law.
• The Act does not specifically prohibit law enforcement and intelligence agencies
from using the Aadhaar number as a link (key) across various datasets (such as
telephone records, air travel records, etc.) in order to recognise patterns of
behaviour. Techniques such as various computer programmes across datasets
for pattern recognition can be used for detecting potential illegal activities.
However, there may be chances that innocent individuals can be identified
incorrectly.
• Threat to national security: There have been instances of Bangladeshi citizens

holding Indian passports via Aadhaar. Since Aadhaar has been made mandatory
for tax returns etc. all the officials of security agencies of India like Intelligence
Bureau, Research and Analysis Wing (RAW) had to register themselves under the
Aadhaar. This makes the Aadhaar data of extreme interest for various non-state
actors particularly in the age when no data is immune from hacking or illegal
access.
• The issue is a larger one, actually the government has cancelled approx. 4 cr
ration cards since 2017 because they were not linked to Aadhar. But never tried
to find out the reason for these non-linkages.
Issues:
➢ Poor people do not know what to do, where to go, how to rectify incorrect details
on Aadhar card. Incorrect details on Aadhar do not match with ration card details.
➢ There is no verification before cancellation.
➢ Loss of cancelled ration card is not in public domain, neither there is grievance
redressal for this
➢ Sometimes biometric authentication glitches also result in non-linking of
Aadhaar with ration cards.
Suggestion:
• Moody’s suggests decentralized ID systems like digital wallets with blockchain

capabilities for more user control and reduced fraud.
• RBI and NPCI should monitor all types of payment problems and place detailed
monthly reports in the public domain.
• The NPCI should ensure stronger safeguards against the vulnerabilities of AePS
and better grievance redressal facilities.
The Government has brought an amendment in the act:
➢ Provides for voluntary use of Aadhaar number in physical or electronic form by

authentication or offline verification with the consent of Aadhaar number holder.
➢ Provides for use of twelve-digit Aadhaar number and its alternative virtual identity
to conceal the actual Aadhaar number of an individual.
➢ The Aadhaar Act, 2016 exempts disclosures of Aadhaar-related information from
security and confidentiality requirements if the disclosure is made under a
District Court order (or above). The Aadhaar act amendment 2019 modifies it to
authorize such disclosure only in response to High court orders (or above).
➢ The act allows individuals to file complaints in specific circumstances, such as
impersonation or revelation of their identity.
➢ The act establishes the fund section for Unique Identification Authority. This fund
will be credited with all fees, grants, and levies from the UIDAI. The revenue will
be used to cover the UIDAI’s expenditures, such as salaries and benefits for its
workforce.
Impact:
➢ The decision would enable UIDAI to have a more robust mechanism to serve the
public interest and restrain the misuse of Aadhar.
➢ Subsequent to this amendment, no individual shall be compelled to provide proof
of possession of Aadhaar number or undergo authentication for the purpose of
establishing his identity unless it is so provided by a law made by Parliament.
➢ For the convenience of general public in opening of bank accounts, the proposed
amendments would allow the use of Aadhaar number for authentication on
voluntary basis as acceptable KYC document under the Telegraph Act, 1885 and
the Prevention of Money Laundering Act, 2002.
Comparison of Judiciary
US Supreme court and Indian Supreme court
Structure of US Court
Immediately below the SC, is federal court of appeal to facilitate the disposition of
case and ease the burden of SC. Below these appellate courts, there are District
court, that are court of original jurisdiction.
Federal court of appeal
Either US is divided into 12 judicial circuits and every judicial circuit has 1 Federal
court of appeal i.e 12 and 1 Federal court for certain subject matter.
The primary function of Federal court of appeal is to hear case appealed from lower
court. In many cases, where issue relating to constitutionality of law is raised, this
federal court of appeal has final authority.
District court
They are federal court of original jurisdiction. There are 94 district court. Each
State have at least 1 district court while populous state has 2, 3 till 8 district
courts also.
Important Pointers
• In the U.S., minor Civil and criminal cases are kept for state courts almost
exclusively.
• More serious crimes and civil cases are subject to a three-court hierarchy. In
the U.S., at the federal level, criminal cases and civil cases are not heard by
separate courts. Cases begin in lower courts then move on to courts of
appeals, and are finally resolved in a single supreme court, if necessary.
• It is important to note that U.S. does not have a “Tribunal System” as the
U.K. and India does for certain disputes. There are, however, niche courts
for certain types of cases like Patent cases etc.
Similarities
• SC is the final court of appeal in USA. Its opinion on the question of law is
final as in India.
• Constitution has not fixed the number of Judges as in India also where
parliament can increase the number of judges anytime by simple majority.
• Judges in USA are appointed by President with aid and advice of senate. And
in India on aid and advice of PM and his CoM.
• Both the SC has both Original and appellate jurisdiction.
• SC in USA like in India hears appeals in cases decided either in State court
or in lower federal court.
• The court have the power of Judicial review.
Differences
• Original jurisdiction of US Supreme court covers not only federal cases but
also cases relating to naval forces, maritime activities, ambassadors, etc.
• Its appellate jurisdiction is confined to constitutional cases only.
• It has no such plenary power AS Indian SC have under Article 136.
• It has no advisory jurisdiction.
• Its scope of judicial review is very wide as it examines law according to the
‘due process of law’.
• No qualification for US SC judge is mentioned in Constitution.
• Judge may retire at 65 years of age or 70 years of age.
• All judges sit together to look the case, no concept of Bench as in India.
UK and Indian Court

Features of Judiciary in UK
1. No Single form of organisation: One for England and Wales, other for
Scotland and other for Northern Ireland.
2. No separate administrative court: The English common law recognises
no distinction between the acts of Government official and ordinary
citizen, just like in India.
3. Absence of Judicial review: As Parliamentary sovereignty exists; Court
can’t declare law as invalid in UK.
4. Jury System: Jury, historic legal institution in which a group of
laypersons participate in deciding cases brought to trial.
Structure of UK Court
The organisation of law court in England flows from Judicature act of 1872 as
amended by the act of 1925. In UK, there is a separate court to deal with civil and
criminal matter.
Criminal court
• Justice for peace/ Magistrate court: Its jurisdiction is they can punish for
maximum of 14 days imprisonment and if crime is serious, cases are tried
by the court of summary jurisdiction consisting of two Justice for peace
which can give punishment for 6 months.
Crown court:
• Court of Quarter session: Appeal from Justice for peace is made here and
this court meets for 4 times in a year. It also exercises original jurisdiction in
serious criminal case but not serious criminal case.
• Court of Assizes (Branch of High court): It is called court of criminal court
looked into offences like kidnapping, armed robbery and murder.
• Court of appeal: The judgment of the court if final except in rare cases when
an appeal can be taken to House of Lords.
Civil court
• Country Court: Types of civil case dealt with in the County Court include :
Businesses trying to recover money they are owed, Individuals seeking
compensation for injuries, Landowners seeking orders that will prevent
trespass.
• High Court: The High Court of Justice in London deals at first instance with
all high value and high importance civil law (non-criminal) cases, and also
has a supervisory jurisdiction over all subordinate courts and tribunals,
with a few statutory exceptions. The High Court consists of 3 divisions: the
King’s Bench Division, the Family Division, and the Chancery Division.
Supreme court in UK: The final court of appeal in the UK for civil cases, and for
criminal cases from England, Wales and Northern Ireland. The Supreme Court
hears cases of the greatest public or constitutional importance affecting the whole
population.
Similarities with Indian Judicial system
• Removal of Judges: In Britain as well as in India the judges can only be

removed from the office for serious misbehaviour and with the consent of
both the Houses of Parliament.
• Check on Executive: Courts in both the UK and in India can declare the
action of an executive as ultra-vires.
• Interpretation of Constitution: The courts in both India as well as in the
UK act as the highest interpreter of the constitution.
• Rule of Law: Both follows Equality before law.
• Writ Petition: Instrument of writ petitions to uphold Rule of Law and that
the judiciary of both nations can review the acts of the executives.
Differences with Indian Judicial system:
• Differs in the principle of Parliamentary sovereignty and constitutional

supremacy.
• In India, there is a concept of Doctrine of Basic structure.
• The United Kingdom does not have a single unified legal system, England
and Wales have one system, Scotland another, and Northern Ireland a third.
• In the UK, the Constitutional Reform Act, of 2005 has created the Judicial
Appointments Commission for the appointment of judges.
France And Indian Judicial system
Features of French Judicial system
• Subservience of Judiciary: The French don’t believe in theory of separation

of power, as judges works under the Minister of Judicial department.
• Principle of Special collegiality: In every court several judges collectively hear

the case and give judgement.
• No separate court for civil and criminal matter unlike in India and UK.
• Provision of special court to resolve specific disputes through compromises
and agreements.
• Independence of Judiciary: The judges of superior court like court of
cessation and court of appeal are appointed by High council of judges
comprising of President, minister of justice and nine other members. The
judges at lower court are appointed by competitive examination.
• In France, there are separate court for ordinary and administrative person.
• The Constitutional council: There is no system of judicial review, they have a
body called constitutional council consisting of nine members. This body
decides on constitutionality of government or parliamentary acts.
• Concept of High court of justice: It consist of members from National
assembly and Senate, and it tries President and other members of
government for treason and action against security of the state.
Comparison of French and Indian election

Context: Recently French President called for snap elections.
It is called to capitalize on an unusual electoral opportunity or to decide a pressing

issue, under circumstances when an election is not required by law or convention.
A snap election differs from a recall in that it is initiated by politicians (usually the
head of government or ruling party) rather than voters, and from a by election in
that a completely new parliament is chosen as opposed to merely filling vacancies
in an already established assembly
Election Process in France
• There are 577 seats in the National Assembly, including 13 overseas

districts and 11 constituencies that represent French citizens abroad. For an
absolute majority a party needs 289. The first round eliminates all
candidates who fail to win the support of 12.5% of locally registered voters.
• Anyone who scores more than 50% of the vote with a turnout of at least a
quarter of the local electorate wins automatically
• The second round is a series of run-offs fought either by two, three or
sometimes four candidates.
The National Assembly, the lower house, is the more powerful of France’s two
houses of parliament. It has the final say in the law-making process over the
Senate, dominated by conservatives. If another political force gets a majority,
President Macron will be forced to appoint a prime minister belonging to that new
majority, and co habitation will rise there. In such a situation the government
would implement policies that diverge from the president’s plan.
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SUGGESTION,
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“This booklet contains 300 questions with detailed explanation

Specially designed for UPSC Mains 2024

Transformative constitutionalism is based on the fundamental goal of transforming

Transformative constitutionalism is motivated by an objective to continuously seek

• However, in the Maratha Reservation case, SC has said Reservation can’t be

Some Observations of the Court: (Can be used in exam directly)

Question on Reservation Policy:

Overall Criticism of Reservation Policy:

Why there is a rising demand for Reservation?

• Reveal SECC Data and start a new discourse on Reservation Policy.

The P Ramachandra Raju Commission recommended steps to distribute the

Film and Freedom of Speech and Expression (FOSE)

In this context, let us see recent amendment in Cinematography act.

Current provisions of the Act:

Amendment in the act:

• Government as Super Censor: Revisional powers of Union govt. will effectively

potentially endangering freedom of expression and weakens the scope of a mature

The court made two important observations in “Humare Barah films”:

➢ Reiterated "Jagjivan ram vs Rangarajan" case: FOSE can't be

Supreme Court in K A Abbas case has said:

Freedom of Press and speech

Freedom of press has three essential elements. They are:

• Freedom of access to all sources of information,

Why Freedom of Press comes under Scanner?

Regulation of Media in India:

Why is there a need to regulate electronic media?

Regulation of Social Media

Why Should social media be regulated?

CASE STUDY WHICH CALLS FOR ITS REGULATION

Facebook-Google News feed issue in Australia, France, India

Examples from European Countries:

• Google and a group of French publishers have announced a framework agreement

What are the Laws/Rules for Regulating Social Media?

➢ Section 69 A of IT Act: Section 69A of the IT Act, empowers the Central

The Information Technology [Intermediaries Guidelines and Digital Media

• Classification of Social Media Intermediaries: The guidelines call upon the

• In the cases specifically related to crime against women, the obligation is to

The new IT Rules has been challenged

What are the issues with such Law and Rules?

• Violation of Fundamental Rights: Article 19 (1) Guarantees Right to speech and

Suggestion to Regulate Social Media:

• Intermediaries should deploy automated tools for proactively removing or

Why should OTT Platforms be regulated?

• These platforms due to non-regulation exhibited 'vulgar, immoral and religiously

Does OTT come under any Law

Regulation of OTT platforms in other countries

• The Australian Communication and Media Authority regulates content matters;

What the Court says on Regulation of OTT?

Conclusion TRAI in its consultation paper on regulation of OTT platforms analysed

• OTT platforms have no licensing regulations.

Thus, OTT should be regulated, if Self-regulation advocated by these platforms fails

Defamation law in India

Landmark judgements in India

Constitutionality of Defamation Laws:

Laws for Preventive Detention

Purpose of Preventive Detention:

4. The Advisory Board review procedure prescribed by the Constitution involved an

Safeguard: SC in K Puttaswamy case, established threefold conditions in the case of

Shankari Prasad Case, 1951