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Chapter- 1 CONSTITUTION: WHY AND HOW?
What is Constitution in layman language?
A constitution is a body of fundamental principles according to which a state is constituted or governed.
WHY DO WE NEED A CONSTITUTION?
1) Constitution allows coordination and assurance
2) Specification of decision making powers
3) Limitations on the powers of government
4) Aspirations and goals of a society
Indian Constitution as Living Document
How was the Indian Constitution made?
Composition of the Constituent Assembly
Procedures
Inheritance of the nationalist movement
Institutional arrangements
Provisions borrowed from constitutions of different countries
Mode of promulgation-
The substantive provisions of a constitution-
Allowed permanent majorities to oppress minority groups within society would give minorities no reason to go along with the provision of the constitution.
Balanced institutional design-
Chapter- 2 RIGHTS IN THE INDIAN CONSTITUTION
Bill of rights in the South African Constitution
Some of the Rights included in the constitution of South Africa include:
FUNDAMENTAL RIGHTS IN THE INDIAN CONSTITUTION
RIGHT TO EQUALITY
Article 21: Protection of life and personal liberty—No person shall be deprived of his life or personal liberty except according to procedure established by law
Article 16 (4)-
RIGHT TO FREEDOM
Right to life and personal liberty
Preventive detention
Other freedoms
Rights of accused
RIGHT AGAINST EXPLOITATION
RIGHT TO FREEDOM OF RELIGION
Equality of all religions
Freedom of faith and worship
Freedom of religion is subject to certain limitations-
CULTURAL AND EDUCATIONAL RIGHTS
Minorities are groups that have common language or religion and in a particular part of the country or in the country as a whole, they are outnumbered by some other social section.
All minorities, religious or linguistic, can set up their own educational institutions. The government will not, while granting aid to educational institutions, discriminate against any educational institution on the basis that it is under the management of minority community.
RIGHT TO CONSTITUTIONAL REMEDIES
The courts can issue various special orders known as writs-
DIRECTIVE PRINCIPLES OF STATE POLICY
Fundamental Duties of citizens
RELATIONSHIP BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES
Example-
Right to Property
Kesavananda Bharati case
Human Rights Commission
Independent organizations like the People’s Union for Civil Liberties (PUCL) or People’s Union for Democratic Rights (PUDR) have been working as watchdogs against the violations of rights.
National Human Rights Commission-
Chapter- 3 ELECTION AND REPRESENTATION
ELECTION SYSTEM IN INDIA
First Past the Post System
Method of elections-
Proportional Representation
In the PR system there could be two variations.
How does PR work in Rajya Sabha elections?
To be declared the winner, a candidate must secure a minimum quota of votes, which is determined by a formula-
Why did India adopt the FPTP system?
RESERVATION OF CONSTITUENCIES
Delimitation Commission
Universal franchise and right to contest
Independent Election Commission
Functions-
Chapter 4 EXECUTIVE
Different types of government-
Presidential System-
Semi-Presidential Executive in Sri Lanka
Parliamentary system
Semi-presidential system
PARLIAMENTARY EXECUTIVE IN INDIA
Discretionary Powers of the President
3 situations
Indian Post office (amendment) bill-
The Vice President of India
Prime Minister (PM)
Size of the Council of Ministers
Council of Ministers
State Government
PERMANENT EXECUTIVE: BUREAUCRACY
UPSC (Union Public Service Commission)
Chapter 5 LEGISLATURE
Why do we need Parliament?
States having a bicameral legislature-
2 different principles of representation in the second chamber-
WHAT DOES THE PARLIAMENT DO?
1. Legislative Function-
2. Control of Executive and ensuring its accountability-
Ensure that the executive does not overstep its authority and remains responsible to the people who have elected them.
3. Financial Function
Representation-
4. Debating Function-
5. Constituent Function-
6. Electoral functions-
It elects the President and Vice President of India.
7. Judicial functions
Includes considering the proposals for removal of President, Vice-President and Judges of High Courts and Supreme Court.
Money Bill case
HOW DOES THE PARLIAMENT MAKE LAWS?
HOW DOES THE PARLIAMENT CONTROL THE EXECUTIVE?
Instruments of Parliamentary Control 1. Deliberation and discussion: During the law making process, members of the legislature get an opportunity to deliberate on the policy direction of the executive and the ways in which policies are implemented. Apart from deliberating on bills, control may also be exercised during the general discussions in the House. The Question Hour, which is held every day during the sessions of Parliament, where Ministers have to respond to searching questions raised by the members; Zero Hour where members are free to raise any matter that they think is important (though the ministers are not bound to reply), half-an –hour discussion on matters of public importance, adjournment motion etc. are some instruments of exercising control. 2. Approval and ratification of laws: A bill can become a law only with the approval of the Parliament. A government that has the support of a disciplined majority may not find it difficult to get the approval of the Legislature. Such approvals however, cannot be taken for granted. They are the products of intense bargaining and negotiations amongst the members of ruling party or coalition of parties and even government and opposition. If the government has majority in Lok Sabha but not in the Rajya Sabha, as has happened during the Janata Party rule in 1977 and N.D.A rule in 2000, the government will be forced to make substantial concessions to gain the approval of both the Houses. 3. Financial control: Financial resources to implement the programmes of the government are granted through the budget. Preparation and presentation of budget for the approval of the legislature is constitutional obligation of the government. This obligation allows the legislature to exercise control over the purse strings of the government. The legislature may refuse to grant resources to the government. This seldom happens because the government ordinarily enjoys support of the majority in the parliamentary system. Nevertheless, before granting money the Lok Sabha can discuss the reasons for which the government requires money. It can enquire into cases of misuse of funds on the basis of the report of the Comptroller and Auditor General and Public Accounts committees. But the legislative control is not only aimed at financial propriety. The legislature is concerned about the policies of the government that are reflected in the budget. Through financial control, the legislature controls the policy of the government. 4. No Confidence Motion: The most powerful weapon that enables the Parliament to ensure executive accountability is the no-confidence motion. As long as the government has the support of its party or coalition of parties that have a majority in the Lok Sabha, the power of the House to dismiss the government is fictional rather than real. However, after 1989, several governments have been forced to resign due to lack of confidence of the house. Each of these governments lost the confidence of the Lok Sabha because they failed to retain the support of their coalition partners.
Instruments of Parliamentary Control
1. Deliberation and discussion:
2. Approval and ratification of laws:
3. Financial control:
4. No Confidence Motion:
WHAT DO THE COMMITTEES OF PARLIAMENT DO?
HOW DOES THE PARLIAMENT REGULATE ITSELF?
The presiding officer of the legislature is the final authority in matters of regulating the business of the legislature.
Anti-defection law-
If it is proved that a member has ‘defected’, then such member loses the membership of the House. Besides, such a person is also disqualified from holding any political office like minister- ship, etc.
Chapter 6 JUDICIARY
Independence of Judiciary-
Appointment of Judges
Removal of Judges
Unsuccessful Attempt to Remove a Judge
STRUCTURE OF THE JUDICIARY
Original Jurisdiction-
Writ Jurisdiction
Appellate Jurisdiction
Advisory Jurisdiction
JUDICIAL ACTIVISM Through Public Interest Litigation (PIL) or Social Action Litigation (SAL) In normal course of law, an individual can approach the courts only if he/she has been personally aggrieved. That is to say, a person whose rights have been violated, or who is involved in a dispute, could move the court of law. In 1979, the Court set the trend when it decided to hear a case where the case was filed not by the aggrieved persons but by others on their behalf. Through the PIL, the court has expanded the idea of rights. Clean air, unpolluted water, decent living etc. are rights for the entire society Post 1980s- judiciary has also shown readiness to take into consideration rights of those sections who cannot easily approach the courts. For this purpose, the judiciary allowed public spirited citizens, social organisations and lawyers to file petitions on behalf of the needy and the deprived.
JUDICIAL ACTIVISM
Disadvantages of PILs-
JUDICIARY AND RIGHTS
Judicial Review Judicial Review means the power of the Supreme Court (or High Courts) to examine the constitutionality of any law if the Court arrives at the conclusion that the law is inconsistent with the provisions of the Constitution, such a law is declared as unconstitutional and inapplicable. The term judicial review is nowhere mentioned in the Constitution. The review power extends to the laws passed by State legislatures also
Judicial Review
JUDICIARY AND PARLIAMENT
Kesavananda Bharati case- In this case, the Court ruled that there is a basic structure of the Constitution and nobody—not even the Parliament (through amendment)—can violate the basic structure. First, it said that right to property (the disputed issue) was not part of basic structure and therefore could be suitably abridged. Secondly, the Court reserved to itself the right to decide whether various matters are part of the basic structure of the Constitution.
Kesavananda Bharati case-
Chapter 7 FEDERALISM
The most important feature of the federal system adopted by the Indian Constitution is the principle that relations between the States and the centre would be based on cooperation.
Article 1:
(1) India, that is Bharat, shall be a Union of States.
(2) The States and the territories thereof shall be as specified in the First Schedule.
FEDERALISM WITH A STRONG CENTRAL GOVERNMET
CONFLICTS IN INDIA’S FEDERAL SYSTEM
Centre-State Relations
Article 257 (1)
The executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.
Role of Governors and President’s Rule
Governor is appointed by the central government and therefore, actions of the Governor are often viewed as interference by the Central government in the functioning of the State government.
President’s rule (Article 356)
Demands for New States
Interstate Conflicts
SPECIAL PROVISIONS
Jammu and Kashmir According to Article 370, the concurrence of the State is required for making any laws in matters mentioned in the Union and Concurrent lists In the case of Jammu and Kashmir, the central government has only limited powers and other powers listed in the Union List and Concurrent List can be used only with the consent of the State government. President, with the concurrence of the State government, to specify which parts of the Union List shall apply to the State. The President has issued two Constitutional orders in concurrence with the Government of J&K making large parts of the Constitution applicable to the State. As a result, though J&K has a separate constitution and a flag, the Parliament’s power to make laws on subjects in the Union List now is fully accepted. No emergency due to internal disturbances can be declared in J&K without the concurrence of the State The union government cannot impose a financial emergency in the State and the Directive Principles do not apply in J&K. Finally, amendments to the Indian Constitution (under Art. 368) can only apply in concurrence with the government of J&K.
Jammu and Kashmir
Chapter 8
LOCAL GOVERNMENTS
73RD AND 74TH AMENDMENTS
GROWTH OF LOCAL GOVERNMENT IN INDIA Elected local government bodies were created after 1882. Lord Rippon, who was the Viceroy of India at that time, took the initiative in creating these bodies. They were called the local boards. However, due to slow progress in this regard, the Indian National Congress urged the government to take necessary steps to make all local bodies more effective. Following the Government of India Act 1919, village Panchayats were established in a number of provinces. This trend continued after the Government of India Act of 1935. During India’s freedom movement, Mahatma Gandhi had strongly pleaded for decentralisation of economic and political power. When the Constitution was prepared, the subject of local government was assigned to the States. Mentioned in the Directive Principles So, non-justiciable and primarily advisory in its nature.
GROWTH OF LOCAL GOVERNMENT IN INDIA
Local Governments in Independent India
73rd Amendment
Three Tier Structure-
Gram Sabha-
Elections
Reservations
Transfer of Subjects
State Election Commissioners
State government appoints
However, the State Election Commissioner is an independent officer and is not linked to nor is this officer under the control of the Election Commission of India
State Finance Commission
74th Amendment
All the provisions of the 73rd amendment relating to direct elections, reservations, transfer of subjects, State Election Commission and State Finance Commission are incorporated in the 74th amendment also and thus apply to Nagarpalikas.
The Census of India defines an urban area as having: A minimum population of 5000; at least 75 per cent of male working population engaged in non-agricultural occupations and A density of population of at least 400 persons per sq. km.
The Census of India defines an urban area as having:
IMPLEMENTATION OF 73RD AND 74TH AMENDMENTS
Chapter 9 CONSTITUTION AS A LIVING DOCUMENT
In a sense, the basic structure doctrine has further consolidated the balance between rigidity andflexibility: by saying that certain parts cannot be amended, it has underlined the rigid nature while by allowing amendments to all others it has underlined the flexiblenature of the amending process.
Factors have made our Constitution a living document are as follows-
HOW TO AMEND THE CONSTITUTION?
PROCEDURE FOR AMENDMENT
Special Majority
Ratification by States
When it required?
When an amendment aims to modify an article related to distribution of powers between the States and the central government, or articles related to representation
15th amendment- Increased the age of retirement of High Court judges from 60 to 62 years 55th amendment- Salaries of judges of High Courts and the Supreme Court were increased 42nd amendment- Mini Constitution Duration of the Lok Sabha was extended from five to six years Fundamental duties included Put restrictions on the review powers of the Judiciary
15th amendment-
Increased the age of retirement of High Court judges from 60 to 62 years
55th amendment-
Salaries of judges of High Courts and the Supreme Court were increased
42nd amendment-
BASIC STRUCTURE AND EVOLUTION OF THE CONSTITUTION
Theory of basic structure is itself an example of a living constitution
Kesavananda Bharati case (1973) It has set specific limits to the Parliament’s power to amend the Constitution. It says that no amendment can violate the basic structure of the Constitution; It allows the Parliament to amend any and all parts of the Constitution (within this limitation); and It places the Judiciary as the final authority in deciding if an amendment violates basic structure and what constitutes the basic structure.
Kesavananda Bharati case (1973)
Contribution of the Judiciary
Review of the Constitution
Chapter 10 The Philosophy of the Constitution
There were also some procedural achievements-
Special status to some states of India
Article 370- Jammu and Kashmir
Article 371A- privilege of special status was accorded to the North-Eastern State of Nagaland
Federalism
By introducing the articles concerning Jammu and Kashmir ( Art. 370) and the North-East (Art. 371), the Indian Constitution anticipates the very important concept of asymmetric federalism
Secularism
Respect for diversity and minority rights
Individual freedom
Social Justice
Classical liberalism always privileges rights of the individuals over demands of social justice and community values
WHAT IS THE POLITICAL PHILOSOPHY OF OUR CONSTITUTION?
It resists any single label because it is liberal, democratic, egalitarian, secular, and federal, open to community values, sensitive to the needs of religious and linguistic minorities as well as historically disadvantaged groups, and committed to building a common national identity.
A political philosophy approach to the constitution is needed not only to find out the moral content expressed in it and to evaluate its claims but possibly to use it to arbitrate between varying interpretations of the many core values in our polity.
Achievements of our Constitution- First, our Constitution reinforces and reinvents forms of liberal individualism. This is an important achievement because this is done in the backdrop of a society where community values are often indifferent or hostile to individual autonomy. Second, our Constitution upholds the principle of social justice without compromising on individual liberties. The constitutional commitment to caste-based affirmative action programme shows how much ahead India was compared to other nations. Third, against the background of inter-communal strife, the Constitution upholds its commitment to group rights (the right to the expression of cultural particularity). This indicates that the framers of the Constitution were more than willing to face the challenges of what more than four decades later has come to be known as multiculturalism.
Achievements of our Constitution-
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