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

• The first function of a constitution is to provide a set of basic rules that allow for minimal coordination amongst members of a society

2) Specification of decision making powers

• The second function of a constitution is to specify who has the power to make decisions in a society. It decides how the government will be constituted.

3) Limitations on the powers of government

• Third function of a constitution is to set some limits on what a government can impose on its citizens. These limits are fundamental in the sense that government may never trespass them

4) Aspirations and goals of a society

• The fourth function of a constitution is to enable the government to fulfill the aspirations of a society and create conditions for a just society.

Indian Constitution as Living Document

• The Indian Constitution is described as ‘a living’ document.
• By striking a balance between the possibility to change the provisions and the limits on such changes, the Constitution has ensured that it will survive as a document respected by people
• This arrangement also ensures that no section or group can, on its own, subvert the Constitution

How was the Indian Constitution made?

• Constitution was made by the Constituent Assembly which had been elected for undivided India.
• First sitting- 9 December1946
• Re-assembled as Constituent Assembly for divided India on 14 August 1947
• Its members were elected by indirect election by the members of the Provisional Legislative Assemblies that had been established in 1935.

Composition of the Constituent Assembly

• As a consequence of the Partition under the plan of 3 June 1947 those members who were elected from territories which fell under Pakistan ceased to be members of the Constituent Assembly.
• The numbers in the Assembly were reduced to 299 of which 284 were actually present on 26 November 1949 and appended their signature to the Constitution as finally passed.
• Members of the Assembly were not elected by universal suffrage; there was a serious attempt to make the Assembly a representative body.
• 26 members from Scheduled Classes
• Congress dominated the Assembly 82% of the seats

Procedures

• The Constituent Assembly had 8 major Committees on different subjects.
• Usually, Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, Maulana Azad or Ambedkar chaired these Committees.
• The Assembly met for one hundred and sixty six days, spread over two years and eleven months.

Inheritance of the nationalist movement

• For decades preceding the promulgation of the Constitution, the nationalist movement had debated many questions that were relevant to the making of the constitution — the shape and form of government India should have the values it should uphold, the inequalities it should overcome.
• Perhaps the best summary of the principles that the nationalist movement brought to the Constituent Assembly is the Objectives Resolution (the resolution that defined the aims of the Assembly) moved by Nehru in 1946.
• This resolution encapsulated the aspirations and values behind the Constitution.
• Based on this resolution, our Constitution gave institutional expression to these fundamental commitments: equality, liberty, democracy, sovereignty and a cosmopolitan identity.
• Thus, our Constitution is not merely a maze of rules and procedures, but a moral commitment to establish a government that will fulfil the many promises that the nationalist movement held before the people.

Institutional arrangements

• The basic principle is that government must be democratic and committed to the welfare of the people.
• The Constituent Assembly adopted parliamentary form and the federal arrangement, which would distribute governmental powers between the legislature and the executive on the one hand and between the States and the central government on the other hand.
• The framers of the Constitution borrowed a number of provisions from different countries.
• Each provision of the Constitution had to be defended on grounds that it was suited to Indian problems and aspirations.

Provisions borrowed from constitutions of different countries

Mode of promulgation-

• India, South Africa and the United States, are constitutions which were created in the aftermath of popular national movements.
• The Indian Constitution was never subject to referendum (where all the people vote on the desirability of a Constitution), but nevertheless carried enormous public authority, because it had the consensus and backing of leaders who were themselves popular.
• Although the Constitution itself was not subjected to a referendum, the people adopted it as their own by abiding by its provisions.

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-

• Constitutions are often subverted, not by the people, but by small groups, who wish to enhance their own power.
• No single institution acquires monopoly of power
• Independent statutory bodies like the Election Commission
• Separation of powers Legislature, Executive and the Judiciary

Chapter- 2
RIGHTS IN THE INDIAN CONSTITUTION

Bill of rights in the South African Constitution

• The South African Constitution was inaugurated in December 1996.
• The South African Constitution says that its “Bill of Rights is a cornerstone of democracy in South Africa”.
• It forbids discrimination on the grounds of “race, gender, pregnancy, marital status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, language and birth”.

Some of the Rights included in the constitution of South Africa include:

1. Right to Dignity
2. Right to Privacy
3. Right to fair labour practices
4. Right to healthy environment and right to protection of environment
5. Right to adequate housing
6. Right to health care, food, water and social security
7. Children’s rights
8. Right to basic and higher education
9. Right of cultural, religious and linguistic communities
10. Right to information

FUNDAMENTAL RIGHTS IN THE INDIAN CONSTITUTION

• 1928- Motilal Nehru committee had demanded a bill of rights
• The Constitution listed the rights that would be specially protected and called them ‘fundamental rights’.
• Fundamental Rights are protected and guaranteed by the constitution of the country.
• Ordinary rights may be changed by the legislature by ordinary process of law making, but a fundamental right may only be changed by amending the Constitution itself.
• Judiciary has the powers and responsibility to protect the fundamental rights from violations by actions of the government.
• Executive as well as legislative actions can be declared illegal by the judiciary if these violate the fundamental rights or restrict them in an unreasonable manner.
• However, fundamental rights are not absolute or unlimited rights.
• Government can put reasonable restrictions on the exercise of our fundamental rights.

RIGHT TO EQUALITY

• There cannot be any discrimination in this access on the basis of caste, creed, colour, sex, religion, or place of birth.
• It also prohibits any discrimination in public employment on any of the above mentioned basis.
• The practice of untouchability is one of the crudest manifestations of inequality. This has been abolished under the right to equality.
• The same right also provides that the state shall confer no title on a person except those who excel themselves in military or academic field.
• Thus right to equality strives to make India a true democracy by ensuring a sense of equality of dignity and status among all its citizens.

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)-

• Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
• The Constitution clarifies that the government can implement special schemes and measures for improving the conditions of certain sections of society: children, women, and the socially and educationally backward classes.

RIGHT TO FREEDOM

• Equality and freedom or liberty, are the two rights thatare most essential to a democracy.
• Liberty means freedom of thought, expression and action.
• Freedoms are defined in such a manner that every person will enjoy her freedom without threatening freedom of others and without endangering the law and order situation.

Right to life and personal liberty

• No citizen can be denied his or her life except by procedure as laid down under the law.
• Similarly no one can be denied his/her personal liberty.That means no one can be arrested without being told the grounds for such an arrest.
• It is mandatory for the police to take that person to the nearest magistrate within 24 hours.
• The magistrate, who is not part of the police, will decide whether the arrest is justified or not.
• This right is not just confined to a guarantee against taking away of an individual’s life but has wider application.
• The Supreme Court has ruled that this right also includes right to live with human dignity, free from exploitation.
• The court has held that right to shelter and livelihood is also included in the right to life because no person can live without the means of living, that is, the means of livelihood.

Preventive detention

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

Other freedoms

• Each of these is subject to restrictions imposed by the government.For example right to freedom of speech and expression is subject to restrictions such as public order, peace and morality etc.
• Freedom to assemble too is to be exercised peacefully and without arms.
• The government may impose restrictions in certain areas declaring theassembly of five or more persons as unlawful.
• The genuine protest against an act or policy of government by the people may be denied permission.

Rights of accused

• No one is guilty unless the court has found that person guilty of an offence.
• It is also necessary that a person accused of any crime should get adequate opportunity to defend herself or himself.

RIGHT AGAINST EXPLOITATION

• One form of exploitation in our country has been begar or forced labour without payment.
• Another closely related form of exploitation is buying and selling of human beings and using them as slaves.
• Both of these are prohibited under the Constitution.
• Forced labour was imposed by landlords, money lenders and other wealthy persons in the past.
• The Constitution also forbids employment of children below the age of 14 years in dangerous jobs like factories and mines.
• With child labour being made illegal and right to education becoming a fundamental right for children, this right against exploitation has become more meaningful.

RIGHT TO FREEDOM OF RELIGION

• Historically, there were rulers and emperors in different parts of the world who did not allow residents of their countries to enjoy the right to freedom of religion.
• Persons following a religion different from that of the ruler were either persecuted or forced to convert to the official religion of the rulers.
• Therefore, democracy has always incorporated the freedom to follow the religion of one’s choice as one of its basic principles.

Equality of all religions

• Being a country which is home to several religions, it is necessary that the government must extend equal treatment to different religions.
• Negatively, it means that government will not favour any particular religion.
• The institutions run by the state will not preach any religion or give religious education nor will they favour persons of any religion.

Freedom of faith and worship

1. Freedom of religion includes
2. Freedom of conscience.
3. Freedom to profess, follow and propagate any religion.

Freedom of religion is subject to certain limitations-

• The government can impose restrictions on the practice of freedom of religion in order to protect public order, morality and health.
• This means that the freedom of religion is not an unlimited right.
• The government can interfere in religious matters for rooting out certain social evils.
• For example in the past, the government has taken steps banning practices like sati, bigamy or human sacrifice.

CULTURAL AND EDUCATIONAL RIGHTS

• A fundamental right is the right of the minorities to maintain their culture. This minority status is not dependent only upon religion.
• Linguistic and cultural minorities are also included in this provision.

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

• Dr. Ambedkar considered the right to constitutional remedies as ‘heart and soul of the constitution’.
• Reason- This right gives a citizen the right to approach a High Court or the Supreme Court to get any of the fundamental rights restored in case of their violation.
• The Supreme Court and the High Courts can issue orders and give directives to the government for the enforcement of rights.

The courts can issue various special orders known as writs-

DIRECTIVE PRINCIPLES OF STATE POLICY

• Not made legally enforceable; Thus, these guidelines are ‘non-justiciable’ i.e., parts of the Constitution that cannot be enforced by the judiciary.
• The governments passed several zamindari abolition bills, nationalised banks, enacted numerous factory laws, fixed minimum wages, cottage and small industries were promoted and provisions for reservation for the uplift of the scheduled castes and scheduled tribes were made.
• Such efforts to give effect to the Directive Principles include the right to education, formation of Panchayati raj institutions all over the country, partial right to work under employment guarantee programme and the mid-day meal scheme etc.

Fundamental Duties of citizens

• In 1976, the 42nd amendment to the Constitution was passed.
• In all, ten duties were enumerated.
• However, the Constitution does not say anything about enforcing these duties.
• As citizens, we must abide by the Constitution, defend our country, promote harmony among all citizens, and protect the environment.
• Constitution does not make the enjoyment of rights dependent or conditional upon fulfilment of duties.

RELATIONSHIP BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES

• Fundamental Rights restrain the government from doing certain things while Directive Principles exhort the government to do certain things.
• Fundamental Rights mainly protect the rights of individuals while directive principles ensure the well-being of the entire society.
• However, at times, when government intends to implement Directive Principles of State Policy, it can come in conflict with the Fundamental Rights of the citizens

Example-

• This problem arose when the government sought to pass laws to abolish zamindari system.
• These measures were opposed on the ground that they violated right to property.
• The government claimed that rights can be abridged for giving effect to Directive Principles.
• This argument assumed that rights were a hindrance to welfare of the people.
• On the other hand, the court held the view that Fundamental Rights were so important and sacred that they cannot be limited even for purposes of implementing Directive Principles.

Right to Property

• Originally, there was a fundamental right to ‘acquire, possess and maintain’ property.
• But the Constitution made it clear that property could be taken away by the government for public welfare.
• Since 1950, government made many laws that limited this right to property.
• Finally, in 1973, the Supreme Court gave a decision that the right to property was not part of the basic structure of the Constitution and therefore, parliament had power to abridge this right by an amendment.
• In 1978, the 44th amendment to the Constitution removed the right to property from the list of Fundamental Rights and converted it into a simple legal right.

Kesavananda Bharati case

• This related to the amendment of the Constitution.
• The government was saying that Parliament can amend any part of the Constitution.
• The court was saying that Parliament cannot make an amendment that violated Fundamental Rights.
• This controversy was settled by an important decision of the Supreme Court in Kesavananda Bharati case.
• In this case, the court said that there are certain basic features of the Constitution and these cannot be changed by Parliament.

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-

• Established in 2000
• Composed of a former chief justice of the Supreme Court of India, a former judge of the Supreme Court, a former chief justice of a High Court and two other members who have knowledge and practical experience in matters relating to human rights.
• The commission’s functions include inquiry at its own initiative or on a petition presented to it by a victim into complaint of violation of human rights; visit to jails to study the condition of the inmates; undertaking and promoting research in the field of human rights etc.
• Its most significant intervention has been on disappeared youth in Punjab and investigation and trial of Gujarat riot cases where its intervention proved effective.
• The commission does not have the power of prosecution.
• It can merely make recommendations to the government or recommend to the courts to initiate proceedings based on the inquiry that it conducts.

Chapter- 3
ELECTION AND REPRESENTATION

ELECTION SYSTEM IN INDIA

First Past the Post System

• In the Lok Sabha elections of 1984, the Congress party came to power winning 415 of the 543 Lok Sabha seats – more than 80% of the seats.
• The Congress party won four-fifths of the seats.
• The Congress party got 48% of the votes. This means that only 48% of those who voted, voted in favour of the candidates put up by the Congress party, but the party still managed to win more than 80% of the seats in the Lok Sabha

Method of elections-

• The entire country is divided into 543 constituencies;
• Each constituency elects one representative; and
• The candidate who secures the highest number of votes in that constituency is declared elected.
• It is important to note that in this system whoever has more votes than all other candidates is declared elected.
• The winning candidate need not secure a majority of the votes.This method is called the First Past the Post (FPTP) system.
• In the electoral race, the candidate who is ahead of others, who crosses the winning post first of all, is the winner. This method is also called the Plurality System.
• This is the method of election prescribed by the Constitution.

Proportional Representation

• Each party fills its quota of seats by picking those many of its nominees from a preference list that has been declared before the elections.
• This system of elections is called the Proportional Representation (PR) system.
• In this system a party gets the same proportion of seats as its proportion of votes.

In the PR system there could be two variations.

1. In some countries, like Israel or Netherlands, the entire country is treated as one constituency and seats are allocated to each party according to its share of votes in the national election.
2. The other method is when the country is divided into several multi-member constituencies as in Argentina and Portugal.

• Each party prepares a list of candidates for each constituency, depending on how many have to be elected from that constituency.
• In both these variations, voters exercise their preference for a party and not a candidate.
• The seats in a constituency are distributed on the basis of votes polled by a party. Thus, representatives from a constituency, would and do belong to different parties.
• In India, we have adopted PR system on a limited scale for indirect elections.
• In India, PR system for the election of President, Vice President, and for the election to the Rajya Sabha and Vidhan Parishads.

How does PR work in Rajya Sabha elections?

• Every State has a specific quota of seats in the Rajya Sabha.
• The members are elected by the respective State legislative assemblies.
• The voters are the MLAs in that State.
• Every voter is required to rank candidates according to her or his preference.

To be declared the winner, a candidate must secure a minimum quota of votes, which is determined by a formula-

• For example if 4 Rajya Sabha members have to be elected by the 200 MLAs in Rajasthan, the winner would require (200/4+1= 40+1) 41 votes.
• When the votes are counted it is done on the basis of first preference votes secured by each candidate, of which the candidate has secured the first preference votes.
• If after the counting of all first preference votes, required number of candidates fails to fulfill the quota, the candidate who secured the lowest votes of first preference is eliminated and his/her votes are transferred to those who are mentioned as second preference on those ballot papers.
• This process continues till the required number of candidates is declared elected.

Why did India adopt the FPTP system?

• PR is a complicated system which may work in a small country, but would be difficult to work in a sub-continental country like India.
• The reason for the popularity and success of the FPTP system is its simplicity.
• The entire election system is extremely simple to understand even for common voters who may have no specialised knowledge about politics and elections.
• The FPTP system offers voters a choice not simply between parties but specific candidates.
• In other electoral systems, especially PR systems, voters are often asked to choose a party and the representatives are elected on the basis of party lists.
• As a result, there is no one representative who represents and is responsible for one locality.
• In constituency based system like the FPTP, the voters know who their own representative is and can hold him or her accountable.
• More importantly, the makers of our Constitution also felt that PR based election may not be suitable for giving a stable government in a parliamentary system.
• PR system may not produce a clear majority because seats in the legislature would be divided on the basis of share of votes.
• The FPTP system generally gives the largest party or coalition some extra bonus seats, more than their share of votes would allow.
• FTPT system encourages voters from different social groups to come together to win an election in a locality.
• In a diverse country like India, a PR system would encourage each community to form its own nation-wide party. This may also have been at the back of the mind of our constitution makers.
• The FPTP system has proved to be simple and familiar to ordinary voters. It has helped larger parties to win clear majorities at the centre and the State level.
• The system has also discouraged political parties that get all their votes only from one caste or community.

RESERVATION OF CONSTITUENCIES

• In this system, all voters in a constituency are eligible to vote but the candidates must belong to only a particular community or social section for which the seat is reserved.
• The Constitution provides for reservation of seats in the Lok Sabha and State Legislative Assemblies for the Scheduled Castes and Scheduled Tribes
• This provision was made initially for a period of 10 years and as a result of successive constitutional amendments, has been extended up to 2010.
• The Parliament can take a decision to further extend it, when the period of reservation expires.
• The number of seats reserved for both of these groups is in proportion to their share in the population of India.
• Today, of the 543 elected seats in the Lok Sabha, 79 are reserved for Scheduled Castes and 41 are reserved for Scheduled Tribes.
• The success of India’s election system can be gauged from a number of factors-
• Our election system has allowed the voters not only to freely choose representatives, but also to change governments peacefully both at the State and national level.
• Secondly, voters have consistently taken a keen interest in the election process and participated in it. The number of candidates and parties that contest elections is on the rise.
• Thirdly, the system of election has proved to be accommodative and inclusive. The social composition of our representatives has changed gradually. Now our representatives come from many different social sections, though the number of women legislators has not increased satisfactorily.
• Fourthly, the election outcome in most parts of the country does not reflect electoral malpractices and rigging. Of course, many attempts at rigging do take place.
• Finally and most importantly, elections have become a part and parcel of our democratic life.

Delimitation Commission

• Decides which constituency is to be reserved
• Appointed by the President of India and works in collaboration with the Election Commission of India.
• Appointed for the purpose of drawing up the boundaries of constituencies all over the country.
• A quota of constituencies to be reserved in each State is fixed depending on the proportion of SC or ST in that State.
• After drawing the boundaries, the Delimitation Commission looks at the composition of population in each constituency.
• Those constituencies that have the highest proportion of Scheduled Tribe population are reserved for ST.
• Reservation of seats for women has been provided for in rural and urban local bodies.

Universal franchise and right to contest

• Democratic elections require that all adult citizens of the country must be eligible to vote in the elections. This is known as universal adult franchise.
• Till 1989, an adult Indian meant an Indian citizen above the age of 21.
• An amendment to the Constitution in 1989, reduced the eligibility age to 18.
• Adult franchise ensures that all citizens are able to participate in the process of selecting their representative.
• However, there are different minimum age requirements for contesting elections.
• For example, in order to stand for Lok Sabha or Assembly election, a candidate must be at least 25 years old
• There are some other restrictions also.
• For instance, there is a legal provision that a person who has undergone imprisonment for two or more years for some offence is disqualified from contesting elections.
• But there are no restrictions of income, education or class or gender on the right to contest elections.
• In this sense, our system of election is open to all citizens.

Independent Election Commission

• Article 324 of the Indian Constitution provides for an independent Election Commission for the ‘superintendence, direction and control of the electoral roll and the conduct of elections’ in India.
• To assist the Election Commission of India there is a Chief Electoral Officer in every state.
• The Election Commission is not responsible for the conduct of local body elections.
• The Election Commission of India can either be a single member or a multi-member body.
• Till 1989, the Election Commission was single member.
• Just before the 1989 general elections, two Election Commissioners were appointed, making the body multi-member.
• Soon after the elections, the Commission reverted to its single member status.
• In 1993, two Election Commissioners were once again appointed and the Commission became multi-member and has remained multi-member since then.
• The Chief Election Commissioner (CEC) presides over the Election Commission, but does not have more powers than the other Election Commissioners.
• The CEC and the two Election Commissioners have equal powers to take all decisions relating to elections as a collective body.
• They are appointed by the President of India on the advice of the Council of Ministers.
• It is therefore possible for a ruling party to appoint a partisan person to the Commission who might favour them in the elections.
• The Constitution ensures the security of the tenure of the CEC and Election Commissioners.
• They are appointed for a six year term or continue till the age of 65, whichever is earlier.
• The CEC can be removed before the expiry of the term, by the President if both Houses of Parliament make such a recommendation with a special majority.
• The Election Commissioners can be removed by the President of India.

Functions-

• It supervises the preparation of up-to-date voters’ list. It makes every effort to ensure that the voters’ list is free of errors like nonexistence of names of registered voters or existence of names of those non-eligible or non-existent.
• Determines the timing of elections and prepares the election schedule.
• The election schedule includes the notification of elections, date from which nominations can be filed, last date for filing nominations, last date of scrutiny, last date of withdrawal, date of polling and date of counting and declaration of results.
• During this entire process, the EC has the power to take decisions to ensure a free and fair poll. It can postpone or cancel the election in the entire country or a specific State or constituency on the grounds that the atmosphere is vitiated and therefore, a free and fair election may not be possible.
• Implements a model code of conduct for parties and candidates. It can order a re-poll in a specific constituency.
• It can also order a recount of votes when it feels that the counting process has not been fully fair and just.
• Accords recognition to political parties and allots symbols to each of them.
• During the election process, the administrative officers of the State and central governments are assigned election related duty and in this respect, the Election Commission has full control over them.
• The EC can transfer the officers, or stop their transfers; it can take action against them for failing to act in a non-partisan manner.
• Functioning of institutions does not require legal or constitutional change.
• Many more State assembly elections and bye elections have been conducted by the Election Commission.

Chapter 4
EXECUTIVE

Different types of government-

• USA- Presidential system and executive powers are in the hands of the president.
• Canada- Parliamentary democracy with a constitutional monarchy where Queen Elizabeth II is the formal chief of state and the prime minister is the head of government.
• In France, both the president and the prime minister are a part of the semi- presidential system. The president appoints the prime minister as well as the ministers but cannot dismiss them as they are responsible to the parliament.
• Japan has a parliamentary system with the Emperor as the head of the state and the prime minister as the head of government.
• Italy has a parliamentary system with the president as the formal head of state and the prime minister as the head of government.
• Russia has a semi-presidential system where president is the head of state and prime minister, who is appointed by the president, is the head of government.
• Germany has a parliamentary system in which president is the ceremonial head of state and the chancellor is the head of government

Presidential System-

• In a presidential system, the president is the Head of state as well as head of government.
• In this system the office of president is very powerful, both in theory and practice.
• Examples- United States, Brazil and most nations in Latin America

Semi-Presidential Executive in Sri Lanka

• In 1978 the constitution of Sri Lanka was amended and the system of Executive Presidency was introduced.
• Under the system of Executive Presidency, people directly elect the President. It may happen that both the President and the Prime Minister belong to the same political party or to different political parties.
• The President has vast powers under the constitution.
• The President chooses the Prime Minister from the party that has a majority in the Parliament.
• Though ministers must be members of the Parliament, the President has the power to remove the Prime Minister, or ministers.
• Apart from being the elected Head of State and the Commander-in- Chief of the Armed Forces, the President is also the Head of the Government.
• Elected for a term of six years, the President cannot be removed except by a resolution in the parliament passed by at least two-thirds of the total number of Members of Parliament.
• If it is passed by not less than one-half of the total number of Members of Parliament and the Speaker is satisfied that such allegations merit inquiry then the Speaker can report the matter to the Supreme Court.

Parliamentary system

• In a parliamentary system, the prime minister is the head of government.
• Most parliamentary systems have a president or a monarch who is the nominal Head of state. In such a system, therole of president or monarch is primarily ceremonial and prime minister along with the cabinet wields effective power.
• Examples- Germany, Italy, Japan, United Kingdom and Portugal

Semi-presidential system

• A semi-presidential system has both a president and a prime minister but unlike the parliamentary system the president may possess significant day-to-day powers.
• In this system, it is possible that sometimes the president and the prime minister may belong to the same party and at times they may belong to two different parties and thus, would be opposed to each other.
• Examples- France, Russia, Sri Lanka

PARLIAMENTARY EXECUTIVE IN INDIA

• Earlier parliamentary system under the Acts of 1919 and 1935.
• In the parliamentary form there are many mechanisms that ensure that the executive will be answerable to and controlled by the legislature or people’s representatives.

Discretionary Powers of the President

3 situations

1. President can send back the advice given by the Council of Ministers and ask the Council to reconsider the decision
2. President also has veto power by which he can withhold or refuse to give assent to Bills (other than Money Bill) passed by the Parliament.
3. President appoints the Prime Minister. Normally, in the parliamentary system, a leader who has the support of the majority in the Lok Sabha would be appointed as Prime Minister and the question of discretion would not arise

Indian Post office (amendment) bill-

• In 1986, the Parliament passed a bill known as Indian Post office (amendment) bill. This bill was widely criticised by many for it sought to curtail the freedom of the press.
• The then President, Gyani Zail Singh, did not take any decision on this bill. After his term was over, the next President, Venkataraman sent the bill finally back to the Parliament for reconsideration.
• By that time, the government that brought the bill before the Parliament had changed and a new government was elected in 1989.
• This government belonged to a different coalition and did not bring the bill back before the Parliament. Thus, Zail Singh’s decision to postpone giving assent to the bill effectively meant that the bill could never become a law

The Vice President of India

• Elected for 5 years.
• His election method is similar to that of the President; the only difference is that members of State legislatures are not part of the Electoral College.
• The Vice President may be removed from his office by a resolution of the Rajya Sabha passed by a majority and agreed to by the Lok Sabha.
• ex- officio Chairman of the Rajya Sabha and
• Takes over the office of the President when there is a vacancy by reasons of death, resignation, removal by impeachment or otherwise.
• The Vice President acts as the President only until a new President is elected.
• B. D. Jatti acted as President on the death of Fakhruddin Ali Ahmed until a new President was elected.

Prime Minister (PM)

• a leader who has the support of the majority is appointed by the President as PM
• PM then decides who will be the ministers in the Council of Ministers.
• The Prime Minister allocates ranks and portfolios to the ministers.
• Depending upon the seniority and political importance, the ministers are given the ranks of cabinet minister, minister of State or deputy minister.
• In the same manner, Chief Ministers of the States choose ministers from their own party or coalition.
• If someone becomes a minister or Prime Minister without being an MP, such a person has to get elected to the Parliament within six months

Size of the Council of Ministers

• Before 91st Amendment Act (2003), the size of the Council of Ministers was determined according to exigencies of time and requirements of the situation.
• But this led to very large size of the Council of Ministers.
• Besides, when no party had a clear majority, there was a temptation to win over the support of the members of the Parliament by giving them ministerial positions as there was no restriction on the number of the members of the Council of Ministers.
• This was happening in many States also.
• Therefore, an amendment was made that the Council of Ministers shall not exceed 15 percent of total number of members of the House of People (or Assembly, in the case of the States).

Council of Ministers

• The Council of Ministers is collectively responsible to the Lok Sabha.
• This provision means that a Ministry which loses confidence of the Lok Sabha is obliged to resign.
• The principle indicates that the ministry is an executive committee of the Parliament and it collectively governs on behalf of the Parliament.

State Government

• Governor of the State is appointed by the President (on the advice of the central government).
• Though the Chief Minister, like the Prime Minister is the leader of the majority party in the Assembly, the Governor has more discretionary powers.

PERMANENT EXECUTIVE: BUREAUCRACY

• The Executive organ of the government includes the Prime Minister, the ministers and a large organisation called the bureaucracy or the administrative machinery
• The administrative officers cannot act in violation of the policies adopted by the legislature
• Bureaucracy will not take any political position on policy matters
• It consists of the All-India services, State services, employees of the local governments, and technical and managerial staff running public sector undertakings.

UPSC (Union Public Service Commission)

• Entrusted with the task of conducting the process of recruitment of the civil servants
• Tenure- fixed; 6 years
• Their removal or suspension is subject to a thorough enquiry made by a judge of the Supreme Court.
• Constitution has provided for reservation of jobs for the Dalits and Adivasis

Chapter 5
LEGISLATURE

Why do we need Parliament?

• We need a Parliament to ensure that you have
• Freedom of speech, movements and association,
• To ensure that there is no misuse of authority by elected leaders as constitution describes their powers and limitations to select the national government to control guide, and inform the government for making laws.
• It makes Law on behalf of the People and amends Constitution.
• Parliament enacts the budget, scrutinizing the performance of government with respect of financial spending through financial committees.
• It has the power to impeach the President, the Vice-President, the judges of the Supreme Court and the High Court.

States having a bicameral legislature-

1. Bihar,
2. Jammu and Kashmir,
3. Karnataka,
4. Maharashtra,
5. Uttar Pradesh

2 different principles of representation in the second chamber-

• One way is to give equal representation to all the parts of the country irrespective of their size or population
• On the other hand, parts of the country may be given representation according to their population

WHAT DOES THE PARLIAMENT DO?

1. Legislative Function-

• Approves legislations.
• The actual task of drafting the bill is performed by the bureaucracy under the supervision of the minister concerned.
• The substance and even the timing of the bill are decided by the Cabinet.
• No major bill is introduced in the Parliament without the approval of the Cabinet.
• Members other than ministers can also introduce bills but these have no chance of being passed without the support of the government.

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

• Government raises resources through taxation
• If the Government of India proposes to introduce any new tax, it has to get the approval of the Lok Sabha.
• Grant of resources to the government to implement its programmes

Representation-

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

4. Debating Function-

• There is no limitation on its power of discussion.
• Helps to analyse any or every issue that faces the nation.

5. Constituent Function-

• Power of discussing and enacting changes to the Constitution.
• All constitutional amendments have to be approved by a special majority of both Houses.

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

• Rajya Sabha can either approve the bill or suggest changes but cannot reject it.
• If it takes no action within 14 days the bill is deemed to have been passed.
• Amendments to the bill, suggested by Rajya Sabha, may or may not be accepted by the Lok Sabha.

HOW DOES THE PARLIAMENT MAKE LAWS?

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.

WHAT DO THE COMMITTEES OF PARLIAMENT DO?

1. Parliamentary committees- day-to-day business of the House
2. Standing Committees supervise the work of various departments, their budget, their expenditure and bills that come up in the house relating to the department.
3. Joint Parliamentary Committees (JPCs) can be set up for the purpose of discussing a particular bill, like the joint committee to discuss bill, or for the purpose of investigating financial irregularities.

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-

1. 52^nd amendment act, 1985
2. Modified by the 91st amendment
3. The presiding officer of the House is the authority who takes final decisions on all such cases.

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-

STRUCTURE OF THE JUDICIARY

Original Jurisdiction-

• Means cases that can be directly considered by the SC without going to the lower courts before that.
• OJ of the SC establishes it as an umpire in all disputes regarding federal matters.
• In any federal country, legal disputes are bound to arise between the Union and the States; and among the States themselves.
• It is called original jurisdiction because the SC alone has the power to deal with such cases.
• Neither the High Courts nor the lower courts can deal with such cases.
• In this capacity, the Supreme Court not just settles disputes but also interprets the powers of Union and State government as laid down in the Constitution.

Writ Jurisdiction

• Any individual, whose fundamental right has been violated, can directly move the SC for remedy.
• The SC can give special orders in the form of writs.
• The HCs can also issue writs, but the persons whose rights are violated have the choice of either approaching the HC or approaching the SC directly.
• Through such writs, the Court can give orders to the executive to act or not to act in a particular way.

Appellate Jurisdiction

• A person can appeal to the SC against the decisions of the HC
• However, HC must certify that the case is fit for appeal, that is to say that it involves a serious matter of interpretation of law or Constitution.
• In addition, in criminal cases, if the lower court has sentenced a person to death then an appeal can be made to HC or SC
• Of course, the SC holds the powers to decide whether to admit appeals even when appeal is not allowed by the HC.
• Appellate jurisdiction means that the SC will reconsider the case and the legal issues involved in it.
• If the Court thinks that the law or the Constitution has a different meaning from what the lower courts understood, then the Supreme Court will change the ruling and along with that also give new interpretation of the provision involved.
• HCs too, have appellate jurisdiction

Advisory Jurisdiction

• President of India can refer any matter that is of public importance or that which involves interpretation of Constitution to Supreme Court for advice.
• However, the Supreme Court is not bound to give advice on such matters and the President is not bound to accept such an advice.
• The utility is two-fold-
• In the first place, it allows the government to seek legal opinion on a matter of importance before taking action on it. This may prevent unnecessary litigations later.
• Secondly, in the light of the advice of the Supreme Court, the government can make suitable changes in its action or legislations.

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.

Disadvantages of PILs-

• Overburdened the courts
• Judicial activism has blurred the line of distinction between the executive and legislature
• The court has been involved in resolving questions which belong to the executive. Thus, for instance, reducing air or sound pollution or investigating cases of corruption or bringing about electoral reform is not exactly the duty of the Judiciary.
• These are matters to be handled by the administration under the supervision of the legislatures. Therefore, some people feel that judicial activism has made the balance among the three organs of government very delicate.
• Democratic government is based on each organ of government respecting the powers and jurisdiction of the others.
• Judicial activism may be creating strains on this democratic principle.

JUDICIARY AND RIGHTS

• It can restore fundamental rights by issuing writs of Habeas Corpus; mandamus etc. (article 32). The High Courts also have the power to issue such writs (article 226)
• Secondly, the Supreme Court can declare the concerned law as unconstitutional and therefore non-operational (article 13)

Judicial Review

• Judicial Review means the power of the Supreme Court (or High Courts) to examine the constitutionality of any law if the Court arrives at the conclusion that the law is inconsistent with the provisions of the Constitution, such a law is declared as unconstitutional and inapplicable.
• The term judicial review is nowhere mentioned in the Constitution.
• The review power extends to the laws passed by State legislatures also

JUDICIARY AND PARLIAMENT

• It gave directions to CBI to initiate investigations against politicians and bureaucrats in the Hawala case, the Narasimha Rao case, illegal allotment of petrol pumps case etc.
• Constitution provides that the conduct of judges cannot be discussed in the 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.

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

• The very existence of a State including its territorial integrity is in the hands of Parliament
• The Constitution has certain very powerful emergency provisions, which can turn our federal polity into a highly centralised system once emergency is declared
• Even during normal circumstances, the central government has very effective financial powers and responsibilities.
• Governor has certain powers to recommend dismissal of the State government and the dissolution of the Assembly.
• There may be occasions when the situation may demand that the central government needs to legislate on matters from the State list (if the move is ratified by the Rajya Sabha)
• An integrated administrative system
• The all-India services are common to the entire territory of India and officers chosen for these services serve in the administration of the States.
• Articles 33 and 34 authorise the Parliament to protect persons in the service of the union or a state in respect of any action taken by them during martial law to maintain or restore order.

CONFLICTS IN INDIA’S FEDERAL SYSTEM

• From time to time, States have demanded that they should be given more powers and more autonomy.
• This leads to tensions and conflicts in the relations between the centre and the States.
• While the legal disputes between the centre and the States (or between States) can be resolved by the judiciary, demands for autonomy are of political nature and need to be resolved through negotiations.

Centre-State Relations

• Sometimes, demands expect that the division of powers should be changed in favour of the States and more powers and important powers be assigned to the States.
• Another demand is that States should have independent sources of revenue and greater control over the resources. (Financial autonomy)
• Autonomy demands relates to administrative powers of the States.
• Autonomy demands may also be related to cultural and linguistic issues.
• The Sarkaria Commission that was appointed by the central government (1983; it submitted its report in 1988) to examine the issues relating to centre-State relations, recommended that appointments of Governors should be strictly non-partisan.

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)

• This provision is to be applied, when ‘a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution.’
• The President’s proclamation has to be ratified by Parliament.
• President’s rule can be extended till three years.
• The Governor has the power to recommend the dismissal of the State government and suspension or dissolution of State assembly.
• Some cases went to the Supreme Court and the Court has ruled that constitutional validity of the decision to impose President’s rule can be examined by the judiciary.

Demands for New States

• In the course of the national movement itself, it was decided that as far as possible, States would be created on the basis of common cultural and linguistic identity.
• 1954- States Reorganisation Commission was set up and it recommended the creation of linguistic States, at least for the major linguistic groups.
• 1960- Gujarat and Maharashtra
• 1966- Punjab and Haryana were separated
• Later, the north-east region was reorganised and several new States were created like, Meghalaya, Manipur or Arunachal Pradesh.

Interstate Conflicts

• Broadly, two types of disputes keep recurring.
• One is the border dispute. States have certain claims over territories belonging to neighbouring States. Though language is the basis of defining boundaries of the States, often border areas would have populations speaking more than one language.
• So, it is not easy to resolve this dispute merely on the basis of linguistic majority.
• One of the longstanding border disputes is the dispute between Maharashtra and Karnataka over the city of Belgaum.
• Manipur and Nagaland too, have a long-standing border dispute.
• The carving out of Haryana from the erstwhile State of Punjab has led to dispute between the two States not only over border areas, but over the capital city of Chandigarh.
• This city today houses the capital of both these States.
• In 1985, the then Prime Minister Rajiv Gandhi reached an understanding with the leadership of Punjab.
• According to this understanding, Chandigarh was to be handed over to Punjab. But this has not happened yet.
• While border disputes are more about sentiment, the disputes over the sharing of river waters are even more serious, because they are related to problems of drinking water and agriculture in the concerned States.
• Cauvery water dispute- This is a major issue between Tamil Nadu and Karnataka. Farmers in both the States are dependent on Cauvery waters.
• Though there is a river water tribunal to settle water disputes, this dispute has reached the Supreme Court.
• In another similar dispute Gujarat, Madhya Pradesh and Maharashtra are battling over sharing the waters of Narmada River.
• Rivers are a major resource and therefore, disputes over river waters test the patience and cooperative spirit of the States

SPECIAL PROVISIONS

• Most of the special provisions pertain to the north eastern States (Assam, Nagaland, Arunachal Pradesh, Mizoram, etc.) largely due to a sizeable indigenous tribal population with a distinct history and culture, which they wish to retain (Art 371).
• Special provisions also exist for hilly States like Himachal Pradesh and some other States like Andhra Pradesh, Goa, Gujarat, Maharashtra and Sikkim.

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.

LOCAL GOVERNMENTS

73RD AND 74TH AMENDMENTS

• The 73rd Amendment is about rural local governments (which are also known as Panchayati Raj Institutions or PRIs) and the 74th amendment made the provisions relating to urban local government (Nagarpalikas).
• The 73rd and 74^th Amendments came into force in 1993.
• local government is a ‘State subject’

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.

Local Governments in Independent India

• Community Development Programme (1952)- to promote people’s participation in local development in a range of activities
• In 1989 the P.K. Thungon Committee recommended constitutional recognition for the local government bodies.
• A constitutional amendment to provide for periodic elections to local government institutions, and enlistment of appropriate functions to them, along with funds, was recommended.

73rd Amendment

Three Tier Structure-

• Base- Gram Panchayat (covers a village or group of villages)
• The intermediary level is the Mandal (also referred to as Block or Taluka)- called Mandal or Taluka Panchayats
• At the apex is the Zila Panchayat covering the entire rural area of the District.

Gram Sabha-

• The Gram Sabha would comprise of all the adult members registered as voters in the Panchayat area.
• Its role and functions are decided by State legislation.

Elections

• All the three levels of Panchayati Raj institutions are elected directly by the people.
• The term of each Panchayat body is five years.
• If the State government dissolves the Panchayat before the end of its 5 year term, fresh elections must be held within six months of such dissolution.
• Before the 73^rd amendment, in many States, there used to be indirect elections to the district bodies and there was no provision for immediate elections after dissolution.

Reservations

• 1/3^rd- women
• Reservations for SC and ST are also provided for at all 3 levels, in proportion to their population.
• If the States find it necessary, they can also provide for reservations for the backward castes (OBCs).
• Also applies to the positions of Chairpersons or ‘Adhyakshas’ at all the three levels.
• Reservation of one-third of the seats for women is not merely in the general category of seats but also within the seats reserved for SC, ST and backward castes.

Transfer of Subjects

• 29 subjects
• Listed in 11^th schedule
• Each State decides how many of these twenty-nine subjects would be transferred to the local bodies.
• Provisions of the 73rd amendment were not made applicable to the areas inhabited by the Adivasi populations in many States of India.
• In 1996, a separate act was passed extending the provisions of the Panchayat system to these areas.
• Many Adivasi communities have their traditional customs of managing common resourcessuch as forests and small water reservoirs, etc.
• More powers are given to the Gram Sabhas of these areas and elected village Panchayats have to getthe consent of the Gram Sabha in many respects.

State Election Commissioners

State government appoints

• To conduct elections to the Panchayati Raj institutions.
• Earlier, this task was performed by the State administration which was under the control of the State government.

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

• State government appoints State Finance Commission once in 5 years
• This Commission would examine the financial position of the local governments in the State.
• It would also review the distribution of revenues between the State and local governments on the one hand and between rural and urban local governments on the other.

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.

HOW TO AMEND THE CONSTITUTION?

PROCEDURE FOR AMENDMENT

1. Initiated only by the introduction of a bill for the purpose in either House of Parliament and not in the state legislatures.
2. Bill----introduced ----either by a minister/ private member and does not require prior permission of the president.
3. Must be passed in each House by a special majority, that is, a majority (that is, more than 50 per cent) of the total membership of the House and a majority of two-thirds of the members of the House present and voting. Each House must pass the bill separately.
4. In case of a disagreement between the two Houses, there is no provision for holding a joint sitting of the two Houses for the purpose of deliberation and passage of the bill.
5. If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of half of the states by a simple majority, that is, a majority of the members of the House present and voting.
6. After duly passed by both the Houses of Parliament and ratified by the state legislatures, where necessary, the bill is presented to the president for assent.
7. The president must give his assent to the bill. He can neither withhold his assent to the bill nor return the bill for reconsideration of the Parliament.
8. bill becomes an Act (i.e., a constitutional amendment act)

Special Majority

• Amendment to the Constitution requires two different kinds of special majorities:
• Those voting in favour of the amendment bill should constitute at least half of the total strength of that House.
• Secondly, the supporters of the amendment bill must also constitute two-thirds of those who actually take part in voting.
• Both Houses of the Parliament must pass the amendment bill separately in this same manner (there is no provision for a joint session).

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-

1. Mini Constitution
2. Duration of the Lok Sabha was extended from five to six years
3. Fundamental duties included
4. Put restrictions on the review powers of the Judiciary

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.

Contribution of the Judiciary

• During the controversy between the Judiciary and the Parliament, the Parliament thought that it had the power and responsibility to make laws (and amendments) for furthering the interests of the poor, backward and the needy.
• The Judiciary insisted that all this has to take place within the framework provided by the Constitution and pro-people measures should not bypass legal procedures
• The Court came to the conclusion that in reading a text or document, we must respect the intent behind that document.

Review of the Constitution

• In the late nineties, efforts were made to review the entire Constitution.
• In the year 2000 a commission to review the working of the Constitution was appointed by the Government of India under the chairmanship of a retired Chief Justice of the Supreme Court, Justice Venkatachaliah.
• Opposition parties and many other organisations boycotted the commission.
• While a lot of political controversy surrounded this commission, the commission stuck to the theory of basic structure and did not suggest any measures that would endanger the basic structure of the Constitution.
• This shows the significance of the basic structure doctrine in our constitutional practice.

Chapter 10
The Philosophy of the Constitution

There were also some procedural achievements-

• Indian Constitution reflects a faith in political deliberation.
• It reflects a spirit of compromise and accommodation
• Constitution reinforces a common national identity.
• Separate electorates were rejected not because they fostered difference between religious communities as such or because they endangered a simple notion of national unity but because India, had a right to take part in the affairs of the country and be admitted to public office.
• The Motilal Nehru Report (1928) reaffirms this conception of citizenship, reiterating that every person of either sex who has attained the age of twenty-one is entitled to vote for the House of Representatives or Parliament.
• Thus from very early on, universal franchise was considered as the most important and legitimate instrument by which the will of the nation was to be properly expressed.

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

• Not originally mentioned
• To protect religious freedom of individuals, a state must not help religious organisations
• State should not tell religious organisations how to manage their affairs

Respect for diversity and minority rights

• The Indian Constitution encourages equal respect between communities
• Right of religious communities to establish and run their own educational institutions.
• Such institutions may receive money from the government.

Individual freedom

• Freedom of expression
• Fundamental rights

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.