GS Notes

17. Polity Notes 12

20 min read

Elaborate Notes

Reservation

  • Economically Weaker Section (EWS) Reservations

    • Historical Context and Constitutional Amendment: The policy of reservation in India, as originally conceived, was a tool for affirmative action to remedy historical injustices meted out to socially and educationally backward classes, specifically Scheduled Castes (SCs), Scheduled Tribes (STs), and later, Other Backward Classes (OBCs). The principle was primarily social and educational backwardness, not economic. The 103rd Constitutional Amendment Act, 2019, marked a significant departure from this principle by introducing a 10% reservation for Economically Weaker Sections (EWS) in government jobs and educational institutions. This was achieved by inserting Article 15(6) and Article 16(6) into the Constitution.
    • Constitutional Challenge and Supreme Court’s Verdict: The amendment was promptly challenged in the Supreme Court. The petitioners raised several critical constitutional questions:
      1. Violation of Article 16: Does providing reservation solely on economic criteria violate the foundational principle of Article 16, which historically linked reservation to social and educational backwardness as a remedy for group-based discrimination?
      2. Breach of the 50% Ceiling: Does the 10% EWS quota, which is over and above the existing 49.5% reservation, breach the 50% ceiling on total reservations established by the Supreme Court in its landmark judgment in Indra Sawhney & Ors. v. Union of India (1992), popularly known as the Mandal Commission case?
      3. Violation of Basic Structure (Equality): By excluding the SEBCs (SCs, STs, and OBCs) who are already beneficiaries of reservation from the EWS quota, does the amendment violate the principle of equality, which is considered a part of the ‘basic structure’ of the Constitution?
    • The 3:2 Majority Judgment (Janhit Abhiyan v. Union of India, 2022):
      • On the 50% Ceiling: The majority view held that the 50% limit established in the Indra Sawhney judgment is not “sacrosanct” or inflexible. It was specifically applied to reservations for socially and educationally backward classes under Articles 15(4), 15(5), and 16(4) and cannot be a rigid barrier to prevent Parliament from making special provisions for other sections of society, such as the EWS.
      • Sovereign Power of Parliament: The Court reaffirmed the sovereign power of the Parliament to legislate on matters of reservation and to determine the criteria for the same, as long as it does not violate the basic structure.
      • Economic Criteria for Reservation: The majority opined that reservation based exclusively on economic criteria is permissible and does not violate the Constitution. It was seen as an affirmative action measure for a different target group, distinct from the socially and educationally backward classes.
      • Exclusion and Article 14 (Equality): The majority ruled that the exclusion of SCs, STs, and OBCs from the EWS quota does not violate the equality code. The reasoning was that these communities are already covered under separate reservation policies, and the EWS quota is designed to benefit those who are not covered by any other reservation scheme. The dissenting judges, however, argued that this exclusion amounts to discrimination and violates the spirit of equality.

  • Reservations based on Local Domicile

    • Socio-Economic Context: The Liberalisation, Privatisation, and Globalisation (LPG) reforms of 1991 spurred rapid economic growth but also exacerbated regional inequalities. This led to the emergence of what economist Jagdish Bhagwati described as a dual economy, creating “islands of prosperity” (developed states like Maharashtra, Gujarat, Karnataka) in a larger “ocean of poverty” (less developed states). This disparity fueled migration from underdeveloped to developed regions in search of employment.
    • Rise of Nativism and ‘Sons of the Soil’ Doctrine: The influx of migrants led to social and political tensions, creating a conflict between ‘locals’ and ‘outsiders’ over scarce resources, particularly jobs. This gave rise to the ‘sons of the soil’ doctrine, where state governments, under political pressure, sought to protect the interests of their local population through domicile-based reservations.
    • Constitutional Provisions and Legal Challenges:
      • Article 16(2) explicitly prohibits discrimination against any citizen for employment under the State on grounds of… “residence”.
      • However, Article 16(3) carves out an exception, empowering only the Parliament to prescribe residence as a condition for certain classes of employment or appointment in a State or Union Territory. State legislatures do not have this power.
      • Special provisions exist for some states. Article 371-D, introduced by the 32nd Amendment Act of 1973, empowers the President to provide for equitable opportunities for people belonging to different parts of Andhra Pradesh (and now Telangana via the Andhra Pradesh Reorganisation Act, 2014) in public employment and education.
    • Debate on Private Sector Reservation: The issue has now extended to the private sector, driven by ‘jobless growth’—a phenomenon where GDP growth does not translate into a proportionate increase in employment.
      • Arguments Against: Proponents of free-market capitalism argue that such restrictions stifle economic growth. Imposing reservation on the private sector could deter investment, both domestic and foreign, by limiting the talent pool and increasing compliance costs. This perspective aligns with the concept of procedural equality (equal opportunity for all to compete), prevalent in capitalist economies like the USA, as opposed to substantive equality (which involves affirmative action to ensure equal outcomes). India’s economic ambitions depend on attracting investment, which requires a liberal and predictable policy environment.
    • Proposed Solutions: The long-term solution lies not in protectionist measures but in balanced regional development. This requires:
      • Investing in Human Capital: The National Education Policy, 2020 and various expert committees have repeatedly recommended public expenditure on education to be at least 6% of GDP. Similarly, investment in public health is crucial to convert India’s ‘demographic bulge’ into a ‘demographic dividend’.
      • Improving Physical Infrastructure: Governments must invest in infrastructure (roads, power, connectivity) in less-developed regions to make them attractive destinations for private investment, thereby creating local employment and mitigating the need for migration.

Article 17 (Abolition of Untouchability)

  • Constitutional Mandate: Article 17 is a unique and absolute right, unlike others which are subject to reasonable restrictions. It declares that “Untouchability” is abolished and its practice in any form is forbidden. It makes the enforcement of any disability arising out of “Untouchability” a punishable offence.
  • Historical and Social Context: The practice of untouchability was one of the most abhorrent features of the traditional caste system in India. Social reformers from Jyotiba Phule in the 19th century to Dr. B.R. Ambedkar in the 20th century vehemently fought against it. Dr. Ambedkar, as the Chairman of the Drafting Committee, was instrumental in ensuring its absolute prohibition in the Constitution.
  • Lack of Definition and Judicial Interpretation: The term ‘untouchability’ is not defined in the Constitution. This was a deliberate choice by the framers to allow for a broad and evolving interpretation. The Mysore High Court in Devarajiah v. B. Padmanna (1958) provided a crucial interpretation, stating that the term’s meaning is not to be taken literally (e.g., avoiding contact due to a contagious disease) but should be understood “as a practice as it had developed historically in this country.” It refers to the social disabilities and segregation imposed on certain classes of people solely by reason of their birth into a particular caste.
  • Enabling Legislation: To enforce Article 17, Parliament enacted:
    • The Untouchability (Offences) Act, 1955, which was comprehensively amended in 1976 and renamed the Protection of Civil Rights Act, 1955. This Act made the practice of untouchability a cognizable and non-compoundable offence.
    • The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, was enacted to prevent atrocities against members of SCs and STs and provides for stricter punishments.

Article 18 (Abolition of Titles)

  • Historical Rationale: During British rule, the colonial administration conferred titles like ‘Rai Bahadur’, ‘Khan Bahadur’, ‘Dewan Bahadur’, etc., to create a loyalist class of aristocrats and officials who would support the British Raj. Similarly, hereditary titles like ‘Maharaja’, ‘Nawab’, and ‘Raja’ associated with the princely states reinforced a feudal and hierarchical social order. The framers of the Constitution, seeking to establish a truly democratic and egalitarian society, saw these titles as antithetical to the principle of equality enshrined in Article 14.
  • Constitutional Provisions: Article 18 has four clauses:
    1. It prohibits the State from conferring any title on any person, citizen or non-citizen. Exceptions are made for military (e.g., General, Admiral) and academic (e.g., Dr., Prof.) distinctions, as these are based on merit and service, not birth or privilege.
    2. It prohibits a citizen of India from accepting any title from a foreign state.
    3. It prevents a foreigner holding an office of profit or trust under the Indian State from accepting any title from a foreign state without the President’s consent.
    4. It bars any person (citizen or foreigner) holding an office of profit or trust under the State from accepting any present, emolument, or office from a foreign state without the President’s consent.
  • National Awards and the Supreme Court:
    • In 1954, the Government of India instituted four civilian awards: Bharat Ratna, Padma Vibhushan, Padma Bhushan, and Padma Shri.
    • A controversy arose as to whether these awards amounted to ‘titles’ under Article 18. The Janata Party government, led by Morarji Desai, discontinued them in 1977. They were revived in 1980 by the Indira Gandhi government.
    • The matter was settled by the Supreme Court in Balaji Raghavan/S.P. Anand v. Union of India (1996). The Court held that these National Awards are not ‘titles’ within the meaning of Article 18. They are recognitions of meritorious service to the nation and do not create a separate class of citizens.
    • However, the Court issued a significant caveat: the awardees cannot use these awards as prefixes or suffixes to their names (e.g., Bharat Ratna Sachin Tendulkar). The Court warned that any misuse would lead to the forfeiture of the award.

Article 19- Right to Freedom

  • The Six Freedoms: Article 19(1) is a cornerstone of individual liberty and guarantees six fundamental freedoms to all citizens of India:
    1. Freedom of speech and expression [Art. 19(1)(a)]
    2. Freedom to assemble peaceably and without arms [Art. 19(1)(b)]
    3. Freedom to form associations or unions or co-operative societies [Art. 19(1)(c)] (The term ‘co-operative societies’ was added by the 97th Amendment Act, 2011).
    4. Freedom to move freely throughout the territory of India [Art. 19(1)(d)]
    5. Freedom to reside and settle in any part of the territory of India [Art. 19(1)(e)]
    6. Freedom to practice any profession, or to carry on any occupation, trade or business [Art. 19(1)(g)]
  • Deletion of Right to Property: The original Constitution contained a seventh right under Article 19(1)(f) – the right to acquire, hold, and dispose of property. This right, along with Article 31, proved to be a major impediment to the government’s socialist and land reform agendas. To overcome this, the 44th Constitutional Amendment Act, 1978, passed by the Janata Party government, abolished the right to property as a fundamental right and re-enacted it as a constitutional/legal right under a new Article 300-A.

Freedom of Speech and Expression (Article 19(1)(a))

  • Scope and Judicial Interpretation: This right allows citizens to express their views, opinions, beliefs, and convictions freely. The Supreme Court has, through various judgments, expanded its scope to include several implied rights:
    • Freedom of the Press: In Sakal Papers (P) Ltd. v. Union of India (1962), the court held that freedom of speech and expression includes freedom of the press and circulation.
    • Right to Know: In State of U.P. v. Raj Narain (1975), the court ruled that the people have a right to know about the activities of the government. This principle formed the judicial bedrock for the Right to Information (RTI) Act, 2005.
    • Freedom of Silence: In Bijoe Emmanuel & Ors v. State of Kerala (1986), the “National Anthem case”, the court upheld the right of three Jehovah’s Witness children to remain silent during the singing of the national anthem, affirming that freedom of speech also includes the freedom not to speak.
    • Freedom of Commercial Advertisements: While initially not considered protected speech, the SC later in Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. (1995) held that commercial speech is a part of freedom of speech.
    • Right against Tapping of Telephone: In PUCL v. Union of India (1997), the court held that telephone tapping infringes upon Article 19(1)(a) unless it is done in accordance with the procedure established by law.
  • Reasonable Restrictions (Article 19(2)): This right is not absolute. The State can impose “reasonable restrictions” on its exercise on the grounds of:
    • Sovereignty and integrity of India
    • Security of the State
    • Friendly relations with foreign States
    • Public order, decency or morality
    • Contempt of court
    • Defamation
    • Incitement to an offence
  • The Issue of Sedition (Section 124A, IPC):
    • Colonial Origins: Section 124A was introduced into the Indian Penal Code in 1870 by the British colonial government primarily to suppress the writings and speeches of Indian freedom fighters. Famous sedition trials include those of Bal Gangadhar Tilak (1897) and Mahatma Gandhi (1922), who famously called the law the “prince among the political sections of the IPC designed to suppress the liberty of the citizen.”
    • Constituent Assembly Debates: There was a strong consensus among members like K.M. Munshi in the Constituent Assembly to drop the word ‘sedition’ from the Constitution. It was felt that such a law had no place in a democracy where criticism of the government is a fundamental right. However, the provision was retained in the IPC.
    • The Kedar Nath Singh Judgment: The constitutional validity of Section 124A was challenged and subsequently upheld by a Constitution Bench of the Supreme Court in Kedar Nath Singh v. State of Bihar (1962). The Court, however, significantly narrowed its scope. It ruled that sedition would only apply to acts that have a “tendency to create disorder or disturbance of public peace by resort to violence.” Criticism of the government, however strong, would not be seditious unless it incites violence or has a tendency to create public disorder.
    • Contemporary Debate and Arguments for Continuation:
      • Proponents argue that it is a necessary tool to combat anti-national, secessionist, and terrorist elements, and falls under the “reasonable restrictions” of Article 19(2). They contend that its misuse is a procedural issue that can be curbed, and the existence of threats to India’s unity justifies its retention.
      • Opponents argue it is a colonial relic with a chilling effect on free speech, often misused by governments to stifle political dissent and criticism. They point to the low conviction rate as evidence of its widespread misuse. The Law Commission of India has also recommended a re-evaluation or repeal of the law.

Prelims Pointers

  • The 103rd Constitutional Amendment Act, 2019, introduced a 10% reservation for Economically Weaker Sections (EWS).
  • This amendment added Clause (6) to Articles 15 and 16 of the Constitution.
  • The Supreme Court upheld the EWS reservation in a 3:2 majority verdict in the Janhit Abhiyan v. Union of India (2022) case.
  • The 50% ceiling on reservations was established by the Supreme Court in the Indra Sawhney v. Union of India (1992) case, also known as the Mandal case.
  • Under Article 16(3), only the Parliament of India can prescribe residence as a condition for public employment within a state.
  • Article 371-D provides special provisions with respect to the state of Andhra Pradesh and Telangana regarding public employment.
  • Article 17 of the Constitution abolishes Untouchability.
  • The Protection of Civil Rights Act was passed in 1955 to enforce Article 17.
  • Article 18 of the Constitution abolishes titles.
  • Military and academic distinctions are exempted from the provisions of Article 18.
  • The Supreme Court in Balaji Raghavan v. Union of India (1996) held that National Awards like Bharat Ratna are not ‘titles’.
  • National Awards were instituted in 1954, discontinued in 1977, and revived in 1980.
  • Article 19 originally guaranteed seven fundamental freedoms.
  • The Right to Property was removed from the list of Fundamental Rights by the 44th Constitutional Amendment Act, 1978.
  • The Right to Property is now a constitutional right under Article 300-A.
  • The right to form ‘co-operative societies’ was added to Article 19(1)(c) by the 97th Amendment Act, 2011.
  • Sedition in India is defined under Section 124A of the Indian Penal Code (IPC).
  • The Supreme Court upheld the constitutionality of Section 124A in the Kedar Nath Singh v. State of Bihar (1962) case.

Mains Insights

1. The Evolving Paradigm of Reservation Policy: * Shift from Social to Economic Criteria: The introduction and validation of the EWS quota represents a fundamental shift in India’s affirmative action policy. This moves the focus from remedying historical group-based discrimination (caste) to addressing contemporary individual economic disadvantage. * Impact on Constitutional Doctrine: The Supreme Court’s verdict that the 50% ceiling is not sacrosanct could open the floodgates for further demands for reservation from various communities, potentially leading to increased social friction and litigation. It also raises questions about the ‘basic structure’ of the constitution, particularly the principle of substantive equality. * Federalism and Domicile Reservation: The increasing demand for domicile-based reservations highlights a tension between the constitutional promise of a single Indian citizenship (allowing free movement and settlement) and regional aspirations. It reflects a failure of balanced regional development and can undermine national integration.

2. Freedom of Speech vs. National Security: The Sedition Debate * Cause and Effect: The colonial-era sedition law (Section 124A) was designed to suppress the freedom struggle. Its continued existence in a democracy creates a chilling effect on free speech, as citizens may self-censor out of fear of persecution. The misuse of the law against journalists, activists, and political opponents erodes democratic values. * Historiographical Viewpoint: The interpretation of sedition has evolved. While the British used it broadly to silence any form of dissent, the Indian Supreme Court in Kedar Nath Singh (1962) narrowed its scope to acts inciting violence. However, recent trends show that the executive often applies the law in a manner reminiscent of the colonial era, ignoring the judicial safeguards. * Analytical Perspective for GS Paper II: The debate on sedition is a classic conflict between Fundamental Rights (Article 19(1)(a)) and reasonable restrictions (Article 19(2)). A robust democracy requires space for dissent and criticism of the government. The continuation of a vaguely worded law like sedition, prone to misuse, weakens this democratic fabric. The focus should be on strengthening procedural safeguards and applying the Kedar Nath Singh test rigorously, rather than using the law as a tool to quell opposition.

3. Article 17: The Gap between Law and Social Reality * Legal Framework vs. Implementation: Despite the absolute constitutional prohibition under Article 17 and strong punitive laws like the Protection of Civil Rights Act and the SC/ST (Prevention of Atrocities) Act, the practice of untouchability and caste-based discrimination persists in subtle and overt forms. * Analysis of Challenges: The key challenges include social prejudice, lack of awareness, poor implementation by law enforcement agencies, delays in the judicial process, and low conviction rates. This points to a deeper issue: social change cannot be achieved solely through legislation. It requires a concerted effort involving education, social awareness campaigns, and economic empowerment of the marginalized communities. This is a critical topic for GS Paper I (Indian Society) and GS Paper II (Social Justice).

Previous Year Questions

Prelims

  1. Which one of the following categories of Fundamental Rights incorporates protection against untouchability as a form of discrimination? (UPSC CSE 2020) (a) Right against Exploitation (b) Right to Freedom (c) Right to Constitutional Remedies (d) Right to Equality Answer: (d) Right to Equality (Article 17 falls under the Right to Equality, which spans from Article 14 to Article 18).

  2. With reference to India, consider the following statements: (UPSC CSE 2021)

    1. When a prisoner makes out a sufficient case, parole cannot be denied to such prisoner because it becomes a matter of his/her right.
    2. State Governments have their own Prisoners Release on Parole Rules. Which of the statements given above is/are correct? (a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2 Answer: (b) 2 only. (This question is indirectly related. The right to life and liberty under Article 21 is interpreted broadly, but parole is not a fundamental right and is governed by state rules. It shows the application of fundamental rights interpretation).

  3. Which part of the Constitution of India declares the ideal of a Welfare State? (UPSC CSE 2020) (a) Directive Principles of State Policy (b) Fundamental Rights (c) Preamble (d) Seventh Schedule Answer: (a) Directive Principles of State Policy. (This question relates to the broader constitutional philosophy, which is the context for understanding Fundamental Rights like equality and reservation).

  4. What is the position of the Right to Property in India? (UPSC CSE 2021) (a) Legal right available to citizens only (b) Legal right available to any person (c) Fundamental Right available to citizens only (d) Neither Fundamental Right nor legal right Answer: (b) Legal right available to any person. (Article 300-A states “No person shall be deprived of his property save by authority of law,” making it a legal right for all persons, not just citizens).

  5. With reference to the writs issued by the Courts in India, consider the following statements: (UPSC CSE 2022)

    1. Mandamus will not lie against a private organisation unless it is entrusted with a public duty.
    2. Mandamus will not lie against a company even though it may be a Government company.
    3. Any public-minded person can be a petitioner to move the Court to obtain the writ of Quo Warranto. Which of the statements given above are correct? (a) 1 and 2 only (b) 2 and 3 only (c) 1 and 3 only (d) 1, 2 and 3 Answer: (c) 1 and 3 only. (This question tests the enforcement mechanism for Fundamental Rights under Article 32, which is contextually relevant).

Mains

  1. Do you agree that the Indian economy has recently experienced V-shaped recovery? Give reasons in support of your answer. (UPSC CSE 2021, GS-III) Answer Framework: While this is an economy question, the context of ‘jobless growth’ mentioned in the summary is directly relevant. The recovery might be V-shaped in terms of GDP numbers but not in terms of employment generation, which fuels demands for policies like domicile reservation. An answer can link macroeconomic trends to social justice demands.

  2. “The reservation of seats for women in the institutions of local self-government has had a limited impact on the patriarchal character of the Indian Political Process.” Comment. (UPSC CSE 2019, GS-II) Answer Framework: This question, while on women’s reservation, is part of the broader theme of affirmative action. The answer should analyze the effectiveness of reservation as a tool for social and political empowerment. It can draw parallels with the debate on caste-based reservation, discussing whether reservation alone can change deep-seated social structures like patriarchy or caste hierarchy.

  3. Recent amendments to the Right to Information Act will have a profound impact on the autonomy and independence of the Information Commission. Discuss. (UPSC CSE 2020, GS-II) Answer Framework: The Right to Information is an implied fundamental right under Article 19(1)(a). The answer should first establish this link, citing the Raj Narain case. Then, it should critically analyze the amendments and explain how they could potentially weaken the RTI framework, thereby curtailing a citizen’s fundamental right to know.

  4. Though the Human Rights Commissions have contributed immensely to the protection of human rights in India, yet they have failed to assert themselves against the mighty and powerful. Analysing their structural and practical limitations, suggest remedial measures. (UPSC CSE 2021, GS-II) Answer Framework: Many violations of fundamental rights (like those under Art. 17 or Art. 19) are also human rights violations. This answer should discuss the role of institutions like the NHRC in protecting these rights. It should touch upon their limitations (e.g., recommendatory powers, lack of authority over armed forces) and suggest reforms, linking the protection of fundamental rights to the effectiveness of such commissions.

  5. Examine the scope of Fundamental Rights in light of the latest judgement of the Supreme Court on the Right to Privacy. (UPSC CSE 2017, GS-II) Answer Framework: While slightly older than 5 years, this question’s theme is timeless. The Puttaswamy (2017) judgment on the Right to Privacy (Article 21) has profound implications for other rights, including freedom of speech (Article 19). The answer should explain how privacy is essential for the meaningful exercise of free speech, especially in the digital age, and how state surveillance can have a chilling effect on expression. It can be linked to issues like telephone tapping mentioned in the summary.

Graph View