17. Polity Notes 30

Elaborate Notes

Judicial Reforms and Functioning of the Judiciary

• Pendency of Cases and Need for Benches: The Indian judiciary grapples with an immense backlog of cases, estimated to be over 5 crore across all levels. This issue, often termed ‘justice delayed is justice denied’, undermines the rule of law. To address this, various Law Commission of India reports, notably the 125th Report (1988), have recommended the establishment of Supreme Court Benches (or Cassation Benches) in different regions of the country (e.g., Mumbai, Chennai, Kolkata). The idea is to bifurcate the Supreme Court into a Constitutional Bench in Delhi to handle matters of constitutional interpretation and Cassation Benches elsewhere to deal with appeals. This would enhance access to justice and reduce the burden on the Delhi bench. However, the Supreme Court has consistently opposed this, citing concerns over dilution of its authority and prestige.

• All India Judicial Services (AIJS): The concept of an AIJS, on the lines of the All India Services (IAS, IPS), was first proposed by the 1st Law Commission in its 14th Report (1958). Article 312 of the Constitution was amended by the 42nd Amendment Act, 1976, to provide for the creation of AIJS.

  • Arguments for AIJS: Proponents argue it would create a professional, merit-based, and uniform subordinate judiciary, attract the best legal talent through a competitive exam conducted by the UPSC, and ensure better representation of weaker sections through reservations. It could also reduce judicial corruption and nepotism at the local level.
  • Arguments against AIJS: Opponents, including several High Courts and state governments, raise concerns over federalism, as it would encroach upon their power to appoint district judges. A significant apprehension, as noted in the summary, is the language barrier. Since lower court proceedings are conducted in local languages, a judge from a different state might face significant challenges in comprehending arguments and evidence, thereby hampering justice delivery.

• Public Interest Litigation (PIL): Evolved in the late 1970s and early 1980s through the judicial activism of justices like V.R. Krishna Iyer and P.N. Bhagwati. It relaxed the traditional rule of locus standi (the right to bring an action), allowing public-spirited citizens to petition the court on behalf of the poor, oppressed, or marginalized.

  • Landmark Cases: The case of Hussainara Khatoon v. State of Bihar (1979), which led to the release of over 40,000 undertrial prisoners, is a pioneering example.
  • Criticism and Misuse: Over time, PILs have been criticized for their misuse. They are sometimes labeled as ‘Private Interest Litigation’ (when used to settle personal scores), ‘Profit Interest Litigation’ (for commercial gain), or ‘Political Interest Litigation’ (to serve political agendas). This has led the Supreme Court to become more cautious, imposing costs on frivolous petitions.

• Contempt of Court: The Contempt of Courts Act, 1971, grants courts the power to punish for contempt. While intended to protect the dignity and authority of the judiciary, critics argue it is often used to stifle legitimate criticism. The liberal use of this power can be seen as a threat to freedom of speech and expression (Article 19(1)(a)). The case of In re Prashant Bhushan (2020) brought this debate to the forefront, where the Supreme Court held the activist-lawyer guilty of contempt for his tweets critical of the judiciary.

• The Collegium System and NJAC: The system of appointing and transferring judges, known as the Collegium system, is not derived from the text of the Constitution but evolved through a series of Supreme Court judgments.

  • First Judges Case (S.P. Gupta v. Union of India, 1981): The Court held that the executive had primacy in judicial appointments.
  • Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993): The Court overturned its earlier verdict and created the Collegium system, establishing the primacy of the Chief Justice of India in appointments.
  • Third Judges Case (In re Special Reference 1 of 1998): The Court expanded the Collegium to a five-member body for Supreme Court appointments (CJI + four senior-most judges) and a three-member body for High Court appointments.
  • Criticism: The system has been widely criticized for its opacity, lack of accountability, and potential for nepotism, often termed an “imperium in imperio” (an empire within an empire). The Supreme Court itself acknowledged these flaws but did not provide an alternative.
  • NJAC Episode: To address these concerns, the Parliament passed the 99th Constitutional Amendment Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014. The NJAC was a proposed body to replace the collegium, comprising the CJI, two senior-most SC judges, the Union Law Minister, and two eminent persons. However, in the Fourth Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 2015), the Supreme Court struck down both acts as unconstitutional, holding that they violated the independence of the judiciary, which is a part of the ‘basic structure’ of the Constitution.

• Judicial Activism and Accountability: Judicial activism refers to the proactive role played by the judiciary in protecting citizens’ rights and promoting justice, especially when the executive and legislature fail to act. For instance, the framing of the Vishakha Guidelines in Vishakha v. State of Rajasthan (1997) to combat sexual harassment at the workplace filled a legislative vacuum. However, this has often been criticized as ‘judicial overreach’ or ‘judicial adventurism’, where the judiciary encroaches upon the domains of the other two organs of the state. The criticism that the judiciary makes others accountable without looking at its own performance points towards the lack of an internal accountability mechanism, the opaqueness of the collegium system, and the difficulty in removing judges. The controversial instance where a Chief Justice of India (Ranjan Gogoi) presided over a bench hearing a case of sexual harassment against himself raised serious questions about the principle of nemo judex in causa sua (no one should be a judge in their own cause).

Structure and Jurisdiction of the Supreme Court

• Integrated Judicial System: India has a unified and integrated judicial system, with the Supreme Court at its apex, followed by High Courts at the state level, and a hierarchy of subordinate courts. As per Article 141, the law declared by the Supreme Court is binding on all courts within the territory of India. This contrasts with the federal system of the USA, which has a dual court system: a federal judiciary headed by the US Supreme Court and separate, independent court systems for each state.

• Appointment and Removal of Judges (Article 124):

  • Appointment: Judges are appointed by the President after consultation with such judges of the Supreme Court and High Courts as the President may deem necessary. The Chief Justice of India (CJI) is appointed by the President, and by convention, the senior-most judge is appointed to the office.
  • Qualifications: A person must be a citizen of India and (a) have been a judge of a High Court for at least five years, or (b) an advocate of a High Court for at least ten years, or (c) be a distinguished jurist in the opinion of the President.
  • Removal: The process is governed by Article 124(4) and detailed in the Judges Enquiry Act of 1968. It is a quasi-judicial process often referred to as impeachment. A motion for removal must be supported by 100 members of the Lok Sabha or 50 members of the Rajya Sabha. If admitted, a three-member committee (comprising a SC judge, a HC Chief Justice, and a distinguished jurist) investigates the charges of ‘proved misbehaviour or incapacity’. If the committee finds the judge guilty, the motion must be passed by each House of Parliament by a special majority (a majority of the total membership of that House and a majority of not less than two-thirds of the members of that House present and voting). Only then can the President issue an order for removal. To date, no Supreme Court judge has been removed through this process. The impeachment proceedings against Justice V. Ramaswami (1993) failed to secure the required majority in the Lok Sabha.

• Jurisdiction of the Supreme Court:

  • Original Jurisdiction (Article 131): The SC has exclusive original jurisdiction in disputes between the Government of India and one or more states; or between the Government of India and any state on one side and one or more other states on the other; or between two or more states. This jurisdiction does not extend to disputes arising out of any pre-constitution treaty or agreement.
  • Writ Jurisdiction (Article 32): The SC is empowered to issue writs (Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto) for the enforcement of Fundamental Rights. This is a basic feature of the Constitution. However, its writ jurisdiction is narrower than that of High Courts (under Article 226), as High Courts can issue writs for the enforcement of Fundamental Rights and for any other purpose.
  • Appellate Jurisdiction (Articles 132, 133, 134): The SC is the highest court of appeal. Appeals lie to the Supreme Court from High Courts in constitutional, civil, and criminal matters, provided the High Court certifies that the case involves a substantial question of law.
  • Advisory Jurisdiction (Article 143): The President can seek the opinion of the Supreme Court on any question of law or fact of public importance. The SC may or may not tender its opinion on such matters (e.g., In re the Delhi Laws Act, 1951). However, if the matter pertains to a dispute arising out of any pre-constitutional treaty or agreement, the SC must tender its opinion (e.g., In re Berubari Union, 1960). The opinion is not binding on the President.
  • Special Leave Petition (Article 136): This confers extraordinary discretionary power on the Supreme Court to grant special leave to appeal from any judgment, decree, determination, sentence, or order in any cause or matter passed or made by any court or tribunal in India. It is an exceptional power to be used in cases of gross injustice.
  • Complete Justice (Article 142): This powerful article allows the Supreme Court to pass any decree or make any order necessary for doing ‘complete justice’ in any cause or matter pending before it. This power has been used in landmark cases like the Union Carbide case (Bhopal Gas Tragedy) to provide relief to victims.

Union-State Relations

• Nature of Indian Federalism: The Indian Constitution is federal in structure but has strong unitary features. Scholar K.C. Wheare described it as “quasi-federal.” Granville Austin called it “cooperative federalism.” Dr. B.R. Ambedkar, in the Constituent Assembly, argued for a strong centre to maintain national unity and integrity, especially in the aftermath of Partition. India is famously described as an “indestructible union of destructible states” because the Union can alter the boundaries of states (Article 3) without their consent, but states cannot secede from the Union.

• Unitary (Centralising) Features:

  • Strong Centre: Division of powers in the Seventh Schedule is tilted in favour of the Union.
  • Single Constitution and Single Citizenship.
  • Flexibility of the Constitution: Articles 3 and 4 allow Parliament to alter state boundaries by a simple majority.
  • Office of the Governor: Appointed by the President, the Governor acts as an agent of the Centre and has discretionary powers.
  • All India Services (Article 312): Recruited by the Centre but serve in both Centre and States, giving the Centre significant control over state administration.
  • Emergency Provisions: Under Article 352 (National Emergency), Article 356 (President’s Rule), and Article 360 (Financial Emergency), the federal structure can be converted into a unitary one.
  • Integrated Judiciary and Election Machinery.

• Federal Features:

  • Written, Rigid Constitution.
  • Supremacy of the Constitution.
  • Division of Powers: A clear demarcation of subjects between the Union and the States in the Seventh Schedule.
  • Independent Judiciary: The Supreme Court acts as the umpire in disputes between the Centre and States.
  • Bicameralism: The Rajya Sabha represents the states in the Union legislature.

• Issues of Contention in Union-State Relations:

  • Legislative Domain: The Union has often been accused of encroaching on subjects in the State List. The now-repealed Farm Laws were a prime example, where the Centre used Entry 33 of the Concurrent List (trade and commerce in foodstuffs) to legislate on agriculture, which is primarily a state subject under Entry 14 of the State List.
  • Role of Governor: The discretionary powers of the Governor, especially in recommending President’s Rule (Article 356) and reserving bills for the President’s consideration (Article 200), have been a constant source of friction. The Sarkaria Commission (1983) and Punchhi Commission (2007) recommended safeguards against their misuse.
  • Fiscal Federalism: States often complain about fiscal dependence on the Centre. The implementation of the Goods and Services Tax (GST) and the functioning of the GST Council, where the Centre has a significant say, have raised concerns about the erosion of states’ fiscal autonomy.
  • All India Services: States have argued that AIS officers are not accountable to the state government, leading to administrative friction.
  • Inter-State Disputes: Both border disputes (e.g., Maharashtra-Karnataka) and water disputes (e.g., Cauvery water dispute between Karnataka and Tamil Nadu) continue to challenge the federal fabric.

• Phases of Indian Federalism:

  • 1947-1967 (One-Party Dominance Federalism): Characterized by the dominance of the Congress party at both the Centre and in most states. Federal relations were smooth, but the system was highly centralized.
  • 1967-1990 (Confrontational Federalism): The rise of regional parties led to a period of confrontation, marked by the frequent and often partisan use of Article 356. The judiciary stepped in to check this misuse in the landmark case of S.R. Bommai v. Union of India (1994).
  • 1990-2014 (Cooperative/Bargaining Federalism): The era of coalition governments at the Centre strengthened cooperative federalism. Regional parties became key players, leading to more consultation and negotiation between the Centre and states.
  • Post-2014 (Competitive/Confrontational Federalism): With the return of a single-party majority government at the Centre, the dynamic shifted. The Centre has promoted ‘competitive federalism’ (states competing for investments and funds, e.g., NITI Aayog’s indices). However, critics label it as ‘coercive federalism’, citing instances like the GST implementation, demonetisation, and central legislation on state subjects, which they argue centralize power and undermine states’ autonomy.

Prelims Pointers

• Integrated Judiciary: India has a single, hierarchical judicial system, unlike the USA’s dual system.
• Law declared by the Supreme Court is binding on all courts in India under Article 141.
• Article 124: Establishment and constitution of the Supreme Court.
• Article 124A: Pertained to the National Judicial Appointments Commission (NJAC), which was struck down by the SC.
• Article 131: Original Jurisdiction of the Supreme Court (deals with Centre-State and inter-state disputes).
• Article 136: Special Leave Petition (SLP), a discretionary power of the SC.
• Article 142: Power of the SC to pass any order for doing ‘complete justice’.
• Article 143: Advisory Jurisdiction (President’s power to consult the SC).
• Qualifications for SC Judge:
  • Citizen of India.
  • Judge of a High Court for 5 years OR
  • Advocate of a High Court for 10 years OR
  • A distinguished jurist in the President’s opinion.
• Removal of SC Judge:
  • Grounds: Proved misbehaviour or incapacity.
  • Motion requires signatures of 100 MPs (Lok Sabha) or 50 MPs (Rajya Sabha).
  • Investigated by a 3-member committee as per the Judges Enquiry Act, 1968.
  • Passed by a Special Majority in both Houses.
• First Judges Case (1981): Executive primacy in appointments.
• Second Judges Case (1993): Established the Collegium system and judicial primacy.
• 99th Constitutional Amendment Act, 2014: Introduced NJAC.
• Fourth Judges Case (2015): Struck down the NJAC.
• All India Judicial Services (AIJS): Provision for its creation is in Article 312 (added by 42nd Amendment).
• Quasi-federal: Term used by K.C. Wheare to describe the Indian constitution.
• Cooperative Federalism: Term used by Granville Austin.
• Commissions on Centre-State Relations:
  1. Sarkaria Commission (1983)
  2. Punchhi Commission (2007)
• S.R. Bommai v. Union of India (1994): Landmark judgment curbing the misuse of Article 356.

Mains Insights

Judicial Reforms and Accountability

• Collegium vs. NJAC Debate: This is a classic conflict between Judicial Independence and Judicial Accountability.

  • Argument for Collegium: Proponents argue that it safeguards the judiciary from political interference, which is crucial for its independent functioning. The SC in the Fourth Judges Case (2015) held that the primacy of the judiciary in its own appointments is a part of the ‘basic structure’.
  • Argument for NJAC: Supporters contend that the collegium is opaque, unaccountable, and breeds nepotism (‘uncle-judge syndrome’). An independent commission like the NJAC, with representation from the executive and civil society (‘eminent persons’), would bring transparency and accountability to the appointment process, which is essential in a democracy.
  • The Way Forward: A potential solution could be a reformed appointment body that balances independence with accountability, possibly by restructuring the NJAC to give the judiciary a majority say while still including external members, and by creating clear, objective criteria for appointments.

• Judicial Activism vs. Judicial Overreach:

  • Cause-Effect: Judicial activism often arises from a ‘governance vacuum’ created by legislative inaction or executive apathy. It has led to positive outcomes like the protection of the environment (e.g., M.C. Mehta cases) and human rights.
  • The Thin Line: However, when the judiciary starts entering the domain of policy-making (e.g., fixing air pollution norms, mandating administrative reforms), it can be termed ‘judicial overreach’. This violates the principle of Separation of Powers and can lead to a conflict between the organs of government. The judiciary lacks the expertise and resources for policy implementation, making its directives sometimes impractical.
  • Solution: The judiciary should practice judicial restraint, intervening only in cases of gross constitutional violation and leaving policy matters to the elected branches, while holding them accountable for their constitutional duties.

Nature and Challenges of Indian Federalism

• Evolving Dynamics of Federalism: Indian federalism is not static; it has evolved based on the prevailing political context.

  • Shift from Cooperative to Coercive: The shift from the coalition era’s ‘cooperative federalism’ to the current majoritarian government’s ‘competitive’ or ‘coercive’ federalism highlights how the balance of power between the Centre and States is contingent on political realities.
  • Impact of Economic Policies: Policies like GST have fundamentally altered fiscal federalism. While aimed at creating ‘One Nation, One Tax’, they have been criticized for centralizing fiscal power and reducing the autonomy of states to raise their own revenue.
  • Conclusion: The Indian federal structure is a unique blend of centralisation and decentralisation, constantly being renegotiated. The key challenge is to maintain a collaborative spirit while respecting the constitutional autonomy of states.

• Institutions as Points of Friction:

  • Governor: The office of the Governor remains a major point of friction. Recommendations from the Sarkaria and Punchhi Commissions—such as fixed tenure, appointment from a panel prepared by the state legislature, and rare use of discretionary powers—need to be implemented to restore the office’s dignity and impartiality.
  • All India Services: The rules governing AIS often create a dual-accountability dilemma for officers, caught between the State government’s directives and the Centre’s control. Reforming AIS rules to give states more say in the discipline and posting of officers could ease tensions.

Previous Year Questions

Prelims

1. With reference to the Indian judiciary, consider the following statements: (UPSC Prelims 2021)

   1. Any retired judge of the Supreme Court of India can be called back to sit and act as a Supreme Court judge by the Chief Justice of India with the prior permission of the President of India.
   2. A High Court in India has the power to review its own judgement as the Supreme Court does. 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: (a) 1 only. Explanation: Statement 1 is correct as per Article 128 of the Constitution. Statement 2 is incorrect. While the Supreme Court has explicit power to review its own judgments under Article 137, High Courts are courts of record but do not have a specific constitutional power of review like the SC. They can review judgements only in limited circumstances under procedural laws like the Civil Procedure Code.

2. Consider the following statements: (UPSC Prelims 2022)

   1. Pursuant to the report of H.N. Sanyal Committee, the Contempt of Courts Act, 1971 was passed.
   2. The Constitution of India empowers the Supreme Court and the High Courts to punish for contempt of themselves.
   3. The Constitution of India defines civil contempt and criminal contempt.
   4. In India, the Parliament is vested with the powers to make laws on Contempt of Court. Which of the statements given above are correct? (a) 1 and 2 only (b) 1, 2 and 4 (c) 3 and 4 only (d) 3 only

   Answer: (b) 1, 2 and 4. Explanation: Statement 1 is correct. Statement 2 is correct as per Article 129 (for SC) and Article 215 (for HCs). Statement 4 is correct as per Entry 77 of the Union List. Statement 3 is incorrect; the Constitution does not define civil and criminal contempt; they are defined in the Contempt of Courts Act, 1971.

3. Which one of the following in Indian polity is an essential feature that indicates that it is federal in character? (UPSC Prelims 2021) (a) The independence of judiciary is safeguarded. (b) The Union Legislature has elected representatives from constituent units. (c) The Union Cabinet can have elected representatives from regional parties. (d) The Fundamental Rights are enforceable by Courts of Law.

   Answer: (a) The independence of judiciary is safeguarded. Explanation: An independent judiciary is essential in a federal system to act as an impartial arbiter in disputes between the centre and states, thereby upholding the division of powers. The other options, while features of Indian democracy, are not the quintessential indicators of its federal character.

4. Consider the following statements: (UPSC Prelims 2019)

   1. The 44th Amendment to the Constitution of India introduced an Article placing the election of the Prime Minister beyond judicial review.
   2. The Supreme Court of India struck down the 99th Amendment to the Constitution of India as being violative of the independence of the judiciary. 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. Explanation: Statement 2 is correct; the 99th Amendment introducing the NJAC was struck down in the Fourth Judges Case (2015). Statement 1 is incorrect; it was the 39th Amendment Act, 1975, that placed the election of the PM beyond judicial review, which was later struck down by the Supreme Court in the Indira Gandhi v. Raj Narain case.

5. A legislation which confers on the executive or administrative authority an unguided and uncontrolled discretionary power in the matter of application of law violates which one of the following Articles of the Constitution of India? (UPSC Prelims 2021) (a) Article 14 (b) Article 28 (c) Article 32 (d) Article 44

   Answer: (a) Article 14. Explanation: Article 14 guarantees equality before the law and equal protection of the laws. Unguided and uncontrolled discretionary power is considered arbitrary and thus violates the principle of equality enshrined in Article 14.

Mains

1. “The need for cooperation between the formal and informal systems of justice still remains a grey area, addressed by judicial pronouncements.” Discuss in the light of the functioning of Gram Nyayalayas and Lok Adalats. (UPSC Mains 2023, GS Paper II)

   Answer Framework:

   • Introduction: Briefly introduce the concept of formal justice (courts) and informal/alternative dispute resolution (ADR) mechanisms like Lok Adalats and Gram Nyayalayas, highlighting their purpose to reduce pendency and provide accessible justice.
   • Role and Functioning of Lok Adalats: Explain their statutory basis under the Legal Services Authorities Act, 1987. Discuss their success in settling disputes amicably and their binding awards. Mention how judicial pronouncements have encouraged their use (e.g., in pre-litigation settlement).
   • Role and Functioning of Gram Nyayalayas: Explain the Gram Nyayalayas Act, 2008, aimed at providing justice at the grassroots. Discuss their hybrid nature (combining formal procedures with ADR).
   • “Grey Area” of Cooperation:
     • Analyze the challenges in integrating these systems. Gram Nyayalayas have largely been non-starters due to issues of funding, infrastructure, and lack of enthusiasm from states.
     • Discuss the judicial push for ADR but the lack of a seamless framework for referral and enforcement between formal and informal systems.
     • Highlight the conflict between the formal system’s focus on rights and procedures versus the informal system’s focus on compromise and settlement.
   • Conclusion: Conclude by suggesting measures for better synergy, such as mandatory mediation referrals, better funding for Gram Nyayalayas, and creating a robust legal framework that defines the cooperative roles, as envisioned by judicial pronouncements but not yet fully realized in practice.

2. Critically examine the Supreme Court’s judgement on the National Judicial Appointments Commission Act, 2014 with reference to the appointment of judges of higher judiciary in India. (UPSC Mains 2017, GS Paper II)

   Answer Framework:

   • Introduction: Briefly explain the Collegium system and its criticisms (opacity, nepotism). Introduce the 99th Amendment and the NJAC Act as a parliamentary attempt to reform the process.
   • Supreme Court’s Judgment (Fourth Judges Case, 2015): Detail the key arguments of the SC for striking down the NJAC:
     • Violation of Judicial Independence: The Court held that the presence of the Law Minister and two ‘eminent persons’ in the NJAC compromised the primacy of the judiciary in appointments, which it declared a part of the ‘basic structure’ of the Constitution.
     • Threat of Executive Interference: The Court feared that the executive could influence appointments, undermining the judiciary’s role as a check on government power.
     • The veto power given to any two members was seen as problematic.
   • Critical Examination of the Judgment:
     • Positives: The judgment upheld the crucial principle of judicial independence.
     • Negatives/Criticisms: It perpetuated the flawed Collegium system, which the SC itself admitted needed reform. It was seen by many as an instance of the judiciary prioritizing its own institutional primacy over much-needed transparency and accountability. The argument that executive involvement inherently compromises independence is debatable, as this model works in many other democracies (e.g., UK, USA).
   • Conclusion: Conclude that while the intention to protect judicial independence was valid, the judgment created a reform vacuum. A balanced approach is needed, possibly through a revised NJAC model or a Memorandum of Procedure (MoP) that institutionalizes transparency and objective criteria within the Collegium system, thereby balancing independence with accountability.

3. From the resolution of contentious issues regarding distribution of legislative powers by the courts, ‘Principle of Federal Supremacy’ and ‘Harmonious Construction’ have emerged. Explain. (UPSC Mains 2022, GS Paper II)

   Answer Framework:

   • Introduction: Explain that the division of legislative powers under the Seventh Schedule is a cornerstone of Indian federalism and the judiciary acts as the arbiter in case of conflicts between the Union and State lists.
   • Doctrine of Harmonious Construction:
     • Explanation: This principle holds that when there is a conflict between two provisions of the Constitution or statutes, they should be interpreted in a way that gives effect to both, i.e., they are read harmoniously.
     • Application: In the context of federalism, when an entry in one list seems to overlap with an entry in another, the court tries to reconcile them rather than striking one down. For example, it defines the scope of each entry narrowly to avoid conflict. Cite relevant case law.
   • Principle of Federal Supremacy / Doctrine of Pith and Substance:
     • Explanation: When a conflict between a Union law and a State law is irreconcilable even after applying harmonious construction, the judiciary applies the doctrine of pith and substance to determine the ‘true nature and character’ of the legislation.
     • Application: If the ‘pith and substance’ of the law falls within the domain of the legislature that enacted it, the law is held valid, even if it incidentally encroaches upon the sphere of the other legislature.
     • Federal Supremacy: In cases of direct conflict, especially in the Concurrent List, Article 254 establishes the supremacy of Union law over State law.
   • Conclusion: Conclude that these judicial principles are crucial tools that have enabled the Indian federal system to function flexibly, resolving legislative conflicts and maintaining a balance of power, albeit with a recognized tilt towards the Union.

4. The role of the Governor is of a sagacious counsellor, mediator and an arbitrator rather than an active politician. In the light of recent controversies, discuss the need for reforms. (UPSC Mains 2023, GS Paper II - Modified from similar questions)

   Answer Framework:

   • Introduction: Start by quoting the ideal role of the Governor as envisaged by the Constituent Assembly and commissions like Sarkaria - a constitutional head and a vital link between the Centre and the State.
   • Recent Controversies: Discuss recent instances where the Governor’s role has been criticized as partisan:
     • Recommending President’s Rule (Article 356): Cite examples where the recommendation appeared politically motivated against opposition-ruled states.
     • Appointing Chief Ministers: Controversies in forming governments after fractured mandates (e.g., in Maharashtra, Karnataka).
     • Withholding Assent to Bills (Article 200): Mention cases where Governors in non-BJP ruled states (e.g., Tamil Nadu, Kerala, Telangana) have indefinitely delayed giving assent to bills passed by the state legislature, leading to confrontations and litigation.
     • Discretionary Powers: Acting as Chancellor of state universities and making public statements critical of the elected state government.
   • Need for Reforms: Argue that these controversies undermine federalism and the democratic process. Suggest reforms based on the recommendations of:
     • Sarkaria Commission (1983): Governor should be eminent in some walk of life, from outside the state, not too intimately connected with local politics, and should be consulted by the CM.
     • Punchhi Commission (2007): Recommended fixed tenure for Governors and a provision for their impeachment by the state legislature. Advocated for clear guidelines for the appointment of CMs.
     • Supreme Court Judgments (e.g., S.R. Bommai, Nabam Rebia): The court laid down that the floor test is the only way to determine a government’s majority.
   • Conclusion: Conclude by stating that for the smooth functioning of our federal polity, the Governor must act impartially. Implementing the long-pending recommendations of various commissions is essential to restore the dignity and constitutional propriety of this high office.

5. Do you think that the Constitution of India does not accept the principle of strict separation of powers rather it is based on the principle of ‘checks and balances’? Explain. (UPSC Mains 2019, GS Paper II)

   Answer Framework:

   • Introduction: Define the principle of strict separation of powers (as articulated by Montesquieu) and the principle of checks and balances. State that India has adopted the latter.
   • Rejection of Strict Separation of Powers:
     • Executive-Legislature Overlap: The parliamentary system in India ensures a significant overlap. The executive (Council of Ministers) is drawn from the legislature and is collectively responsible to it (Article 75(3)).
     • Judicial Appointments: The executive plays a role in the appointment of judges.
     • Legislative Powers of Judiciary: The judiciary has law-making powers through judicial review (declaring laws void) and judicial activism (e.g., Vishakha Guidelines).
   • Adoption of ‘Checks and Balances’:
     • Legislature checks Executive: Through motions (no-confidence), questions, and control over the purse.
     • Executive checks Legislature: By dissolving the Lok Sabha, issuing ordinances, and giving assent to bills.
     • Judiciary checks Executive & Legislature: Through the power of Judicial Review (Article 13), it can strike down executive actions and laws that are unconstitutional. It also checks executive arbitrariness via writs (Article 32, 226).
     • Executive & Legislature check Judiciary: Legislature can impeach judges and amend the constitution to overcome judicial pronouncements. The executive appoints judges.
   • Conclusion: Conclude that the Indian Constitution creates a system of shared powers rather than a strict separation. This system of checks and balances ensures that no single organ becomes all-powerful, thus protecting the constitutional framework and democratic principles.