17. Polity Notes 41

Elaborate Notes

Critical Analysis of National Human Rights Commission (NHRC)

The National Human Rights Commission (NHRC) was established in 1993 under the Protection of Human Rights Act (PHRA), 1993. It was established in line with the Paris Principles adopted by the United Nations General Assembly in 1993, which provide the international benchmarks for National Human Rights Institutions (NHRIs). Despite its crucial role, the NHRC faces several structural and functional limitations that have led to it being labeled a “toothless tiger” by critics, including former Chief Justice of India, H.L. Dattu.

• Recommendations are Advisory: The most significant limitation is the nature of its recommendations. As per Section 18 of the PHRA, 1993, the NHRC’s findings and recommendations are purely advisory and not binding on the concerned government or authority. The authority is only required to intimate the commission of the action taken or proposed to be taken on its recommendations within one month. This lack of enforceability significantly undermines its authority. For instance, in many cases of custodial deaths, despite NHRC recommendations for compensation and prosecution, state governments have often shown reluctance to comply fully, as documented in various NHRC annual reports.
• Inability to Award Compensation: The NHRC cannot directly award monetary compensation or relief to victims of human rights violations. It can only recommend that the concerned government or authority make such payments. The final decision rests with the government, leading to delays and sometimes non-compliance, denying immediate justice to the victim.
• Limited Jurisdiction over Armed Forces: Section 19 of the PHRA, 1993, curtails the NHRC’s power concerning human rights violations by armed forces. It can only seek a report from the Central Government and make recommendations based on it. It cannot independently investigate such allegations. This has been a major point of criticism, especially in regions affected by insurgency like Jammu & Kashmir and the North-Eastern states, where the Armed Forces (Special Powers) Act (AFSPA), 1958, is in force. The Justice J.S. Verma Committee (2013), formed after the Nirbhaya case, recommended amending the AFSPA and giving the NHRC jurisdiction to investigate complaints against military and paramilitary forces.
• Lack of Independent Investigative Machinery: The NHRC does not have its own dedicated cadre of investigators. Under Section 14 of the PHRA, it must rely on the existing investigative agencies of the Central and State governments, such as the police or the CBI. This creates a potential conflict of interest, as the commission often investigates human rights abuses allegedly committed by these very agencies.
• Time Limitation and Lack of Contempt Powers: Section 36(2) of the Act prohibits the NHRC from inquiring into any matter after the expiry of one year from the date on which the act constituting a violation of human rights is alleged to have been committed. This clause has been used to deny investigation into several significant past incidents. Furthermore, while it has the powers of a civil court in summoning and examining witnesses, it lacks the power to punish for contempt of court. This means that if officials or parties deliberately fail to appear or furnish information, the NHRC has limited recourse.
• Composition and Appointment Issues: The appointment of members, particularly retired judges and bureaucrats, has led to criticisms that these statutory bodies are becoming sinecures for those favored by the ruling establishment. This erodes the institution’s credibility and perceived independence. The Paris Principles explicitly state that NHRIs must be independent in their composition and functioning, a principle that is arguably compromised by the current appointment process which is dominated by the executive.
• Perceived Inaction in Key Cases: In recent years, the NHRC has been criticized by civil society for its perceived silence or delayed response on major human rights issues, such as the protests against the Citizenship (Amendment) Act, 2019, or allegations of state-sponsored surveillance. This has led to a decline in public trust and its reputation as a vigilant watchdog.

Way Forward for NHRC

To transform the NHRC from a merely recommendatory body to an effective institution, several reforms, as suggested by the Justice J.S. Verma Committee and various civil society organizations, are necessary.

• Strengthening Appointment Process: The composition of the NHRC should be diversified to include not just retired judges and bureaucrats, but also credible and experienced activists, academics, and members of civil society who have a proven track record in the field of human rights.
• Amending the Act for Leadership: The requirement of appointing only a former Chief Justice of India as the chairperson (though amended in 2019 to include a former Supreme Court judge) can be further broadened to include eminent jurists or human rights experts, ensuring a wider pool of capable candidates.
• Independent Investigative Staff: The NHRC must be provided with its own independent investigative staff with adequate powers. This would eliminate the conflict of interest inherent in relying on police agencies to investigate themselves.
• Granting Enhanced Powers: The NHRC should be vested with the powers of contempt of court to ensure its orders and summons are complied with. Furthermore, it should be empowered to directly award monetary compensation, which can be recovered as an arrear of land revenue.
• Removal of Time Limitation: The one-year limitation for taking up cases under Section 36(2) should be removed or made more flexible, especially for cases where the victim was not in a position to report the violation earlier.
• Binding Recommendations: The recommendations of the NHRC should be made binding on the government. A mechanism could be introduced where the government must submit a detailed ‘Action Taken Report’ to Parliament if it chooses not to implement an NHRC recommendation, ensuring greater executive accountability.
• Jurisdiction over Armed Forces: Section 19 of the PHRA should be amended to grant the NHRC the power to independently investigate allegations of human rights violations by the armed forces and paramilitary forces, with necessary safeguards to protect national security interests.

Comparison of Constitutions

Comparison of India and USA

• Features of the USA Constitution:

  • Presidential Democracy: The US has a presidential system, conceptualized on a strict separation of powers as advocated by Montesquieu in “The Spirit of the Laws” (1748). The President is both the head of state and head of government and is not accountable to the legislature (Congress).
  • Written and Rigid Constitution: The US Constitution (1787) is the world’s oldest written national constitution. Its rigidity stems from a difficult amendment process requiring a two-thirds majority in both houses of Congress and ratification by three-fourths of the states.
  • Classic Federation: The US is a classic example of a “coming together” federation, where sovereign states formed a union while retaining significant autonomy. This is reflected in features like dual citizenship and residual powers resting with the states (Tenth Amendment).
  • Bicameral Legislature: The Congress consists of the Senate (upper house with equal representation for all states) and the House of Representatives (lower house with representation based on population).
  • Independent Judiciary & Due Process: The US has a dual judicial system (federal and state courts) with an independent federal judiciary. The Fifth and Fourteenth Amendments guarantee “due process of law,” which means the law itself must be fair, just, and reasonable, not just the procedure. This was famously established in cases like Lochner v. New York (1905).
  • Weberian Bureaucracy & Spoils System: While the US bureaucracy is largely based on Max Weber’s merit-based model (following the Pendleton Act of 1883), it also retains elements of the “spoils system,” where the incoming President makes a large number of political appointments.
  • Clear Separation of Powers: The executive, legislative, and judicial branches are distinct, with a system of checks and balances to prevent any one branch from becoming too powerful. For instance, the President can veto legislation, but Congress can override the veto.
  • Dual Citizenship: An American is a citizen of both the USA and the state in which they reside.

• Similarities between American and Indian Constitutions:

  • Written Constitution: Both countries have codified constitutions that serve as the supreme law of the land.
  • Republic: Both have an elected head of state—the President.
  • Due Process of Law: While India’s Constitution explicitly mentions “procedure established by law” (Article 21), the Supreme Court in the landmark Maneka Gandhi v. Union of India (1978) case interpreted it to include the substantive fairness of the law, effectively incorporating the American doctrine of “due process.”
  • Bicameralism and Weberian Bureaucracy: Both have two houses of legislature and a professional, merit-based civil service.

• Differences between American and Indian Constitutions:

  • Form of Government: USA has a Presidential system; India has a Parliamentary system where the executive (Council of Ministers) is drawn from and is responsible to the legislature (Lok Sabha).
  • Citizenship: USA has dual citizenship; India, under Article 9, provides for single citizenship to foster national unity.
  • Federalism: The USA is a classic federation. India is described by K.C. Wheare as “quasi-federal” or by Granville Austin as an example of “cooperative federalism,” with strong unitary features like a single constitution, All-India Services, and the Governor’s role.
  • Judiciary: USA has a dual judiciary system. India has a single, integrated judicial system with the Supreme Court at the apex.
  • Rule of Law Concepts: The USA primarily focuses on “due process of law.” India’s Article 14 incorporates both the British concept of “equality before the law” (absence of special privileges) and the American concept of “equal protection of laws” (equal treatment in equal circumstances).
  • Separation of Powers: The USA has a strict separation of powers. India has a separation of functions but with significant overlap and a system of checks and balances (e.g., ordinance-making power of the President under Article 123).
  • Qualification for President: In the USA, only a natural-born citizen can become President. In India, any citizen, whether by birth, registration, or naturalization, is eligible for the office of President.
  • Residuary Powers: In the USA, residuary powers are vested in the states. In India, under Article 248, they are vested in the Union Parliament.

Comparison of Constitution between the UK and India

• Features of the UK Constitution:

  • Constitutional Monarchy & Parliamentary Democracy: The head of state is the monarch (a hereditary position), but the real executive power lies with the Prime Minister and the Cabinet, who are responsible to Parliament.
  • Unwritten Constitution: The UK’s constitution is not codified in a single document but is derived from multiple sources, including statutes (e.g., Magna Carta, 1215; Bill of Rights, 1689), common law, conventions, and authoritative works (e.g., A.V. Dicey, Walter Bagehot).
  • Unitary State: All governing power resides in the central government (the Parliament at Westminster). Although devolution has granted some powers to Scotland, Wales, and Northern Ireland, this can be revoked by Parliament.
  • Parliamentary Sovereignty: As articulated by A.V. Dicey, the UK Parliament is legally supreme and can make or unmake any law. The courts cannot declare an Act of Parliament unconstitutional.
  • Procedure Established by Law: The judiciary ensures that the executive acts in accordance with the law passed by Parliament but cannot question the validity of the law itself.
  • Rule of Law: The principle of “equality before the law” is a cornerstone of the UK system.

• Similarities between the UK and Indian Constitutions:

  • Parliamentary Democracy: India adopted the Westminster model of government with a Prime Minister as the head of government.
  • Bicameral Legislature: Both have a two-house legislature (Lok Sabha/Rajya Sabha in India; House of Commons/House of Lords in the UK).
  • Rule of Law: The concept of “equality before the law” in India’s Article 14 is borrowed from the UK.
  • Single Citizenship: Both countries have a single, national citizenship.
  • Cabinet System & Ministerial Responsibility: Both have a cabinet system where the Council of Ministers is collectively responsible to the lower house.

• Differences between the UK and Indian Constitutions:

  • Nature of Constitution: India’s is written; the UK’s is unwritten.
  • Sovereignty: The UK has Parliamentary sovereignty. India has Constitutional sovereignty, meaning the Constitution is supreme, and Parliament’s power is limited by it, a principle enforced through judicial review established in cases like Kesavananda Bharati v. State of Kerala (1973).
  • State Structure: The UK is a unitary state. India is a federal state with unitary features.
  • Head of State: The UK has a hereditary monarch. India has an elected President, making it a Republic.
  • Judicial Powers: India has an independent judiciary with the power of judicial review. The UK judiciary’s power is limited. India also incorporates “due process of law” and “equal protection of laws,” which are absent in the UK system in the same form.
  • Fundamental Rights: In India, Fundamental Rights are explicitly enumerated and constitutionally protected (Part III). In the UK, rights are based on common law and statutes (like the Human Rights Act 1998) and can be modified by an ordinary act of Parliament.

Comparison of Constitution between India and France

• Features of the Constitution of France:

  • Semi-Presidential Government: The Constitution of the Fifth Republic (1958) established a unique hybrid system. It has a directly elected President (head of state) and a Prime Minister (head of government) responsible to the legislature. When the President and the parliamentary majority are from the same party, the President holds immense power. If they are from different parties, a situation of “cohabitation” arises where the PM’s power increases.
  • Unitary State: France is a highly centralized, unitary state.
  • Administrative Law (Droit Administratif): France has a separate system of administrative law and administrative courts, headed by the Conseil d’État, to adjudicate disputes between citizens and the administration. This is distinct from the ordinary judicial system.
  • Secularism (Laïcité): France practices a strict form of secularism that mandates a complete separation of church and state, and the absence of religious expression in the public sphere (e.g., the ban on headscarves in public schools).
  • Absence of Strong Judicial Review: The Constitutional Council (Conseil Constitutionnel) can review laws before they are promulgated, but once a law is in effect, traditional courts cannot strike it down as unconstitutional in the way the Indian or US Supreme Courts can.

• Differences between France and Indian Constitutions:

  • Form of Government: France has a semi-presidential system; India has a parliamentary system.
  • Election of President: The French President is directly elected by the people. The Indian President is indirectly elected by an electoral college.
  • State Structure: France is unitary; India is federal.
  • Legal System: France has a separate system of administrative law and courts. India follows the principle of Rule of Law within a unified judicial system, where administrative actions are subject to judicial review by the same High Courts and Supreme Court.
  • Secularism: France follows a negative concept of secularism (Laïcité) emphasizing strict separation. India follows a positive concept of secularism, as articulated by scholars like Rajeev Bhargava, based on “principled distance,” where the state treats all religions equally and can intervene to uphold liberty and equality.

Comparison of Constitution between India and Japan

• Features of the Japanese Constitution:

  • Constitutional Monarchy: The Constitution of 1947, drafted under Allied occupation, retained the Emperor but stripped him of all political power, making him a “symbol of the State” (Article 1).
  • Parliamentary Democracy: Real power lies with the Prime Minister and the Cabinet, who are responsible to the Diet (bicameral legislature).
  • Renunciation of War: Article 9 of the Japanese Constitution is a unique feature, stating that “the Japanese people forever renounce war as a sovereign right of the nation.” This has been a subject of intense political debate in Japan regarding the status of its Self-Defense Forces.
  • Unitary State: Japan has a unitary system of government.
  • Judicial Review: The Supreme Court of Japan has the power of judicial review to determine the constitutionality of any law, order, or regulation, a feature borrowed from the American system.

• Key Differences with India:

  • Head of State: Japan is a constitutional monarchy with a symbolic Emperor. India is a republic with an elected President.
  • Sovereignty and War: Japan’s constitution contains an explicit renunciation of war (Article 9). India’s constitution does not have such a provision; the power to declare war and peace rests with the executive.
  • Federalism: Japan is a unitary state, while India is federal.

Various Judicial or Legal Doctrines

Judicial doctrines are principles evolved by courts over time through the interpretation of constitutional and legal provisions. They provide a framework for adjudication and ensure consistency in legal reasoning.

• Doctrine of Basic Structure:

  • Origin: While it has philosophical roots in the German Constitution’s “eternity clause,” the doctrine was fully articulated in India by the Supreme Court.
  • Evolution: The doctrine evolved through a series of cases concerning the Parliament’s power to amend Fundamental Rights. In Shankari Prasad v. Union of India (1951) and Sajjan Singh v. State of Rajasthan (1965), the SC held that Parliament could amend any part of the Constitution. This was reversed in I.C. Golaknath v. State of Punjab (1967), where the SC ruled that Fundamental Rights were “transcendental and immutable” and could not be amended.
  • Landmark Judgment: The doctrine was finally established in the historic case of Kesavananda Bharati v. State of Kerala (1973), where a 13-judge bench held that while Parliament has the power to amend any provision of the Constitution, it cannot alter its “basic structure” or framework.
  • Application: The SC has used this doctrine to strike down constitutional amendments. It invalidated a part of the 39th Amendment Act, 1975, which placed the election of the Prime Minister beyond judicial scrutiny, in Indira Nehru Gandhi v. Raj Narain (1975). More recently, it struck down the 99th Constitutional Amendment Act and the NJAC Act in Supreme Court Advocates-on-Record Association v. Union of India (2015), holding that they violated the independence of the judiciary, which is part of the basic structure.
  • Components (not exhaustive): Supremacy of the Constitution, Rule of law, Separation of powers, Federalism, Secularism, Parliamentary system, Independence of judiciary, and Free and fair elections.

• Doctrine of Pith and Substance:

  • Origin: This doctrine originated in Canada and was adopted in India under the Government of India Act, 1935, to resolve legislative competence conflicts in a federal structure.
  • Meaning: “Pith” means true nature, and “substance” means the essential part. The doctrine holds that if the “pith and substance” of a law falls within the legislative competence of the legislature that enacted it, the law shall not be deemed invalid merely because it incidentally encroaches upon a subject in another legislature’s list (as per the Seventh Schedule).
  • Application: This doctrine is primarily used to interpret Article 246 and the lists in the Seventh Schedule. The court examines the true object and scope of the legislation to determine which list it belongs to.
  • Example Case: In Prafulla Kumar Mukherjee v. Bank of Commerce, Khulna (1947), the Privy Council upheld a Bengal moneylenders act, stating that in its pith and substance it was a state subject, even though it incidentally affected promissory notes, a central subject.

• Doctrine of Incidental and Ancillary Powers:

  • Origin: This doctrine is an addition to the Doctrine of Pith and Substance, with roots in British legal interpretation.
  • Meaning: It signifies that the power to legislate on a particular subject includes the power to legislate on matters that are reasonably connected or ancillary to that main subject. These incidental powers are necessary for the effective legislation on the main subject.
  • Application: For example, the power to legislate on ‘Banking’ (Union List, Entry 45) includes the power to legislate on the functions of banks, the regulation of their employees, etc., as these are ancillary matters.
  • Example Case: In State of Rajasthan v. G. Chawla (1959), the Supreme Court held that the power to legislate on ‘public health’ (a state subject) includes the power to regulate the use of sound amplifiers, as it was an ancillary matter.

• Doctrine of Severability:

  • Origin: This doctrine, also known as the doctrine of separability, has roots in the British legal system and is enshrined in Article 13 of the Indian Constitution.
  • Meaning: Article 13(1) states that any pre-constitutional law inconsistent with Fundamental Rights is void “to the extent of such inconsistency.” The Doctrine of Severability dictates that if the invalid part of a law can be separated from the valid part without altering the fundamental nature of the law, then only the invalid part is struck down by the courts, and the rest remains operative. If the parts are inseparable, the entire law is declared void.
  • Example Case: In A.K. Gopalan v. State of Madras (1950), the SC found Section 14 of the Preventive Detention Act to be unconstitutional and declared it void, while the rest of the Act remained valid. A more recent example is Shreya Singhal v. Union of India (2015), where the Supreme Court struck down Section 66A of the IT Act, 2000, for violating Article 19(1)(a), but the rest of the IT Act remained in force.

• Doctrine of Eclipse:

  • Origin: This doctrine is derived from the interpretation of Article 13(1) of the Constitution.
  • Meaning: It applies to pre-constitutional laws that violate Fundamental Rights. Such a law is not dead or void ab initio but becomes dormant or unenforceable—it is ‘eclipsed’ by the shadow of the Fundamental Rights. It remains valid for transactions before the Constitution came into force and can be applied to non-citizens to whom the specific Fundamental Right does not apply. If the relevant Fundamental Right is amended to remove the conflict, the law becomes operative again.
  • Example Case: In Bhikaji Narain Dhakras v. State of M.P. (1955), a pre-constitutional law allowed the state a monopoly in the motor transport business. This was violative of Article 19(1)(g). The law became eclipsed. Later, a constitutional amendment empowered the state to create such monopolies. The Supreme Court held that the eclipse was removed, and the law became enforceable again.
  • Note: This doctrine does not apply to post-constitutional laws, which are void ab initio if they infringe upon Fundamental Rights, as held in Deep Chand v. State of U.P. (1959).

• Doctrine of Territorial Nexus:

  • Origin: This doctrine is derived from Article 245 of the Constitution.
  • Meaning: Article 245(1) limits a state legislature’s law-making power to its own territory. However, the Doctrine of Territorial Nexus allows a state law to have an extra-territorial operation if there is a sufficient connection or “nexus” between the object of the legislation and the territory of the state.
  • Application: It is often applied in tax laws. For example, a state can tax a transaction that occurs outside its territory if the essential elements of the transaction (like sale, delivery of goods, or contract) have a territorial connection with the state.
  • Example Case: In State of Bombay v. R. M. D. Chamarbaugwala (1957), a newspaper was printed and published in Bangalore, but it was circulated in Bombay. The state of Bombay levied a tax on the newspaper. The Supreme Court upheld the tax, stating that there was a sufficient territorial nexus as the newspaper had a wide circulation in Bombay.

• Doctrine of Colorable Legislation:

  • Origin: The doctrine is based on the Latin maxim “Quando aliquid prohibetur ex directo, prohibetur et per obliquum,” which means what cannot be done directly cannot be done indirectly.
  • Meaning: It is a principle that scrutinizes the legislative intent behind a law. If a legislature is constitutionally prohibited from legislating on a particular subject, it cannot try to achieve the same result by disguising the law’s true nature or purpose. The court looks at the substance, not the form, of the legislation to determine if it is a “fraud on the Constitution.”
  • Application: This doctrine is used to test the legislative competence of a legislature with respect to the lists in the Seventh Schedule.
  • Example Case: In K.C. Gajapati Narayan Deo v. State of Orissa (1953), the Supreme Court explained that the doctrine is concerned with the competence of the legislature, not its motives. If the legislature is competent to pass a law, the law is valid, regardless of its motive. However, if it transgresses its power, the law is invalid.

• Doctrine of Federal Supremacy:

  • Origin: This principle is fundamental to any federal system and is explicitly stated in Article 254 of the Indian Constitution, which deals with repugnancy between laws made by Parliament and laws made by the State Legislatures.
  • Meaning: In case of a conflict between a central law and a state law on a subject in the Concurrent List, the central law will prevail. This doctrine establishes the supremacy of the Union legislature in the event of a clash.
  • Application: The doctrine reinforces the unitary bias of the Indian federation.
  • Example Case: In the State of West Bengal v. Union of India (1963) case, the Supreme Court upheld the power of the Union Parliament to pass a law authorizing the acquisition of state-owned coal-bearing lands. The judgment emphasized that the Indian Constitution is not a traditional federal compact and that the Union government holds supremacy in certain matters, thereby establishing the dominance of federal law.

Prelims Pointers

• NHRC:
  • A statutory body, not a constitutional body.
  • Established under the Protection of Human Rights Act, 1993.
  • Recommendations are advisory, not binding.
  • Cannot investigate cases older than one year.
  • Limited jurisdiction over armed forces; can only seek reports from the Central Govt.
  • The Chairperson can be a retired Chief Justice of India or a retired Judge of the Supreme Court.
• Constitutional Comparisons:
  • USA has a Presidential system; India has a Parliamentary system.
  • UK has an unwritten constitution; India has a written one.
  • France has a semi-presidential system.
  • Japan’s Constitution (Article 9) contains a ‘renunciation of war’ clause.
  • USA has dual citizenship; India has single citizenship.
  • In the USA, residuary powers are with states; in India, with the Union.
  • The UK has Parliamentary Sovereignty; India has Constitutional Sovereignty.
  • Droit Administratif (Administrative Law) is a feature of the French legal system.
• Judicial Doctrines:
  • Basic Structure: Propounded in Kesavananda Bharati v. State of Kerala (1973). Not defined in the Constitution.
  • Pith and Substance: Originates from Canadian jurisprudence. Used to resolve conflicts between Union and State lists.
  • Severability: Derived from Article 13. If a part of a law is unconstitutional, only that part is struck down.
  • Eclipse: Applies to pre-constitutional laws that violate Fundamental Rights. The law becomes dormant, not dead.
  • Territorial Nexus: Derived from Article 245. Allows state laws to have extra-territorial application if a sufficient link exists.
  • Colorable Legislation: Based on the maxim that what cannot be done directly cannot be done indirectly.
  • Federal Supremacy: In case of conflict on a concurrent subject, Union law prevails over State law (Article 254).

Mains Insights

• Analysis of Statutory Bodies (GS Paper II): The case of the NHRC exemplifies the broader challenge facing statutory bodies in India. Often created with noble objectives, their effectiveness is curtailed by structural flaws like advisory powers, lack of independent machinery, and executive influence in appointments. This raises a fundamental question about governance: Are these bodies merely symbolic gestures, or can they be reformed into potent instruments of accountability? Strengthening bodies like the NHRC is crucial for upholding the rule of law and deepening democratic values.
• Indian Federalism: A Unique Model (GS Paper II): The comparison with classic federations like the USA highlights the sui generis nature of Indian federalism. K.C. Wheare’s “quasi-federal” label is often debated. While features like Federal Supremacy, the Governor’s role, and emergency provisions show a strong unitary tilt, this was a conscious choice by the Constituent Assembly to preserve national unity and integrity in a diverse country. The challenge lies in balancing the need for a strong centre with the aspirations for state autonomy, a central theme in Centre-State relations.
• Constitutionalism vs. Parliamentary Sovereignty (GS Paper II): The contrast between India and the UK is a classic study in constitutional philosophy. While India borrowed the parliamentary system from the UK, it rejected parliamentary sovereignty in favour of constitutionalism, where the Constitution is supreme. The Doctrine of Basic Structure is the ultimate expression of this choice, empowering the judiciary to act as the guardian of the Constitution against potential legislative or executive overreach. This creates a dynamic tension between the will of the people (expressed through Parliament) and the enduring principles of the Constitution (interpreted by the judiciary).
• The Role of Judiciary as an Interpreter (GS Paper II): The various judicial doctrines are not mere legal jargon; they are the tools through which the judiciary breathes life into the Constitution. Doctrines like ‘Due Process’ (read into Article 21 in Maneka Gandhi), ‘Basic Structure’, and ‘Severability’ demonstrate the judiciary’s role in expanding the scope of rights and maintaining a delicate balance of power. This judicial activism, while essential for protecting constitutional values, often leads to debates about judicial overreach and the violation of the separation of powers.

Previous Year Questions

Prelims

1. With reference to the funds under Members of Parliament Local Area Development Scheme (MPLADS), which of the following statements are correct? (2020)

   1. MPLADS funds must be used to create durable assets like physical infrastructure for health, education, etc.
   2. A specified portion of each MP’s fund must benefit SC/ST populations.
   3. MPLADS funds are sanctioned on a yearly basis and the unused funds cannot be carried forward to the next year.
   4. The District Authority must inspect at least 10% of all works under implementation every year. Select the correct answer using the code given below: (a) 1 and 2 only (b) 3 and 4 only (c) 1, 2 and 3 only (d) 1, 2 and 4 only Answer: (d) 1, 2 and 4 only. (Statement 3 is incorrect as the funds are non-lapsable.)

2. A parliamentary system of government is one in which (2020) (a) all political parties in the Parliament are represented in the Government (b) the Government is responsible to the Parliament and can be removed by it (c) the Government is elected by the people and can be removed by them (d) the Government is chosen by the Parliament but cannot be removed by it before completion of a fixed term Answer: (b) The Government is responsible to the Parliament and can be removed by it. (This is the principle of collective responsibility, a defining feature of the parliamentary system).

3. What is the position of the Right to Property in India? (2021) (a) Legal right available to citizens only (b) Legal right available to any person (c) Fundamental Right available to citizens only (d) Neither a Fundamental Right nor a legal right Answer: (b) Legal right available to any person. (The 44th Amendment Act, 1978, moved the Right to Property from a Fundamental Right to a constitutional/legal right under Article 300A, available to all persons, not just citizens).

4. Consider the following statements: (2021)

   1. The Constitution of India defines its ‘basic structure’ in terms of federalism, secularism, fundamental rights and democracy.
   2. The Constitution of India provides for ‘judicial review’ to safeguard the citizens’ liberties and to preserve the ideals on which the Constitution is based. 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. (Statement 1 is incorrect as the ‘basic structure’ is a judicial innovation and is not defined in the Constitution. Statement 2 is correct as judicial review is implicit in articles like 13, 32, and 226).

5. Which one of the following statements best reflects the chief purpose of the ‘Constitution’ of a country? (2023) (a) It determines the objective for the making of necessary laws. (b) It enables the creation of political offices and a government. (c) It defines and limits the powers of government. (d) It secures social justice, social equality and social security. Answer: (c) It defines and limits the powers of government. (While a constitution may do all the above, its primary purpose is to establish a framework of governance and place limitations on state power, i.e., constitutionalism).

Mains

1. “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 the structural and practical limitations, suggest remedial measures. (2021)

   • Answer Framework:
     • Introduction: Briefly introduce the NHRC and other SHRCs as statutory bodies established under the PHRA, 1993, to act as human rights watchdogs. Acknowledge their positive contributions like spreading awareness and providing a grievance redressal platform.
     • Limitations:
       • Structural: Detail the limitations mentioned in the notes - advisory nature of recommendations, lack of contempt powers, inability to award direct relief, restricted jurisdiction over armed forces, and a one-year time limit for complaints.
       • Practical: Discuss the dependence on government agencies for investigation (conflict of interest), bureaucratic inertia, lack of political will to implement recommendations, and issues with the appointment process leading to a perception of it being a post-retirement sinecure.
     • Remedial Measures: Suggest concrete reforms. Make recommendations binding or require an Action Taken Report to be tabled in Parliament. Grant powers of contempt and the ability to award direct compensation. Amend the PHRA to allow independent investigation into cases involving armed forces and remove the one-year limitation. Diversify the composition of the commission.
     • Conclusion: Conclude by stating that for India to uphold its commitment to human rights, these “toothless tigers” must be given real powers, transforming them into effective and independent institutions of accountability.

2. The judicial system in India and the UK seem to be converging as well as diverging in recent times. Highlight the key points of convergence and divergence between the two nations in terms of their judicial practices. (2020)

   • Answer Framework:
     • Introduction: Mention that the Indian judicial system has its foundations in the British common law system, leading to inherent similarities, but has evolved uniquely due to its written constitution and federal structure.
     • Convergence:
       • Common Law System: Both follow the doctrine of precedent (stare decisis).
       • Adversarial System: The system of litigation in both countries is adversarial.
       • Independence of Judiciary: Both systems value judicial independence as a core principle.
       • Similar Procedures: Many procedural laws (like the Civil Procedure Code, Evidence Act) are modeled on British laws.
     • Divergence:
       • Written vs. Unwritten Constitution: India has a written constitution which is the supreme law; the UK does not.
       • Judicial Review and Constitutional Supremacy: The Indian judiciary can strike down laws passed by Parliament if they violate the Constitution (Constitutional Sovereignty). The UK has Parliamentary Sovereignty, and courts cannot invalidate primary legislation.
       • Fundamental Rights: Indian courts are guardians of constitutionally guaranteed, justiciable Fundamental Rights. In the UK, rights are based on statutes and common law.
       • Integrated vs. Distinct Systems: India has a single, integrated judicial system. The UK’s system has seen changes with the creation of a Supreme Court in 2009, separating it from the House of Lords, but its structure remains distinct.
     • Conclusion: Conclude that while procedural similarities remain strong, the divergence in the substantive powers of the judiciary, especially the power of judicial review, marks the fundamental difference, showcasing India’s unique constitutional path.

3. 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 balance’? Explain. (2019)

   • Answer Framework:
     • Introduction: Define the concept of separation of powers as given by Montesquieu. State that the Indian Constitution does not adopt a rigid, watertight separation but a functional one.
     • Evidence of Separation of Functions:
       • Article 50: Directs the state to separate the judiciary from the executive.
       • Distinct functions are assigned to the Legislature (law-making), Executive (implementation), and Judiciary (interpretation and adjudication).
     • Evidence of ‘Checks and Balances’ (Overlapping Functions):
       • Executive on Legislature: President’s power to summon/prorogue houses, give assent to bills (Article 111), and issue ordinances (Article 123).
       • Legislature on Executive: Council of Ministers is collectively responsible to Lok Sabha (Article 75(3)), and can be removed by a no-confidence motion. Parliamentary committees scrutinize executive actions.
       • Judiciary on Executive & Legislature: Power of Judicial Review to strike down unconstitutional executive actions and laws.
       • Legislature on Judiciary: Power to impeach judges.
     • Explanation: Explain that this system of checks and balances prevents any single organ from becoming all-powerful, thus protecting liberty and ensuring accountability. This was a deliberate choice by the framers to suit the parliamentary form of government.
     • Conclusion: Conclude that the Indian system is a fine blend, a “separation of functions” rather than a strict “separation of powers,” designed to create a responsible and accountable government through an intricate web of checks and balances, which itself is a part of the basic structure of the Constitution.

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

   • Answer Framework:
     • Introduction: Briefly explain the three lists in the Seventh Schedule and how Article 246 distributes legislative powers, which can lead to conflicts. Mention that the judiciary, through interpretation, has developed doctrines to resolve these conflicts.
     • Principle of Federal Supremacy:
       • Explain the doctrine as enshrined in Article 254 (repugnancy in the Concurrent List).
       • State that in case of a direct conflict between a Union and a State law on a concurrent subject, the Union law prevails.
       • Cite the State of West Bengal v. Union of India (1963) case to show how the SC upheld Union’s power, highlighting the unitary bias and supremacy of the federal government in certain areas.
     • Principle of Harmonious Construction:
       • Explain that this doctrine is used when there is a conflict between two provisions of the Constitution or a statute. The court tries to interpret them in a way that gives effect to both, i.e., they are read “harmoniously.”
       • The goal is to avoid rendering any provision redundant or void.
       • Example: Harmonizing Fundamental Rights and Directive Principles of State Policy. In Kerala Education Bill (1957), the SC stated that while DPSP are not enforceable, the court must adopt the principle of harmonious construction and try to give effect to both as far as possible.
     • Conclusion: Conclude that these judicial principles are crucial for the smooth functioning of India’s complex federal system. Federal Supremacy provides clarity and stability in case of irresolvable conflicts, while Harmonious Construction promotes cooperation and ensures that the entire constitutional/statutory scheme is read as a coherent whole.

5. Critically examine the Supreme Court’s judgment on ‘National Judicial Appointments Commission Act, 2014’ with reference to the appointment of judges of higher judiciary in India. (2017)

   • Answer Framework:
     • Introduction: Briefly explain the evolution of the judicial appointment system in India from executive primacy to the Collegium system (through the Three Judges Cases). Introduce the 99th Constitutional Amendment Act and the NJAC Act, 2014, as an attempt by Parliament to reform this system.
     • The NJAC Act: Describe the composition of the NJAC (CJI, two senior-most SC judges, Union Law Minister, and two eminent persons). State its purpose was to make the appointment process more transparent and accountable.
     • Supreme Court’s Judgment (SC AOR Association v. UoI, 2015):
       • The Verdict: Explain that the SC struck down both the 99th Amendment and the NJAC Act as unconstitutional.
       • Reasoning: The court held that the acts violated the ‘basic structure’ of the Constitution, specifically the ‘independence of the judiciary’. The presence of the Law Minister (a member of the executive) and the appointment process of ‘eminent persons’ were seen as giving the executive a significant say, which could compromise judicial independence. The court revived the Collegium system.
     • Critical Examination:
       • Arguments Supporting the Judgment: Upholding the basic structure doctrine, preventing executive interference, and protecting the judiciary from political influence.
       • Arguments Against the Judgment (Criticism): The Collegium system is often criticized as opaque, unaccountable, and promoting “nepotism” (“judges appointing judges”). The NJAC was seen as a step towards greater transparency and accountability, balancing judicial independence with executive and civil society participation. The judgment was seen by some as an instance of judicial overreach.
     • Conclusion: Conclude by stating that while the SC’s judgment was aimed at preserving the sacrosanct principle of judicial independence, it also highlighted the urgent need for reform in the existing Collegium system to address its shortcomings. The ideal solution lies in a new mechanism that balances judicial independence with transparency and accountability, a goal that remains elusive.