GS Notes

3. Polity Notes 01

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Elaborate Notes

Keshavananda Bharati Judgement

The Keshavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. (1973) case is arguably the most significant judgment in the constitutional history of India. Its roots lie in the post-independence conflict between the judiciary’s role as the protector of Fundamental Rights (FRs) and the Parliament’s power to amend the Constitution to implement socio-economic reforms.

  • Historical Context: The Era of Land Reforms

    • Upon independence, the Indian government initiated widespread land reforms to address historical inequities in land ownership. The three main pillars of this policy were:
      1. Abolition of Zamindari: Intermediaries like Zamindars, Jagirdars, etc., between the state and the tiller were abolished. The Bihar Land Reforms Act, 1950 was a pioneering legislation in this regard.
      2. Tenancy Reforms: Aimed at providing security of tenure to tenant farmers, regulating rent, and conferring ownership rights upon them.
      3. Land Ceiling: Imposed limits on the amount of land an individual or family could own, with the surplus land being redistributed among the landless.
    • These reforms were immediately challenged in courts as they conflicted with the Fundamental Right to Property, enshrined in Article 19(1)(f) (right to acquire, hold and dispose of property) and Article 31 (protection against deprivation of property except by authority of law and with compensation). They were also challenged under Article 14 (right to equality).

  • Parliament’s Response and the Beginning of the Tussle

    • To insulate these essential reforms from judicial review, the Parliament, under Prime Minister Jawaharlal Nehru, enacted the First Constitutional Amendment Act, 1951.
    • This amendment introduced Article 31A (saving of laws providing for the acquisition of estates), Article 31B, and the Ninth Schedule.
    • Article 31B, in conjunction with the Ninth Schedule, created a protective shield. It stipulated that any law placed within the Ninth Schedule could not be deemed void on the grounds that it violated any of the Fundamental Rights.
    • In the Shankari Prasad v. Union of India (1951) case, the Supreme Court upheld the validity of the First Amendment, ruling that Parliament’s power to amend under Article 368 was absolute and extended to Fundamental Rights. The court reasoned that an “amendment” was not a “law” within the meaning of Article 13(2). This position was reaffirmed in Sajjan Singh v. State of Rajasthan (1965).

  • The Golaknath Turning Point

    • The Supreme Court dramatically reversed its position in I.C. Golaknath v. State of Punjab (1967). By a 6:5 majority, the court held that Fundamental Rights were ‘transcendental and immutable’ and Parliament had no power to amend them. It declared that an amendment under Article 368 was a “law” under Article 13(2) and would be void if it abridged FRs.

  • Parliament’s Reaction and the Path to Keshavananda

    • To re-establish its supremacy, Parliament passed a series of amendments:
      • 24th Amendment Act, 1971: Amended Article 368 and Article 13 to explicitly state that Article 13 would not apply to any amendment made under Article 368.
      • 25th Amendment Act, 1971: Introduced Article 31C, which stated that any law made to implement the Directive Principles of State Policy (DPSPs) under Article 39(b) and 39(c) could not be challenged for violating Articles 14, 19, or 31.

  • The Keshavananda Bharati Verdict (1973)

    • The case was initiated by Swami Keshavananda Bharati, the head of a Hindu mutt in Kerala, challenging the Kerala Land Reforms Act, 1963, which affected the mutt’s property. The petition challenged the 24th and 25th Amendments as well.
    • The largest-ever Constitution Bench of 13 judges, by a narrow 7:6 majority, delivered the verdict.
    • Key Rulings:
      1. Overruling Golaknath: The court affirmed Parliament’s power to amend any provision of the Constitution, including Fundamental Rights.
      2. The Basic Structure Doctrine: It propounded the revolutionary doctrine that Parliament’s amending power is not absolute. It cannot be used to alter the “basic structure” or “framework” of the Constitution. Chief Justice S.M. Sikri provided an illustrative list of basic features, including the Supremacy of the Constitution, the Republican and Democratic form of government, Secular character, Separation of Powers, and the Federal character of the Constitution.
      3. Judicial Review of the Ninth Schedule: The court ruled that while it cannot review laws placed in the Ninth Schedule for violating FRs, any law placed in the schedule after the date of this judgment (April 24, 1973) would be subject to judicial review if it damages or destroys the basic structure.
      4. FRs and DPSPs: The court harmonized the relationship between FRs and DPSPs, holding them to be complementary. It struck down the second part of Article 31C, which barred judicial review, but upheld the first part, allowing FRs to be abridged (but not abrogated) for implementing certain DPSPs, as long as the basic structure was not violated. This meant FRs could give way to DPSPs in some circumstances, establishing a “harmony and balance” which itself became a part of the basic structure, as affirmed later in Minerva Mills v. Union of India (1980).

  • Aftermath: The 42nd Amendment (1976) attempted to nullify the judgment by adding clauses (4) and (5) to Article 368, asserting unlimited amending power for Parliament. These clauses were struck down in the Minerva Mills case, which cemented the Basic Structure Doctrine. The 44th Amendment Act, 1978, abolished the Right to Property as a Fundamental Right (repealing Articles 19(1)(f) and 31) and made it a constitutional right under Article 300-A.

Lower Judiciary

The subordinate judiciary forms the bedrock of the Indian judicial system, handling the vast majority of litigation and serving as the primary point of contact for most citizens seeking justice.

  • Constitutional Framework (Articles 233-237)

    • The Constitution provides a detailed framework for the organisation and service conditions of the subordinate judiciary to ensure its independence from the executive.
    • Article 233 (Appointment of district judges): Appointments, postings, and promotions of district judges are made by the Governor of the state in consultation with the High Court exercising jurisdiction in that state.
      • Eligibility for Direct Appointment: A person must have been an advocate or a pleader for at least seven years and must be recommended by the High Court.
    • Article 234 (Recruitment of other judges): Appointment of persons other than district judges to the judicial service is made by the Governor in accordance with rules made after consultation with the State Public Service Commission and the concerned High Court.
    • Article 235 (Control over subordinate courts): The control over district courts and courts subordinate to them, including posting, promotion, and grant of leave for judicial officers, is vested in the High Court. This is a crucial provision for ensuring judicial independence from executive interference.

  • Structure and Nomenclature

    • The organizational structure, jurisdiction, and nomenclature of the subordinate judiciary are determined by the states. Consequently, there are slight variations across the country.
    • Broadly, each district has a three-tier structure:
      • Civil Side: Court of the District Judge (highest civil court in the district), Court of the Subordinate Judge, and Court of the Munsiff.
      • Criminal Side: Court of the Sessions Judge (highest criminal court in the district), Court of the Chief Judicial Magistrate, and Court of the Judicial Magistrate. Often, the District Judge also serves as the Sessions Judge.

  • Independence of the Judiciary as a Basic Structure

    • The Supreme Court, in cases like All India Judges’ Association v. Union of India (1992), has emphatically declared that the independence of the judiciary is a part of the basic structure of the Constitution.
    • This independence is not limited to the higher judiciary but extends to the subordinate judiciary as well. The court has stressed the importance of ensuring proper service conditions, pay scales, and infrastructure for subordinate judges to safeguard their independent functioning.
    • Provisions like Article 121 (restricting discussion in Parliament on the conduct of a Judge of SC or HC) and Article 211 (restricting discussion in State Legislatures) further insulate the judiciary from political pressure.

Abrogation of Article 370

On August 5, 2019, the Union Government effectively abrogated Article 370 of the Constitution, which had granted special status to the state of Jammu and Kashmir (J&K). This was followed by the bifurcation of the state into two Union Territories.

  • Historical Context

    • Following the partition of British India, the princely state of J&K, ruled by Maharaja Hari Singh, initially remained independent. However, facing an invasion from Pakistan-backed tribesmen, the Maharaja signed the Instrument of Accession (IoA) with India on October 26, 1947.
    • The IoA ceded jurisdiction to the Dominion of India over three subjects: Defence, External Affairs, and Communications.
    • Article 370 was incorporated into the Indian Constitution as a ‘temporary provision’ to formalize this relationship, allowing J&K to have its own Constitution and limiting the Indian Parliament’s legislative powers over the state.
    • Article 35A, which was not in the main body of the Constitution but was added through a Presidential Order in 1954 (The Constitution (Application to Jammu and Kashmir) Order, 1954), stemmed from Article 370. It empowered the J&K legislature to define the state’s ‘permanent residents’ and confer special rights and privileges upon them.

  • The Abrogation Process (2019)

    • The government used the provisions of Article 370 itself to render it inoperative.
    • Presidential Order C.O. 272: This order, issued under Article 370(1), superseded the 1954 order and made all provisions of the Indian Constitution applicable to J&K. It also amended Article 367 (interpretation clause) to state that the expression “Constituent Assembly of the State” in Article 370(3) should be read as “Legislative Assembly of the State”.
    • Parliamentary Resolution: Since J&K was under President’s Rule, the powers of the State Legislative Assembly were vested in the Parliament. Parliament passed a resolution recommending that the President declare Article 370 inoperative.
    • Presidential Order C.O. 273: Based on the parliamentary recommendation, the President issued this order, making all clauses of Article 370 cease to be operative.
    • Jammu and Kashmir Reorganisation Act, 2019: Parliament passed this act under Article 3 of the Constitution, bifurcating the state into two Union Territories: J&K (with a legislative assembly) and Ladakh (without a legislative assembly).

  • Supreme Court Verdict (December 2023)

    • A five-judge Constitution Bench unanimously upheld the government’s action.
    • Key Rulings:
      • The court held that Article 370 was a temporary provision enacted for constitutional integration, not to grant permanent special status.
      • It ruled that J&K did not retain any element of sovereignty after its accession to India.
      • The court validated the procedure used, stating that the President had the power to abrogate the article.
      • It directed the Election Commission of India to take steps to conduct elections for the J&K Legislative Assembly by September 30, 2024, and urged the restoration of statehood at the earliest.

National Capital Territory of Delhi (Amendment) Act, 2023

The governance of Delhi has been a contentious issue due to its unique status as the national capital with an elected government. The 2023 amendment has further intensified the debate over the division of powers between the elected government and the Centre-appointed Lieutenant Governor (LG).

  • Constitutional Evolution of Delhi’s Governance

    • Initially a Union Territory under Article 239, Delhi was granted a special status by the 69th Constitutional Amendment Act, 1991.
    • This amendment introduced Article 239AA, which created the National Capital Territory of Delhi with a Legislative Assembly and a Council of Ministers (CoM).
    • The Delhi Assembly can legislate on all matters in the State and Concurrent Lists, except for three subjects: Public Order, Police, and Land, which remain with the Union Government.

  • The Tussle over “Services”

    • The primary point of friction has been the control over the bureaucracy (“services”).
    • Govt. of NCT of Delhi v. Union of India (2018): The Supreme Court held that the LG is bound by the ‘aid and advice’ of the CoM on all matters except the three reserved subjects.
    • Govt. of NCT of Delhi v. Union of India (May 2023): A Constitution Bench clarified that the Delhi government has legislative and executive control over “services,” as they are not explicitly excluded under Article 239AA.
    • The 2023 Act: To nullify this judgment, the Central government first promulgated an ordinance, later passed as the GNCTD (Amendment) Act, 2023.

  • Key Highlights of the NCTD (Amendment) Act, 2023

    • Creation of NCCSA: It establishes a permanent National Capital Civil Service Authority (NCCSA) to make recommendations to the LG regarding transfers, postings, and vigilance matters of civil servants.
    • Composition of NCCSA: Chief Minister of Delhi (Chairperson), Chief Secretary of Delhi, and Principal Home Secretary of Delhi. Decisions are taken by a majority vote, effectively giving the two bureaucrats (appointed by the Centre) veto power over the elected Chief Minister.
    • Primacy of the LG: The Act grants the LG overriding powers. The LG’s decision is final in case of any difference of opinion with the NCCSA or the CoM. The LG can approve, reject, or return recommendations for reconsideration.
    • Expanded Discretionary Powers: It specifies that matters where the LG can act in his sole discretion include summoning, proroguing, and dissolving the Legislative Assembly, and any other matters required by law.

Preventive Detention

Preventive detention is a constitutionally sanctioned practice in India that allows the state to detain a person without trial on the mere apprehension that they may commit a prejudicial act in the future.

  • Constitutional Provisions (Article 22)

    • Article 22(3) states that the protections available to an arrested person under Articles 22(1) and 22(2) (right to be informed of grounds of arrest, right to a lawyer, right to be produced before a magistrate within 24 hours) are not available to a person detained under a preventive detention law.
    • However, the Constitution provides certain safeguards against misuse:
      • Article 22(4): No law can authorize the detention of a person for more than three months unless an Advisory Board reports that there is sufficient cause for such detention. The Board must consist of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court.
      • Article 22(5): The authority making the detention order must communicate the grounds to the detenu as soon as may be and afford them the earliest opportunity of making a representation against the order.

  • Legislative Powers

    • Parliament’s Exclusive Power (Union List, Entry 9): To make laws for reasons connected with defence, foreign affairs, or the security of India. Example: National Security Act (NSA), 1980.
    • Concurrent Power (Concurrent List, Entry 3): Both Parliament and State Legislatures can make laws for reasons connected with the security of a State, maintenance of public order, or maintenance of essential supplies. Example: Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974.

  • Judicial Interpretation

    • The Supreme Court, particularly after the Maneka Gandhi v. Union of India (1978) case, has insisted that the procedure for preventive detention must be fair, just, and reasonable. The judiciary scrutinizes detention orders to ensure they are not arbitrary, vague, or mala fide.

Personality Rights

Personality rights refer to an individual’s right to control the commercial use of their identity, including their name, voice, signature, and image. They are a bundle of rights that protect a person’s personality from unauthorized exploitation.

  • Legal Framework in India
    • There is no single statute in India that explicitly defines or protects personality rights. Protection is derived from other laws and judicial precedents.
    • Right to Privacy: The Supreme Court in Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) declared the Right to Privacy a fundamental right under Article 21. Personality rights are considered an integral aspect of this right.
    • Right to Publicity: This is the right to control the commercial use of one’s identity. Courts have recognized this right under common law, copyright law (e.g., a photograph), and trademark law (e.g., a name or signature used as a brand).
    • Posthumous Rights: Even after a person’s death, their personality can be protected. The Emblems and Names (Prevention of Improper Use) Act, 1950 prevents the improper use of certain names for commercial purposes. The Indian Penal Code (IPC) also contains provisions against defaming a deceased person if it harms the reputation of their family.

Hate Speech

Hate speech is a form of expression that attacks or demeans a group based on attributes like religion, race, ethnicity, gender, or sexual orientation.

  • Legal Status
    • Hate speech is not defined in any law in India. The Law Commission of India, in its 267th Report, recommended adding specific provisions to criminalize hate speech.
    • Regulation is carried out through various provisions of the Indian Penal Code (IPC) and other laws:
      • IPC Sections 153A (promoting enmity between different groups) and 295A (deliberate and malicious acts intended to outrage religious feelings).
      • The proposed Bharatiya Nyaya Sanhita, 2023, retains similar provisions (Sections 196, 299).
      • Representation of the People Act, 1951: Section 8 disqualifies a person convicted of such offences from contesting elections. Sections 123(3A) and 125 deem the promotion of enmity on grounds of religion, race, etc., a corrupt electoral practice.
      • Protection of Civil Rights Act, 1955: Section 7 penalizes incitement to untouchability.

Places of Worship Act, 1991

This Act was passed by the Parliament to freeze the status of places of worship and prevent future disputes over their religious character.

  • Key Provisions
    • Section 3: Prohibits the conversion of any place of worship of any religious denomination into a place of worship of a different religious denomination or section.
    • Section 4: Declares that the religious character of a place of worship shall continue to be the same as it was on August 15, 1947.
    • Exception: The Act explicitly exempted the Ram Janmabhoomi-Babri Masjid dispute from its purview, as the matter was already sub judice.
    • In its Ayodhya verdict (M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors, 2019), the Supreme Court lauded the Act as a legislative instrument designed to protect the secular features of the Indian polity, which is a basic feature of the Constitution.

Eighth Schedule of the Constitution

The Eighth Schedule of the Indian Constitution lists the official languages of the Republic of India.

  • Constitutional Provisions
    • Article 344(1): Provides for the formation of a Commission by the President to make recommendations for the progressive use of the Hindi language for official purposes. The Commission is to be composed of members representing the different languages specified in the Eighth Schedule.
    • Article 351: Enjoins the Union to promote the spread of the Hindi language and to develop it by drawing vocabulary primarily from Sanskrit and secondarily from other languages, including those specified in the Eighth Schedule.
  • List of Languages
    • The schedule originally contained 14 languages. Currently, it has 22 languages.
    • Additions:
      1. Sindhi (21st Amendment Act, 1967)
      2. Konkani, Manipuri, Nepali (71st Amendment Act, 1992)
      3. Bodo, Dogri, Maithili, Santhali (92nd Amendment Act, 2003)
  • Benefits of Inclusion
    • Recognition from the Sahitya Akademi, India’s National Academy of Letters.
    • Candidates for all-India competitive examinations can use the language as a medium.
    • Members of Parliament and state assemblies can speak in the language.
    • Financial support from the government for the development and promotion of the language.
    • The recent proposal by the Odisha cabinet for the inclusion of the Kui language is part of an ongoing demand from various linguistic groups for recognition.

Prelims Pointers

  • Keshavananda Bharati Case:

    • The judgment was delivered on April 24, 1973.
    • The bench comprised 13 judges, the largest ever in the Supreme Court.
    • It propounded the Basic Structure Doctrine.
    • It overruled the Golaknath Case (1967).
    • Laws placed in the Ninth Schedule after April 24, 1973, are subject to judicial review on grounds of violating the basic structure.
    • The 44th Amendment Act, 1978, repealed Article 19(1)(f) and Article 31, and added Article 300-A, making the right to property a constitutional/legal right.
    • Article 31C was introduced by the 25th Amendment Act, 1971.

  • Lower Judiciary:

    • Provisions are in Articles 233 to 237 of the Constitution.
    • Appointment of District Judges (Article 233) is by the Governor in consultation with the High Court.
    • Eligibility for direct recruitment as a District Judge: Minimum 7 years as an advocate.
    • Control over subordinate judiciary vests in the High Court (Article 235).
    • Organisational structure and nomenclature are laid down by states.

  • Abrogation of Article 370:

    • Article 370 was a temporary provision.
    • Article 35A was introduced via a Presidential Order in 1954.
    • The state of J&K was bifurcated into two UTs: J&K (with legislature) and Ladakh (without legislature).
    • The bifurcation was done under Article 3 of the Constitution through the J&K Reorganisation Act, 2019.

  • NCT of Delhi:

    • Special status granted by the 69th Constitutional Amendment Act, 1991, which introduced Article 239AA.
    • The Delhi Assembly cannot legislate on Police, Public Order, and Land.
    • The GNCTD (Amendment) Act, 2023 established the National Capital Civil Service Authority (NCCSA).
    • NCCSA Composition: Chief Minister (Chair), Chief Secretary, Principal Home Secretary.
    • In case of a difference of opinion, the decision of the Lieutenant Governor (LG) is final.

  • Preventive Detention:

    • Constitutional provisions are in Article 22.
    • Protections under Article 22(1) and 22(2) are not available to detainees.
    • Maximum detention without Advisory Board approval is 3 months.
    • The Advisory Board consists of persons qualified to be High Court Judges.
    • Parliament has exclusive power for reasons of defence, foreign affairs, and security of India.
    • Both Parliament and States can legislate for reasons of state security, public order, and essential supplies.

  • Other Topics:

    • Personality Rights: Derived from Right to Privacy (Article 21) and protected under laws like the Copyright Act and Trademarks Act.
    • Hate Speech: Not defined in Indian law. Regulated by IPC sections like 153A and 295A.
    • Places of Worship Act, 1991: Cut-off date is August 15, 1947. The Ayodhya dispute was the sole exception.
    • Eighth Schedule: Contains 22 languages. Originally had 14. English is not one of the 22 languages.

Mains Insights

  • Keshavananda Bharati Judgement:

    1. Judicial Innovation vs. Overreach: The Basic Structure Doctrine is a prime example of judicial innovation to safeguard democracy. However, critics argue it’s an instance of judicial overreach, as the Constitution itself does not mention any such limitation on Parliament’s amending power, making the doctrine undemocratic and vague.
    2. A Living Constitution: The judgment established the Constitution as a living document that can adapt through amendments, but its fundamental identity and core principles must be preserved. It created a balance between the rigidity and flexibility of the Constitution.
    3. Parliamentary Sovereignty vs. Constitutional Supremacy: The entire evolution from Shankari Prasad to Keshavananda reflects the tussle between parliamentary sovereignty and constitutional supremacy. The verdict firmly established the supremacy of the Constitution, with the judiciary as its final interpreter.
    4. FR-DPSP Harmony: The case shifted the narrative from a conflict between Fundamental Rights and Directive Principles to one of harmony and balance. The Minerva Mills case later cemented this by stating that FRs and DPSPs are “two wheels of a chariot,” and to give absolute primacy to one over the other would disturb the harmony of the Constitution.

  • Lower Judiciary:

    1. Access to Justice: The independence and efficiency of the lower judiciary are critical for ensuring ‘access to justice’ for the common person. Its malfunctioning due to vacancies, poor infrastructure, and procedural delays erodes public faith in the rule of law.
    2. The Case for All India Judicial Service (AIJS): Proponents argue that an AIJS (on the lines of the IAS) would create a professional, meritocratic, and independent judicial cadre, attracting the best talent and ensuring uniformity. Opponents, including several states and High Courts, raise concerns about federalism, language barriers, and the infringement on the powers of High Courts.
    3. Executive vs. Judicial Independence: The complete separation of the judiciary from the executive (Article 50) is a DPSP. Vesting control over the subordinate judiciary in the High Court (Article 235) is a key mechanism to achieve this, but challenges remain in matters of funding and infrastructure, where the judiciary is dependent on the executive.

  • Abrogation of Article 370:

    1. Federalism and Constitutional Morality: The abrogation raises profound questions about Indian federalism. Critics argue that converting a full-fledged state into a Union Territory without the consent of its elected assembly undermines the federal principle. The manner in which it was done—using the powers of the assembly vested in Parliament during President’s rule—is debated on grounds of constitutional morality.
    2. Integration vs. Alienation: The government’s rationale was that Article 370 was an obstacle to J&K’s complete integration with India and its economic development. However, the long-term impact on the socio-political psyche of the region’s people and the potential for alienation remains a key concern.
    3. Judicial Deference: The Supreme Court’s verdict has been analyzed by some scholars as an example of judicial deference to the executive in matters of national security and policy. The court focused on the temporariness of the article and the legality of the procedure, while largely sidestepping the broader federal implications of downgrading a state.

  • NCT of Delhi (Amendment) Act, 2023:

    1. Electoral Mandate vs. Administrative Control: The Act creates a governance model where the elected government, accountable to the people of Delhi, has limited control over the bureaucracy responsible for implementing its policies. This breaks the chain of accountability and undermines the principle of representative democracy.
    2. Assault on Asymmetric Federalism: The Indian Constitution provides for asymmetric federal arrangements to accommodate specific regional needs (e.g., Article 371, NCT of Delhi). The 2023 Act is seen as a move towards centralisation that weakens the special, constitutionally-mandated status of Delhi.
    3. Legislative Overturning of Judicial Rulings: The Act is a direct legislative response to nullify a Supreme Court Constitution Bench judgment. While Parliament can legislate to remove the basis of a judgment, doing so to simply overturn a verdict on the interpretation of existing provisions raises concerns about the separation of powers.

Previous Year Questions

Prelims

  1. 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)

  2. Consider the following statements: (UPSC CSE 2021)

    1. ‘Right to the City’ is an agreed human right and the UN-Habitat monitors the commitments made by each country in this regard.
    2. ‘Right to the City’ gives every occupant of the city the right to reclaim public spaces and public participation in the city.
    3. ‘Right to the City’ means that the State cannot deny any public service or facility to the unauthorized colonies in the city. Which of the statements given above is/are correct? (a) 1 only (b) 3 only (c) 1 and 2 (d) 2 and 3 Answer: (c) (This question relates to the expanding interpretation of Article 21, similar to Personality Rights).

  3. 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 CSE 2021) (a) Article 14 (b) Article 28 (c) Article 32 (d) Article 44 Answer: (a) (This principle was central to challenging Land Reform Acts).

  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) (Article 300-A states “No person shall be deprived…”, making it available to any person, not just citizens).

  5. The Ninth Schedule was introduced in the Constitution of India during the prime ministership of: (UPSC CSE 2019) (a) Jawaharlal Nehru (b) Lal Bahadur Shastri (c) Indira Gandhi (d) Morarji Desai Answer: (a) (It was part of the First Amendment Act, 1951).

Mains

  1. “The most significant achievement of modern law in India is the constitutionalization of environmental problems by the Supreme Court.” Discuss this statement with the help of relevant case laws. (UPSC CSE 2022, GS Paper II) Answer Framework:

    • Introduction: Explain how the Supreme Court, through judicial activism, expanded the scope of Article 21 (Right to Life) to include the right to a clean and healthy environment, effectively ‘constitutionalizing’ environmental protection.
    • Evolution through Case Laws:
      • Start with the Dehradun Quarrying Case (Rural Litigation and Entitlement Kendra v. State of U.P., 1985), which was one of the first cases to link environment and the right to life.
      • Discuss the M.C. Mehta cases (Oleum Gas Leak, Ganga Pollution, etc.), which established key principles like ‘absolute liability’ and the ‘polluter pays’ principle.
      • Mention the Vellore Citizens’ Welfare Forum v. Union of India (1996) case, which declared the ‘precautionary principle’ and ‘polluter pays’ principle as part of the law of the land.
      • Explain how the court has used Public Interest Litigation (PIL) as a tool to address environmental issues.
    • Impact and Significance: Discuss how this judicial leadership filled a legislative and executive vacuum, leading to policy changes and increased public awareness.
    • Conclusion: Conclude by reiterating that the Supreme Court’s role has been monumental in transforming environmental jurisprudence in India, making it a fundamental right and a significant achievement of modern law.

  2. Discuss the role of the Vice-President of India as the Chairman of the Rajya Sabha. (UPSC CSE 2022, GS Paper II) Answer Framework:

    • Introduction: Briefly state the constitutional position of the Vice-President as the ex-officio Chairman of the Rajya Sabha (Article 64).
    • Roles and Responsibilities as Chairman:
      • Presiding Officer: Detail the primary role of presiding over the proceedings of the House, maintaining order and decorum.
      • Procedural Powers: Explain powers related to admitting questions, motions, giving rulings on points of order, and using a casting vote in case of a tie.
      • Guardian of Privileges: Describe the role in protecting the rights and privileges of the House and its members.
      • Administrative Head: Mention the role as the administrative head of the Rajya Sabha Secretariat.
      • Channel of Communication: Acts as the link between the House and the President.
    • Unique Position: Highlight that unlike the Speaker of the Lok Sabha, the Chairman is not a member of the House. Discuss how this affects their role (impartiality vs. lack of direct representation).
    • Conclusion: Summarize by stating that the Vice-President plays a crucial, non-partisan role as the Chairman of the Rajya Sabha, ensuring the smooth functioning of the Upper House, which is vital for India’s parliamentary democracy.

  3. To what extent, in your opinion, has the decentralisation of power in India changed the governance landscape at the grassroots? (UPSC CSE 2022, GS Paper II) Answer Framework:

    • Introduction: Introduce the concept of decentralisation through the 73rd and 74th Constitutional Amendment Acts as a revolutionary step to empower grassroots governance.
    • Positive Changes in Governance Landscape:
      • Political Empowerment: Discuss the creation of over 3 million elected representatives, including reservation for women, SCs, and STs, which has deepened democracy.
      • Participatory Governance: Explain how institutions like the Gram Sabha have enabled direct participation of citizens in decision-making.
      • Responsive Administration: Local governments are better positioned to identify and address local needs and problems.
      • Implementation of Schemes: Panchayati Raj Institutions (PRIs) have become key implementing agencies for central and state government schemes.
    • Challenges and Limitations:
      • The 3 Fs: Discuss the lack of devolution of Functions, Funds, and Functionaries from state governments.
      • Political Interference: Mention the role of MLAs/MPs and the issue of parallel bodies undermining PRIs.
      • Capacity Building: Lack of training and capacity among elected representatives.
      • Financial Dependence: Most PRIs are heavily dependent on state and central grants, lacking their own revenue sources.
    • Conclusion: Conclude that while decentralisation has fundamentally altered the governance landscape by creating democratic structures at the grassroots, its full potential is yet to be realised due to structural, financial, and political challenges.

  4. Discuss the desirability of greater representation for women in the higher judiciary to ensure diversity, equity and inclusiveness. (UPSC CSE 2021, GS Paper II) Answer Framework:

    • Introduction: Start with the current statistics showing the stark under-representation of women in the Supreme Court and High Courts, establishing the context for the discussion.
    • Arguments for Greater Representation (Desirability):
      • Equity and Fairness: As a matter of right, a body that represents the entire population should reflect its diversity.
      • Legitimacy of Judiciary: A more representative judiciary commands greater public trust and legitimacy.
      • Diversity of Perspectives: Women judges can bring different life experiences and perspectives to the bench, enriching judicial discourse, especially in cases concerning gender-based violence, family law, etc.
      • Inclusiveness: The presence of women in positions of power provides role models and can make the court environment less intimidating for women litigants and lawyers.
      • Substantive Justice: It can lead to a more balanced and empathetic application of the law.
    • Challenges to Achieving Representation:
      • Mention structural barriers in the legal profession: patriarchal attitudes, lack of supportive infrastructure, and issues with the collegium system’s transparency.
    • Conclusion: Conclude that greater representation for women in the higher judiciary is not just desirable but essential for ensuring a more equitable, diverse, and just legal system that reflects the constitutional values of equality and inclusiveness.

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

    • Introduction: Briefly explain the context: the 99th Constitutional Amendment and the NJAC Act were passed to replace the Collegium system for judicial appointments.
    • Supreme Court’s Judgment (Supreme Court Advocates-on-Record Association v. Union of India, 2015):
      • Grounds for Striking Down: The court struck down the NJAC Act as unconstitutional by a 4:1 majority. The primary reason was that the inclusion of the Union Law Minister and two ‘eminent persons’ in the appointment commission was seen as a threat to the ‘primacy of the judiciary’ in appointments, which the court held was a part of the ‘independence of the judiciary’, a basic feature of the Constitution.
    • Critical Examination of the Judgment:
      • Criticism of the Judgment: Argue that the judgment prioritized judicial independence over accountability and transparency. The Collegium system it revived is often criticized for being opaque, nepotistic (‘uncle-judge syndrome’), and lacking clear criteria. The fear of executive overreach was perhaps overstated, as the judiciary still had a majority in the proposed NJAC.
      • Support for the Judgment: Argue that the judgment was crucial to protect the judiciary from executive encroachment. Given the potential for a powerful executive to influence appointments, the NJAC could have compromised judicial independence, which is vital for upholding the rule of law and protecting fundamental rights.
    • Way Forward: Suggest reforms to the Collegium system, such as creating a permanent secretariat, establishing clear eligibility criteria, and enhancing transparency in its proceedings, as suggested by the court itself in its judgment (the ‘Memorandum of Procedure’).
    • Conclusion: Conclude that while the NJAC judgment successfully protected judicial independence from potential executive dominance, it also missed an opportunity for much-needed reform in judicial appointments. The challenge remains to strike a balance between judicial independence, accountability, and transparency.

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