GS Notes

3. Polity Notes 02

32 min read

Elaborate Notes

Right to Remain Silent

The Right to Remain Silent is a cornerstone of criminal jurisprudence, ensuring that an individual accused of a crime is not coerced into making self-incriminating statements. This right is not explicitly mentioned in the Constitution but is judicially derived from Article 20(3).

  • Constitutional Basis: The right emanates from Article 20(3) of the Indian Constitution, which states, “No person accused of any offence shall be compelled to be a witness against himself.” This is the Indian equivalent of the privilege against self-incrimination found in many legal systems, such as the Fifth Amendment to the U.S. Constitution. The core idea is to protect the accused from the duress and coercion of state machinery during investigation.
  • Judicial Interpretation and Expansion: The Supreme Court has played a pivotal role in defining the contours of this right.
    • In the landmark case of Nandini Satpathy v. P.L. Dani (1978), Justice V.R. Krishna Iyer delivered a seminal judgment that vastly expanded the scope of Article 20(3). The Court held that the protection against compelled testimony extends beyond the courtroom to the pre-trial stage, specifically during police interrogation. The Court clarified that “compelled testimony” includes not only physical torture but also psychological coercion, atmospheric pressure, and trickery. It ruled that an accused person has the right to keep silent when questioned by the police and that compelling them to answer could violate Article 20(3).
    • In Selvi & Ors. v. State of Karnataka (2010), the Supreme Court further solidified this right by holding that involuntary administration of techniques like narco-analysis, polygraph tests, and Brain Electrical Activation Profile (BEAP) tests on an accused constitutes “testimonial compulsion” and is a violation of Article 20(3).
  • Scope and Limitations: The protection is not absolute and has well-defined boundaries.
    • Criminal Proceedings Only: The right against self-incrimination under Article 20(3) is available only in respect of criminal proceedings. It cannot be claimed in civil proceedings or other non-criminal inquiries.
    • Inapplicability in certain statutory inquiries: The Supreme Court has held that this right is not available to a person being interrogated under statutes like the Customs Act, 1962, or the Foreign Exchange Management Act, 1999 (FEMA). The rationale, as established in cases like Ramanlal Bhogilal Shah v. D.K. Guha (1973), is that during the initial stages of inquiry under these acts, the person is not technically “accused of an offense” but is merely a person from whom information is being sought. Thus, they cannot claim the protection of Article 20(3), nor are they entitled to a lawyer during such interrogation as a matter of right under this article.

Reservations for the Locals in Private Sector

The debate around providing reservations for local residents in the private sector is a contentious issue, balancing the ideals of national unity and economic freedom against the pressures of local employment demands.

  • Constitutional Provisions for Reservations in Public Employment:
    • Article 16(4): This is an enabling provision that allows the State to make any provision for the reservation of appointments or posts in favour of “any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”
    • Article 16(3): This article is crucial to the ‘locals’ debate. It explicitly states that only the Parliament, by law, can prescribe any requirement as to ‘residence’ within a State or Union territory as a condition for employment under the government of that State or UT. This provision implicitly prohibits State Legislatures from making laws based on residence criteria for jobs.
  • Evolution of Reservation Policy:
    • The policy of affirmative action has deep historical roots, but its modern form was shaped significantly by the Mandal Commission. Established in 1979, its report identified socially and educationally backward classes. Based on its recommendations, the V.P. Singh government in 1990 implemented a 27% reservation for Other Backward Classes (OBCs) in central government jobs.
    • This was challenged in the Supreme Court, leading to the landmark Indra Sawhney & Ors v. Union of India (1992) judgment. The court upheld the 27% OBC reservation but introduced the ‘creamy layer’ concept (excluding affluent members of OBCs) and capped total reservations at 50%.
    • The 103rd Constitutional Amendment Act, 2019, further expanded the reservation framework by introducing a 10% quota for Economically Weaker Sections (EWS), which was upheld by the Supreme Court in Janhit Abhiyan v. Union of India (2022).
  • Legality of Local Reservation in the Private Sector:
    • Several states, like Haryana and Andhra Pradesh, have enacted laws mandating a fixed percentage (e.g., 75%) of jobs in the private sector for local candidates.
    • These laws have faced legal challenges, with High Courts often staying their implementation. The primary arguments against such laws are that they violate:
      • Article 19(1)(g): The right of citizens to practice any profession or carry on any occupation, trade, or business.
      • Article 14: Right to equality, by discriminating on the basis of place of birth/residence.
      • Article 16: Although Article 16 applies to public employment, its principles of non-discrimination are cited to argue against such parochialism.
      • The federal structure, as Article 16(3) vests the power to make residence-based laws exclusively with the Parliament.

Anti-Defection Law

The Anti-Defection Law, enshrined in the Tenth Schedule of the Constitution, was introduced to combat political instability caused by legislators switching parties for personal gain.

  • Historical Context: The law was a response to the “Aaya Ram, Gaya Ram” culture of the 1960s and 70s, where frequent floor-crossing by legislators destabilized elected governments. The phrase was coined after Gaya Lal, an MLA in Haryana, changed his party thrice in a single day in 1967.
  • Constitutional Amendment: The 52nd Amendment Act of 1985 added the Tenth Schedule to the Constitution, laying down the process and grounds for disqualifying a legislator for defection.
  • Grounds for Disqualification: A Member of Parliament (MP) or a Member of a Legislative Assembly (MLA) can be disqualified if:
    1. They voluntarily give up the membership of their political party. The Supreme Court in Ravi S Naik v. Union of India (1994) interpreted this to mean that formal resignation is not required; the conduct of a member can be inferred as giving up membership.
    2. They vote or abstain from voting in the House contrary to any direction (whip) issued by their political party, without obtaining prior permission or if such an act is not condoned by the party within 15 days.
    3. An independent member joins any political party after their election.
    4. A nominated member joins any political party after the expiry of six months from the date they take their seat in the House.
  • Exceptions from Disqualification:
    1. Merger: The law allows a political party to merge with another party, provided that at least two-thirds of its legislators are in favour of the merger. In such a scenario, neither the members who decide to merge nor those who stay with the original party face disqualification. The provision for a ‘split’ (requiring one-third of members) was deleted by the 91st Amendment Act, 2003, making defection more stringent.
    2. Presiding Officers: If a person is elected as the Speaker of the Lok Sabha, Deputy Speaker, Chairman of the Rajya Sabha, or their counterparts in state legislatures, they can resign from their party to maintain impartiality. They can rejoin the party after they cease to hold that office.
  • Deciding Authority and Judicial Review:
    • The authority to decide questions of disqualification on the ground of defection rests with the presiding officer of the House (Speaker or Chairman).
    • Initially, the 10th Schedule made the presiding officer’s decision final and immune from judicial review. However, in the landmark case of Kihoto Hollohan v. Zachillhu (1992), the Supreme Court struck down this provision, holding that while the presiding officer acts as a tribunal, their decision is subject to judicial review on grounds of mala fides, perversity, or violation of constitutional mandates.

Ordinance Making Power of President and Governor

Ordinances are a form of temporary legislation issued by the executive, intended to address urgent matters when the legislature is not in session.

  • Constitutional Provisions:
    • President: Article 123 empowers the President to promulgate Ordinances during the recess of Parliament.
    • Governor: Article 213 grants a similar power to the Governor of a state when the state legislature is not in session.
  • Historical Origins: The power can be traced back to the colonial era. The Indian Councils Act, 1861, first gave the Viceroy the power to issue ordinances in emergencies. This was retained in the Government of India Act, 1935, which served as a blueprint for Articles 123 and 213. In the Constituent Assembly, members like H.V. Kamath expressed apprehension about its potential misuse, but Dr. B.R. Ambedkar defended it as a necessary tool for the executive to deal with urgent situations.
  • Conditions and Duration:
    • An ordinance can be promulgated only when both Houses of Parliament (or the State Legislature) are not in session, or when either of the two Houses is not in session.
    • The President/Governor must be satisfied that circumstances necessitate immediate action.
    • An ordinance has the same force and effect as an Act of the Legislature. However, it is temporary.
    • It must be laid before both Houses upon their reassembly. It ceases to operate at the expiration of six weeks from the reassembly date. If the Houses reassemble on different dates, the six-week period is counted from the later date.
    • The maximum life of an ordinance is six months (maximum constitutional gap between two sessions) and six weeks, totalling approximately 7.5 months.
  • Limitations on Governor’s Power: A Governor cannot promulgate an ordinance without instructions from the President in three specific cases:
    1. If a bill containing the same provisions would have required the prior sanction of the President.
    2. If the Governor would have deemed it necessary to reserve a bill with similar provisions for the President’s consideration.
    3. If an Act of the state legislature with the same provisions would have been invalid without receiving the President’s assent.
  • Judicial Scrutiny:
    • The courts have progressively asserted their power of judicial review over ordinances.
    • In D.C. Wadhwa v. State of Bihar (1987), the Supreme Court strongly condemned the practice of re-promulgating ordinances without placing them before the legislature, calling it a “fraud on the Constitution” and a subversion of democracy.
    • In Krishna Kumar Singh v. State of Bihar (2017), the court reiterated that the satisfaction of the President/Governor is not immune from judicial review and that re-promulgation of ordinances is constitutionally impermissible.

PESA, 1996

The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA) is a landmark piece of legislation that formally recognizes the right of tribal communities to govern themselves through their own systems of self-government.

  • Background and Rationale: The 73rd Constitutional Amendment Act, 1992, which constitutionalised Panchayati Raj Institutions (PRIs), was not automatically applicable to the Fifth Schedule Areas. Recognizing the distinct socio-cultural and administrative needs of tribal areas, Article 243M empowered Parliament to extend Part IX’s provisions to these areas with suitable modifications.
  • Bhuria Committee: The Dileep Singh Bhuria Committee, constituted in 1994, provided recommendations for a legal framework that would respect the traditional rights and customs of tribal communities. The PESA Act, enacted in 1996, is based on these recommendations.
  • Key Provisions and Powers: PESA is often called a ‘Constitution within the Constitution’ because it provides a detailed framework for tribal self-governance.
    • It legally recognizes the Gram Sabha (village assembly) as the primary unit of governance, embodying participatory democracy.
    • The Gram Sabha is empowered to safeguard and preserve the traditions, customs, and cultural identity of the people.
    • Mandatory Powers of the Gram Sabha:
      1. Approval of plans, programmes, and projects for social and economic development before they are taken up for implementation by the Panchayat.
      2. Identification of beneficiaries under poverty alleviation and other programmes.
      3. Consultation is mandatory before land acquisition in Scheduled Areas for development projects.
      4. Recommendations of the Gram Sabha are mandatory for granting prospecting licenses or mining leases for minor minerals.
      5. The Gram Sabha is granted powers to regulate the sale/consumption of intoxicants, ownership of minor forest produce, prevent land alienation, manage village markets, and control money lending to Scheduled Tribes.
  • Implementation:
    • PESA is applicable to the Fifth Schedule Areas in 10 states: Andhra Pradesh, Telangana, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, and Rajasthan.
    • The Act is implemented through state-level Panchayati Raj Acts. However, its effectiveness has been hampered as several states have not framed the requisite rules or have framed rules that dilute the spirit of the Act. For instance, Jharkhand and Odisha had not framed their PESA rules for a long time.
    • The Ministry of Panchayati Raj is the nodal ministry for overseeing the implementation of PESA.

Centre-State Relations: Role of Governor

The Governor, as the constitutional head of the state and a representative of the Union government, plays a crucial role in Centre-State relations, particularly in the legislative process.

  • Assent to Bills (Article 200): When a bill is passed by the state legislature, it is presented to the Governor, who has four options:
    1. Give assent to the bill.
    2. Withhold assent to the bill.
    3. Return the bill (if it is not a Money Bill) for reconsideration by the legislature.
    4. Reserve the bill for the consideration of the President.
  • Time Limit for Action: The Constitution, under Article 200, does not prescribe any time limit for the Governor to act. It only states that the Governor should act “as soon as possible.” This ambiguity has led to instances where Governors have indefinitely delayed action on bills, effectively creating a “pocket veto,” a point of friction in Centre-State relations.
  • Reservation of Bills for the President (Article 201): When a bill is reserved for the President, the President can either give assent or withhold it. The President may also direct the Governor to return the bill to the state legislature with a message for reconsideration. If the state legislature passes the bill again (with or without amendments) and presents it back to the President, the President is not obligated to give assent. This is a significant difference from the President’s power regarding Union bills (under Article 111), where assent is mandatory if a reconsidered bill is passed again by Parliament.

Cooperative Federalism

Cooperative federalism describes a system where the central and state governments work in partnership to solve common problems, rather than operating in separate, rigid spheres. It emphasizes collaboration over competition.

  • Concept: Unlike ‘dual federalism’ which sees the Centre and States as two separate entities with distinct powers, cooperative federalism views them as partners in a collaborative endeavor for national progress. It represents a horizontal relationship of cooperation. Noted scholar Granville Austin described the Indian Constitution as an example of ‘Cooperative Federalism’.
  • Constitutional and Statutory Mechanisms:
    • Seventh Schedule: While it demarcates powers into Union, State, and Concurrent lists, the Concurrent List itself is a tool for cooperation where both levels of government can legislate.
    • All India Services (Article 312): Officers are recruited by the Centre but serve under State cadres, creating a bridge between the central and state administrations.
    • Inter-State Council (Article 263): Established to investigate and discuss subjects of common interest, make recommendations for better coordination of policy and action.
    • Zonal Councils: Statutory bodies established by the States Reorganisation Act of 1956 to promote cooperation among states and between states and the Centre on a zonal basis.
    • Finance Commission (Article 280): A constitutional body that recommends the distribution of financial resources between the Union and the States, fostering fiscal federalism.
    • GST Council (Article 279A): A prime example of cooperative federalism, where the Union and all States collectively decide on the Goods and Services Tax regime.
    • Full Faith and Credit Clause (Article 261): Ensures that public acts, records, and judicial proceedings of the Centre and every state are given full faith and credit throughout India.

Inter-State Water Disputes

Disputes over the sharing of waters of inter-state rivers are a recurring source of conflict in the Indian federation.

  • Constitutional Provisions:
    • Article 262: Empowers Parliament to make laws for the adjudication of disputes relating to the use, distribution, or control of waters of any inter-state river or river valley. Crucially, it also allows Parliament to bar the jurisdiction of the Supreme Court and other courts in respect of any such dispute.
    • Entry 17, State List: “Water, that is to say, water supplies, irrigation and canals, drainage…” This gives states legislative power over water within their territory.
    • Entry 56, Union List: “Regulation and development of inter-state rivers and river valleys…” This empowers the Union government to legislate on these matters in the larger public interest.
  • Statutory Framework: Acting under Article 262, Parliament has enacted two laws:
    1. River Boards Act, 1956: Provides for the establishment of river boards for the regulation and development of inter-state rivers. However, no river board has been formed so far.
    2. Inter-State Water Disputes (ISWD) Act, 1956: If a state government requests the Centre to refer a water dispute to a tribunal, and the Centre is of the opinion that the dispute cannot be settled by negotiations, it may set up a Water Disputes Tribunal for its adjudication. The decision of the tribunal is final and binding.
  • Role of Judiciary: While Article 262(2) bars the jurisdiction of courts, the Supreme Court, through Article 136 (Special Leave Petition), can hear appeals against a tribunal’s orders. The court can also intervene in cases of implementation of the tribunal’s award or if a state does not comply.

Judiciary: Appointment and Services

The process of appointing judges to the higher judiciary and the proposal for an All India Judicial Service are central to the discourse on judicial independence and reforms.

  • Judicial Appointments (Collegium System):
    • The appointment of judges to the Supreme Court and High Courts is governed by Articles 124(2) and 217 respectively.
    • The current method of appointment is the Collegium System, which is not mentioned in the Constitution but has evolved through a series of Supreme Court judgments, collectively known as the Three Judges Cases:
      1. First Judges Case (1981): Gave primacy to the executive, stating that the Chief Justice of India’s (CJI) consultation was not concurrence.
      2. Second Judges Case (1993): Overruled the 1981 verdict, introduced the Collegium system, and established the primacy of the judiciary. It held that ‘consultation’ really meant ‘concurrence’.
      3. Third Judges Case (1998): Expanded the Supreme Court Collegium to include the CJI and the four senior-most judges.
    • Process: The Supreme Court Collegium recommends names for appointment. For High Courts, the recommendation is initiated by the High Court Collegium (Chief Justice and two senior-most judges) and then sent to the SC Collegium for approval before being forwarded to the government.
  • All India Judicial Services (AIJS):
    • Concept: AIJS proposes a centralized recruitment process for judges at the level of Additional District Judges and District Judges for all states, similar to the All India Services (IAS, IPS).
    • Genesis: The idea was first mooted by the 14th Report of the Law Commission of India in 1958.
    • Constitutional Provision: The 42nd Amendment Act of 1976 inserted Article 312, which provides for the creation of an AIJS. However, it requires a substantive law to be passed by Parliament to establish the service. The resolution to create AIJS must be passed by the Rajya Sabha with a two-thirds majority.
    • Debate: Proponents argue it will ensure a transparent and merit-based recruitment process, attract talented individuals, and promote national integration. Opponents, including several states and High Courts, raise concerns about it infringing on federalism, issues of local language proficiency, and undermining the control of High Courts over the subordinate judiciary.

Prelims Pointers

  • Right to Remain Silent: Derives from Article 20(3) - protection against self-incrimination.
  • Landmark case expanding the right to the police interrogation stage: Nandini Satpathy v. P.L. Dani (1978).
  • Narco-analysis, polygraph tests are unconstitutional if conducted without consent: Selvi v. State of Karnataka (2010).
  • The right under Article 20(3) applies only to criminal proceedings.
  • It is not available during inquiries under the Customs Act, 1962 or FEMA, 1999.
  • Reservations:
    • Article 16(4) empowers the State to make reservations for inadequately represented backward classes in public jobs.
    • Article 16(3) empowers only the Parliament, not State Legislatures, to prescribe residence as a condition for public employment.
    • Mandal Commission (est. 1979) recommended 27% reservation for OBCs.
    • Indra Sawhney case (1992) upheld OBC reservation, set a 50% cap, and introduced the ‘creamy layer’ concept.
    • 103rd Amendment Act, 2019, provides for 10% EWS reservation.
  • Anti-Defection Law:
    • Introduced by the 52nd Amendment Act, 1985.
    • Added the Tenth Schedule to the Constitution.
    • Disqualification decided by the Presiding Officer of the House.
    • The decision of the Presiding Officer is subject to judicial review (Kihoto Hollohan case, 1992).
    • Exception for merger: requires at least two-thirds of legislators of a party to agree.
    • The ‘split’ provision was removed by the 91st Amendment Act, 2003.
  • Ordinance Power:
    • President: Article 123. Governor: Article 213.
    • Can be promulgated only when the legislature is in recess.
    • Must be laid before the legislature when it reassembles.
    • Ceases to be effective six weeks after the reassembly of the legislature.
    • Maximum life of an ordinance: 6 months and 6 weeks.
    • Re-promulgation was held unconstitutional in D.C. Wadhwa v. State of Bihar (1987).
  • PESA, 1996:
    • Full name: Provisions of the Panchayats (Extension to the Scheduled Areas) Act.
    • Based on the Dileep Singh Bhuria Committee recommendations.
    • Extends Part IX of the Constitution to Fifth Schedule Areas.
    • Nodal Ministry for implementation: Ministry of Panchayati Raj.
    • Applies to 10 states with Fifth Schedule Areas.
    • Mandates consultation with Gram Sabha for land acquisition and makes its recommendation mandatory for minor mineral leases.
  • Governor’s Role:
    • Article 200 deals with the Governor’s assent to bills.
    • Article 201 deals with bills reserved for the consideration of the President.
    • The Constitution does not specify a time limit for the Governor to act on a bill.
  • Cooperative Federalism:
    • Key mechanisms: Inter-State Council (Art 263), Zonal Councils (statutory), Finance Commission (Art 280), GST Council (Art 279A).
    • All India Services (Art 312) are an instrument of Centre-State cooperation.
  • Inter-State Water Disputes:
    • Article 262 empowers Parliament to provide for adjudication and bar court jurisdiction.
    • Key legislations: Inter-State Water Disputes Act, 1956, and River Boards Act, 1956.
  • Judiciary:
    • Collegium system evolved through the Three Judges Cases (1981, 1993, 1998).
    • All India Judicial Services (AIJS) is provided for under Article 312 (inserted by 42nd Amendment, 1976), but has not been established yet.

Mains Insights

The Dilemma of Reservation for Locals

  1. Constitutional and Legal Tangle:
    • Cause: Rising unemployment and regional aspirations push state governments to promise job quotas for locals.
    • Effect: Such laws often clash with fundamental rights (Article 14, 19(1)(g)) and the constitutional scheme where only Parliament can legislate on residence-based reservations (Article 16(3)). This leads to prolonged legal battles, creating uncertainty for both industries and job-seekers.
  2. Economic vs. Social Objectives:
    • Debate: Proponents argue it’s a tool for inclusive development and redressing regional imbalances. Opponents contend that it harms economic efficiency, undermines meritocracy, and can deter investment, thereby shrinking the overall job market. It contradicts the ‘One Nation, One Market’ principle.
    • Historiographical Viewpoint: The ‘Sons of the Soil’ doctrine has historically been a potent political tool, but its economic viability in a globalized economy is questionable. The focus should arguably shift from protectionism to enhancing the skills and employability of the local workforce.

Anti-Defection Law: A Flawed Remedy?

  1. Presiding Officer’s Role - Judge in Own Cause?:
    • Issue: The Speaker/Chairman, who often belongs to the ruling party, is the final arbiter. This creates a conflict of interest, leading to allegations of partisan decisions and deliberate delays.
    • Debate: The Supreme Court in Keisham Meghachandra Singh (2020) case suggested an independent tribunal to decide defection cases. Is it time to amend the Tenth Schedule to divest the Speaker of this quasi-judicial power to preserve the integrity of the office and the law?
  2. Curbing Dissent vs. Ensuring Stability:
    • Cause-Effect: The law was enacted to curb unprincipled defections and ensure governmental stability.
    • Unintended Effect: It has been criticized for stifling intra-party democracy by forcing legislators to adhere to the party whip on every matter, effectively reducing them to mere numbers. It prevents them from voting according to their conscience or the interests of their constituency. This subverts the principle of representative democracy.

Ordinance Raj: A Threat to Separation of Powers?

  1. Bypassing Legislative Scrutiny:
    • Analysis: While intended as an emergency provision, the ordinance-making power is frequently used by governments (both Centre and States) to pass laws on contentious issues, thereby avoiding debate and scrutiny in the legislature.
    • Impact on Governance: This practice undermines the legislature’s primary function of law-making, weakens democratic accountability, and represents an overreach of the executive into the legislative domain, disturbing the delicate balance of power.
  2. Judicial Pushback:
    • Historiography: The judiciary’s stance has evolved from one of deference to active scrutiny. The landmark verdicts in D.C. Wadhwa and Krishna Kumar Singh have established firm constitutional limits on the executive’s power to issue and re-promulgate ordinances, reasserting the supremacy of the legislative process.

PESA and the Challenge of Implementation

  1. Spirit vs. Letter:
    • Cause: While PESA is a progressive central law, its implementation depends on state governments framing conforming rules.
    • Effect: Many states have either delayed framing rules or have enacted laws that dilute the powers of the Gram Sabha, especially concerning control over resources like ‘minor minerals’ and land. This bureaucratic and political resistance defeats the very purpose of the Act.
  2. Conflict of Laws and Development Models:
    • Debate: PESA’s model of decentralized, community-led governance often clashes with the top-down development model promoted by other central and state laws (e.g., mining laws, forest conservation laws). This creates a legal and administrative conflict zone, where tribal rights are pitted against so-called ‘national interest’ projects. Reconciling these conflicting paradigms is the central challenge to achieving both development and social justice in Scheduled Areas.

Previous Year Questions

Prelims

  1. With reference to the provisions contained in Part IV of the Constitution of India, which of the following statements is/are correct? (UPSC 2020)

    1. They shall be enforceable by courts.
    2. They shall not be enforceable by any court.
    3. The principles laid down in this part are to influence the making of laws by the State. Select the correct answer using the code given below: (a) 1 only (b) 2 only (c) 1 and 3 only (d) 2 and 3 only Answer: (d) 2 and 3 only. Explanation: Directive Principles of State Policy (Part IV) are non-justiciable (not enforceable by courts) but are fundamental in the governance of the country and it is the duty of the State to apply these principles in making laws.

  2. A parliamentary system of government is one in which (UPSC 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. Explanation: This is the core principle of a parliamentary system, also known as responsible government. The executive (Council of Ministers) is drawn from and is collectively responsible to the legislature (Parliament).

  3. Rajya Sabha has equal powers with Lok Sabha in (UPSC 2020) (a) the matter of creating new All India Services (b) amending the Constitution (c) the removal of the government (d) making cut motions Answer: (b) amending the Constitution. Explanation: A Constitutional Amendment Bill must be passed by both Houses separately with the required special majority. Rajya Sabha has special powers in creating new All India Services (Article 312). Lok Sabha has primary power in the removal of government (no-confidence motion) and cut motions, which are related to financial matters.

  4. In India, which one of the following reviews the independent regulators in sectors like telecommunications, insurance, electricity, etc.? (UPSC 2019)

    1. Ad Hoc Committees set up by the Parliament
    2. Parliamentary Department Related Standing Committees
    3. Finance Commission
    4. Financial Sector Legislative Reforms Commission
    5. NITI Aayog Select the correct answer using the code given below. (a) 1 and 2 (b) 1, 3 and 4 (c) 3, 4 and 5 (d) 2 and 5 Answer: (a) 1 and 2. Explanation: Parliamentary committees, both ad hoc and standing, are the primary mechanisms through which Parliament exercises oversight over the executive and its agencies, including independent regulators.

  5. With reference to the Constitution of India, consider the following statements: (UPSC 2019)

    1. No High Court shall have the jurisdiction to declare any central law to be constitutionally invalid.
    2. An amendment to the Constitution of India cannot be called into question by the Supreme Court of India. 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: (d) Neither 1 nor 2. Explanation: Statement 1 is incorrect; High Courts have the power of judicial review over central laws (Article 226). This power was briefly taken away by the 42nd Amendment but was restored. Statement 2 is incorrect; the Supreme Court can strike down a constitutional amendment if it violates the ‘basic structure’ of the Constitution, as established in the Kesavananda Bharati case (1973).

Mains

  1. “The role of the Governor is of a sagacious counsellor, mediator and arbitrator rather than that of an active politician.” In the light of recent controversies, discuss the need for reforms in the appointment and functioning of the Governor’s office to uphold constitutional morality. (UPSC GS Paper-II, Similar theme appeared in various years) Answer Outline:

    • Introduction: Briefly explain the dual role of the Governor as the constitutional head of the state and a link between the Centre and the State, as envisaged by the Constitution makers. Quote the Sarkaria Commission’s view on the Governor’s role.
    • Controversies Highlighting Politicization:
      • Appointment: Appointment of active politicians or retired bureaucrats loyal to the ruling party at the Centre.
      • Discretionary Powers: Controversial use of discretion in recommending President’s Rule (Article 356), appointing Chief Ministers in case of a hung assembly, and reserving bills for the President’s consideration (Article 200).
      • Recent Examples: Mention recent instances from states like Maharashtra, Karnataka, West Bengal, Kerala where the Governor’s actions have been questioned for political bias.
    • Need for Reforms to Uphold Constitutional Morality:
      • Appointment Process: Implement recommendations of commissions like Sarkaria (consultation with the Chief Minister), Punchhi (committee-based selection).
      • Security of Tenure: The doctrine of ‘pleasure of the President’ should not be misused for political reasons.
      • Codifying Discretion: Lay down clear, constitutionally-mandated guidelines for the exercise of discretionary powers, especially in appointing a CM.
      • Time-bound decisions: Prescribe a time limit for Governors to act on bills passed by the legislature to prevent ‘pocket vetoes’.
    • Conclusion: Reiterate that for cooperative federalism and constitutional morality to thrive, the Governor’s office must be restored to its intended stature of an impartial constitutional authority.

  2. The Tenth Schedule of the Indian Constitution has been effective in curbing open defections but has failed to address the more subtle and subversive aspects of political instability. Critically analyze. (UPSC GS Paper-II, Theme frequently tested) Answer Outline:

    • Introduction: Briefly state the purpose of the Tenth Schedule (Anti-Defection Law) - to curb the ‘Aaya Ram, Gaya Ram’ phenomenon and ensure stability.
    • Successes of the Law:
      • It has made individual, open-ended defections for personal gain more difficult.
      • It has provided a degree of stability to governments by ensuring party discipline.
    • Failures and Subversive Trends:
      • Wholesale Defections: The law legitimizes mass defections through the ‘merger’ provision (2/3rd members), which is often engineered.
      • Role of the Speaker: Partisan and delayed decision-making by the Speaker allows defectors to enjoy the perks of power.
      • Resignation as a Loophole: Members resign to topple a government and then seek re-election on the new ruling party’s ticket, bypassing disqualification.
      • Stifling Dissent: The law curtails the freedom of speech of legislators and prevents them from voting based on conscience, turning them into delegates of the party high command.
    • Suggestions for Reform:
      • Recommendations from the Dinesh Goswami Committee, Law Commission to limit the whip’s applicability.
      • Supreme Court’s suggestion for an independent tribunal to decide defection cases.
      • Plugging the resignation loophole.
    • Conclusion: Conclude that while the Tenth Schedule was a necessary step, it requires significant reforms to address its unintended consequences and adapt to new forms of political maneuvering, thereby strengthening rather than weakening democracy.

  3. To what extent is the Inter-State Council, established under Article 263 of the Constitution, effective in resolving disputes between states and fostering cooperative federalism? (UPSC GS Paper-II, Based on federalism theme) Answer Outline:

    • Introduction: Explain the constitutional basis (Article 263) and purpose of the Inter-State Council (ISC) as a forum for consultation and coordination, as recommended by the Sarkaria Commission.
    • Effectiveness and Positive Role:
      • Provides a platform for dialogue between the Centre and States, and among States themselves.
      • Has made recommendations on important issues like Governor’s role, Article 356, and financial relations.
      • Helps build consensus and promotes a culture of cooperation, moving away from confrontation.
    • Limitations and Ineffectiveness:
      • Advisory Nature: Its recommendations are not binding, which limits its impact.
      • Irregular Meetings: The ISC has not met regularly, undermining its relevance and continuity.
      • Lack of Political Will: Often, its recommendations are not implemented in spirit by the governments.
      • Alternative Forums: Emergence of other forums like NITI Aayog’s Governing Council and GST Council has somewhat overshadowed the ISC.
    • Measures to Strengthen the ISC:
      • Make its meetings more regular (as recommended by the Punchhi Commission).
      • Establish a strong permanent secretariat.
      • Develop mechanisms to ensure greater follow-up and implementation of its recommendations.
    • Conclusion: Conclude that while the ISC is a constitutionally sound mechanism for cooperative federalism, its potential has been underutilized. Revitalizing it is crucial for managing the complexities of India’s federal polity.

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

    • Introduction: Briefly explain the transition from executive primacy to judicial primacy (Collegium System) in judicial appointments through the Three Judges Cases. Mention the 99th Amendment and NJAC Act as Parliament’s attempt to reform this system.
    • Provisions of the NJAC Act, 2014:
      • Composition of the NJAC: CJI (Chairperson), two senior-most SC judges, the Union Law Minister, and two ‘eminent persons’.
      • The ‘eminent persons’ were to be nominated by a committee comprising the PM, CJI, and Leader of the Opposition.
      • The NJAC was to recommend appointments and transfers. A veto power was given to any two members.
    • Supreme Court’s Judgment (Fourth Judges Case, 2015):
      • The SC struck down the 99th Amendment and the NJAC Act as unconstitutional.
      • Reasoning: The court held that the inclusion of the Law Minister and eminent persons in the appointment process compromised the ‘primacy of the judiciary’, which is a part of the ‘independence of the judiciary’, in turn a ‘basic feature’ of the Constitution. The veto power for non-judicial members was seen as a significant threat to judicial independence.
    • Critical Examination of the Judgment:
      • Arguments for the judgment: Upholds judicial independence from executive interference, which is crucial for rule of law. Prevents politicization of appointments.
      • Arguments against the judgment: The Collegium system it restored is criticized for being opaque, non-transparent, and prone to nepotism (‘uncle judges’ syndrome). NJAC aimed to bring in accountability and transparency. The judgment is seen by some as an instance of judicial overreach.
    • Conclusion: Conclude by stating that while the SC’s concern for judicial independence is valid, the judgment highlighted the need for reform within the judiciary itself. The debate continues on finding a model that balances judicial independence with transparency and accountability. A reformed Collegium (with a permanent secretariat and clear criteria, as suggested in the Memorandum of Procedure) or a new, constitutionally sound appointment body remains the need of the hour.

  5. Resorting to the ordinance route for law-making is a subversion of the democratic process and violates the spirit of the Constitution. Do you agree? Justify your answer with relevant case laws. (UPSC GS Paper-II, Based on ordinance theme) Answer Outline:

    • Introduction: Define the ordinance-making power under Articles 123 and 213 as an extraordinary legislative power of the executive, intended for urgent situations when the legislature is in recess.
    • Arguments for Agreeing with the Statement (Subversion of Democracy):
      • Bypasses Legislature: It allows the executive to make laws without debate, discussion, and scrutiny by the elected representatives of the people, which is the hallmark of a parliamentary democracy.
      • Violation of Separation of Powers: It represents an encroachment of the executive into the legislative domain, disturbing the constitutional balance.
      • Misuse for Controversial Laws: Governments often use this route to push through controversial legislation, fearing opposition in the Parliament.
      • Practice of Re-promulgation: The repeated re-issuing of ordinances without getting them ratified by the legislature is a blatant abuse of power.
    • Justification with Case Laws:
      • D.C. Wadhwa v. State of Bihar (1987): The Supreme Court strongly condemned the re-promulgation of ordinances by the Bihar government, calling it a “fraud on the Constitution” and a “subversion of the democratic process.”
      • Krishna Kumar Singh v. State of Bihar (2017): The court held that the power to issue ordinances is not a substitute for legislative power and that every ordinance must be placed before the legislature. It affirmed that re-promulgation is constitutionally impermissible.
    • Counter-argument (Necessary Provision):
      • Acknowledge that the Constituent Assembly included this provision for genuine emergencies and unforeseen circumstances requiring immediate legislative action when the Parliament is not in session.
    • Conclusion: Conclude that while the ordinance-making power itself is a constitutional provision, its frequent and routine use, especially the practice of re-promulgation, is indeed a subversion of democracy. The power should be used sparingly, as an exception, not the rule, adhering to the strict checks and balances laid down by the Supreme Court.

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