What is helicopter money?

With no quick escape in sight for Covid-ravaged economies, authorities the world over are going back to the drawing board to find strategies to deal with this nightmare.

One such strategy doing the rounds is 'helicopter money'. It basically means non-repayable money transfer from the central bank to the government. It seeks to goad people into spending more and thereby boost the sagging economy.

Here we attempt to answer a few relevant questions about helicopter money.
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Read more at:
https://economictimes.indiatimes.com/https://economictimes.indiatimes.com/news/et-explains/what-is-helicopter-money-and-why-is-it-in-news/articleshow/75106564.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

Helicopter money is the term used for a large sum of new money that is printed and distributed among the public, to stimulate the economy during a recession or when interest rates fall to zero. It is also referred to as a helicopter drop, in reference to a helicopter scattering supplies from the sky.

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Helicopter money vs quantitative easing

Helicopter money is an unconventional alternative to quantitative easing, but both aim to boost consumer spending and increase inflation. While helicopter money increases monetary supply by distributing large amounts of currency to the public, quantitative easing increases supply by purchasing government or other financial securities to spark economic growth.

Examples of helicopter money

If a country faces slow or no growth, it could consider a helicopter drop. For example, in 2016, Japan considered using helicopter money to assist with the country’s slowing growth.
Financial markets showed concerned with the decision, as participants feared hyperinflation and currency devaluation. So, the Bank of Japan (BoJ) opted for an alternative method to increase monetary supply. This included different partnerships and purchases such as government bonds, infrastructure outlays and payments to lower-income earners.

Pros and cons of helicopter money

Pros of helicopter money

Helicopter money does not rely on increased borrowing to fuel the economy, which means that it doesn’t create more debt and interest rates can remain unchanged. Generally, helicopter money boosts spending and economic growth more effectively than quantitative easing because it increases aggregate demand – the demand for goods and services – immediately.
While government money drops that come from debt might not boost consumer spending, due to the debt needing to be repaid, it is often thought that ‘money finance’ will stimulate the economy.

Cons of helicopter money

Unlike quantitative easing, using helicopter money as a tactic is not reversible, and many argue that it’s not a feasible solution to revive the economy.
A country’s central bank sets its interest rates to reach economic growth targets. However, a helicopter drop means that a central bank cannot use interest rates to recover any costs, because the money is not linked to a borrowed asset (loan). Instead, the money is given directly to the public. This may lead to over-inflation and cause damage to the central bank’s financials.
One of the main risks associated with helicopter money is that it could lead to a significant devaluation of the currency on the foreign exchange market. As more money is printed and supply increases, the value of the domestic currency could significantly decrease. It could also discourage speculators from buying the currency as it is less likely to perform well.

With no quick escape in sight for Covid-ravaged economies, authorities the world over are going back to the drawing board to find strategies to deal with this nightmare.

One such strategy doing the rounds is 'helicopter money'. It basically means non-repayable money transfer from the central bank to the government. It seeks to goad people into spending more and thereby boost the sagging economy.

Here we attempt to answer a few relevant questions about helicopter money.
..

Read more at:
https://economictimes.indiatimes.com/news/et-explains/what-is-helicopter-money-and-why-is-it-in-news/articleshow/75106564.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

April 29, 2020 1 Comments

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Basics of the Fundamental Rights

It covered in the Part III of the Indian Constitution (Under article 12 to article 35). It has largely been incorporated from Bills of Rights of USA constitution and also called as Magna Carta of Indian Constitution because it is Justiciable or Enforceable in a court of law. This is the elaborated fundamental rights description in entire world.

They do not do any discrimination among the citizens of India on the base of colour, religion, sex etc. It holds the equality of all individuals, the dignity of the individual, the larger public interest and unity of the nation. It promotes ideal of political democracy and prevent the establishment of an authoritarian despotic rule in the country, and protect the liberties and freedoms of the people against the invasion by the State.

It also aim at establishing 'a government of laws and not of men'. Rule of law has three components i.e. Supremacy, Classes to same law and Impartial and powerful judiciary.

Why the Fundamental Rights are Fundamental?

Because they cover the basic of fundamental needs of citizen and are guaranteed and protected by the Constitution, which is the fundamental law of the land. It form the back bone, core and soul of constitution (Fundamental Rights + Directive Principles of State Policy). They are most essential for the all-round development (material, intellectual, moral and spiritual) of the individuals.

Originally, the Constitution provides for Seven Fundamental Rights:

Right to Equality (Articles 14 to 18)
Right to Freedom (Articles 19 to 22)
Right against Exploitation (Articles 23 to 24)
Right to Freedom of Religion (Articles 25 to 28)
Cultural and Educational rights (Articles 29 to 30)
Right to property (Article 31) : It was deleted by the 44th Amendment Act 1978. IT is made under legal right under Article 300-A in Part XII of the Constitution.
Right to Constitutional Remedies (Article 32): According to father of Indian Constitution Dr. B.R. Ambedkar, Right to enforce Right since itself is fundamental, supreme court can not refuse you to entertain the Right.

So at present, there are only Six Fundamental Rights.

Features of Fundamental Rights

Some are available only to citizen (15,16,19.29,30), rest are available to both citizen and aliens (except enemy aliens). It is not absolute but qualified (reasonable restrictions decided by the courts). Strike a balance between the rights of the individual liberty and social control. It deals with most of the area against state's arbitrary action, so when such rights are violated by the private individuals, there are no constitutional remedies but only legal remedies.

Some negative rights (like place limitations on State), while others positive in nature (like conferring certain privileges on the persons). Justiciable, allowing persons to move the courts for their enforcement as they are defended and guaranteed by the Supreme Court (Article 32), if and when they are violated. They are not sacrosanct or permanent. Change can be done by CAA (not covered in basic structure of constitution). They can be Suspended during National Emergency except 20, 21. Six rights of Article 19 can be suspended only when emergency is declared on the grounds of war or external aggression (i.e. external emergency) and not on the ground of armed rebellion (i.e. internal emergency).

Limitated by Article 31A (saving of laws providing for acquisition of estates, etc.), Article 31B (validation of certain acts and regulations included in the 9th Schedule) and Article 31C (saving of laws giving effect to certain directive principles). Their application to the members of armed forces, para-military forces, police forces, intelligence agencies and analogous services can be restricted or abrogated by the Parliament (Article 33).

Fundamental Rights restricted while martial law is in force (not national emergency). Military rule imposed under abnormal circumstances to restore order (Article 34). Mostly it is directly enforceable (self-executory) while certain rights like 21A (Right to Education) can be enforced on the basis of a law made for giving effect to them. Such a law can be made only by the Parliament and not by state legislatures (to maintain a uniform standard in entire nation) (Article 35).

Article - 33 : Armed Forces & Fundamental Rights

It empowers the Parliament to restrict or abrogate the FRs of the members of armed forces, para-military forces, police forces, intelligence agencies etc. (include employees who are non-combatants), done for proper discharge of their duties and the maintenance of discipline. Under the law, only Parliament can make laws to give the effect to them (Article 19), it cannot be challenged on violation of any of the fundamental rights.

A parliamentary law enacted under Article 33 can also exclude the court martial (tribunals established under the military law) from the writ jurisdiction of the Supreme Court and the high courts, so far as the enforcement of Fundamental Rights is concerned.

Article - 34 : Martial Law

It imposes restrictions on fundamental rights while martial law is in force in any area within the territory of India. Empower the Parliament to indemnify any government servant or others for any act done by him in connection with the maintenance or restoration of order in any area where martial law was in force. So, Act of Indemnify made by the Parliament beyond Judicial Review only on violation of the fundamental rights.

Martial Law: (military rule) Not described in Indian Constitution. Civil administration is run by the military authorities according to their own rule and regulations framed outside the ordinary law, implying suspension of ordinary law and the government by military tribunals. It is imposed under the extraordinary circumstances like war, invasion, insurrection, rebellion, riot or any violent resistance to law to repel force by force for maintaining or restoring order in the society.

Abnormal powers including imposing restrictions and regulations on the rights of the civilians, can punish the civilians and even condemn them to death. The Supreme Court held that the declaration of martial law does not ipso facto result in the suspension of the writ of habeas corpus.

Difference with respect to National Emergency

Martial law affect only Fundamental Rights, while national Emergency is broader in scope affecting Centre State Relationship, Fundamental Rights, Legislative powers, Revenue distribution.
Military law suspends ordinary law, But courts and government continues in National Emergency.
Martial law imposed to restore the breakdown of law and order due to any reason, while National Emergency can be imposed only on three grounds (Article 352) i.e. War, External aggregation or Armed rebellion.
Martial law is always imposed only in some area of the country but National Emergency can be in some area or the entire country.

Article 35 : Laws for Effecting Fundamental Rights

Power to make laws, to give effect to certain specific fundamental rights shall vest only in the Parliament and not in the state legislatures, even if under state list to ensure uniformity throughout India.

Prescribing residence as a condition under Article 16.
Empowering courts other than the Supreme Court and the High Courts to issue directions, orders and writs of all kind for the enforcement of fundamental rights (Article 32).
Restricting or abrogating the application of Fundamental Rights to members of armed forces etc. (Article 33)
Indemnifying any government servant or any other person for any act done during the operation of martial law in any area (Article 34).

Parliament can also make laws for prescribing punishment for those acts that are declared to be offences under the fundamental rights. These include the following:

Untouchability - (Article 17)
Traffic in human beings and forced labour - (Article 23)
Law before independence will continue as such

Definition of State : (Article - 12)

It includes Government and Parliament of India, that is, executive and legislative organs of the Union Government. Government and legislature of states, that is, executive and legislative organs of state government. All local authorities, that is, municipalities, panchayats, district boards, improvement trust etc. All other authorities, that is, statutory or non-statutory authorities like LIC, BHEL, SAIL, GAIL etc. or even a private body or an agency working as an instrument of the State.

It is the actions of these agencies that can be challenged in the courts as violating the Fundamental Rights.

Article - 13 : Laws inconsistent with Fundamental Rights

Doctrine of Judicial Review: All law that are inconsistent with or in derogation of any of the fundamental rights shall be void. Supreme Court (Article 32), High Court (Article 226) can declare a law unconstitutional and invalid on the ground of contravention of any of the Fundamental Rights.

Law:

Permanent laws enacted by the Parliament or the State Legislatures'
Temporary laws like ordinances issues by the president of the state governors;
Statutory instruments in the nature of delegated legislation (executive legislation) like order, bye-law, rule, regulation or notification; and
Non-legislative sources of law, that is, custom or usage having the force of law.

Article - 13: with respect to Constitutional Amendment Act

Constitutional Amendment Act is not a law and hence cannot be challenged, it was the position till 24th April 1973. However, the Supreme Court held in the Kesavananda Bharti case (1973) that a Constitutional Amendment Act can be challenged on the ground that it violates a fundamental right that forms a part of the 'basic structure' of the Constitution and hence, can be declared as void.

Article - 32: Right to Constitutional Remedy

According to Dr. B.R. Ambedkar, mere declaration of fundamental right is meaningless without providing a effective machinery for their enforcement. Hence, Article 32 : right to remedies for the enforcement of the fundamental rights of an aggrieved citizen.

Right to get the Fundamental Rights protected is in itself a fundamental right making the fundamental rights real. That is why Dr. Ambedkar called Article 32 as the very heart and soul of the Constitution - 'an Article without which this constitution would be a nullity'. Supreme Court (under Article 32) : is a basic feature of the Constitution, hence it cannot be abridged or taken away even by way of an amendment to the Constitution.

Article 32 contains the following four provisions:

The right to move the Supreme Court by appropriate proceedings for the enforcement of the Fundamental Rights is guaranteed.
The Supreme Court shall have power to issue directions or orders or writs any of the fundamental rights.
Parliament can empower any other court to issue directions, orders and writs of all kinds (not HC, already under 226).
The right to move the Supreme Court shall not be suspended except by President during a national emergency (Article 359).
Supreme Court has been vested with the 'original' (direct approach with or without appeal) and 'wide' (not only orders, directions but also writs) powers for to provide a guaranteed, effective, expedious, inexpensive and summary remedy for the protection of the fundamental rights.
Only Fundamental Rights can be enforced under Article 32 and not any other like non-fundamental constitutional rights, statutory rights, customary rights etc.
Jurisdiction of the Supreme Court is original but not exclusive. It is concurrent with the jurisdiction of the high court Article 226. (direct approach to High Court or Supreme Court). Where relief through high court is available under Article 226, the aggrieved party should first move the high court.

Writs are total five in number:

Supreme Court (32) and the High Court (226) can issue writs of habeas corpus, mandamus, prohibition, certiorari and quo-warranto.
Parliament (under Article 32) can be empower any other court to issue these writs (not done till date).
Power with respect to writ jurisdiction
- Limited to fundamental rights for supreme court (narrower), but both fundamental rights and Legal rights for High Courts.
- For Supreme Court territory is wider as includes entire India
- High Court may refuse to issue writs and 226 is not fundamental right, but Article 32 being a fundamental right itself, Supreme Court cannot (Hence, Supreme Court is ultimate defender and guarantor of fundamental rights.

Habeas Corpus: 'to have the body of'. Order issued by the court to a person who has detained another person, to produce the body of the latter before it. Examines the cause and legality of detention. Set free it detention is found to be illegal. Protection of individuality liberty against detention.
- It is both against State and Private Citizen and Principle of Locus Standi does not apply. Writ is not issued (a) lawful, (b) contempt of a legislature or a court, (c) detention is by a competent court, (d) outside the jurisdiction of the court.
Mandamus: 'we command'. It is a command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform.
- Filed only by aggrieved person (Principle of Locus Standi applies).
- The writ of mandamus cannot be issued (a) against a private individual or body; (b) to enforce departmental instruction that does not possess statutory force; (c) when the duty is discretionary and not mandatory; (d) to enforce a contractual obligation; (e) against the president, governor, chief justice of a high court acting in judicial capacity.
Prohibition: 'to forbid'. It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding/usurping its jurisdiction.
- The writ of prohibition can be issued only against judicial and quasi-judicial authorities.
Certiorari: 'to be certified/informed'. It is issued by a higher to a lower court/tribunal either to transfer a case or to squash the order. It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law. Thus, unlike prohibition, which is only preventive, certiorari is both preventive as well as curative.
- Till recently, the writ of certiorari could be issued against judicial, quasi-judicial authorities and administrative authorities. Like prohibition, certiorari is also not available against legislative bodies and private individuals or bodies.
Quo-warranto: 'by what authority or warrant'. It is issued by the court to enquire into the legality of claim of a person to a public office, preventing illegal usurpation of public office by a person.
- The writ can be issued only in case of a substantive public office of a permanent character created by a statue of by the Constitution. It cannot be issued in cases of ministerial office or private office.

Present Position of Right to Property

Originally fundamental rights Article 19(1)(f) guaranteed to every citizen the right to acquire, hold and against deprivation of his property. State can acquire on two conditions: (a) it should be for public purpose, and (b) it should provide for payment of compensation (amount) to the owner.

Lot of controversy merged. Many amendments done which introduced Article 31 A, B, C to prevent Judicial Review of certain laws. So, finally 44th CAA, 1978 removed repeating Article 19(1)(f) and Article 31 from Part III. Article 300A in Part XII under the heading 'Right to Property'. It provides that no person shall be deprived of his property except by authority of law. Thus, the right to property still remains a legal and a constitutional right. Not a Fundamental Right as it is not a part of the basic structure of the Constitution.

It can be regulated i.e. curtailed, abridged or modified merely by an ordinary law of the Parliament (no CAA needed).
Protection only against executive action (not legislative).
No Guaranteed right to compensation in case of acquisition or requisition of the private property by the state.

But since the law has been introduced now; so it cannot be done.

What is the Exception to state acquisition

These are the two cases where compensation is guaranteed in case of acquisition requisition of the private property by the Stat are:

Whe the State acquires the property of a majority educational institution (Article 30); and
When the State acquires the land by a person under his personal cultivation and the land is within the statutory ceiling limits (Article 31 A).

List of the Articles 12-35

12. Definition of State
13. laws inconsistent with or in derogation of the Fundamental Rights.
Right to Equality
14. Equality before law
15. Prohibition of discrimination on grounds of religion, race, caste, sex or birth place
16. Equality of opportunity in matters of public employment
17. Abolition of untouchability
18. Abolition of titles
Right to Freedom
19. Protection of certain rights regarding freedom of speech, etc.
20. Protection in respect of conviction for offences
21. Protection of life and personal liberty
21A. Right to education
22. Protection against arrest and detention in certain cases
Right Against Exploitation
23. Prohibition of traffic in human being and forced labour
24. Prohibition of employment of children in factories, etc.
Right to Freedom of Religion
25. Freedom of conscience and free profession, practice and propagation of religion
26. Freedom to manage religious affair
27. Freedom as to payment of taxes for promotion of any particular religion
28. Freedom as to attendance at religious instruction or religious worship in certain educational institutions
Cultural and Educational Rights
29. Protection of interests of minorities
30. Right of minorities to establish and administer educational institutions
31. Compulsory acquisition of property - (Repealed)
Saving of Certain Laws
31A. Saving of laws providing for acquisition of estates, etc.
31B. Validation of certain Acts and Regulations
31C. Saving of laws giving effect to certain directive principles
31D. Saving of laws in respect of anti-national activities - (Repealed)
Right to Constitutional Remedies
32. Remedies for enforcement of rights conferred by this part
32A. Constitutional validity of State laws not to be considered in proceedings under Article 32 - (Repealed)
33. Power of Parliament to modify the rights conferred by this part in their application to forces, etc.
34. Restriction on rights conferred by this part while martial law is in force in any area
35. Legislation to give effect to the provisions of this part

Article 14 - Equality before Law and Equal Protection of Laws

There is not a fundamental difference in the motive, motive is to upheld laws and the natural justice. However, there is a fundamental difference in the way they approach it.

State shall not deny to any person (means legal person and includes citizen, foreigners, corporation, companies, registered societies) equality before the law or the equal protection of the laws within the territory of India. (Rule of Law: basic feature of Indian Constitution, hence no amendment).
Equality Before Law: (a) Absence of any special privileges, (b) all persons are subjected to the same ordinary law of the land administered by ordinary law courts, and (c) no person (whether rich or poor, high or low, official or non-official) is above the law.

So, these are the provisions of Equality before Law and it is also called as Rule of law.
Equal Protection of Law

Positive concept from USA and it deals with equality of treatment under equal circumstances, both in the privileges conferred and liabilities imposed by the laws. Similar application of the same laws to all persons who are similarly situated.

Exceptions

President and Governor (Article - 361)
not answerable to any court for the exercise of the powers and duties of their office
no criminal proceedings or arrest warrant against them while they are in office
2 months notice before civil proceeding

Similarly, no MP/MLA shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof (Article 105 and Article194). Foreign diplomats, U.N. and its agencies: They are immune from criminal and civil proceedings.

Article - 15

State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or birth place. 'Discrimination' means to make an adverse distinction with regard to' or 'to distinguish unfavourably from others' while 'only' word infers that discrimination on other grounds is not prohibited.

No citizen shall be subjected to any disability, liability, restriction on grounds only of religion, reace, caste, sex, or birth place with regard to (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, road and places of public resort maintained wholly or partly by State funds or dedicated to the use of general public.

Exceptions

Special provision for women and childlen. For e.g., reservation of seats for women in local bodies or right to education.
The state is permitted to make any special provision for the advancement of any socially and any educationally backward classes of citizens or foe the SCs and STs. For example, reservation of seats or fee concessions in public educational institutions.
The state is empowered to make any special provision for the advancement of any SEBC/SCs/STs regarding their admission to educational institutions including private educational institutions, whether aided or unaided by the state, except the minority educational institutions.

Article - 16: Equality of Opportunity in Public Employment

[1]. It deals with equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

[2]. No citizen shall, on grounds only of religion, race, caste, sex, descent, birth place, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

[3]. Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that state or Union territory prior to such employment or appointment.

[4]. Provision for the reservation of appointments or posts in favour of any backward class of citizen which, in the opinion of the State, is not adequate represented in the services under the State.

[4A]. Nothing in this article shall prevent the State from taking any provision for reservation in matters of promotion (77th CAA), with consequential seniority (85th CAA), to any class or classes of posts in the services under State in favour of the SCs and Sts which, in the opinion of the State, are not adequately represented in the services under the State.

[4B]. Carry Forward Rules: State can consider any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause [4] or [4A] as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of 50% reservation on total number of vacancies of that year. (81st CAA, 2000).

In Indra Sawhney Vs. Union of India, (1992) after report from Mandal Commission, Supreme Court held that reservation shall not exceed 50% except in some extra ordinary situation. This rule will need to be applied every year. But in some states, it exceeds that limit. For example - The 76th Amendment Act of 1994 has placed the Tamil Nadu Reservations Act of 1994 in the Ninth Schedule to protect it from judicial review as it provided for 69% reservation.

Article - 17 : Abolition of Untouchability

Absolute right (can't be suspended at any time, available against private individual also, no exception). Untouchability is not be taken literally but the practice as it had developed historically in the country, imposing social restriction on certain classes of persons by reason of their birth in certain castes.

A person convicted of the offence of 'untouchability' is disqualified for election to the Parliament or state legislature. Under the Protection of Civil Rights Act (1955), the offences committed on the ground of untouchability are as follows:

Preventing any person from entering any place of public worship or from worshipping therein;
justifying untouchability on traditional, religious, philosophical or other grounds;
denying access to any shop, hotel or place of public entertainment;
insulting a person belonging to scheduled caste on the ground of untouchability;
refusing to admit persons in hospitals, educational institutions or hostels established for public benefit;
preaching untouchability directly or indirectly; and
refusing to sell goods or render services to any person.

Article - 18 : Abolition of Titles

It abolishes titles and makes four provisions in that regards:

State can't confer any title (except a military or academic distinction) on anyone.
No citizen of India shall accept any title from any foreign state.
A foreigner holding any office of profit or trust under the state cannot accept any title from any foreign state without the consent of the president.
No citizen or foreigner holding any office of profit or trust under the State is to accept any present, emolument or office from or under any foreign State without the consent of the president.

Basically it is dome to counter the colonial mentality, hereditary titles of nobility like Maharaja, Raja Saheb, Raj Bahadur, etc, are banned because these are against the principle of equal status of all. National awards like Bharat Ratna, Padma Vibhushan, Padma Bhushan and Padma Sri, were discontinued by Morarji Desai government from 1977 to 1980. However, In 1996, Supreme Court ruled that they are given on the basis of merit and do not amount to 'titles' within the meaning of Article 18.

Right to Freedom

Article 19 provides 6 rights like 19(1)(a) to 19(1)(g)(f was deleted by 44th CAA, 1978). They are available to individuals and shareholders in a company (citizens) only against state.

(a) Right to freedom of speech and expression: Every citizen can express his belief and opinions by almost any means possible. Broad interpretation and includes: Propagate other's view, press, commercial advertisements, telecasting, RTI, silence, peaceful demonstration; freedom against strike, pre censorship, telephonic tapping, bandh etc.
(b) Right to assemble peaceably and without arms; public meetings, demonstrations and take out processions, no right to strike.

Under Section 144 of CrPC, a magistrate can restrain an assembly if any unlawful activity is suspected.
Under Section 141 of IPC, as assembly of 5 or more persons becomes unlawful it the object is (a) to resist the execution of any law or legal process; (b) to forcibly occupy the property of some person; (c) to do an illegal act; and (e) to threaten the government or its officials on exercise lawful powers.

(c) Right to form association or union or co-operative societies [ 97th CAA IXB 43B 19(1)(c) ]: includes the right to form political parties, companies, partnership firms, societies, clubs, organisations, trade unions etc. Start and continue. Also negative right.

The Supreme Court held that the trade unions have no guaranteed right to effective bargaining or right to strike or right to declare a lock-out.

(d) To move freely throughout the territory of India: throughout the territory of the country, inter or intra state. Indian citizen and not state citizen. Thus, the purpose is to promote national feeling and not parochialism.

Prostitutes and AIDS
The entry of outsiders in tribal areas is restricted to protect the distinctive culture, language, customs and manners of scheduled tribes and to safeguard their traditional vocation and properties against exploitation.
Internal Travel (given by Article 19) External Travel (given by Article 21)

(e) To reside and settle in any part of the territory of India: 2 dimensions: (a) the right to reside in any part of the country, which means to stay at any place temporarily, and (b) the right to settle in any part of the country, which means to set up a home or domicile at any place permanently. Similarly reasonable restrictions (regulation of prostitutes and habitual offenders), complementary to freedom of movement.

(g) To practice any profession, or to carry on any occupation, trade or business: includes all the means of earning one's livelihood. Not include trade which are immoral (trafficking in women or children) or dangerous (harmful drugs or explosives, etc). The State can absolutely prohibit these or regulate them through licensing.

Reasonable Restriction

GENERAL : SUI of India, security, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, and incitement to an offence.
SPECIFIC : Movement and residence - interest of general public and STs; Trade, business - professional or technical qualifications and partial or complete monopoly of state over means of production or service delivery.

April 28, 2020 1 Comments

Introduction

A constitution is a set of fundamental principles according to which a state is constituted or governed.
The Constitution specifies the basic allocation of power in a State and decides who gets to decide what the laws will be.
The Constitution first defines how a Parliament will be organized and empowers the Parliament to decide the laws and policies.
The Constitution sets some limitations on the Government as to what extent a Government can impose rules and policies on its citizen. These limits are fundamental in the sense that the Government may never trespass them.
The Constitution enables the Government to fulfil the aspirations of a society and create conditions for a just society.

Distribution of Power

The Indian Constitution horizontally distributes power across the three following institutions, as depicted in the following illustration −

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The Parliament

All the elected representatives collectively form a body called as Parliament.
The Parliament consists of two houses namely Rajya Sabha (Upper House) and Lok Sabha (Lower House).
The majority group (elected through the election) in the Parliament is called upon to make the government.
The government is responsible for making policies and other national decisions, which are generally taken up after intensive debate and meaningful discussions in the parliament.
The Prime Minister is the head of the government. The prime minister presided over the meetings of the cabinet in which the big decisions are taken.

The Executive

The President of India is the head of the State; however, he/she exercises only nominal powers.
The President’s functions are mainly ceremonial in nature (similar to the Queen of Britain).
The following diagram illustrates the hierarchy of the Indian Government

The Judiciary

The judicial system in India contains a hierarchy of courts, where the Supreme Court is the apex court of India.
Besides, some constitutional and other independent statutory bodies, for example, the Election Commission has also been given independent power.
The distribution of power among different bodies in such a way ensures that even if one institution wants to subvert the Constitution, others can check its transgressions and maintain harmony.

April 21, 2020 No Comments

Village Courts In India

Gram Nyayalayas are village courts for speedy and easy access to the justice system in the rural areas of India.

The establishment of Gram Nyayalayas in India can be traced to the Gram Nyayalayas Act, 2008 passed by the Parliament of India.

Even though the target was to set up 5000 village courts in India, only about 200 Gram Nyayalayas are functional now.

Why Gram Nyayalayas are in news now?

A writ petition was filed in 2019 by the National Federation of Societies for Fast Justice for the establishment of Gram Nyayalayas as provided by the 2008 Act. The Supreme Court of India noted that while some states are yet to issue notifications, the Gram Nyayalayas were not operational in most of the states which have issued notifications.

Supreme Court ordered the states to issue notification for the establishment of Gram Nyayalayas.

The Need for Gram Nyayalayas

The Constitution of India under Article 39-A mandates for free legal aid to the poor and weaker sections of society.

The Law Commission of India in its 114th report recommended the establishment of Gram Nyayalayas for providing speedy, substantial and inexpensive justice to the common man.

Subsequently, the Parliament of India passed the Gram Nyayalayas Act, 2008 providing for its establishment.

Salient features of the Gram Nyayalayas Act

The Gram Nyayalayas Act defines its establishment, jurisdiction, and procedure in civil and criminal cases.

Establishment

Each Gram Nyayalaya is a court of Judicial Magistrate of the first class.

Its presiding officer (Nyayadhikari) is appointed by the State Government in consultation with the High Court.

The Gram Nyayalaya shall be established for every Panchayat at the intermediate level or a group of contiguous Panchayats at the intermediate level in a district.

The seat of the Gram Nyayalaya will be located at the headquarters of the intermediate Panchayat; they will go to villages, work there and dispose of the cases.

Jurisdiction

Gram Nyayalayas have jurisdiction over an area specified by a notification by the State Government in consultation with the respective High Court.

Nyayadhikari can hold mobile courts and conduct proceedings in villages.

Gram Nyayalayas have both civil and criminal jurisdiction over the offences.

They can try criminal offences specified in the First Schedule and civil suits specified in Second Schedule to the Act.
The Central as well as the State Governments have been given the power to amend the First Schedule and the Second Schedule of the Act.
The pecuniary jurisdiction of the Nyayalayas is fixed by the respective High Courts.

High Courts can transfer eligible cases from the District court to the Gram Nyayalayas.

The Court shall try to settle disputes via conciliation between the parties and the court can make use of the conciliators to be appointed for this purpose.

Summary Procedure

Gram Nyayalayas shall follow a summary procedure in the criminal trial. Summary proceedings are faster and simpler than ordinary steps in a suit. They are normally deployed for cases involving a smaller number of definite issues that require prompt action.

The judgments and orders passed by Gram Nyayalayas are deemed to be a decree.

Gram Nyayalayas are not be bound by the rules of evidence provided in the Indian Evidence Act, 1872 but shall be guided by the principles of natural justice and subject to any rule made by the High Court.

Appeal

The appeal in criminal cases shall lie to the Court of Session, which shall be heard and disposed of within a period of six months from the date of filing of such appeal.

The appeal in civil cases shall lie to the District Court, which shall be heard and disposed of within a period of six months from the date of filing of the appeal.

A person accused of an offence may file an application for plea bargaining.

Need for Gram Nyayalayas

Access to justice for the poor and marginalized remains a perennial problem in India.

Various measures such as simplifying procedural laws, establishing alternate dispute redressal mechanisms, setting up fast track courts and providing free legal aid to the poor are undertaken in this regard.

Despite these measures, access to justice and faster, inexpensive settlement of disputes at the grass-roots level are yet to materialize.

Gram Nyayalayas can greatly help in

devolving justice delivery to the fourth tier
ensuring equal access to justice
reducing the burden of district courts
delivering speedier justice
reducing the costs associated with litigation for the common man
reducing dependency on extra-constitutional forums of justice

Why Gram Nyayalayas are not operational?

Lack of infrastructure like buildings, office spaces and related equipment
Lack of man-power resources, notaries, stamp vendors etc. at sub-district level
Inadequate Central assistance
Lack of awareness among lawyers, police officials
Non-cooperation of enforcement agencies
The reluctance of state functionaries to invoke the jurisdiction of Gram Nyayalayas
Setting up of legal services institutions at Taluk level reducing the dependency on Gram Nyayalayas

Criticisms on Gram Nyayalayas

The number of disputes settled by Gram Nyayalayas are negligible and most are referred to District forums by appeal. Hence, they are not effective in reducing the burden of District Courts.
Absence of a regular cadre of Gram Nyayadhikari
Ambiguities regarding jurisdiction due to the parallel existence of alternate dispute mechanisms, tribunals, adalats etc.
Some Gram Nyayalayas are located at cities and towns which doesn’t provide any utility to villagers.
Inadequate awareness amongst various stakeholders

How to improve the functioning of Gram Nyayalayas?

Establishing a regular cadre of Gram Nyayadhikaris
Conducting procedures in local language and with simpler procedures
Creating awareness amongst stakeholders via seminars, press releases etc.
Establishing permanent Gram Nyayalayas at the intermediate level in a suitable location proving easy access to the common people
Clearly specifying the jurisdiction of Gram Nyayalayas and re-defining it to remove any ambiguities
Providing building, staff etc. for Gram Nyayalayas and provisioning them in the state budget

Conclusion

The Preamble to the Gram Nyayalayas Act envisions access to justice to the citizens at their doorstep and to ensure that opportunities for securing justice are not denied to any citizen.

Despite the many challenges and shortcomings of the existing framework of the Village Courts in India, they have a positive role in providing access to justice to the poor and reaching out to marginalized sections of the society.

It has the potential to reduce the pendency of cases at higher levels. However, to achieve the stated objectives, efforts must be made to revamp the organizational and jurisdictional aspects of Gram Nyayalayas.

UPSC Civil Services Examination Question on Gram Nyayalayas

Qn (2016): With reference to the ‘Gram Nyayalaya Act’, which of the following statements is/are correct?

As per the Act, Gram Nyayalayas can hear only civil cases and not criminal cases.
The Act allows local social activists as mediators/reconciliators.

Select the correct answer using the code given below.

(a) 1 only

(b) 2 only

(d) Neither 1 nor 2

Correct Answer: (b) 2 only

Learning Zone: The Gram Nyayalya Act, which was enacted by Parliament in 2008 and came into effect in October 2009, mandates setting up of village courts. The Act aims at making justice easily accessible to the rural population and dealing with the backlog of cases. The Act also makes the judicial process participatory and decentralised because it allows appointment of local social activists and lawyers as mediators/reconciliators. To make the judiciary responsive to the local socio-economic situation, it prescribes representation from scheduled castes and scheduled tribes. There is also a provision of setting up mobile courts at the panchayat level. As per the Act, Gram Nyayalayas can hear both criminal and civil cases and appeals in civil cases will have to be disposed of in six months.

April 20, 2020 No Comments

A successful candidate is then allocated a service and posting based on his/her preferences and rank in Civil service Exam result. The most sought after jobs are that of the IAS and the IPS with the former being the most chosen among aspirants. So, which is the better service – the Indian Administrative Service or the Indian Police Service?

Advantage of being IAS over IPS

Protocol – IAS officers have higher protocol than their counterparts in other civil services.
Cabinet Secretary of India who is the senior most civil servant who ranks 11th in Precedence table of India is an IAS officer.

Secretaries to GoI and Chief Secretaries in states ranks 23rd and they too have no counterparts from IPS with same protocol which includes DGP of states, Director of IB, CBI or any paramilitary force despite the fact they belong to same pay scale.

Additional Secretaries to GoI have same protocol to senior-most IPS officers despite the fact that Additional Secretaries belong to lower pay scale.

Service chief – Service chief of IAS officers i.e. Cabinet Secretary is also head of all civil services in India while IPS officers have no service chief.

The custom of ‘primus inter pares’ i.e. first among equal makes IAS a premier service when compared to IPS and other civil services.

Cadre Strength – In Group A services (both All India Services and Central services), IAS has the biggest cadre strength.

There are 4926 sanctioned cadre strength for IAS while IPS has much smaller cadre strength; to be precise 3894 if we go by government data.

The bigger the cadre pool, the stronger the lobby and pressure on system which ultimately secures interest of the service.

Service conditions

Job Domain – An ‘generalist’ IAS Officer contributes towards the policy formulation and helps the system to effectively implement it. And, reserving the top posts of our bureaucracy, IAS officers have become the central power houses of our system.

Working Hours – IAS officers have better working hours unlike IPS officers. IPS officers when at field posting literally work for 24×7 while IAS officers at field posting work more than their own counterparts who are in Secretariat but still working hours are better when compared to IPS officers.

Transfer Policy – IPS officers comparatively get more frequently transferred than IAS officers. IPS officers’ family thus faces more hardship than that of an IAS one. Even Suspension rate and Termination rate of IAS officers is lower when compared to IPS officers.

Promotion Policy – IAS officers presently get paid more than their batch mates from other Group A services (including IPS) in the form of two additional increments – 3 percent of basic pay – at three promotion stages, ie, promotion to the senior time scale, junior administrative grade (JAG) and non-functional selection grade. Technically, the IAS officers get the two-year edge but the actual gap between a joint secretary from IAS and other Group A services is at least 7-10 years.

Better Field Postings – IAS officers get better field postings. A SDM in his sub-division has more power and public interaction than an ASP. Same goes for ADM when compared to Addl. SP and DM to SP/SSP/DIG, Divisional Commissioner to DIG/IG/ADG. IPS officers though have more field postings but not better ones. IAS officers at Secretariat have better perks, privileges and facilities when compared to the IPS officers who are attached to DGP’s office.

Proximity to Government – IAS officers have more accessibility to political executives and public representatives due to various reasons.
PM and CMs both take advice on various issues from Cabinet Secretary and Chief Secretaries respectively. Even PMO and CMOs are administratively headed by Principal Secretary who are mostly IAS officers.

When an IAS officer is posted in Secretariat, Minister concerned (political head of department) consults to Secretary concerned (administrative head) on various policies issues and his dream projects.

MPs, MLAs and MLCs have their Local Area Development schemes passed through DM and District Planning Committee which is convened by DMs in their districts.

In metropolitan cities, Municipal Corporation’s civic chief a.k.a Municipal Commissioner (IAS officer) and chief executive of Development Authority (IAS officer) have more proximity to Mayors while in rural areas CEO Zila Parishad or Chief Development Officer has more proximity to President of Zila Parishad/Panchayat.

Advantage of IPS over IAS

1. You are the most visible form of Govt .i.e., A common man might not know who is the Under Secretary of GOI, But would surely know who is the SSP or even SI.

2. As a specialist service dealing mainly with Law and Order , one develops subject specialization (like in the corporate) and this goes a long way in helping you work better than the generalist services. You are also encouraged to pursue any higher studies related to your subjects.

3. No two days are the same. You will have to deal with emerging problems. So you are on your toes most of the time. There is no way that you will get bored with your job.

4. The police administration job provides great job satisfaction since you are directly dealing with public. When you apprehend a criminal or an anti-social element, you are curing the society of an illness.

5. The common people of India thinking the real state power with police and treat police as above the rest. They are the First Responders of any conflict situation.

6. If you like more challenging and bravery work than go for IPS.
However IPS have to indirectly report to IAS . If you don’t have problem with that then go for IPS.

IPS is one of the most respectable service in our society, but it comes with a heavy price. It is also one of the most engaging service which will leave you with limited/no family and personal time. You have to deal with crimes so there is no turning back from it. Training is tough and postings are tougher. But if you are ready to pay the price, the service will bless you with a character that only a few ways of life will !!

April 12, 2020 No Comments

Polity is an important subject of competitive examination, especially in civil service. It plays a crucial role in the three stages of UPSC civil service examination-Prelims, Mains or Interview. Even after the one getting into service, the significance of the subject is carried forward as it forms an important part of the administration. In this article, you will read about how to study polity for UPSC exam.

Areas of Focus in Polity:

Preamble

Features of preamble
42nd Amendment
Swaran Singh committee

Schedules

Basic idea about 12 schedules

Constitution of India

Basic idea about All articles
Historical Background
Drafting committee and making of the Constitution
Influence of other constitutions
Its salient features
Union and its Territory
- Basic idea about Article 1-4
- State reorganization and different Commissions
- Federal nature
- Recent issues

Citizenship
- Basic idea about Article 5-11
- PIO, NRI, OCI and Pravasi Bharathiya Divas
- Privileges available for Indian citizens and foreigners
- Citizenship Amendment Act 2016
- New policies, schemes and recent changes in voting.

Fundamental Rights (FR)
- Basic idea about Article 12-35
- A thorough understanding about Articles 14- 30 and Art. 32
- Rights and privileges available to citizens of India only and both to citizens and foreigners
- 44^th amendment act
- Different types of Writs
- Enforcement and Exceptional cases with regard to FR’s
- RTE and recent issues related to FR

Fundamental Duties(FD)
- Article 51A
- Difference between FR and FD
- Significance and Criticism
- Enforcement of FD’s
- Recent issues about FD

Directive Principles of State Policy (DPSP)
- Basic idea about Article and Article 36-51 and Article 368
- Sources and key features of DPSP
- Classification of DPSP
- Comparison/ conflicts between Fundamental Rights and Directive Principles
- Keshavananda Bharathi, Minerva Mills, Golaknath Case, Maneka Gandhi case.
- Important Amendments- 42nd Amendment, 44th Amendment, and 97th amendment

Union
- Basic idea about Article 52-73
- Qualification and Election
- Function and Powers- (Executive, Legislative, Financial, Judicial, Diplomatic, Military and Emergency Powers)
- Resignation and impeachment
- Role and responsibilities and relationship with Prime minister, Council of Minister, Cabinet ministers.
- Prime minister and council of minister- Basic idea about Article 74-75
- Powers and Functions
- Council of ministers
- Resignation and Removal
- Attorney general

Parliament
- Basic idea about Article related
- Role and functions of the Parliament
- Sessions, Motions, Parliamentary procedure – Summoning, Prorogation, Joint sitting
- Parliamentary proceedings like Question Hour, Zero Hour, and Adjournment Motion etc.
- Lok Sabha and Rajya Sabha,
- Special powers of Rajya Sabha
- Anti defection law and 10^th schedule
- Parliamentary Privileges
- Bill and law making procedure
- Budget, funds and its summary
- Parliamentary Committees

Judiciary
- Basic idea about Article related to the judiciary.
- Powers of Supreme court and high court
- Qualification and appointment
- Removal procedure
- Recent controversy, verdicts, and constitutional provisions.

State Government- State Executive
- Governor- appointment, removal and special powers.
- Executive, Legislative, Financial, Judicial powers and discretionary of governor
- 7^th constitutional amendment
- Chief minister and council of ministers
- Power of chief minister

State Legislature
- State legislature compared to the Parliament with regard to composition, powers, and functions.
- Bicameral legislatures
- Creation and abolition of the Legislative councils

Administration of Union Territories (UT)
- Special provision for Delhi
- Administration and jurisdiction in UT’s

Administration of Special Areas
- Basic idea about 5^thSchedule 6th Schedule
- Recent issues related to Administration of Special Areas
- Special provision for Jammu and Kashmir-Article 370
- Difference between constitutional provisions related to Jammu and Kashmir

Emergency Provisions
- National emergency- Article 352
- President’s rule or State emergency- Article 356
- Financial emergency- Article 360
- 44^th amendment act
- Effects and implications of emergency
- Role of President in emergency time
- The State of FR, Lok sabha, and Rajya sabha
- Revoking emergency

State- centre and interstate relations
- Basic idea about Articles 262 and 263
- Composition and functions of Interstate council and Zonal council
- Inter-State trade and Commerce
- Recent disputes between states, controversies etc
- New policies or schemes which impact interstate relations

Panchayati raj and municipalities
- Elections, auditing, powers and authority of panchayats
- 3 tier structure
- 73rd Amendment Act and 74th Amendment Act
- Relation with FR and DPSP
- Schemes introduced
- Metropolitan planning committee and urban development
- Reservation

Constitution Bodies
- Election Commission
- UPSC
- SPSC
- JPSC
- Finance Commission
- National Commission for SCs and ST’s,
- Composition, Powers and functions, Removal of the Constitutional bodies

Non-Constitutional Bodies
- Basic idea about Composition, Functions, Working of the Non-Constitutional bodies such as National Human Rights Commission, Central Information Commission, Central Vigilance Commission, Central Bureau of Investigation, State Human Rights Commission, State Information Commission etc

Tribunals
- Basic idea about Article 323A and tribunals under Article 323B
- Recent controversial issues related to tribunals
- Different tribunals and importance

Special Provisions for SC’s, ST’s, Backward Classes, Minorities and Anglo-Indians
- Privileges and right issued to SC’s, ST’s, Backward Classes, Minorities and Anglo-Indians
- Issues related to vulnerable sections like women, child, SC’s, ST’s, Backward Classes, Minorities and Anglo-Indians

Current affairs
- Recent issues related to above-mentioned categories
- Important schemes, programs, missions, laws, and policies launched by the government.
- Recent Government Bills and Governance- actions

April 10, 2020 No Comments

EXECUTIVE

Independent India adopted a modified version of the Westminster model of government. The most fundamental modification was, of course, the combination of the parliamentary system with federalism and Fundamental Rights of citizens and Directive Principles of State Policy. Another equally important departure is the replacement of monarchy by a Republication Presidency, alongwith the two are functionally comparable in their limited and strictly nominal role for all practical purposes and their pomp and pageantry. A second feature of the Westminster model adopted by India without any modification is the fusion of powers between the Executive and the Parliament. Parliament technically means the President in Parliament, and the Prime Minister and his council of ministers siring from the Parliament itself. The Prime Minister is the fulcrum of the cabinet, and individually responsible to the Parliament, specifically to the Lok Sabha. A third feature is the independence of the judiciary from the legislative and executive control. A fourth feature of the Union Executive in India is that the ultimate responsibility of the cabinet goes beyond the Parliament to the electorate at large. Over and above the Presidential prerogative tempered by Parliament majority, the final recourse in the last analysis is the will of the people
expressed in electoral mandate and public opinion.

Indian Constitution establishes an executive at the federal level that comprises a constitutional or nominal presidency with an effective Prime Minister and his cabinet. In a Parliamentary form of Government the executive power rests with the Prime Minister, the President being the Head of the State. But the Prime Minister exercises the real power. In Britain, wherein constitutional monarchy is in operation, the Prime Minister is the Head of the Government, and Queen is the Head of the State. India is a republic and as such the elected members of the legislatures elect the Head of the State, the President. The Union Executive consists of the President, Vice-President the Prime Minister and the Council of Ministers. Unlike the American President, the Indian President only enjoys nominal powers. The Government runs in his name but his powers are to be exercised with only rare exceptions, upon the advice of the Prime Minister and the Council of Ministers.

The President

The office of the Indian President is one of great prestige and authority. His office entitles him to all dignities, immunities and protocols. He possesses executive, legislative and various other powers under the Constitution of India. But his powers are neither like those of the British Monarch nor of the American President although the Indian Constitution incorporates the important features of the constitutions of both the countries. His supremacy lies in securing the supremacy of the constitution. The President’s oath of office compels him to preserve, protect and defend the Constitution and the law’ and ‘to devote himself to the service and well-being of the people of India’. Qualifications: The Constitution provides that any person, who is a citizen of India, has completed the age of 35 years and is eligible for election as a member of Lok Sabha is entitled to contest the election of President. A person, who holds any office under the Government of India or any State Government or any local authority subject to the control of these governments, is not eligible for election as a President. He is not elected directly by the people, but according to Article 54, by the members of an electoral college consisting of (i) the elected members of both the Houses of the Parliament and (ii) the elected members of the State Legislative Assemblies (but not of the Legislative Assemblies of Union Territories).

Term of Office: The President’s term of office is five years from the date on which he enters upon his office (Article 56). He is entitled for re-election. The first President of India, Dr. Rajendra Prasad served the office for two terms. The President may resign from his office by writing under his hand to the Vice-President of India. He can be removed from his office for violation of the constitution, by the process of impeachment (Article 61). The procedure for impeachment of the President in India is almost identical to that in the USA. The charge of impeachment may be preferred by either House of Parliament (In the USA, the House of Representatives alone has the power to try the impeachment) subject to at least 14 days’ written notice, signed by not less than two-thirds of the total membership of the House. These charges are to be investigated by the House other than the one framing them. If after the investigation, a majority, sustains the charges against the President of not less than two-thirds of the total membership of the House, it will have the effect of removing the President from his office forthwith.

In the event of the occurrence of any vacancy in the office of the President by reason of his death, resignation or removal or otherwise, the Vice-President (and if is not available for the purpose, then the Chief Justice of Supreme Court) shall act as President until the date (no later than six months from the date of the occurrence of the vacancy) on which a new President elected enters upon his office.

Power of the President

The President of India is vested with vast powers, namely, Executive, Legislative, Judicial and Emergency.

Executive Powers

He is called the ‘President of India’ but the Constitution makes him only the executive of the Union, while the Governors are the heads of the States. Article 53 says that “the executive powers of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution.” At the same time the Constitution creates a Council of Ministers to aid and advise the President, meaning thereby that he alone cannot exercise executive powers. However, after the passage of 42nd Act re-inforced by the 44th Amendment Act, the advice of the Council of Ministers is binding on him.

The entire administration of the Government of India is conducted in his name. He has powers to appoint and remove the high dignitaries and Commissions, such as the Prime Ministers and other ministers, judges of the Supreme Court and High Courts. Governors, Special Officers, for Scheduled Castes and Tribes, the Attorney- General. Comptroller and Auditor General, Chairman and Members of UPSC, Finance Commission, an Inter-state Council etc. He also appoints Lt. Governors and Chief Commissioners for the Union Territories. For removal of judges of the Supreme Court and High Court, a special procedure has to be followed. President Shankar Dayal Sharma, upholding the Constitutional propriety, forced the HP Governor Mrs. Sheila Kaul to resign from her post after CBI’s enquiry implicating her in the Housing Scam case.

He makes rule of business for the Central Government and allots the portfolios to the Ministers. He has the right to keep himself informed of all decisions taken by the Council of Ministers through the Prime Minister. As per Article 78, the Prime Minister shall communicate to the president all administrative decisions and proposals for legislation.

April 08, 2020 No Comments

Structure and Functioning of Parliament

The Parliament consists of the President, Lok Sabha and Rajya Sabha. It is the legislative body of the country and makes legislations regarding matters in Union and Concurrent List. It is also vested with the exclusive authority to amend the constitution of India.

Why Rajya Sabha?

Federal Chamber: Rajya Sabha consists of elected representatives from state legislatures. It is conceived as a chamber to check that legislations passed by the Lok Sabha are in accordance with federal nature of administration in the country and in consonance with interest of various states
Check hasty or ill-conceived laws: As the house of elders and of domain experts nominated persons, Rajya Sabha also checks hasty or ill-conceived laws passed by Lok Sabha
Representation to Domain Experts: The President can nominate 12 persons who are eminent personalities in various domains to be members of Rajya Sabha. Hence the house facilitates expertise without the necessity of a direct election.

Role of President

Check on passed legislation: President is the final authority of check before a bill becomes an act. He may withhold his assent or sent back a bill which he feels is not in the best interest of the country on behalf of the executive
Dissolving the Lok Sabha: President may dissolve the Lok Sabha in lieu of advice tendered by Prime Minister or when no-confidence motion is passed in Lok Sabha. Thus he enforces the accountability of the government to the House of People.

Possible Question

The domicile requirement of elected representatives of Rajya Sabha was taken away. How do you think it would affect the functioning and purpose of Rajya Sabha? Critically Analyse.

Rajya Sabha as an institution of bicameralism was conceived to maintain the federal framework of the country. The members of Rajya Sabha are foremost representatives of the state rather than of any political party.

Drawbacks of the Move

Arbitrary Use: The doing away of the domicile requirement would reduce the utility of having state-wise representation. It leaves the door open for arbitrary misuse for political motives
Dilutes the Federal Mandate of Rajya Sabha: Domiciles would have best upheld the federal mandate of the Rajya Sabha through an equitable representation of states
Lack of Accountability: The individual states interests at the national level would have been best represented by domiciles of that state. However, the lack of the same leads to a vacuum of accountability on the assembly that elects representatives
Not Aware of Ground Realities: A person who is not domicile in a state may not be knowledgeable on the priorities of the state to defend them in the Council of States.

Why it is legitimate?

Wider Talent Pool for Political Parties: The doing away of domicile requirement opens up opportunities for several candidates who may be more worthy and suited for parliamentary roles as compared to ones within the state
Better Integration: The representation of one state by a non-domicile can facilitate emotional integration of the country and kindle the bond of oneness traversing across regional lines
States’ Interests: Even candidates who are not residents of a state may be aware of interests and aspirations of the state and worthy enough to protect the same in the Council of States.

Conclusion

The lifting of the domicile requirement is an indication of growing partisanship in parliamentary democracies where loyalties lie first to the party than to the people of the state. Along with this concern, we can expect it to bring in a wider spectrum of more worthy parliamentarians provided political parties choose right.

Composition of Lok Sabha

Out of 545 members of Lok Sabha, 543 are directly elected by the people through elections. The president may nominate 2 members from the Anglo-Indian community in case he feels they are inadequately represented in the Lok Sabha.

In proportion to their population, a certain number of seats may be reserved for SC/ST sections of the population.

Composition of Rajya Sabha

Representatives of States: Members of the council of states are indirectly elected by members of state legislative assemblies. The seats reserved for states are in proportion to their population.

Representation of UTs: Members indirectly elected by electoral college constituted.

Nominated Members: The President can nominate 12 persons who are eminent personalities in various domains to be members of Rajya Sabha. Hence the house facilitates expertise without the necessity of a direct election.

Delegated Legislation: Parliament makes law in skeleton form and authorises executive to make detailed laws. It is also referred to as executive legislation or subordinate legislation.

Financial Powers

Budget in Parliament

The Parliament is vested with the power to vote on the budget which is the annual financial statement of the government that lays down estimated revenue and expenditure of the government. The expenditure ‘charged from’ the consolidated fund of India cannot be voted upon while expenditure ‘made from’ CFI can be voted upon.

Stages in Enactment

Presentation of Budget: Discussed in Lok Sabha, Rajya Sabha can discuss it, but not vote on a demand for grants
General Discussion: Takes place in both houses and lasts 3 to 4 days
Scrutiny of Departmental Committees: Examine in detail demands for grants of concerned ministries and prepare report cards
Voting on demand for grants: Exclusive privilege of Lok Sabha as money appropriated is to implement schemes of incumbent government that is the mandate of people vested with directly elected representatives of Lok Sabha. Cut motions (Policy, Token, Economy) are moved during this stage. Hence the parliaments control over executive’s actions are visible in this stage where its check actions ensure there is greater responsibility and accountability on the government to expedite spending in judicious manner.
Passing of Appropriation Bill: All money required to meet grants voted by Lok Sabha and expenditure charged on CFI
Passing of Finance Bill: To give effect to financial proposals of government for coming year. It legalises income side and completes the process of enactment of the budget.

Scrutiny of Spending

The government remains answerable to parliamentary committees with regard to its financial performance. These committees perform audits and examine the nature of spending to curb wasteful spending and to ensure that money appropriated is being productively used. They bring out illegal, improper, unauthorized, irregular usage and wastage in public expenditure.

Eg: Public Accounts Committee, Estimates Committee and Committee on Public Undertakings

Therefore, parliament exercises financial control over executive in 2 instances:

Budgetary Control: During passing of budget, parliament has to vote on demand for grants where it can move cut motions to cut government spending if it feels it is unwarranted or unjustified.
Post-Budgetary Control: After the government has spent, the various committees verify the efficacy or judicious nature of spending

Study the role of these committees from Lakshmi Kant

Executive Power

The parliament exercises control over executive through questioning through question-hour, zero-hour, short duration discussion and various motions calling attention, adjournment, no-confidence, censure motion etc.

The various parliamentary committees also hold the executive accountable for its actions. These are committee on government assurance, subordinate legislation, committee on petitions etc.

The council of ministers remain collectively responsible to the parliament in general and Lok Sabha in particular. They remain in office only as long as they enjoy confidence of the Lok Sabha.

Amending Constitution

The parliament can amend the constitution under Article 368 by passing a constitution amendment bill with special majority, not less than 2-3^rd members present and voting and majority of total membership of house. In case the amendment affects federal structure of the country, it requires ratification by at least 50% of state legislatures.

Limited Power

The power to amend the constitution is not unlimited and is subject to the basic structure of the constitution. In the Keshav Ananda Bharathi case, the SC observed that Parliament may amend the constitution to a permissible limit where it does not violate or impinge the basic structure of the constitution. Thus the Indian position on constitutional amendment rests on the balance between parliamentary sovereignty and judicial supremacy.

Limitations on Parliamentary Sovereignty

Fundamental Rights: The amendment of a parliament is subject to non-contravention of fundamental rights elucidated in Part III as referenced by Article 13. In the Keshav Anand Bharthi Case, the court opined that the parliament may take away the fundamental rights as long as the basic structure of the constitution.
Judicial Review: The power of judicial review evolved from Article 13 enables the judiciary to observe the constitutional amendments. If it is violative of the basic structure of the constitution, the court may strike down such an amendment
- The Supreme Court struck down the NJAC bill as it was averse to the basic feature “independence of judiciary”
- Striking down of the part of 42^nd amendment that inactivated judicial review on constitutional amendments
Federal Framework: The parliament’s power to amend is limited by the consent of states in all matters where federal features are involved. It needs to take in half the state legislatures consent for such amendments.
- The passing of the GST bill as the 101^st constitutional amendment required the ratification of state legislatures
The supremacy of the Constitution: Any amendment to the constitution if it threatens to subvert the supremacy of the constitution shall be declared null and void by the court on the basis of unconstitutional
- The striking down of the 39^th amendment that circumvented the court’s jurisdiction on election related matters of the Prime Minister, President, Vice President and Speaker was struck down in Indira Gandhi vs Raj Narain Case (1975) as unconstitutional

Electoral Powers

The parliament participates in elections of President and Vice-President. The Lok Sabha elects its own Speaker and Deputy Speaker while Rajya Sabha elects its Deputy Chairman. It is also vested with the power to regulate elections to offices of President and Vice-president, to both houses of parliament and state legislatures.

Eg: Representation of People’s Act, 1951

Judicial Powers

Impeachment of President: The parliament can remove the President for violation of the constitution by passing a resolution separately in both houses by special majority with which the president stands removed from power

Impeachment of Vice-President: Similar to manner of President but with absolute majority in Rajya Sabha and agreed to in Lok Sabha

Impeachment of Judges: It can recommend the removal of judges of SC or HC, CEC, CAG to the President by passing a resolution with special majority in both houses on the grounds of misbehaviour and incapacity

Issues in Functioning of the Parliament

Ineffectiveness of Parliamentary Control

The primary feature of parliamentary form of government is the control parliament exercises on the executive. However, in the practical sense, parliament has been ineffective in imparting control over executive’s actions.

Executive Leadership: Executive members hold majority in the parliament. Greater this majority, lesser is the scope for effective criticism.
Lack of Technical Expertise: Members of parliament are not technically adept to evaluate, form opinions and vote on financial matters such as demand for grants
Less number of sittings: Parliament has 3 sessions in a year and the number of sittings and MPs attending these sittings have been less which affects the functioning of parliament as a deliberative body. The executive holds the prerogative for proroguing the Parliament by recommending the same to the President.
Dissolution of Lok Sabha: The Prime Minister can recommend to the President to dissolve the lower house and call for fresh elections
Growth of Delegated Legislation: Armed executive with parliament’s law making powers
Ordinance Promulgation: Frequent ordinance promulgation has diluted parliament’s law making powers with executive taking this route many a times to circumvent normal legislative process and authority of parliament
Lack of Strong Opposition to question, put pressure and evaluate effectiveness of government policies and decisions
Anti-Defection Laws: Members of parliament are forced to align with their party’s views on all issues raised in the parliament due to the anti-defection law which shall disqualify them in cases otherwise. This scuttles the scope for meaningful debate, deliberation and criticism of government in the parliament as legislators have no freedom to exercise individual judgement
Growing Absentees in Parliament
Ordinary Bills as Money Bills
Partisan Role of Speaker in allocating time, decision on money bill and facilitating discussions

Conduct of Business of the Parliament

The functioning of Parliament – Passing of Bills

Stages

First Reading: No discussion, published in gazette
Second Reading: Parliamentary scrutiny where the house may refer it to a committee or circulate it to general public. Committee conducts detailed examination of the bill plugging loopholes and modifying the bill without altering underlying principles. The House then votes upon the bill clause by clause
Third Reading: Acceptance or Rejection of bill as a whole; no amendments allowed
Pass, pass with amendments, Reject or take no action

Provision for Joint Sitting

The constitution provides for the provision of joint sitting of both houses in case of a deadlock between them caused by the following instances:

First house passed the bill, second house rejects it
First house passed the bill, second house passes back with amendments that are rejected by the first house
First house passes the bill; second house takes no action for 6 months

Why Joint Sitting?

Resolution of Deadlock: It provides an innovative mechanism to resolve differences between different chambers by bringing them together on a common platform. It allows amendments only on clauses where conflict has arisen or in cases where scenarios have changed that necessitate the same.

Analysis

Favouring Lok Sabha: Owing to its numerical superiority, generally the will of Lok Sabha is manifested in the Joint sitting. Hence more preference is provided to realise people’s mandate. The speaker of Lok Sabha herself presides over Lok Sabha

Cases where Joint sitting not allowed

Money Bills: Constitution does not provide for joint sitting in the case of money bills as it needs to be passed by Lok Sabha only. Rajya Sabha can delay it for a maximum period of 14 days and its recommendations are not required to be accepted by Lok Sabha. Hence provision for joint sitting is not available with regard to money bills

Constitutional Amendment Bills: These are need to be passed separately by both houses as they are bills of immense importance and may have implications on federal features. The amendment of the constitution hence needs an extra check that is provided independently by the Council of states.

Low Productivity of Parliament

Over the years, there has been a significant reduction in the productivity of parliament manifested by the reduced number of bills passed and poor quality of debates and discussions. Data from the past two years reveal a meagre 15% of the time on average spent for legislations.

Why Low Productivity?

Partisan Politics: The deliberative discussions in parliament have largely centred around political motives and partisan opinions that have hindered true intellectual discourse to take place within its walls
Poor Quality of Members: The members of the parliament of today in comparison to the parliament of the 1950s are much lower in quality of human resource, knowledge and skill
Constant Disruptions: TV and media coverage have provided further incentive to grandstand on issues. Between 2012 and 2016, 30% of Lok Sabha time and 35% of Rajya Sabha time was taken away due to disruptions [Association of Democratic Reforms]
Poor Compliance to Parliament Ethics: Indian parliament has become infamous in the recent past owing to unruly behaviour of its members seen rushing to the well, shouting and causing damage to parliament physical infrastructure
Ineffective control of presiding officers
Inequitable Time Devolved to Members: Parliament’s function as a check on the executive has reduced owing to the lack of time for deliberations and discussions given to its members.
- Budget 2017 was put to vote without any discussion or deliberation
Poor Attendance: Attendance levels in the parliament have left much to be desired from the members. The absence of members nullifies the possibility of a discussion in the true democratic spirit of the nation
Anti-Defection Law: The anti-defection has compounded the partisan spirit in the Parliament diffusing diverse opinions and inducing conformity to fractured legislations
Less Sittings: The executive has misused the power of proroguing parliamentary sessions. Constant adjournments have further compounded the issue
Frequent Adjournments reducing the time for productive debates and discussion on legislation

Consequences

Legislative Compromise: Hastily passed bills and budgets compromise on efficacy, financial prudence and propriety of decisions taken
Accountability Erosion: A poorly productive parliament threatens to erode the control of the legislature on executive. This may lead to executive tyranny and despotism through the dictatorship of the cabinet undermining separation of powers
Loss of money:
- Poor Allocation: Improper functioning of parliament compromises the financial prudence in allocation of scarce resources
- Wastage of Expenses: The winter session 2017 of parliament entailed losses to the tune of 5 crore
Loss of Faith: Low attendances, constant disruptions and ruckus in the parliament reduces faith and credibility of parliament as an institution in minds of the people
Judicial Activism: An unproductive parliament may force the judiciary to extent its activity into the law making area to safeguard welfare of citizens. This may undermine separation of powers and lead to individual bias in decisions
Antithetical to Federalism: The poor functioning of Council of States debilitates federal framework of legislation in the country.

Suggestions

Better Enforcement of Parliamentary Rules and Ethics: The presiding officers of the house of the parliament shall be empowered to strictly enforce parliament conduct and rules with violating members suspended or heavily punished for their unruly behaviour
Minimum Mandatory Attendance: A minimum percentage of attendance shall be made mandatory for those holding seats in the parliament
Equal Time Devolution: The presiding officers shall be impartial in ensuring that all parties have sufficient time to bring their opinion to the forefront and ensure the democratic spirit of the discussion is not broken
Setting Time aside for Opposition: India can emulate Britain and Canada in setting aside more than 20 days for the opposition to raise their issues. This can also provide opportunities for smaller political parties to play an important role in setting agenda
Parliamentary Budget Office: India needs a parliamentary budget office to assist in technical matters of handling the budget akin to the U.S Congressional Budget Office. It can conduct an independent and impartial objective analysis of any bill.
Cooperative Functioning: The government needs to take greater responsibility to ensure smooth functioning of parliament. At the same time, opposition should use parliament responsibly for constructive criticism. All party conferences can help foster parliamentary spirit.
Workshops for MPs: Members of the parliament shall be trained to overcome the poor quality of discussions and conduct rules enforced
Dilute power of executive in proroguing parliament: Calendar of sittings can be announced at the outset of a year.

Conclusion

The institution of parliament is the temple of Indian democracy that represents the sovereign will of the people. India’s political parties need to leave out partisan politics and put the nation and its people at the forefront to ensure that this 70-year-old temple of democracy retains its purity and sanctity.

Anti-Defection

The 52^nd and 93^rd Amendments to the constitution added the Tenth Schedule which laid down the process of disqualification of legislators in the context of defection. In the time of Aaya ram Gaya ram, the anti-defection law was conceptualized to provide political stability and safeguard the sanctity of democracy.

Why Anti-defection law?

Mandate of People
Reduces the role of money
Cultivates party loyalty and party discipline
Stability of government in Parliamentary Democracy

Issues of Anti-Defection

Freedom of Speech: The mandatory directive of the party and anti-defection threat reduces thinking lawmakers to mere numbers for passing bills. In the Kihotto Holohan judgement, the Supreme court held anti-defection law to be within the basic structure of the constitution
Role of Speaker: The speaker’s discretion in deciding on disqualifications of defecting members has been controversial. Questions have been raised on the partisan decisions
Loopholes in law
- The exception of 2/3^rd party members defecting is anti-thetical to the very concept of anti-defection
- A nominated member is provided with 6 months as time frame for joining political party without inviting defections. This provision can be manipulated to manufacture majorities diluting will of people
Quality of Debates: The non-democratic nature of the defection law is bound to reduce quality of debates with increasing polarization on the floor of the house narrowing the confines of debate
Reduces accountability to people and parliament

Suggestions

Rationalize Jurisdiction:
- Dinesh Goswami Committee: Limit anti-defection to
  - Members voluntarily giving up party membership
  - Member votes or abstains contradictory to party direction during no-confidence motion
- Change Deciding Authority
  - Election Commission: Issue of disqualification should be decided by President/ Governor
- Remove Loopholes: Law commission has opined that exemptions for splits and mergers should be deleted. Pre-poll fronts should be considered as political parties
- Foster Deterrence: The Constitution Review Commission has opined that defectors should be barred from holding public office or remunerative political cost

Conclusion

With the increasing role of money and the danger of criminalization, anti-defection laws cannot be done away with. It needs to be reformed to ensure that intra-party democracy and parliamentary spirit thrives fostering an amalgam of diverse views from multiple sections.

Parliament –Privileges and Issues Arising out of these

Parliamentary privileges are special rights, immunities and exemptions handed out to members of 2 houses, their committees and members. They help maintain authority, dignity, honour and ensure that members face no obstruction in discharging duties vested in them. Parliamentary privileges enable independent and effective functioning of the institution of parliament.

Collective Privileges

Ensuring independence – Self-Regulating

Court is prohibited from enquiring into proceedings of house or its committees
Parliament can define its own rules and regulations for conduct of business and adjudication of such matters
Can hold secret sittings excluding strangers from its proceedings

Upholding Dignity – Face Saving

Right to receive information regarding arrest, imprisonment, conviction and release of a member
No person can be arrested and no legal process can be served within the precincts of the house without permission of presiding officer

Gaining Authority – Judicial Control

Article 105 provides the houses of parliament with right to publish its own reports, debates and other proceedings and the right to prohibit others from publishing the same
Punish members as well as others for breach of privilege
Institute enquiries and order attendance of witness and acquire relevant papers and records

Individual privileges

Freedom of Speech in parliament (Article 105): No member is liable to any proceedings in court for anything said or any vote given by him in Parliament or its committees. This freedom is subjected to standing orders regulating procedure of parliament.

Judicial Exemptions: Members of the parliament cannot be arrested with regard to civil cases 40 days before the session and 40 days after. They can refuse to give evidence and appear as witness in cases when the Parliament is session citing want of time.

Breach of Privilege

When any individual or authority disregards or attacks exemptions, rights and immunities, either of member in individual capacity or of the house, collectively, the offence is termed as Breach of Privilege and is punishable by the house.

Contempt of the House

Any act or omission which obstructs a house of parliament, its members or officers from discharging their duties or which tends to produce results against dignity, authority and honour of the house is treated as contempt of the House.

It has wider implications than a simple breach of privilege which merely constitutes a subset of contempt of house, i.e. a contempt of house may simply include a breach of privilege.

Source of Privileges

Constitution of India: Article 105 provides for privilege of freedom of speech and right to publication of proceedings
Various laws made by Parliament
Rules of Both Houses
Parliamentary Conventions
Judicial Interpretation

The 44^th amendment act provided that parliamentary privileges for both houses, members and committees are to be those which they had on the date of its commencement until defined by Parliament. The Parliament till now has not made any special law to exhaustively codify all privileges.

Issues with Privileges

Danger of Non-Codification: Parliament is yet to codify all privileges exhaustively which causes a lack of clarity with regard to parliament’s privileges. The non-codification also arms parliament with wider discretion that may abused to curb civil rights

Curbing right to dissent: Houses of parliament may exploit the discretion to curb dissent of citizens and civil society organizations thus debilitating healthy debate and deliberation subduing vibrant democracy in India

Tilting Balance of Power: Parliamentary privileges were envisaged with ensuring independent functioning of parliament. Lack of clarity regarding the same may affect the check and balance mechanism between legislature and judiciary

Reduced Accountability: Excessive and abusive usage of privileges reduces accountability of houses of parliament, members and committees for their actions and inactions vital to sustenance of a free democracy

Un-parliamentary Behaviour: Wider interpretations of privileges are often misused by legislators for initiating hateful, ill-thought speeches and other un-parliamentary activities such as rushing to the well of the house etc.

Why un-codified?

Maximize privileges: The un-codified privileges leave an ambiguity which enables houses of parliament to maximize capability of freedom of speech and other privileges which help it to function as an effective and efficient institution. It reduces obstruction to parliamentary proceedings and ensures houses retain their authority, dignity and honour
Separation of Powers: Leaving the privileges un-codified limits judicial interference and scrutiny as to matters and proceedings within the houses of parliament enhancing its independence from other organs of the state
Self-Regulating: The parliament has defined its own rules, procedures and regulations regarding proceedings and conduct of business in the houses that are elaborate enough to provide a check on usage of privileges. Hence a separate exhaustive list of privileges may not be deemed necessary

Way Forward

Regulating Conduct of Business: Presiding officers have to ensure that rules of conduct of business are religiously followed by members of parliament. He may submit a report regarding the same to the president. Any members acting in contravention may be made liable to punishment, suspension from the house.
Codification: Parliament can exhaustively augment and codify existing privileges from all sources for increased clarity that is better for healthy functioning of democracy and for harmonious balance between organs of the state

Parliamentary Committees

The parliamentary committees are institutions that provide avenues for accountability, cooperation, expertise and engagement in the process of law-making.

Potential of Parliamentary Committees

Specialization: Each parliamentary committee is specialized in a particular domain. This enables members to develop expertise and holistically analyse issues at their forefront
Accountability: They provide scrutiny and constructive criticism to government policy. The Public Accounts Committee by an ex-post facto analysis ensures the government remains accountable for spending tax payers money
Knowledge Reservoir: Parliamentary committees contain volumes of information that MPs can constructively use during discussions on policy and law making.
Legislative Assistance: Many Ad-hoc parliamentary committees resolve issues on bills.
1. Prevention of Corruption amendment bill passing through various committees in Rajya Sabha has seen several issues get addressed
Engagement with Stakeholders: The committees can engage with civil society and expertise to gain feedback on important issues
Financial Propriety: The Estimates Committee ensures financial prudence in allocation of government resources. Thus committees check on economy of expenditure and ensure each penny of the tax payer is put to productive use
Smooth Transaction of Business: The Administrative committees of the parliament provide for smooth conduct of affairs, allocation of time and setting agendas in the parliament

Issues in Functioning of Parliamentary Committees

Fewer Bills Referred: Only 27% of bills in 16^th Lok Sabha have been referred. In contrast, 71% were referred during the 15^th Lok Sabha
Poor Attendance of members in committees
Short tenures in committees leaves little time for specialization
Little discussion: The recommendatory nature of committee reports has diluted their mandate of accountability
Lack of technical expertise to delve into intricate matters of law
Politicization of proceedings of committee
The ex-post facto nature of many of the committees including the PAC disables them from achieving financial prudence

Suggestions

Refer more bills
Make attendance mandatory and link it to membership of committee
Extend tenures and provide workshops for capacity building of law makers in parliamentary committees. Develop domain expertise for members of committees
Executive Interaction: Minister- committee interactions can help achieve better convergence with committee recommendations. This can also serve as an extra instrument of accountability
Standing Committee on Economy can be created

Conclusion

The parliamentary committees have admirably functioned over the years to enhance quality of legislation and serve as a check on executive action. There needs to be a systemic strengthening of this parliamentary culture to evolve consensus in law formulation, public expenditure and government policy through the instrument of parliamentary committees.

Role of Speaker

Introduction

The speaker is a constitutional office that presides over the house of the parliament in a neutral manner vested with the authority to conduct business in the house according to rules of procedure and parliamentary ethics. She symbolises the parliamentary spirit of democracy.

Issues

Lack of time allotted: The multi-party democracy and coalition era has widened the spectrum of views and opinions. Speakers have been accused of partisanship in allocating time to parliamentarians from various parties
Abuse of discretions
1. Deciding on Money Bill: The discretion of final say on whether a bill is money bill has often been abused by speakers. This threatens the federal framework of legislation as it then circumvents the Council of States
2. Issue of Defection: 16 MLAs in Arunachal Pradesh were disqualified by speaker despite not leaving party or disobeying its directives
Constant Adjournments: Frequent disruptions in parliament have necessitated quick adjournments. This has reduced productivity, increased hastily passed bills and led to erosion of accountability on the executive
Ineffective control over house proceedings: Speakers have been unable to enforce parliamentary codes of conduct.

Suggestions

Curb Discretions: The discretionary role of speaker related to defections and splits may be placed with Election Commission or any neutral body outside legislature
A convention of once a speaker always a speaker should be developed. This can curb partisan tendencies
Speakers can resign from party membership as in U.K
Time allocation: India can emulate U.K and Canada in allocating set time for opposition and opportunities for regional parties to set agenda of the day.

State Legislature

Structure

The state legislatures are not uniform in their structure across states. Certain state legislatures are bicameral in their organization- an Upper house or the Legislative council (Vidhan parishad) and the lower house – the state legislative assembly (Vidhan Sabha) while most of the states in India are unicameral- only having the legislative assembly.

The Parliament can create or abolish state legislative councils when the state legislative assemblies passes a resolution to that effect by a special majority.

Composition of the Assembly

The state legislative assembly consists of directly elected representatives of state constituencies. Governor can also nominate 1 member from the Anglo-Indian community of the state if she feels they are inadequately represented in the assembly. A certain number of seats in the assembly are reserved for SC/ST members in proportion to their population in the state.

Composition of the Council

The state legislative council consists of members indirectly elected by different sections of the population – Local self-governing bodies (Muncipalites, District board), MLAs, Graduates residing in state, Teachers of 3 years standing in state and remaining members are nominated by Governor in lieu of their expertise in domains such as art, literature, social service, music, science, cooperative movement.

Legislative Council vs Legislative Assembly

Ordinary Bills: Legislative council acts merely as a check mechanism and can at the maximum delay the passage of an ordinary bill by 4 months, it is hence merely a dilatory chamber. A bill originating in the council once rejected by assembly becomes dead.
Money Bill: Legislative council can only pass recommendations to a money bill within 14 days of its passage from lower house. The assembly may or may not accept recommendations of legislative council. A money bill cannot be introduced in the council
Creation or Abolition of the council: The very existence of legislative council remains on will of assembly as it can pass a resolution calling for its abolition in the event of which the parliament would initiate proceedings for the same
Budget: The legislative council can discuss only on demand for grants, they have no power to vote for the same
Election of President: The members of legislative council do not take part in electoral process of president

Why the Legislative Council

Check mechanism: A second chamber at state level acts as an advisory body which passes recommendations regarding bills to the assembly. It can hence help in avoiding hastily passed, ill-thought and ill-conceived bills from state legislative assembly
Domain Expertise: The council provides for domain expertise for eminent personalities from various fields of science, art, music, literature and social service.

Arguments against Legislative Council

Costly Luxury: Legislative councils in lieu of presence of legislative assembly may be an unnecessary and costly luxury that is not imperative to sustain democratic process of law making. Unlike the Rajya Sabha that has a federal mandate, the legislative council does not have a particular purpose of utility.

Delay: A secondary chamber for legislation hinders expeditious passing of legislations causing unwanted delays in legislative process of bicameral states

Political Misuse: The Council has been misused to circumvent and dilute the will of the people reflected in elections to state assemblies by facilitating an alternate way of representation.

Similar Opinions in Both Housesà Less Utility: It does not serve the purpose of being an advisory body to the assembly as different ideologies and opinions are not articulated owing to a political concurrence between the 2 houses.

State legislature vs Parliament

Demarcation of Subjects: Schedule 7 of the constitution clearly demarcates subjects of legislation for the parliament and state legislatures. Parliament can legislate on Union list, concurrent list and also holds residuary powers while the state legislatures can legislate on state list and concurrent list. In cases of conflict on laws passed in the concurrent list, the law made by parliament prevails. Hence parliament has slight edge evidence of unitary bias in Indian federal system

The Parliament can also legislate in matters in state list in special scenarios earlier elucidated. The Rajya Sabha may pass a resolution to that effect.

Constitutional Amendment: Only the parliament can initiate the process for constitutional amendment. In cases where federal provisions of the constitution are affected, ratification of more than half the state legislatures are required.

The Parliament can however unilaterally alter territories of state without the consent of the state legislature through a constitutional amendment passed by a simple majority.

The Constitution has provided for adequate safeguards with regard to maintenance of federal provisions envisaged in it. It is hence neither too rigid nor too flexible.

Institution of Governors: The constitution provides for the office of a governor of state who shall be the agent of the centre. A governor enjoys discretion as to reserving bills passed by the legislature for consideration of president. The governor is not liable for his actions nor is he binding to the advice of state council of ministers.

Union executive exercises a certain amount of control through the institution of governor over state legislations. It is reflective of the unitary bias on the Indian constitution.

All-India Services: Rajya Sabha may pass a resolution by a special majority for the creation of All India services. Such a resolution needs to be concurred by the Lok Sabha.

The All India services ensure uniformity in governance, administration and quality throughout states across India. They are reflective of the unitary bias and may affect autonomy of states in dissipating governance in accordance to their wishes.

Election of Vice-President: While all directly elected members participate in election of President, only members of parliament participate in election of vice-president.

Fundamental Rights: The constitution empowers the parliament with exclusive authority to pass legislations to give effect to fundamental rights elucidated in the constitution.

President’s Rule: The parliament can take over the function of state legislature or devolve the same to an appropriate authority in cases where President’s rule has been established in the state

April 08, 2020 No Comments