Chapter 1
India Constitution at Work
WHY DO WE NEED A CONSTITUTION?
Constitution allows coordination and assurance
The first function of a constitution is to provide a set of basic rules that allow for minimal coordination amongst members of a society.
The second function of a constitution is to specify who has the power to make decisions in a society. It decides how the government will be constituted.
So the third function of a constitution is to set some limits on what a government can impose on its citizens. These limits are fundamental in the sense that government may never trespass them.
The fourth function of a constitution is to enable the government to fulfil the aspirations of a society and create conditions for a just society.
Fundamental identity of a people
Finally, and perhaps even most importantly, a constitution expresses the fundamental identity of a people.
Mode of promulgation
This refers to how a constitution comes into being. Who crafted the constitution and how much authority did they have? In many countries constitutions remain defunct because they are crafted by military leaders or leaders who are not popular and do not have the ability to carry the people with them. The most successful constitutions, like India, South Africa and the United States, are constitutions which were created in the aftermath of popular national movements.
The substantive provisions of a constitution
It is the hallmark of a successful constitution that it gives everyone in society some reason to go along with its provisions.
While evolving the most balanced governmental arrangements, the makers of our Constitution did not hesitate to learn from experiments and experiences of other countries. Thus, the framers of the Constitution were not averse to borrowing from other constitutional traditions. Indeed, it is a testament to their wide learning that they could lay their hands upon any intellectual argument, or historical example that was necessary for fulfilling the task at hand. So they borrowed a number of provisions from different countries.
But borrowing these ideas was not slavish imitation. Far from it. Each provision of the Constitution had to be defended on grounds that it was suited to Indian problems and aspirations. India was extremely lucky to have an Assembly that instead of being parochial in its outlook could take the best available everywhere in the world and make it their own.
It is a tribute to the wisdom and foresight of the makers of the
Constitution that they presented to the nation a document that enshrined fundamental values and highest aspirations shared by the people. This is one of the reasons why this most intricately crafted document has not only survived but become a living reality, when so many other constitutions have perished with the paper they were first written on.
Chapter Two
RIGHTS IN THE INDIAN CONSTITUTION
FUNDAMENTAL RIGHTS IN THE INDIAN CONSTITUTION
During our freedom struggle, the leaders of the freedom movement had realised the importance of rights and demanded that the British rulers should respect rights of the people. The Motilal Nehru committee had demanded a bill of rights as far back as in 1928.
The word fundamental suggests that these rights are so important that the Constitution has separately listed them and made special provisions for their protection. The Fundamental Rights are so important that the Constitution itself ensures that they are not violated by the government.
Fundamental Rights are different from other rights available to us. While ordinary legal rights are protected and enforced by ordinary law, Fundamental Rights are protected and guaranteed by the constitution of the country. Ordinary rights may be changed by the legislature by ordinary process of law making, but a fundamental right may only be changed by amending the Constitution itself.
However, fundamental rights are not absolute or unlimited rights. Government can put reasonable restrictions on the exercise of our fundamental rights.
You may have heard about ‘reservations’ in jobs, and in admissions. You
would have wondered why there are reservations if we follow the
principle of equality. In fact Article 16(4) of the constitution explicitly
clarifies that a policy like reservation will not be seen as a violation of
right to equality. If you see the spirit of the Constitution, this is
required for the fulfilment of the right to equality of opportunity.
Preventive detention
Ordinarily, a person would be arrested after he or she has reportedly committed some offence. However there are exceptions to this. Sometimes a person can be arrested simply out of an apprehension that he or she is likely to engage in unlawful activity and imprisoned for some time without following the above mentioned procedure. This is known as preventive detention. It means that if the government feels that a person can be a threat to law and order or to the peace and security of the nation, it can detain or arrest that person. This preventive detention can be extended only for three months. After three months such a case is brought before an advisory board for review.
On the face of it, preventive detention looks like an effective tool in the hands of the government to deal with anti-social elements or subversives. But this provision has often been misused by the government. Many people think that there must be greater safeguards in this law so that it may not be misused against people for reasons other than that which are really justified. In fact, there is a clear tension between right to life and personal liberty and the provision for preventive detention.
Rights of accused
Our Constitution ensures that persons accused of various offences would also get sufficient protection. We often tend to believe that anyone who is charged with some offence is guilty. However, no one is guilty unless the court has found that person guilty of an offence. It is also necessary that a person accused of any crime should get adequate opportunity to defend herself or himself. To ensure a fair trial in courts, the Constitution has provided three rights:
- no person would be punished for the same offence more than once,
- no law shall declare any action as illegal from a backdate, and
- no person shall be asked to give evidence against himself or herself.
Rights against exploitation
In our country there are millions of people who are underprivileged and deprived. They may be subjected to exploitation by their fellow human beings. One such form of exploitation in our country has been begar or forced labour without payment. Another closely related form of exploitation is buying and selling of human beings and using them as slaves. Both of these are prohibited under the Constitution. Forced labour was imposed by landlords, moneylenders and other wealthy persons in the past. Some form of bonded labour still continues in the country, specially in brick kiln work. It has now been declared a crime and it is punishable.
CULTURAL AND EDUCATIONAL RIGHTS
Our Constitution believes that diversity is our strength. Therefore, one of the fundamental rights is the right of the minorities to maintain their culture. This minority status is not dependent only
upon religion. Linguistic and cultural minorities are also included in this provision. Minorities are groups that have common language or religion and in a particular part of the country or in the country as a whole, they are outnumbered by some other social section. Such communities have a culture, language and a script of their own, and have the right to conserve and develop these.
RIGHT TO CONSTITUTIONAL REMEDIES
Dr. Ambedkar considered the right to constitutional remedies as ‘heart and soul of the constitution’. It is so because this right gives a citizen the right to approach a High Court or the Supreme Court to get any of the fundamental rights restored in case of their violation. The Supreme Court and the High Courts can issue orders and give directives to the government for the enforcement of rights.
The courts can issue various special orders known as writs.
- ! Habeas corpus: A writ of habeas corpus means that the court orders that the arrested person should be presented before it. It can also order to set free an arrested person if the manner or grounds of arrest are not lawful or satisfactory.
- ! Mandamus: This writ is issued when the court finds that a particular office holder is not doing legal duty and thereby is infringing on the right of an individual.
- ! Prohibition: This writ is issued by a higher court (High Court or Supreme Court) when a lower court has considered a case going beyond its jurisdiction.
- ! Quo Warranto: If the court finds that a person is holding office but is not entitled to hold that office, it issues the writ of quo warranto and restricts that person from acting as an office holder.
- ! Certiorari: Under this writ, the court orders a lower court or another authority to transfer a matter pending before it to the higher authority or court.
Apart from the judiciary, many other mechanisms have been created in later years for the protection of rights. You may have heard about the National Commission on Minorities, the National Commission on Women, the National Commission on Scheduled Castes, etc. These institutions protect the rights of women, minorities or Dalits.
Besides, the National Human Rights Commission has also been established by law to protect the fundamental and other kinds of rights.
The Commission receives complaints in thousands every year. These relate to custodial death, custodial rape, disappearances, police excesses, failure in taking action, indignity to women, etc. Its most significant intervention has been on disappeared youth in Punjab and investigation and trial of Gujarat riot cases where its intervention proved effective.
The Commission does not have the power of prosecution. It can merely make recommendations to the 42 government or recommend to the courts to initiate
proceedings based on the inquiry that it conducts.
Fundamental Duties of citizens
In 1976, the 42nd amendment to the Constitution was passed. Among other things, this amendment inserted a list of Fundamental Duties of Citizens. In all, ten duties were enumerated. However, the Constitution does not say anything about enforcing these duties.
Chapter Three
ELECTION AND REPRESENTATION
In our country we follow a special method of elections. Under this system:
- The entire country is divided into 543 constituencies;
- Each constituency elects one representative; and
- The candidate who secures the highest number of
votes in that constituency is declared elected.
This method is called the First Past the Post (FPTP)
system. In the electoral race, the candidate who is ahead
of others, who crosses the winning post first of all, is the
winner. This method is also called the Plurality System.
This is the method of election prescribed by the
Constitution.
Proportional Representation
Let us compare this to how elections take place in Israel that follows a very different system of elections. In Israel once the votes are counted, each party is allotted the share of seats in the parliament in proportion to its share of votes (see Box). Each party fills its quota of seats by picking those many of its nominees from a preference list that has been declared before the elections. This system of elections is called the Proportional Representation (PR) system. In this system a party gets the same proportion of seats as its proportion of votes.
In the PR system there could be two variations. In some countries, like Israel or Netherlands, the entire country is treated as one constituency and seats are allocated to each party according to its share of votes in the national election. The other method is when the country is divided into several multi-member constituencies as in Argentina and Portugal. Each party prepares a list of candidates for each constituency, depending on how many have to be elected from that constituency. In both these variations, voters exercise their preference for a party and not a candidate. The seats in a constituency are distributed on the basis of votes polled by a party. Thus, representatives from a constituency, would and do belong to different parties.
In India, we have adopted PR system on a limited scale for indirect elections. The Constitution prescribes
a third and complex variation of the PR system for the election of 59 President, Vice President, and for the election to the Rajya Sabha
and Vidhan Parishads.
Why did India adopt the FPTP system?
The answer is not very difficult to guess. If you have carefully read the box explaining the Rajya Sabha elections, you would have noticed that it is a complicated system which may work in a small country, but would be difficult to work in a sub-continental country like India. The reason for the popularity and success of the FPTP system is its simplicity. The entire election system is extremely simple to understand even for common voters who may have no specialised knowledge about politics and elections. There is also a clear choice presented to the voters at the time of elections. Voters have to simply 61 endorse a candidate or a party while voting.
In other electoral systems, especially PR systems, voters are often
asked to choose a party and the representatives are elected on the
basis of party lists. As a result, there is no one representative who
represents and is responsible for one locality. In constituency based
system like the FPTP, the voters know who their own representative
is and can hold him or her accountable.
You will notice that the PR system may not produce a clear majority because seats in the legislature would be divided on the basis of share of votes.
RESERVATION OF CONSTITUENCIES
We have noticed that in the FPTP election system, the candidate who secures the highest votes in a particular constituency is declared elected. This often works to the disadvantage of the smaller social groups. This is even more significant in the Indian social context. We have had a history of caste-based discrimination. In such a social system, the FPTP electoral system can mean that the dominant social groups and castes can win everywhere and the oppressed social groups may continue to remain unrepresented. Our Constitution makers were aware of this difficulty and the need to provide a way to ensure fair and just representation to the oppressed social groups.
This issue was debated even before independence and the British government had introduced ‘separate electorates’. This system meant that for electing a representative from a particular community, only those voters would be eligible who belong to that community. In the Constituent Assembly, many members expressed a fear that this will not suit our purposes. Therefore, it was decided to adopt the system of reserved constituencies. In this system, all voters in a constituency are eligible to vote but the candidates must belong to only a particular community or social section for which the seat is reserved.
Of the 543 elected seats in the Lok Sabha, 84 are reserved for Scheduled Castes and 47 are reserved for Scheduled Tribes (as on 1 September 2012).
Who decides which constituency is to be reserved? On what basis
is this decision taken? This decision is taken by an independent 65 body called the Delimitation Commission. The Delimitation Commission is appointed by the President of India and works in collaboration with the Election Commission of India. It is appointed for
the purpose of drawing up the boundaries of constituencies all over the
country. A quota of constituencies to be reserved in each State is fixed
depending on the proportion of SC or ST in that State. After drawing
the boundaries, the Delimitation Commission looks at the composition
of population in each constituency. Those constituencies that have the
highest proportion of Scheduled Tribe population are reserved for ST.
In the case of Scheduled Castes, the Delimitation Commission looks at
two things. It picks constituencies that have higher proportion of
Scheduled Caste population. But it also spreads these constituencies
in different regions of the State. This is done because the Scheduled
Caste population is generally spread evenly throughout the country.
These reserved constituencies can be rotated each time the Delimitation exercise is undertaken.
Article 324 of the Indian Constitution provides for an independent Election Commission for the ‘superintendence, direction and control of the electoral roll and the conduct of elections’ in India. These words in the Constitution are very important, for they give the Election Commission a decisive role in virtually everything to do with elections. The Supreme Court has agreed with this interpretation of the Constitution.
To assist the Election Commission of India there is a Chief Electoral Officer in every state. The Election Commission is not responsible for the conduct of local body elections.The State Election Commissioners work independently of the Election Commission of India and each has its own sphere of operation.
The Constitution ensures the security of the tenure of the CEC and Election Commissioners. They are appointed for a six year term or continue till the age of 65, whichever is earlier.
The Election Commission has very limited staff of its own. It conducts the elections with the help of the administrative machinery.
Over the years, the Election Commission of India has emerged as
70 an independent authority which has asserted its powers to ensure fairness in the election process. It has acted in an impartial and unbiased manner in order to protect the sanctity of the electoral process. The record of Election Commission also shows that every
improvement in the functioning of institutions does not require legal
or constitutional change. It is widely agreed that the Election Commission is more independent and assertive now than it was till twenty years ago. This is not because the powers and constitutional
protection of the Election Commission have increased. The Election Commission has started using more effectively the powers it always had in the Constitution.
Chapter 4
Executive
Legislature, executive and judiciary are the three organs of government. Together, they perform the functions of the government, maintain law and order and look after the welfare of the people. The Constitution ensures that they work in coordination with each other and maintain a balance among themselves. In a parliamentary system, executive and the legislature are interdependent: the legislature controls the executive, and, in turn, is controlled by the executive.
PARLIAMENTARY EXECUTIVE IN INDIA
When the Constitution of India was written, India already had some experience of running the parliamentary system under the Acts of 1919 and 1935. This experience had shown that in the parliamentary system, the executive can be effectively controlled by the representatives of the people. The makers of the Indian Constitution wanted to ensure that the government would be sensitive to public expectations and would be responsible and accountable. The other alternative to the parliamentary executive was the presidential form of government. But the presidential executive puts much emphasis on the president as the chief executive and as source of all executive power. There is always the danger of personality cult in presidential executive. The makers of the Indian Constitution wanted a government that would have a strong executive branch, but at the same time, enough safeguards should be there to check against the personality cult. In the parliamentary form there are many mechanisms that ensure that the executive will be answerable to and controlled by the legislature or people’s representatives. So the Constitution adopted the parliamentary system of executive for the governments both at the national and State levels.
Power and position of President
Article 74 (1): There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall in the exercise of his functions, act in accordance with such advice.
Provided that the President may require the Council of Ministers to reconsider such advice....., and the President shall act in accordance with the advice tendered after such reconsideration.
Do you know what the word shall means here? It indicates that the advice is binding on the President.
Discretionary Powers of the President
On the basis of the above discussion can we infer that the President has no discretionary power under any circumstances? This will be an incorrect assessment. Constitutionally, the President has a right to be informed of all important matters and deliberations of the Council of Ministers. The Prime Minister is obliged to furnish all the information that the President may call for. The President often writes to the Prime Minister and expresses his views on matters confronting the country.
An amendment was made that the Council of Ministers shall not exceed 15 percent of total number of members of the House of People (or Assembly, in the case of the States).
PERMANENT EXECUTIVE: BUREAUCRACY
Who implements the decisions of the ministers?
The Executive organ of the government includes the Prime
Minister, the ministers and a large organisation called the bureaucracy or the administrative machinery. To underline the difference between this machinery and the military service, it is described as civil service. Trained and skilled officers who work as permanent employees of the government are assigned the task of assisting the ministers in formulating policies and implementing these policies.
The bureaucracy is also expected to be politically neutral.
Persons selected by the UPSC for Indian Administrative Service and Indian Police Service constitute the backbone of the higher level bureaucracy in the States. You may know that the collector of a district is the most important officer of the government at the district level. Do you know that the collector is normally an IAS officer and that the officer is governed by the service conditions laid down by the central government? An IAS or IPS officer is assigned to a particular State, where he or she works under the supervision of the State government. However, the IAS or IPS officers are appointed by the central government, they can go back into the service of the central government and most importantly, only the central government can take disciplinary action against them. This means that the key administrative officers of the States are under the supervision and control of the central government. Apart from the IAS and the IPS officers appointed by the UPSC, the administration of the State is looked after by officers appointed through the State Public Service Commissions. As we shall study later in the chapter on federalism, this feature of the bureaucracy strengthens the control of the central government over the administration of the States.
The bureaucracy is an instrument through which welfare policies of the government must reach the people. But most often, it is so powerful that people are afraid of approaching a government officer. It is a common experience of the people that bureaucracy is insensitive to the demands and expectations of the ordinary citizen. Only if the democratically elected government controls the bureaucracy, some of these problems can be effectively handled. On the other hand, too much political interference turns the bureaucracy into an instrument in the hands of the politician. Though the Constitution has created independent machinery for recruitment, many people think that there is no provision for protecting the civil servants from political interference in the performance of their duties.
It is also felt that enough provisions are not there to ensure the 97 accountability of the bureaucracy to the citizen. There is an expectation that measures like the Right to Information may make
the bureaucracy a little more responsive and accountable.
Chapter 5
Legislature
WHY DO WE NEED A PARLIAMENT?
This is indeed, the very basis of representative democracy.
Yet, in most democracies, legislatures are losing central place to the executive. In India too, the Cabinet initiates policies, sets the agenda for governance and carries them through. This has led some critics to remark that the Parliament has declined. But even very
- TWO HOUSES OF PARLIAMENT?
The term ‘Parliament’ refers to the national legislature. The legislature of the States is described as State legislature. The Parliament in India has two houses. When there are two houses of the legislature, it is called a bicameral legislature. The two Houses of the Indian Parliament are the Council of States or the Rajya Sabha and the House of the People or the Lok Sabha. The Constitution has given the States the option of establishing either a unicameral or bicameral legislature. At present only six States have a bicameral legislature.
Countries with large size and much diversity usually prefer to have two houses of the national legislature to give representation to all sections in the society and to give representation to all geographical regions or parts of the country. A bicameral legislature has one more advantage. A bicameral legislature makes it possible to have every decision reconsidered. Every decision taken by one house goes to the other house for its decision. This means that every bill and policy would be discussed twice. This ensures a double check on every matter. Even if one house takes a decision in haste, that decision will come for discussion in the other house and reconsideration will be possible.
Indian Constitution at Work
Countries with large size and much diversity usually prefer to have two houses of the national legislature to give representation to all sections in the society and to give representation to all geographical regions or parts of the country. A bicameral legislature has one more advantage. A bicameral legislature makes it possible to have every decision reconsidered. Every decision taken by one house goes to the other house for its decision. This means that every bill and policy would be discussed twice. This ensures a double check on every matter. Even if one house takes a decision in haste, that decision will come for discussion in the other house and reconsideration will be possible.
Rajya Sabha
Each of the two Houses of the Parliament has different bases of representation. The Rajya Sabha represents the States of India. It is an indirectly elected body. Residents of the State elect members to State Legislative Assembly. The elected members of State Legislative Assembly in turn elect the members of Rajya Sabha.
We can imagine two different principles of representation in the second chamber. One way is to give equal representation to all the parts of the country irrespective of their size or population. We may call this as symmetrical representation. On the other hand, parts of the country may be given representation according to their population. This second method means that regions or parts having larger population would have more representatives in the second chamber than regions having less population.
The number of members to be elected from each State has been fixed by the fourth schedule of the Constitution.
What would happen if we were to follow the American system of equality of representation in the Rajya Sabha? Uttar Pradesh with a population of 1718.29 lakhs would get seats equal to that of Sikkim whose population is only 5.71 lakhs. The framers of the Constitution wanted to prevent such discrepancy. States with larger population get more representatives than States with smaller population get. Thus, a more populous State like Uttar Pradesh sends 31 members to Rajya Sabha, while a smaller and less populous State like Sikkim has one seat in the Rajya Sabha.
Apart from the elected members, Rajya Sabha also has twelve nominated members. The President nominates these members.
Lok Sabha
At present there are 543 constituencies. This number has not changed since 1971 census.
WHAT DOES THE PARLIAMENT DO?
What is the function of the legislature?
Apart from law making, the Parliament is engaged in many other functions. Let us list the functions of the Parliament.:
- Legislative Function: The Parliament enacts legislations for the
country. Despite being the chief law making body, the Parliament often merely approves legislations. The actual task of drafting the bill is performed by the bureaucracy under the supervision of the minister concerned. The substance and even the timing of the bill are decided by the Cabinet. No major bill is introduced in the Parliament without the approval of the Cabinet. Members other than ministers can also introduce bills but these have no chance of being passed without the support of the government.
- Control of Executive and ensuring its accountability: Perhaps the most vital function of the Parliament is to ensure that the executive does not overstep its authority and remains responsible to the people who have elected them.
- Financial Function: Government is about spending a lot of money on various matters. Where does this money come from? Every government raises resources through taxation. However, in a democracy, legislature controls taxation and the way in which money is used by the government. If the Government of India proposes to introduce any new tax, it has to get the approval of the Lok Sabha. The financial powers of the Parliament involve grant of resources to the government to implement its programmes. The government has to give an account to the legislature about the money it has spent and resources that it wishes to raise. The legislature also ensures that the government does not misspend or overspend. This is done through the budget and annual financial statements.
- Representation: Parliament represents the divergent views of members from different regional, social, economic, religious groups of different parts of the country.
- Debating Function: The Parliament is the highest forum of debate in the country. There is no limitation on its power of discussion. Members are free to speak on any matter without fear. This makes it possible for the Parliament to analyse any or every issue that faces the nation. These discussions constitute the heart of democratic decision making.
- Constituent Function: The Parliament has the power of discussing and enacting changes to the Constitution. The constituent powers of both the houses are similar. All constitutional amendments have to be approved by a special majority of both Houses.
- Electoral functions: The Parliament also performs some electoral functions. It
elects the President and Vice President of India.
- Judicial functions: The judicial functions of the Parliament include considering
the proposals for removal of President, Vice-President and Judges of High Courts and Supreme Court.
In a democratic form as adopted by our Constitution, the people are the final authority. By this logic, the representatives, directly elected by the people, should have the crucial powers of removing a government and controlling the finances.
In all other spheres, including passing of non-money bills, constitutional amendments, and impeaching the President and removing the Vice President the powers of Lok Sabha and Rajya Sabha are co-equal.
A bill is a draft of the proposed law. There can be different types of bills. When a non-minister proposes a bill, it is called private member’s Bill. A bill proposed by a minister is described as Government Bill.
Even before a bill is introduced in the Parliament there may be a lot of debate on the need for introducing such a bill. A political party may pressurise the government to initiate a bill in order to fulfil its election promises or to improve its chances of winning forthcoming elections. Interest groups, media and citizens’ forums may also persuade the government for a particular legislation. Law making is thus not merely a legal procedure but also a political course of action. The preparation of a bill itself involves many considerations such as resources required to implement the law, the support or opposition that the bill is likely to produce, the impact that the law may have on the electoral prospect of the ruling party etc. In the era of coalition politics especially, a bill proposed by the government has to be 113 acceptable to all the partners of the coalition. Such practical considerations can hardly be ignored. The Cabinet considers all these before arriving at a decision to enact a law.
Once the Cabinet approves the policy behind the legislation, the task of drafting the legislation begins. The draft of any bill is prepared by the concerned ministry.
A large part of the discussion on the bills takes place in the committees. The recommendation of the committee is then sent to the House.
As you know, a bill has to be passed by both Houses for enactment. If there is disagreement between the two Houses on the proposed bill, attempt is made to resolve it through Joint Session of Parliament. In the few instances when joint sessions of the parliament were called to resolve a deadlock, the decision has always gone in favour of the Lok Sabha.
When a bill is passed by both Houses, it is sent to the President for his assent. The assent of the President results in the enactment of a bill into a law.
HOW DOES THE PARLIAMENT CONTROL THE EXECUTIVE?
In a parliamentary democracy, the executive is drawn from the party or a coalition of parties that has a majority in Lok Sabha. It is not difficult for the executive to exercise unlimited and arbitrary powers with the support of the majority party. In such a situation, parliamentary democracy may slip into Cabinet dictatorship, where the Cabinet leads and the House merely follows. Only if the Parliament is active and vigilant, can it keep regular and effective check on the executive. There are many ways in which the Parliament can control the executive. But basic to them all is the power and freedom of the legislators as people’s representatives to work effectively and fearlessly. For instance, no action can be taken against a member for whatever the member may have said in the legislature.
This is known as parliamentary privilege. The presiding officer of the legislature has the final powers in deciding matters of breach of privilege.
The main purpose of such privileges is to enable the members of the legislature to represent the people and exercise effective control over the executive.
Instruments of Parliamentary Control
The legislature in parliamentary system ensures executive accountability at various stages: policy making, implementation of law or policy and during and post- implementation stage. The legislature does this through the use of a variety of devices:
Deliberation and discussion
Approval or Refusal of laws
Financial control
No confidence motion
The Question Hour, which is held every day during the sessions of Parliament, where Ministers have to respond to searching questions raised by the members; Zero Hour where members are free to raise any matter that they think is important (though the ministers are not bound to reply), half-an – hour discussion on matters of public importance, adjournment motion etc. are some instruments of exercising control.
Perhaps the question hour is the most effective method of keeping vigil on the executive and the administrative agencies of the government.
No Confidence Motion: The most powerful weapon that enables the Parliament to ensure executive accountability is the no-confidence motion. As long as the government has the support of its party or coalition of parties that have a majority in the Lok Sabha, the power of the House to dismiss the government is fictional rather than real. However, after 1989, several governments have been forced to resign due to lack of confidence of the house. Each of these governments lost the confidence of the Lok Sabha because they failed to retain the support of their coalition partners.
Thus, the Parliament can effectively control the executive and ensure a more responsive government. It is however important for this purpose, that there is adequate time at the disposal of the House, the members are interested in discussion and participate effectively and there is willingness to compromise amongst the government and the opposition. In the last two decades, there has been a gradual decline in sessions of the Lok Sabha and State Legislative Assemblies and time spent on debates. Moreover, the Houses of the Parliament have been plagued by absence of quorum, boycott of sessions by members of opposition which deprive the house the power to control the executive through discussion.
WHAT DO THE COMMITTEES OF PARLIAMENT DO?
A significant feature of the legislative process is the appointment of committees for various legislative purposes. These committees play a vital role not merely in law making, but also in the day-to-day business of the House. Since the Parliament meets only during sessions, it has very limited time at its disposal. The making of law for instance requires in-depth study of the issue under consideration. This in turn demands more attention and time. Similarly, there are other important functions also, like studying the demands for grants made by various ministries, looking into expenditure incurred by various departments, investigating cases of corruption etc. Parliamentary committees perform such functions. Since 1983, India has developed a system of parliamentary standing committees. There are over twenty such departmentally related committees. Standing Committees supervise the work of various departments, their budget, their expenditure and bills that come up in the house relating to the department.
Apart from standing committees, the Joint Parliamentary Committees have occupied a position of eminence in our country. Joint Parliamentary Committees (JPCs) can be set up for the purpose of discussing a particular bill, like the joint committee to discuss bill, or for the purpose of investigating financial irregularities. Members of these committees are selected from both Houses.
The committee system has reduced the burden on the Parliament. Many important bills have been referred to committees. The Parliament has merely approved the work done in the committees with few occasional alterations. Of course legally speaking, no bill can become law, and no budget will be sanctioned unless approved by the Parliament. But the Parliament rarely rejects the suggestions made by the committees.
HOW DOES THE PARLIAMENT REGULATE ITSELF?
Parliament as mentioned earlier is a debating forum. It is through debates that the parliament performs all its vital functions. Such discussions must be meaningful and orderly so that the functions of the Parliament are carried out smoothly and its dignity is intact.
You may have heard about the anti-defection law. Most of the members of the legislatures are elected on the ticket of some political party. What would happen if they decide to leave the party after getting elected? For many years after independence, this issue was unresolved. Finally there was an agreement among the parties that a legislator who is elected on one party’s ticket must be restricted from ‘defecting’ to another party. An amendment to the Constitution was made (52nd amendment act) in 1985. This is known as anti-defection amendment. It has also been subsequently modified by the 91st amendment. The presiding officer of the House is the authority who takes final decisions on all such cases. If it is proved that a member has ‘defected’, then such member loses the membership of the House. Besides, such a person is also disqualified from holding any political office like 121 ministership, etc.
What is defection? If a member remains absent in the House when asked by the party leadership to remain present or votes against the instructions of the party or voluntarily leaves the membership of the party, it is deemed as defection.
Experience of the past twenty years shows that the anti-defection amendment has not been able to curb defections, but it has given additional powers to the party leadership and the presiding officers of the legislatures over the members.
Chapter 6
Judiciary
Many times, courts are seen only as arbitrators in disputes between individuals or private parties. But judiciary performs some political functions also. Judiciary is an important organ of the government. The Supreme Court of India is in fact, one of the very powerful courts in the world. Right from 1950 the judiciary has played an important role in interpreting and in protecting the Constitution.
JUDICIAL ACTIVISM
Have you heard of the term judicial activism? Or, Public Interest Litigation?
Both these terms are often used in the discussions about judiciary in recent times. Many people think that these two things have revolutionised the functioning of judiciary and made it more people-friendly.
The chief instrument through which judicial activism has flourished in India is Public Interest Litigation (PIL) or Social Action Litigation (SAL). What is PIL or SAL? How and when did it emerge? In normal course of law, an individual can approach the courts only if he/she has been personally aggrieved. That is to say, a person whose rights have been violated, or who is involved in a dispute, could move the court of law. This concept underwent a change around 1979. In 1979, the Court set the trend when it decided to hear a case where the case was filed not by the aggrieved persons but by others on their behalf. As this case involved a consideration of an issue of public interest, it and such other cases came to be known as public interest litigations. Around the same time, the Supreme Court also took up the case about rights of prisoners. This opened the gates for large number of cases where public spirited citizens and voluntary organisations sought judicial intervention for protection of existing rights, betterment of life conditions of the poor, protection of the environment, and many other issues in the interest of the public. PIL has become the most important vehicle of judicial activism.
Judiciary, which is an institution that traditionally confined to responding to cases brought before it, began considering many cases merely on the basis of newspaper reports and postal complaints received by the court. Therefore, the term judicial activism became the more popular description of the role of the judiciary.
Judicial activism has had manifold impact on the political system. It has democratised the judicial system by giving not just to individuals but also groups access to the courts. It has forced executive accountability.
There is however a negative side to the large number of PILs and the idea of a pro-active judiciary. In the first place it has overburdened the courts. Secondly, judicial activism has blurred the line of distinction between the executive and legislature on the one hand and the judiciary on the other. The court has been involved in resolving questions which belong to the executive.
JUDICIARY AND PARLIAMENT
Apart from taking a very active stand on the matter of rights, the court has been active in seeking to prevent subversion of the Constitution through political practice. Thus, areas that were considered beyond the scope of judicial review such as powers of the President and Governor were brought under the purview of the courts.
There are many other instances in which the Supreme Court
actively involved itself in the administration of justice by giving 141 directions to executive agencies. Thus, it gave directions to CBI to
initiate investigations against politicians and bureaucrats in the
hawala case, the Narasimha Rao case, illegal allotment of petrol
pumps case etc. You may have heard about some of these cases.
Many of these instances are the products of judicial activism.
Chapter 7
federalism
When India became independent, we had a number of provinces that the British government had organised only for administrative convenience.
WHAT IS FEDERALISM?
USSR was one of the world’s super powers, but after 1989 it simply broke up into several independent countries. One of the major reasons for its break up was the excessive centralisation and concentration of power, and the domination of Russia over other regions with independent languages and cultures of their own e.g. Uzbekistan. Some other countries like Czechoslovakia, Yugoslavia, and Pakistan also had to face a division of the country. Canada came very close to a break up between the English–speaking and the French-speaking regions of that country. Isn’t it a great achievement that India, which emerged as an independent nation-state in 1947 after a painful partition, has remained united over six decades of its independent existence? What accounts for this achievement? Can we attribute it to the federal structure of governance that we in India adopted through our Constitution? All the countries mentioned above, were federations. Yet they could not remain united. Therefore, apart from adopting a federal constitution, the nature of that federal system and the practice of federalism must also be important factors.
India is a land of continental proportions and immense diversities. There are more than 20 major languages and several hundred minor ones. It is the home of several major religions. There are several million indigenous peoples living in different parts of the country. In spite of all these diversities we share a common land mass. We have also participated in a common history, especially, when we fought for independence. We also share many other important features. This has led our national leaders to visualise India as a country where there is unity in diversity. Sometimes it is described as unity with diversity.
Federalism does not consist of a set of fixed principles, which are applied, to different historical situations. Rather, federalism as a principle of government has evolved differently in different situations. American federalism – one of the first major attempts to build a federal polity – is different from German or Indian federalism. But there are also a few key ideas and concepts associated with federalism.
- Essentially, federalism is an institutional mechanism
to accommodate two sets of polities—one at the regional level and the other at the national level. Each government is autonomous in its own sphere. In some federal countries, there is even a system of dual citizenship. India has only a single citizenship.
- The people likewise, have two sets of identities and loyalties—they belong to the region as well as the nation, for example we are Gujaratis or Jharkhandis as well as Indians. Each level of the polity has distinct powers and responsibilities and has a separate system of government.
- The details of this dual system of government are generally spelt out in a written constitution, which is considered to be supreme and which is also the source of the power of both sets of government. Certain subjects, which concern the nation as a whole, for example, defence or currency, are the responsibility of the union or central government. Regional or local
matters are the responsibility of the regional or State government.
- To prevent conflicts between the centre and the State, there is an independent judiciary to settle disputes. The judiciary has the powers to resolve disputes between the central government and the States on legal matters about the division of power.
Real politics, culture, ideology and history determine the actual working of a federation.
If the regions and various communities do not trust each other, even a federal arrangement can fail to produce unity. The example of Nigeria is instructive .
The most important feature of the federal system adopted by the Indian Constitution is the principle that relations between the States and the centre would be based on cooperation. Thus, while recognising diversity, the Constitution emphasised unity.
Do you know for example, that the Constitution of India does not even mention the word federation? This is how the Constitution describes India —
Article 1:
(1) India, that is Bharat, shall be a Union of States.
(2) The States and the territories thereof shall be as specified in the First Schedule.
Division of Powers
If there is any dispute about which powers come under the control of the union and which under the States, this can be resolved by the Judiciary on the basis of the constitutional provisions. The Constitution clearly demarcates subjects, which are under the exclusive domain of the Union and those under the States. One of the important aspects of this division of powers is that economic and financial powers are centralised in the hands of the central government by the Constitution. The States have immense responsibilities but very meagre revenue sources.
FEDERALISM WITH A STRONG CENTRAL GOVERNMENT
It is generally accepted that the Indian Constitution has created a strong central government. India is a country of continental dimensions with immense diversities and social problems. The framers of the Constitution believed that we required a federal constitution that would accommodate diversities. But they also wanted to create a strong centre to stem disintegration and bring about social and political change. It was necessary for the centre to have such powers because India at the time of independence was not only divided into provinces created by the British; but there were more than 500 princely states which had to be integrated into existing States or new States had to be created.
Poverty, illiteracy and inequalities of wealth were some of the problems that required planning and coordination. Thus, the concerns for unity and development prompted the makers of the Constitution to create a strong central government.
The Constitution has certain very powerful emergency provisions, which can turn our federal polity into a highly centralised system once emergency is declared.
Articles33 and 34 authorise the Parliament to protect persons in the
service of the union or a state in respect of any action taken by them during martial law to maintain or restore order.
This provisions further strengthens the powers of the union government.
The Armed Forces Special Powers Act has been made on the basis
of these provisions. This Act has created tensions between the
people and the armed forces on some occasions.
CONFLICTS IN INDIA’S FEDERAL SYSTEM
From time to time, States have demanded that they should be given more powers and more autonomy. This leads to tensions and conflicts in the relations between the centre and the States. While the legal disputes between the centre and the States (or between States) can be resolved by the judiciary, demands for autonomy are of political nature and need to be resolved through negotiations.
Centre-State Relations
The Constitution is only a framework or a skeleton, its flesh and blood is provided by the actual processes of politics.
Some States also feel that there is a domination of the Hindi-speaking areas over the others. In fact, during the decade of 1960s, there were agitations in some States against the imposition of the Hindi language.
Role of Governors and President’s Rule
The role of Governors has always been a controversial issue between the States and the central government. The Governor is not an elected office-holder. Many Governors have been retired military officers or civil servants or politicians. Besides, the Governor is appointed by the central government and therefore, actions of the Governor are often viewed as interference by the Central government in the functioning of the State government.
Powers and role of the Governor become controversial for one more reason. One of the most controversial articles in the Constitution is Article 356, which provides for President’s rule in any State.
The Sarkaria Commission that was appointed by the central government (1983; it submitted its report in 1988) to examine the issues relating to centre-State relations, recommended that appointments of Governors should be strictly non-partisan.
In December 1953, the States Reorganisation Commission was set up and it recommended the creation of linguistic States, at least for the major linguistic groups. In 1956, reorganisation of some States took place. This saw the beginning of the creation of linguistic States and the process is still continuing.
Interstate Conflicts
While the States keep fighting with the centre over autonomy and other issues like the share in revenue resources, there have been many instances of disputes between two States or among more than two States. It is true that the judiciary acts as the arbitration mechanism on disputes of a legal nature but these disputes are in reality not just legal. They have political implications and therefore they can best be resolved only through negotiations and mutual understanding.
Broadly, two types of disputes keep recurring. One is the border dispute. States have certain claims over 169 territories belonging to neighbouring States. Though language is the basis of defining boundaries of the States, often border areas would have populations speaking more than one language. So, it is not easy to resolve this dispute merely on the basis of linguistic majority. One of the long-
standing border disputes is the dispute between Maharashtra and Karnataka over the city of Belgaum.
Manipur and Nagaland too, have a long-standing border dispute.
While border disputes are more about sentiment, the disputes over the sharing of river waters are even more serious, because they are related to problems of drinking water and agriculture in the concerned States. You might have heard about the Cauvery water dispute. This is a major issue between Tamil Nadu and Karnataka. Farmers in both the States are dependent on Cauvery waters. Though there is a river water tribunal to settle water disputes, this dispute has reached the Supreme Court. In another similar dispute Gujarat, Madhya Pradesh and Maharashtra are battling over sharing the waters of Narmada river. Rivers are a major resource and therefore, disputes over river waters test the patience and cooperative spirit of the States.
SPECIAL PROVISIONS
The most extra-ordinary feature of the federal arrangement created in India is that many States get a differential treatment. We have already noted in the chapter on Legislature that the size and population of each State being different, an asymmetrical representation is provided in the Rajya Sabha. While ensuring minimum representation to each of the smaller States, this arrangement also ensures that larger States would get more representation.
In the case of division of powers, too, the Constitution provides a division of powers that is common to all the States. And yet, the Constitution has some special provisions for some States given their peculiar social and historical circumstances. Most of the special provisions pertain to the north eastern States (Assam, Nagaland, Arunachal Pradesh, Mizoram, etc.) largely due to a sizeable indigenous tribal population with a distinct history and culture, which they wish to retain (Art 371). However, these provisions have not been able to stem alienation and the insurgency in parts of the region. Special provisions also exist for hilly States like Himachal Pradesh and some other States like Andhra Pradesh, Goa, Gujarat, Maharashtra and Sikkim.
Federalism is like a rainbow, where each colour is separate, yet together they make a harmonious pattern. Federalism has to continuously maintain a difficult balance between the centre and the States. No legal or institutional formula can guarantee the smooth functioning of a federal polity. Ultimately, the people and the political process must develop a culture and a set of values and virtues like mutual trust, toleration and a spirit of cooperation. Federalism celebrates both unity as well as diversity.
Chapter 8
Local Governments
In a democracy, it is not sufficient to have an elected government at the centre and at the State level. It is also necessary that even at the local level, there should be an elected government to look after local affairs.
Local government is government at the village and district level. Local government is about government that involves the day-to-day life and problems of ordinary citizens.
In the story of Geeta Rathore, we noticed that she was able to bring about a significant change in Jamonia Talab because of her pro-active role as Sarpanch of the Gram Panchayat.
Democracy is about meaningful participation. It is also about accountability. Strong and vibrant local governments ensure both active participation and purposeful accountability.
It is necessary that in a democracy, tasks, which can be performed locally, should be left in the hands of the local people and their representatives. Common people are more familiar with their local government than with the government at the State or national level. They are also more concerned with what local government does or has failed to do as it has a direct bearing and impact on their day-to-day life. Thus, strengthening local
government is like strengthening democratic processes.
GROWTH OF LOCAL GOVERNMENT IN INDIA
Let us now discuss how local government has grown in India and what our Constitution says about it. It is believed that self-governing village communities existed in India from the earliest times in the form of ‘sabhas’ (village assemblies). In the course of time, these village bodies took the shape of Panchayats (an assembly of five persons) and these Panchayats resolved issues at the village level. Their role and functions kept on changing at different points of time.
In modern times, elected local government bodies were created after 1882. Lord Rippon, who was the Viceroy of India at that time, took the initiative in creating these bodies. They were called the local boards. However, due to slow progress in this regard, the Indian National Congress urged the government to take necessary steps to make all local bodies more effective. Following the Government of India Act 1919, village panchayats were established in a number of provinces. This trend continued after the Government of India Act of 1935.
During India’s freedom movement, Mahatma Gandhi had strongly pleaded for decentralisation of economic and political power. He believed that strengthening village panchayats was a means of effective decentralisation.
The independence of India should mean the independence of the whole of India...Independence must begin at the bottom. Thus every village will be a republic... It follows therefore that every village has to be self-sustained and capable of managing its affairs. In this structure composed of innumerable villages, there will be ever- widening, ever-ascending circles. Life will be a pyramid with the apex sustained by the bottom - Mahatma Gandhi
It is felt that the subject of local government including panchayats did not receive adequate importance in the Constitution. Do you know why this happened? A few reasons can be advanced here. Firstly, the turmoil due to the Partition resulted in a strong unitary inclination in the Constitution. Nehru himself looked upon extreme localism as a threat to unity and integration of the nation. Secondly, there was a powerful voice in the Constituent Assembly led by Dr. B.R. Ambedkar which felt that the faction and caste-ridden nature of rural society would defeat the noble purpose of local government at the rural level.
Local Governments in Independent India
Local governments got a fillip after the 73rd and 74th Constitution Amendment Acts. But even before that, some efforts in the direction of developing local government bodies had already taken place. First in the line was the Community Development Programme in 1952, which sought to promote people’s participation in local development in a range of activities. In this background, a three-tier Panchayati Raj system of local government was recommended for the rural areas. Some States (like Gujarat, Maharashtra) adopted the system of elected local bodies around 1960. But in many States those local bodies did not have enough powers and functions to look after the local development. They were very much dependent on the State and central governments for financial assistance. Many States did not think it necessary to establish elected local bodies. In many instances, local bodies were dissolved and the local government was handed over to government officers. Many States had indirect elections to most local bodies. In many States, elections to the local bodies were postponed from time to time.
In 1989 the P.K.Thungon Committee recommended constitutional recognition for the local government bodies.
73RD AND 74TH AMENDMENTS
In 1989, the central government introduced two constitutional amendments. These amendments aimed at strengthening local governments and ensuring an element of uniformity in their structure and functioning across the country.
Later in 1992, the 73rd and 74th constitutional amendments were passed by the Parliament. The 73rd Amendment is about rural local governments (which are also known as Panchayati Raj Institutions
or PRIs) and the 74th amendment made the provisions relating to
urban local government (Nagarpalikas). The 73rd and 74th 183 Amendments came into force in 1993.
Three Tier Structure
All States now have a uniform three tier Panchayati Raj structure. At the base is the ‘Gram Panchayat‘. A Gram Panchayat covers a village or group of villages. The intermediary level is the Mandal (also referred to as Block or Taluka). These bodies are called Mandal or Taluka Panchayats. The intermediary level body need not be constituted in smaller States. At the apex is the Zilla Panchayat covering the entire rural area of the District.
Transfer of Subjects
Twenty-nine subjects, which were earlier in the State list of subjects, are identified and listed in the Eleventh Schedule of the Constitution. These subjects are to be transferred to the Panchayati Raj institutions. These subjects were mostly linked to development and welfare functions at the local level. The actual transfer of these functions depends upon the State legislation. Each State decides how many of these twenty-nine subjects would be transferred to the local bodies.
The provisions of the 73rd amendment were not made applicable to the areas inhabited by the Adivasi populations in many States of India. In 1996, a separate act was passed extending the provisions of the Panchayat system to these areas. Many Adivasi communities have their traditional customs of managing common resources such as forests and small water reservoirs, etc. Therefore, the new act protects the rights of these communities to manage their resources in ways acceptable to them. For this purpose, more powers are given to the Gram Sabhas of these areas and elected village panchayats have to get the consent of the Gram Sabha in many respects. The idea behind this act is that local traditions of self government should be protected while introducing modern elected bodies. This is only consistent with the spirit of diversity and decentralisation.
State Election Commissioner
The State government is required to appoint a State Election Commissioner who would be responsible for conducting elections to the Panchayati Raj institutions.
State Finance Commission
The State government is also required to appoint a State Finance Commission once in five years. This Commission would examine the financial position of the local governments in the State. It would also review the distribution of revenues between the State and local governments on the one hand and between rural and urban local governments on the other.
74th Amendment
As we mentioned earlier, the 74th amendment dealt with urban local bodies or Nagarpalikas.
What is an urban area? It is very easy to identify a big city like Mumbai or Kolkata, but it is not so easy to say this about some very small urban areas that are somewhere between a village and a town. The Census of India defines an urban area as having: (i) a minimum population of 5000; (ii) at least 75 per cent of male working population engaged in non-agricultural occupations and (iii) a density of population of at least 400 persons per sq. km. As per the 2001 census, nearly 28% of India’s population lives in urban areas.
Women have gained more power and confidence by asserting control over resources. Their presence in these institutions has given many women a greater understanding of the working of politics. In many cases, they have brought a new perspective and a greater sensitivity to discussions at local bodies. In many cases, women were unable to assert their presence or were mere proxies for the male members of their family who sponsored their election. Such instances, however are becoming fewer.
While reservations for Scheduled Castes and Tribes are mandated by the constitutional amendment, most States have also made a provision to reserve seats for Backward Castes. As the Indian population has 16.2 per cent Scheduled Castes and 8.2 per cent Scheduled Tribes, about 6.6 lakh elected members in the urban and local bodies hail from these two communities.
Whenever there is an attempt to make democracy more meaningful and give power to those who did not enjoy it earlier, there is bound to be some conflict and tension in society.
Bolivia is frequently cited as one of the most successful cases of democratic decentralisation in Latin America.
Local bodies have very little funds of their own. The dependence of local bodies on the State and central governments for financial support has greatly eroded their capacity to operate effectively. While rural local bodies raise 0.24% of the total revenues collected, they account for 4% of the total expenditure made by the government. So they earn much less than they spend. That makes them dependent on those who give them grants.
Chapter 9
Constitution as a living document
ARE CONSTITUTIONS STATIC?
It is not uncommon for nations to rewrite their constitutions in response to changed circumstances or change of ideas within the society or even due to political upheavals.
The basic framework of the Constitution is very much suited to our country. It is also true that the Constitution makers were very farsighted and provided for many solutions for future situations. But no constitution can provide for all eventualities. No document can be such that it needs no change.
Then how does the same Constitution continue to serve the country? One of the answers to such questions is that our Constitution accepts the necessity of modifications according to changing needs of the society. Secondly, in the actual working of the Constitution, there has been enough flexibility of interpretations. Both political practice and judicial rulings have shown maturity and flexibility in implementing the Constitution. These factors have made our Constitution a living document rather than a closed and static rulebook.
The makers of the Indian Constitution were aware of this problem and sought to strike a balance. They placed the Constitution above ordinary law and expected that
the future generations will respect this document. At the same time,
they recognised that in the future, this document may require 199 modifications. Even at the time of writing the Constitution, they were
aware that on many matters there were differences of opinion.
Whenever society would veer toward any particular opinion, a change
in the constitutional provisions would be required. Thus, the Indian Constitution is a combination of both the approaches mentioned
above: that the constitution is a sacred document and that it is an
instrument that may require changes from time to time. In other
words, our Constitution is not a static document, it is not the final
word about everything; it is not unalterable.
The Constitution must be amended if so required. But it must be protected from unnecessary and frequent changes. In other words, they wanted the Constitution to be ‘flexible’ and at the same time ‘rigid’. Flexible means open to changes and rigid means resistant to changes.
There are many articles in the Constitution, which mention that these articles can be amended by a simple law of the Parliament. No special procedure for amendment is required in such cases and there is no difference at all between an amendment and an ordinary law. These parts of the Constitution are very flexible.
For amending the remaining parts of the Constitution, provision has been made in Article 368 of the Constitution. In this article, there are two methods of amending the Constitution and they apply to two different sets of articles of the Constitution. One method is that amendment can be made by special majority of the two houses of the Parliament. The other method is more difficult: it requires special majority of the Parliament and consent of half of the State legislatures. Note that all amendments to the Constitution are initiated only in the Parliament. Besides the special majority in the Parliament no outside agency— —like a constitution commission or a separate body—is required for amending the Constitution.
Constitution requires two different kinds of special majorities: in the first place, those voting in favour of the amendment bill should constitute at least half of the total strength of that House. Secondly, the supporters of the amendment bill must also constitute two-thirds of those who actually take part in voting.
Many MPs belonging to the opposition parties were in jail when this amendment was passed in the Parliament. In this backdrop, elections were held in 1977 and the ruling party (Congress) was defeated. The new government thought it necessary to reconsider these controversial amendments and through the 43rd and 44th amendments, cancelled most of the changes that were effected by the 38th, 39th and the 42nd amendments. The constitutional balance was restored by these amendments.
BASIC STRUCTURE AND EVOLUTION OF THE
CONSTITUTION
One thing that has had a long lasting effect on the evolution of the Indian Constitution is the theory of the basic structure of the Constitution. You know already that the Judiciary advanced this theory in the famous case of Kesavananda Bharati. This ruling has contributed to the evolution of the Constitution in the following ways:
- It has set specific limits to the Parliament’s power to amend the Constitution. It says that no amendment can violate the basic structure of the Constitution;
- It allows the Parliament to amend any and all parts of the Constitution (within this limitation); and
- It places the Judiciary as the final authority in deciding if an amendment violates basic structure and what constitutes the basic structure.
The Supreme Court gave the Kesavananda ruling in
1973. In the past three decades, this decision has governed all interpretations of the Constitution and all institutions in the country have accepted the theory of basic structure. In fact, the theory of basic structure is itself an example of a living constitution. There is no mention of this theory in the Constitution. It has emerged from judicial interpretation. Thus, the Judiciary and its interpretation have practically amended the Constitution without a formal amendment.
By saying that certain parts cannot be amended, it has underlined the rigid nature while by allowing amendments to all others it has underlined the flexible nature of the amending process.
Review of the Constitution
In the late nineties, efforts were made to review the entire Constitution. In the year 2000 a commission to review the working of the Constitution was appointed by the Government of India under the chairmanship of a retired Chief Justice of the Supreme Court, Justice Venkatachaliah. Opposition parties and many other organisations boycotted the commission. While a lot of political controversy surrounded this commission, the commission stuck to the theory of basic structure and did not suggest any measures that would endanger the basic structure of the Constitution. This shows the significance of the basic structure doctrine in our constitutional practice.
Supreme Court had held that reservations in jobs and educational institutions cannot exceed fifty per cent of the total seats. This has now become an accepted principle. Similarly, in the case involving reservations for other backward classes, the Supreme Court introduced the idea of creamy layer and ruled that persons belonging to this category were not entitled to benefits under reservations. In the same manner, the Judiciary has contributed to an informal amendment by interpreting various provisions concerning right to education, right to life and liberty and the right to form and manage minority educational institutions. These are instances of how rulings by the Court contribute to the evolution of the Constitution.
Almost like a living being, this document keeps responding to the situations and circumstances arising from time to time. Like a living being, the Constitution responds to experience
This is a hallmark of a democratic constitution. In a democracy, practices and ideas keep evolving over time and the society engages in experiments according to these.
Democracy is not only about votes and people’s representation. It is also about the principle of rule of law. Democracy is also about developing institutions and working through these institutions. All the political institutions must be responsible to the people and maintain a balance with each other.
Contribution of the Judiciary
During the controversy between the Judiciary and the Parliament, the Parliament thought that it had the power and responsibility to make laws (and amendments) for furthering the interests of the poor, backward and the needy. The Judiciary insisted that all this has to take place within the framework provided by the Constitution and pro-people measures should not bypass legal procedures, because, once you bypass laws even with good intentions, that can give an excuse to the power holders to use their power arbitrarily. And democracy is as much about checks on arbitrary use of power as it is about the well-being of the people.
The Judiciary, in its famous Kesavananda ruling found a way out of the existing complications by turning to the spirit of the Constitution rather than its letter. If you read the Constitution, you will not find any mention of the ‘basic structure’ of the Constitution. Nowhere does the Constitution say that such and such are part of the basic structure. In this sense, the ‘basic structure’ theory is the invention of the Judiciary.
How did it invent such a non- existent thing? And how is it that all other institutions have accepted this during the past three decades?
Therein lies the distinction between letter and spirit. The Court came to the conclusion that in reading a text or document, we must respect the intent behind that document. A mere text of the law is less important than the social circumstances and aspirations that have produced that law or document. The Court was looking at the basic structure as something without which the Constitution cannot be imagined at all. This is an instance of trying to balance the letter and the spirit of the Constitution
When the Constitution was made, leaders and people of our country shared a common vision of India. In Nehru’s famous speech at the time of independence, this vision was described as a tryst with destiny.
Chapter 10
The philosophy of the constitution
WHAT IS MEANT BY PHILOSOPHY OF THE CONSTITUTION?
Some people believe that a constitution merely consists of laws and that laws are one thing, values and morality, quite another. Therefore, we can have only a legalistic, not a political philosophy approach to the Constitution. It is true that all laws do not have a moral content, but many laws are closely connected to our deeply held values. For example, a law might prohibit discrimination of persons on grounds of language or religion. Such a law is connected to the idea of equality. Such a law exists because we value equality. Therefore, there is a connection between laws and moral values.
Our final point is that the Indian Constitution must be read in conjunction with the Constituent Assembly Debates in order to refine and raise to a higher theoretical plane, the justification of values embedded in the Constitution.
Constitutions also provide peaceful, democratic means to bring about social transformation. Moreover, for a hitherto colonised people, constitutions announce and embody the first real exercise of political self-determination.
In short, to get a handle on current constitutional
practice, to grasp their value and meaning, we may have
no option but to go back in time to the Constituent
Assembly debates and perhaps even further back in time
to the colonial era. Therefore, we need to remember and
keep revisiting the political philosophy underlying our
Constitution.
WHAT IS THE POLITICAL PHILOSOPHY OF OUR CONSTITUTION?
It is hard to describe this philosophy in one word. It resists any single label because it is liberal, democratic, egalitarian, secular, and federal, open to community values, sensitive to the needs of religious and linguistic minorities as well as historically disadvantaged groups, and committed to building a common national identity.
The liberalism of the Indian Constitution differs from this version in two ways. First, it was always linked to social justice. The best example of this is the provision for reservations for Scheduled Castes and Scheduled Tribes in the Constitution. The makers of the Constitution believed that the mere granting of the right to equality was not enough to overcome age-old injustices suffered by these groups or to give real meaning to their right to vote. Special constitutional measures were required to advance their interests. Therefore the constitution makers provided a number of special measures to protect the interests of Scheduled Castes and Scheduled Tribes such as the reservation of seats in legislatures. The Constitution also made it possible for the government to reserve public sector jobs for these groups.
Individuals in France or Germany belong to a linguistic community and are deeply attached to it. What makes us different is that we have more openly acknowledged the value of communities. More importantly, India is a land of multiple cultural communities. Unlike Germany or France we have several linguistic and religious communities. It was important to ensure that no one community systematically dominates others. This made it mandatory for our Constitution to recognise community based rights.
One such right is the right of religious communities to establish and run their own educational institutions. Such institutions may receive money from the government. This provision shows that the Indian Constitution does not see religion merely as a ‘private’ matter concerning the individual.
Though the term ‘secular’ was not initially mentioned, the Indian Constitution has always been secular. The mainstream, western conception, of secularism means mutual exclusion of state and religion in order to protect values such as individual freedom and citizenship rights of individuals.
The term ‘mutual exclusion’ means this: both religion and state must stay away from the internal affairs of one another.
Conditions in India were different and to respond to the challenge they posed, the makers of the Constitution had to work out an alternative conception of secularism. They departed from the western model in two ways and for two different reasons.
Rights of Religious Groups
State’s Power of Intervention
For example, the accession of Jammu and Kashmir to the Indian union was based on a commitment to safeguard its autonomy under Article370 of the Constitution. This is the only State that is governed by its own constitution. Similarly, under Article 371A, the privilege of special status was also accorded to the North-Eastern State of Nagaland. This Article not only confers validity on pre- existing laws within Nagaland, but also protects local identity through restrictions on immigration. Many other States too, are beneficiaries of such special provisions. According to the Indian Constitution, then, there is nothing bad about this differential treatment.
