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PART -1 : Constitutional Framework

Making of the constitution

• 1934 - M.N.Roy idea of constituent assembly.
• 1935 - INC 1st time demanded constituent assembly
• 1940 - demand accepted in august offer 1940
• 1942 - Sir Stafford Cripps - Cripps proposal - ML rejected and demanded two constituent assembly
• 1946 - Cabinet mission plan (Lord Pethick Lawrence, Sir Stafford Cripps & A V Alexander) - rejected 2 constituent assemblies but proposed ML acceptable plan

Composition of the CA

Acc. to Cabinet Mission Plan – partly elected and partly nominated and indirect election with limited franchise – election in 1946 – Jinnah and Gandhi not a part

1. Total strength = 389 = 296(Br India)/93(Princely states)
2. 292 = from 11 governor's province (madras, Bombay, UP, Bihar, Central provinces, Orissa, Punjab, NWFP, Sindh, Bengal and Assam) /4 chief commissioner's province (Delhi, Ajmer- Merwara, Coorg and Br. Baluchistan
3. 1 seat/million population – seats proportional to the population of Muslims, Sikhs & others
4. Proportional representation with a single transferable vote
5. Princely states nominated 

Working of CA

• ML didn't attend
• Dr.Sachchidanand Sinha – oldest so 1^st prez (French practice)
• 11, Dec 1946 - Dr. Rajendra Prasad and H C Mukherjee as prez and vice prez
• Sir B N Rau – constitutional advisor to CA

Objective Resolution

• 1946 – JLN – Objectives Resolution – Preamble 

Changes after Independence act

• Slowly princely states joined. 6 states in April 1947 and rest after partition
• ML from Indian dominion also joined
• CA – Dr.Rajendra Prasad / Legislative body – G V Mavalankar
• 299 new strength 229-Indian province/70-princely states 

Other functions performed by CA

• Ratified commonwealth membership
• Adopted the national flag July 22, 1947
• Adopted the national anthem, national song and elected 1^st prez (Dr. Rajendra Prasad) Jan 24, 1950
• 11 sessions over 2 years, 11 months and 18 days – 60 countries - Rs.64 lakhs
• Last session Jan,24,1950 and provincial parliament till April 17, 1952
• 114 days for 3 drafts – final 4, Nov 1948
• Constitution adopted on Nov 26, 1949, contained preamble and 395 articles and 8 schedules
• Some provisions on nov,26,1949 and major part on Jan,26,1950(date of commencement) – 1930 Purna swaraj day following Lahore session resolution (1929)

Committees of CA

8 major committees

1. Union powers committee – JLN
2. Union Constitution Committee – JLN
3. States committee (to negotiate with states) – JLN
4. Provincial Constitution committee – Sardar Patel
5. Drafting committee – Dr.BRA ( Father of COI, chief architect of the COI , modern manu)
6. Advisory committee on FR's, Minorities, and tribal and excluded areas – Sardar patel
   1. FR's -  J.B Kripalani
   2. Minorites – H.C.Mukherjee
   3. North-East frontier tribal areas and Assam excluded and partially excluded areas sub-committee – Gopinath bardoli
   4. Excluded and Partially Excluded Areas(Not Assam) – A.V.Thakkar
7. Rules and Procedure committee – Dr.Rajendra Prasad
8. Steering Committee – Dr.Rajendra Prasad

Imp. Minor Committees

• Functions of Constituent Assembly - G.V.Mavalankar
• Order of Business Committee - Dr. K.M.Munshi
• House committee - B.Pattabhi Sitaramayya
• Committee on chief commissioners province - B.Pattabhi Sitaramayya
• National Flag Ad-hoc committee - Dr.Rajendra Prasad
• Finance and staff committee - Dr.Rajendra Prasad
• Spl. Committee to examine the draft constitution - Alladi Krishnaswamy Ayyar
• Credentials committee - Alladi Krishnaswamy Ayyar
• SC Ad-hoc committe - S.Varadachariar

Drafting Committee (Most imp)

• Dr B R Ambedkar (Chairman)
• N Gopalaswamy Ayyangar
• Alladi Krishnaswamy Ayyar
• Dr K M Munshi
• Syed Mohammad Saadullah
• N Madhava Rau (He replaced B L Mitter who resigned due to ill-health)
• T T Krishnamachari (He replaced D P Khaitan who died in 1948)

 Criticism of CA

• Not representative – indirect election
• Not sovereign body – Created on Br proposal and session held with permission
• Time-consuming – 2yr11mon18days
• Congress dominated – Granville Austin
• Lawyer – politician domination
• Hindu dominated – Lord viscount Simon and Winston Churchill

• Major amendments -7^th, 42^nd, 44^th, 73^rd, 74^th – 42^nd mini constitution (1976)
• Kesavananda Bharati case 1973 – Basic structure doctrine

Salient features of the constitution

Lengthiest

• 395 article/22 parts/8 schedules – 465 articles/25 parts/12 schedules
  • Geographical factor
  • Historical factor -1935
  • Single constitution
  • Dominance of legal luminaries

Borrowed from various sources

Government of India Act of 1935

1. Federal Scheme
2. Office of governor
3. Judiciary
4. Public Service Commissions
5. Emergency provisions
6. Administrative details

Britain

• Parliamentary government
• Rule of Law
• Legislative procedure
• Single citizenship
• Cabinet system
• Prerogative writs
• Parliamentary privileges
• Bicameralism

Ireland

• DPSC
• Nomination of members to Rajya Sabha
• Method of election of president

Unites States of America

• Impeachment of the president
• Functions of president and vice-president
• Removal of Supreme Court and High court judges and vice president
• Fundamental Rights
• Judicial review
• Independence of judiciary
• Preamble of the constitution

Canada

• Federation with a strong Centre
• Vesting of residuary powers in the Centre
• Appointment of state governors by the Centre
• Advisory jurisdiction of the Supreme Court

Australia

• Concurrent List
• Freedom of trade
• Commerce and intercourse
• Joint sitting of the two Houses of Parliament

Soviet Constitution

• Fundamental duties
• The ideal of justice (social, economic and political) in the Preamble

France

• The ideals of Republic, liberty, equality and fraternity the Preamble

Weimar Constitution of Germany

• Suspension of Fundamental Rights during Emergency

South African Constitution

• Procedure for amendment of the Constitution
• Election of members of Rajya Sabha

Japan

• Procedure established by law

Blend of Rigidity(us) and flexibility(uk)

• Amendment under A368
  • Spl Majority - 2/3rd p & V & 50% of total
  • Spl Majority + 50% states
• Amendment outside A368
  • Simple Majority

Federal system with unitary bias

• Federal in form unitary in spirit
• Quasi federal – K C wheare
• Co-operative federalism – Granville Austin
• Bargaining federalism – Morris Jones
• Federation with centralising tendency – Ivor Jennings
• Federal features
  • Two govt
  • DOP
  • Written constitution
  • Supremacy of constitution
  • Rigidity of constitution
  • Independent judiciary
  • Bicameralism.
• Unitary features
  • single constitution
  • single citizenship
  • flexibility of constitution
  • integrated judiciary
  • AIS
  • governor
  • emergency provisions
  • term federation nowhere used but union of states

Parliamentary form of government

• No SOP like presidential but principle of cooperation and coordination
• A.k.a Westminster model of government, responsible government and cabinet government
• Presence of nominal and real exe
• Majority party rule
• Membership of ministers in legislature
• Leadership of the PM or CM
• Dissolution of LS or state assembly
• Indian parliament is not sovereign body like the Br parliament.
• Indian elected head and Br monarchy
• Prime Ministerial Government because role of PM is significant

Synthesis of parliamentary sovereignty (UK) and judicial supremacy (US)

• SC of India - narrower than US
  • India = Only procedure established by law (Maneka Gandhi vs Union of India case (1978))
  • US = due process of law
  • Due Process of Law = Procedure Established by Law + The procedure should be fair and just and not arbitrary

Integrated and independent judiciary

• Single system of court to enforce both central and state laws
• US - Federal law by Federal court & State law by State Court

FRs

• P-III
• 6 FRs
  • Equality 14 -18
  • Freedom 19 - 22
  • Against Exploitation 23 - 24
  • Freedom of religion 25 -28
  • Culture and Educational Rts 29 - 30
  • Constitutional Remedies 32
• political democracy
• limits on exe tyranny & leg arbitrary law
• can directly approach SC
• bcos all 5 writs applicable
• not absolute - reasonable restriction
• not sacrosanct - curtailed or repealed by amendment
• suspended during emergency - except A 20 & 21

DPSP

• P - IV
• Novel feature (BRA)
• 3 broad categories
  • Socialistic
  • Gandhian
  • Liberal-intellectual
• Social and economic democracy
• Not enforceable or non-justiciable
• Minerva Mills Case 1980 - Balance b/w FRs & DPSP

FDs

• P - IV
• A51 -A
• during internal emergency (1975-1977)
• 42^nd CAA 1976 on swaran singh committee recommendation
• non-justiciable

Secular state

• 42^nd CAA in preamble
• Western - -negative concept = complete separation
• India - positive concept = equal respect and protection

Universal adult franchise

• 18 from 21 after 61^st CAA 1988

Single citizenship

• US - State and USA
• India - Only Indian except for few tribes and J&K

Independent bodies

• Bulwark of D'Y
• EC – parliament, state, prez and viceprez
• CAG – legality & propriety of expenditure
• UPSC
• SPSC
• Independence thro' - tenure, service condition, expenses charged on consolidated fund of India

Emergency provision

• To safeguard sovereignty, unity, integrity and security, D'Y and constitution
• A352 – National Emergency – war/external aggression/armed rebellion (44^th CAA from internal disturbance)
• A356 – State Emergency/ prez rule – failure of constitutional machinery
• A365 – State Emergency/prez rule – failure to comply with centre's direction
• A360 – Financial emergency

3 tier government

• 73^rd and 74^th CAA -1992
• Part IX/IXA
• Schedule 11(R) and 12(U)
• 73th - Panchayati Raj
  • Gram /Village Panchayats/Village Council
  • Panchayat Samities
  • Zilla Panchayats
  • Autonomous District Council
• 74th - Municipalities
  • Nagar panchayat for transitional areas
  • Municipal council for towns
  • Municipal corporation for cities

Preamble of the Constitution

• Preamble = Identity card of the constitution - N A Palkhivala
• Objective Resolution (JLN) – Became preamble

Ingredients of constitution

• Source of authority of the constitution – people
• Nature of Indian state – SSSDR
• Objective - JLEF
• Date of adoption – Nov,26,1949

Keywords in Preamble

• Sovereign – Not dependent
• Socialist – 42^nd CAA
  • democratic socialism not communistic socialism
  • mixed economy – blend of Marxism and Gandhism leaning heavily towards Gandhian socialism
• Secular – 42^nd CAA
  • Non-religious, not irreligious
  • protect all religion
• Democratic
  • Direct (Switzerland)
    • referendum (on a bill)
    • initiative (people can propose a bill)
    • recall
    • plebiscite (vote for territorial dispute)
  • Indirect (India)
    • representative
    • 2 types
      • parliamentary
      • presidential
• Republic
  • Vesting political sovereignty on people
  • Absence of privileged class
• Justice
  • Russian revolution
  • {social, economic} = distributive justice
    • equal treatment
    • no privileges
    • positive discrimination
  • political
    • equal political rights
    • equal access to political office
    • equal voice
• Liberty
  • French Revolution
  • absence of restraints
  • of thought, expression, belief, faith & worship
• Equality
  • French Revolution
  • absence of special privilege – civic(A14-18)
  • political
    • A325 not based on RRCS for inclusion in electoral roll
    • A326 - adult suffrage
  • economic (A3 -DPSP -equal wages)
• Fraternity
  • French Revolution
  • brotherhood
  • single citizenship
  • FD's – A51A – promote brotherhood

Significance of Preamble

• Basic philosophies
• Fundamental values – political, moral and religious
• Grand and noble vision
• Reflects the dreams and aspiration
• Horoscope of our sovereign democratic republic
• Soul of the constitution
• Jewel of constitution
• Worth of the constitution
• Key-note – Sir Ernest Barker – opening page "Principles of secular and political Theory"

Preamble as part of constitution and amend ability

• Berubari Union case – 1960 – not a part/not amendable
• Kesavananda Bharati case – 1973 – part/amendable
• LIC of Indian case – 1995 – part
• Amended only once in 1976 - 42nd CAA - Socialist, Secular, Integrity
• Neither a source of power
• Non-justiciable

Union of State

• A1 to 4 – Part I
• 1st Schedule - Names of states and UTs - 29+7
• Provisions applicable to all except
  • J&K,
  • Special provision(Part XXI) - MH, GJ, NG, Assam, Manipur, Andhra, Telangana, Sikkim, Mizoram, AP, Goa
  • 5th and 6th schedule areas
• A1
  • India that is Bharat as a "Union of states" rather than a 'Federation of states'
  • 3 territories
    • State
    • UT
    • Territories that may be acquired
  • Internationally recognised method to acquiring territory
    • cession (treaty, purchase, gift, lease or plebiscite)
    • occupation (hitherto unoccupied by recognised ruler)
    • conquest or subjugation
    • e.g
      • Dadra & Nagar haveli
      • goa
      • Daman & Diu
      • Puducherry
      • Sikkim
• A2
  • To admit new states which already exists - Pakistan
  • Establish new state which doesn't exist - Island
• A3 - Parliaments power to reorganise the states
  • alter area of state
  • alter boundaries of state
  • alter name of state
  • create new state - Telangana
    • parliament only with prez permission
    • prez after referring to state legislature
    • prez not bound by state recommendation
    • In case of UT no referral
    • So indestructible union of destructible states
    • USA - indestructible union of indestructible state
  • But A3 ceding Berubari Union (WB) to Pakistan – cede to foreign country needs u/A368 – 9^th CAA
  • But A3 Settlement of disputed boundary – executive action - recent conclaves India Bangladesh
• A4
  • says A1,2,3 is not CAA under A368 – so simple majority

Evolution of states & UTs

Integration of princely states

• Indian independence act 1947
  • Two independent and separate dominions of India and Pakistan
  • Princely states can join either or remain independent
• 549/552 within Indian territory joined India except 3
  • Hyderabad – police action
  • Junagarh – referendum
  • Kashmir – Instrument of accession
• Part - A, B, C and D (only A&N) states

Dhar commission and JVP committee

• Linguistic provinces commission 1948 - C'man S K Dhar
  • said administrative convenience rather than language
• Another Linguistic provinces committee 1948 – JVP(Nehru, patel and pattabhi sitaramayya)
  • report 1949 rejected language as the basis
• 1953 – Potti Sriramulu died so Andhra was created

Fazl Ali Commision 1953

• Fazl Ali, K M Panikkar and H N kunzru
• Accepted language but rejected 'one language one state'
• 4 factor for reorganisation
  • Preservation and strengthening of unity and security of the country
  • Linguistic and cultural homogeneity
  • Financial, economic and administrative consideration
  • Planning and promotion of the welfare of the people
• Recommended
  • Abolish PartABCD
  • Create 16 states & 6 UTs
• State reorganisation Act and 7th CAA 1956
  • Part ABCD states abolished
  • 14 states & UTs created

New states and UT's created after 1956

• 1953
  • Andhra Pradesh from Madras
• 1960
  • Maharashtra & Gujarat from Bombay
• 1961
  • Dadra and Nagar haveli
  • Portuguese ruled till 1954
  • self rule till 1961
• 1961
  • Goa, Daman and Diu
  • Police action from Portuguese
  • 1987 goa became state
• 1954
  • Pondicherry, karaikal, Mahe, Yanam
  • French handed over
  • acquired territory till 1962
  • UT after 14^th CAA
• 1963
  • Nagaland
  • naga hills and tuensang area out of Assam
• 1966
  • Haryana, Chandigarh and HP from Punjab
  • bcos Akali Dal under Master Tara Singh demanded
  • and Shah Commission 1966 recommended
  • Punjab for Punjabis
  • Haryana for Hindi speakers
  • Hill areas added to UT of HP
• 1971
  • UT of HP became state
• 1972
  • Manipur, Tripura & Meghalaya(1969 - sub state of assam) became state
  • Mizoram and AP(NEFA) became UT from Assam
• 1974
  • from 1947 protectorate of India(ruled by Chogyal)
  • Sikkim became associate state( ) - 35^th CAA
  • 1975 after referendum = state(36^th CAA)
• 1987
  • Mizoram (after Mizo peace accord with Mizo national front)
  • Arunachal Pradesh
  • Goa from UT of Goa, Daman and Diu
• 2000
  • Chattisgarh(MP)
  • Uttarakkhand(UP)
  • Jharkhand(Bihar)
• 2014 - Telangana

Name changes

• 1950
  • United province as UP
• 1969
  • Madras as TN
• 1973
  • Mysore as Karnataka
  • Laccadive, Minicoy, Amindivi Island as Lakshadweep
• 2993
  • UT of Delhi as National capital territory of Delhi 69^th CAA
• 2006
  • Uttaranchal as Uttarakhand
• 2011
  • Pondicherry as Puducherry
  • Orissa as Odisha

Citizenship

• Citizens and Aliens
• Aliens
  • Enemy aliens(war)(No A22 - can be arrested)
  • Friendly aliens
• Only citizens
  • Right
    • A15 - Discrimination
    • A16 - Employment
    • A19 – Freedom
    • A29 &30 – Cultural and educational
    • contest in election
    • public office
    • Both naturalised and citizen by birth can become prez but in USA only by birth
  • Duties
    • Taxes
    • Respect to national flag and national anthem
    • Defend country

Constitutional provisions

• A5-11 under part II – Only identifies who are citizen from Jan26,1950 for acquisition or loss constitution empowers parliament = Citizenship Act 1955
  • A5 Domicile & anyone below
    • Born
    • Either parent born
    • Ordinarily resident for 5 year before commencement of constitution
  • A6 Migration - He or either parent or grandparent born in undivided India and anyone below
    • Migrated before July 19, 1948 and resided
    • After July 19, 1948 and registered as citizen (resided 6 months before application)
  • A7 Migrated to Pakistan after March 1, 1947, but returned and 6month resided for registration 
  • A8 Indian origin residing outside
    • he or parents or grandparent born in India but ordinarily resides outside India but registered with consulate or embassy for citizenship 
• Other provisions
  • A9
    • Take other citizenship and loose India
  • A10
    • Citizen continue to be citizen subject to law
  • A11
    • Parliament can make law for acquisition and termination

Citizenship Act 1955

• Provides for acquisition & loss of citizenship after commencement of constitution
• amended 9 times in 1957,1960,1985,1986, 1992, 2003(repealed common wealth citizenship), 2005, 2015, 2019

Acquisition of citizenship

By birth

• 26^th jan 1950 - 1^st July 1987 born India irrespective of nationality of parents
• On or after 1^st July 1987 – only if either parents Indian citizen
• On or after 3^rd dec 2004 – both citizen of India or one citizen and other not illegal migrant
• Children of foreign diplomats and enemy aliens can't acquire citizenship by birth

By Descent

• Born outside on or after 26^th jan 1950 but before 10^th dec 1992 is citizen only if his father is citizen
• After 1992- either of parent
• After 3^rd Dec 2004 – should have registered in consulate within 1 year or with permission of central govt after expiry period

By registration(not illegal migrants)

• PIO 7 year stayed
• PIO stayed outside India
• Married to Indian and stayed for 7 years
• Minor of citizen
• Adult whose parent is registered as citizen
• Adult whose either parent is citizen and 12-month resident
• OCI for 5 year and 12 months stayed in India
• ORDINARY RESIDENT
  • 12 months immediately before application
  • 6/8 years before 12 months
• INDIAN ORIGIN
  • Either parent born in undivided India or Indian territory after 15^th aug 1947

By naturalisation(not illegal migrants but foreigners)

• Not citizen anywhere
• Will renounce if given citizen
• 12 months either resided or worked for government or part of both
• 14 year prior – aggregate 11 year either resided or worked or both
• Good character
• Knows language 8^th schedule
• Intends to stay or work with govt or Indian company
• But waive these conditions if service to science, philosophy, art, literature, world peace or human progress

By incorporation of territory

• Pondicherry, Goa, Daman & Diu

By Assam accord

• PIO came to Assam before 1st,Jan,1966 from Bangladesh
• PIO came to Assam after 1st,Jan,1966 but before 25th,March,1971 from Bangladesh but Register as foreigners
  • 10 years from registration except voting rights full citizenship rights
  • After 10 years voting rights also

Loss of Citizenship

By renunciation

• During war renunciation can be withheld
• Renounced person's minor child also loses it but after 18 he can resume

By Termination

• Takes citizen of others
• Not apply during war

By deprivation

• Citizenship acquired through fraud
• Disloyalty to the constitution
• Unlawfully communicated to enemy during war
• Within 5 years of registration or naturalisation been imprisoned in any country for 2 years
• Resided 7 years outside India
  • not applicable if
    • students
    • works with GOI or International Org
    • registers annually @ consulate

 Single citizenship – like Canada

• To avoid state discriminating during voting, public office or proffession
• Exceptions
  • Residence as criteria for employment – AP and Telangana
  • A15(discrimination) didn't include residence
  • A19(freedom of movement) – subject to protection of interest of tribal interest
  • J&K – state govt decides

OCI

• In 2002 L.M.Singhvi committee report recommended amending the citizenship Act 1955 to provide dual citizenship to PIO and the act was amended in 2003 which made provision for acquiring OCI card for PIO for 16 countries.
• In 2005 – 16 countries became all countries except Pakistan and Bangladesh
• In 2015 – Merged OCI and PIO into OCI cardholders
• Registration of OCI - PIO

Rights of OCI

• No public office
• No voting
• No equal opportunity in public employment

Renunciation of OCI

• Spouse and minor also cease to be citizen

Cancellation of OCI

• Fraud
• Disaffection towards constitution
• 2+ year imprisonment within 5 years of registration
• Unlawful communication during war
• In the interest of sovereignty and integrity, security and friendly relation with foreign country
• Divorced the OCI or married someone else

FRs

• Part III – A12-35
• Based in USA – Bill of Rights
• Part III as Magna Carta of India (Charter of Right issued by King John of England in 1215)
• Fr is to promote political democracy
  • prevents authoritarian and despotic rule
  • Limitation on
    • the tyranny of the executive
    • arbitrary laws of the legislature
  • Govt of law and not men 
• Fundamental bcos
  • Rights are guaranteed and protected by constitution
  • fundamental law of the land
  • Most essential for the all round development(material, intellectual, moral and spiritual)
• Originally 7 FR's - A31 - Rt to property was deleted and made it legal right under A-300 in part XII by 44th CAA
  • Equality - A14-18
  • Freedom - A19 - 22
  • Rt against exploitation - A23 - 24
  • Rt to freedom of religion - A25 - 28
  • Cultural and educational rights - A29-30
  • Rt to property - A31 - 44th CAA made it a legal right u/A300-A in Part XII
  • Rt to constitutional remedies - A32
• Features of FR's
  • Some only to citizens
  • Not absolute - can be restricted
  • Against state and private individuals - If rights violated by pvt individuals then only legal remedies and not constitutional
  • Negative - limitation on state
  • Positive - privileges on the persons
  • Justiciable i.e enforceable - most directly enforceable(self executory) or law by parliament only not state leg A35
  • Approach Sc directly and not necessarily by way of appeal
  • Not sacrosanct or permanent - parliament can change but basic structure
  • National emergency - except A20 and A21 all Fr suspended
  • But A19 - Freedom rights suspended only war and external aggression and not armed rebellion
  • A33 - Armed forces, paramilitary, police forces and intelligence - no FR's
  • A34 - Martial Law or military rule - Fr can be suspended

Definition of State

• A12 - govt and statutory and non-statutory authorities like LIC, ONGC, SAIL
• SC said even pvt agencies working as an instrument of the state

Laws inconsistent with FRs

• A13 - Law if inconsistent with FR then it is void - A32(SC) and A226(HC) Doctrine of judicial review
• Not only laws but also customary practices also
• But A13 say CAA is not law and can't be challenged but SC in keshawanada Bharati case 1973 changed it

FR's for citizens only

• A15 - discrimination on rrcsp
• A16 - Equal opportunity in public employment
• A19 - Freedom
• A29 - Protection of language, script and culture of minorities
• A30 - Rt's of minorities to establish and administer educational institution

Rt to equality - A14-18

Equality before law & Equal protection of Law

• A14-Equality before law(Br) - negative concept
  • absence of any protection
  • Equal subjugation
  • No one above law - rich or poor
• A14-Equal protection of laws(USA) - positive
  • Equal treatment under equal circumstances
  • Similar application of same laws to all persons who are similarly situated
  • Like should be treated alike

Rule of Law

• Concept of 'equality before law' is an element of concept of 'Rule of Law'
• A.V. Dicey, British Jurist
• 3 elements
  1. Absence of arbitrary power - no punishment without breach of law
  2. Equality before law - equal subjugation
  3. Primacy of the rights over constitution
• 1 & 2 Indian System
• 3 - Rights derived from constitution

Exception to equality

• Prez and governor
  • Not answerable for the exercise of power and duties of his office
  • No criminal proceedings during his term of office
  • No arrest during term
  • No civil proceeding until 2 months after notice
• No person is liable for publishing true report of any proceeding of legislature
• No MP or MLA is liable for anything said or voted in legislature or any committee
• A31-C comes in A14 goes out - DPSP in clause b and c not violative of A14
• Foreign rulers, ambassadors and diplomats enjoy immunity from criminal and civil proceeding
• UNO and its agencies enjoy diplomatic immunity

Prohibition of discrimination on certain grounds

• A15
• Only RRCSP
• Exception
  • Women and children
  • Socially and educationally backward classes and SC and ST
  • Regarding admission even in pvt institution aided or unaided except minority educational institution - 93rd CAA in 2005 - In 2006  27% reservation to OBC - 2008 SC said reservation ok but creamy layer
• Creamy layer
  • Constitutional post - Prez, VP, Judges SC and HC, Chairman and members of UPSC,SPSC,CEC,CAG
  • Grp A officers/Class 1 and Grp B/Class II
  • Colonel and above
  • Doctors, lawyers, engineers, artist, authors, consultants

Equality of Opportunity in Public Employment

• A16
• 3 exception
  • Parliament can prescribe residence - Public employment Act of 1957 expired in 1974 - Only AP has it
  • SC,ST,OBC
  • Incumbent of an office related to religious or denominational institution
    • e.g - Hindu religious and charitable endowments department

Mandal Commission and aftermath

• 1979 - Morarji Desai Govt appointed 2nd Backward classes commission under chairmanship of B.P.Mandal, MP(1st - Kaka Kalelkhar 1955)
• 1980 report submitted
• 3743 castes 52% population identified
• 27% reservation declared in 1990 by V.P.Singh
• 1991 - Narashimha Roa
  • Creamy layer
  • 10% poor upper caste
• 1992 -Mandal Case
  • Creamy layer
  • No 10% for upper caste poor
  • Not more than 50%
  • Carry forward is valid but not more than 50%
  • Not in promotion
  • Permanent statutory body for complaint of inclusion and exclusion error
• Govt
  • Ram Nandan Committee to identify creamy layer
  • National Commission for Backward Class 1993
  • 76th CAA Tamil Nadu reservation
    • 69% under 9th schedule
  • 77th CAA to add promotion
  • 81st CAA Backlogs not under 50%
  • 85th CAA added consequential seniority

Abolition of Untouchability

• A17
• In 1976, Untouchability act 1955 amended as Protection of civil Rights act 1955 in 1976 to enlarge scope
• Against both individual and govt
• Untouchability not defined in the constitution but Mysore HC defined it

Abolition of titles

• A18
• Except military and academic
• Prohibits foreign title
• Foreigners holding office of profit needs prez consent for foreign title
• No present,emolument, office from foreign state without prez consent
• Note: JP discontinued national awards in 1977 but revived in 1980 by IG

Right to Freedom

Protection of 6 rts

• A19
• Protection of 6 rts
• Speech and expression, assemble, association, movement, reside and settle, profession
• Originally 7 - Rt to acquire, hold and dispose of property deleted by 44th CAA 1978
• Against only state and not pvt
• Not foreigners and legal entities

Freedom of speech and expression

• Press
• Commercial advertisement
• Rt against tapping
• Rt against bundh by PP
• Rt to know about govt activities
• Freedom of silence
• Rt to demonstration or picketing but not rt to strike
• Rt against pre-censorship of newspaper

Freedom of assembly

• Peacefully without arms
• Only on public place
• No rt to strike
• Public order including traffic should not be affected
• Sec 144 CrPC can restrain assembly
• Sec 141 IPC - unlawful for 5 or more if the object is to
  • Restrict execution of law or legal process
  • Occupy property of some person
  • To commit mischief or criminal trespass
  • To force someone to do criminal act
  • To threaten govt on exercising lawful powers

Freedom of association

• Co-operatives
• PP
• Companies
• Trade union - SC said no guaranteed rt to strike, bargain or declare lockout
• Not to form or join association
• Rt to obtain recognition of the association is not FR

Freedom of movement

•  can be restricted on
  • Interest of public - prostitutes and HIV
  • Tribal areas
• Internal A19 and external A21

Freedom of Residence

• Reside and settle anywhere in the country
• Can restrict on
  • Interest of public - prostitutes and habitual offenders
  • Tribal areas

Freedom of profession

• Can restrict
  • Prescribe professional or technical qualification
  • Exclude certain profession to itself

Protection in conviction

• A20
  • No ex-post-facto
    • only criminal not civil or taxation law
    • trial allowed
    • preventive detention applicable
  • No double jeopardy
    • not against administrative authorities
  • No self-incriminating
    • doesn't include compulsory production of material object, fingerprint, signature, blood specimen, compulsory exhibition of body
    • but only for criminal proceedings and not civil proceedings

Protection of life and liberty

• A21
• Gopalan case 1950
  • Protection against only exe and not leg - bcos procedure established by law
• Menaka case 1978
  • due process of law - so leg also included
• SC said A21 also includes
  • Livelihood
  • Pollution free water and air
  • Human dignity
  • Privacy
  • Shelter
  • Health
  • Education upto 14
  • Free legal aid
  • Against solitary confinement
  • Speedy trial
  • Handcuffing
  • Against inhuman treatment
  • Against Delayed execution
  • Rt to travel abroad
  • Against bonded labour
  • Against custodial harassment
  • Emergency medical aid
  • Timely medical treatment in govt hospital
  • Rt not to be driven out of state
  • Rt to fair trial
  • Rt of prisoners to have necessities of life
  • Rt of women to be treated with decency and dignity
  • Against public hanging
  • Rt to hearing
  • Rt to information
  • Rt to reputation

Rt to education

• A21A - 6 to 14 - only elementary education FR
  • 86th CAA 2002 added it
  • The dawn of the 2nd revolution in the charter of citizen's rights
• Earlier A45 Part IV free & compulsory education for children - this DPSP not enforceable
  • So 86th CAA changed A45 education until 6 years + new FD u/A51A to provide opportunity for education from 6 to 14
• Even before in 1992 - SC rt to education till med or engineering
• 1993 - overruled, till 14, above that subject to capacity of state
• RTE 2009 u/A21A

Protection against arrest and detention

• A22 - 2 parts
• Part 1 - ordinary law for punitive detention
  • grounds of arrest communicated 
  • Rt to legal practitioner
  • Magistrate within 24 hours
  • Released after 24 hrs unless magistrate authorises
  • Not applicable under preventive detention
• Part 2 - for preventive detention
  • Cannot exceed 3 months unless advisory board (44th CAA 3 to 2 but not yet enforced)
  • Grounds of detention communicated but may not be needed on public interest
  • Opportunity to make a representation
  • A22 authorises parliament to prescribe
    • circumstance in which preventive detention can be extended for more than 3 months without advisory board's recommendation
    • max period of detention
    • procedure to be followed by advisory board
  • Leg power
    • parliament exclusive on defence, foreign affairs & security of India
    • both parliament & state on security of state, public order, maintenance of supply & essentials
  • USA and UK & no democracy have it

Rts against Exploitation

Prohibition of traffic in Human Beings and Forced Labour

• Both citizens and non citizens
• Both against state and pvt persons
• Selling buying,immoral traffic and devadasi and slavery
• Forcing to work against the will - not only physical but also economical i.e no minimum wage
• But state can force for military and social service

Prohibition of Employment of Children in Factories

• Child Labour Prohibition Act 1986
• 2016 Amendment
  • Below 14(child) all occupation prohibited - only family enterprise & child artist after school
  • 14-18(Adolescent) prohibited hazardous occupations & processes(83 to 3)
    • from 18 occupation and 65 processes to just 3
    • mining, explosives, and occupations mentioned in the Factory Act
  • Imprisonment of 6 months to 2 years or fine 20k to 50k or both. Repeated offence 1 to 3 year

Rt to Freedom of Religion

Freedom of conscience and free profession, practice and propagation of Religion

• A25
• both religious doctrines and rituals
• Both citizen and non citizen
• State can regulate or restrict any economic, financial, political or other secular activity
• Hindus also include sikhs ,jains, buddhists

Freedom to manage religious affairs

• A26 - protect collective freedom
• SC said religious denomination must satisfy 3 things
  1. System of belief or doctrine is conducive to their spiritual well being
  2. Common organisation
  3. Distinctive name
  4. So Ramakrishna mission and Ananda Marga are religious denominations within Hindu religion and Aurobindo Society is not a religious denomination

Freedom from taxation for promotion of a religion

• A27 - but fee can be collected at pilgrimage sites for maintenance
• Can't be taxed for promotion but taxes can be used for promotion and maintenance of all religion and not one religion

Freedom from Attending Religious Instruction

• Completely owned by state - not permitted
• Every other form(receiving aid, established by trust but administered by state) - permitted
• Attendance to religious instruction is voluntary if minor, consent of parents is must

Cultural and Educational Rts

Protection of Interests of Minorities

• A29
  • Distinct language, script, culture
  • Both religious a.w.a linguistic minorities and also sections of citizens(majority also)
  • Rt to conserve language include rt to agitate for protection of language
  • Hence political promises to conserve language doesn't amount to corrupt practice under RPA 1951

Rt of minorities to establish and administer educational institution

• A30
  • On compulsory acquisition give compensation that doesn't abrogate the rt guaranteed
  • In granting aid the state shall not discriminate
  • Only to minorities - religious/linguist & no sections of society
  • Term minorities not defined in constitution
  • Minority educational institution (3)
    • Recognition + aid
    • Only recognition
    • Neither recognition nor aid
    • The 1st two are regulated on academic standards

Rights to constitutional Remedies

• A32 - most imp article, soul and heart of constitution - By BRA
  • Sc directly for FRs
  • Writ power to SC
  • Parliament can empower any other court(except HC as A226 empowers HC with writ)
  • A32 suspended on National Emergency
• part of basic structure
• Sc as defender and guarantor of FR
• Original (directly SC not appeal) and wide(not only order or directions but also writs
• Only Fr not any other rt
• Jurisdiction of FR original and not exclusive

Writs - types and scope

• A32 SC and A226 HC
• Parliament can empower any other court also for writs but so far no
• Before 1950 only Calcutta, Bombay and madras HC writs
• Writs borrowed from English law where they are called prerogative writs bcos prerogative of king

SC vs HC writs

Habeas corpus

• To have the body of
• Bulwark of individual liberty against arbitrary detention
• Public and pvt
• Exception
  • Lawful detention
  • Contempt of leg and j
  • By competent of court
  • Detention outside jurisdiction of court

Mandamus

• We command
• To perform his official duty
• Directs activity
  • Against public authority
  • Corporation
  • Inferior court
  • Tribunal
  • govt
• Exception
  • Pvt
  • Departmental instruction that don't have statutory force
  • Discretionary duties
  • To enforce contractual obligation
  • Prez and govr
  • CJ HC

Prohibition

• To forbid
• Higher court to lower court or tribunal
• Directs inactivity
• Only preventive
• Only J and quasi j
• Exception
  • Administrative authorities
  • Leg
  • Pvt

Certiorari

• To be certified
• To be informed
• Higher court to lower court or tribunal to transfer case to itself or quash the order
  • Excess of jurisdiction or lack of jurisdiction or error of law
• Preventive and curative
• Against
  • J
  • quasi-J
  • administrative authority
• Exception
  • Leg
  • Pvt

Quo-warranto

• By what authority or warrant
• By court on legality of holding public office
• Only against substantive public office of permanent character created by statue or constitution
• Exception
  • Ministers
  • Pvt

Armed Forces & FRs

• A33 - armed, para, intelligence, police - no FR
• Only parliament not state
• Cannot be challenged in court
• Also include civil members of armed forces
• Court martials not under jurisdiction of SC and HC

Martial law & FR

• A34 - implicit martial law or military rule - not defined in constitution
• Military Rule = Civil administration run by military authorities
• From English common law
• Actions taken can't be questioned in SC or HC
• Even condemn to death
• SC said habeas corpus not suspended

Martial Law vs National Emergency

Effecting certain FR

• A35 - power to make laws to give effect to FR
• Only parliament - so uniformity throughout
  • Prescribing residence as a condition - A16
  • Empowering court other than SC and HC on writ
  • Restricting FR for armed forces
  • Indemnifying any govt servant for acts during martial law
  • Compulsory lawmaking by parliament
    • Punishment for untouchability, trafficking, forced labour
  • Even some of the above falls under state list parliament can make laws

Present position of Rt to property

• Originally u/A19(1)(f)(to hold, acquire and dispose) and A31(rt against deprivation)
• A31
  • both citizen and non-citizen
  • Only public purpose and compensation must
• 44th CAA removed the above two from FR and made it legal right or constitutional right under A300A in Part XII
• Implications
  • Ordinary law amendment
  • Protects pvt property against exe action and not leg action
  • Cannot directly move to SC
  • No guaranteed rt to compensation
• Part III - some provisions
  • Compensation in case of minority institution - 44th CAA
  • Land under personal cultivation and land within statutory ceiling - 17th CAA

Exception to FR

• Article 31A
  • Saving  of laws providing for acquisition under 5 categories
    • Estate
    • Management of properties
    • Amalgamation of corporation
    • Director and shareholder rights
    • Mining rights
  • JR unless presidential assent
  • compensation & market value if land is under personal cultivation & within ceiling limit
• A31 B
  • Immunises any law if under 9th schedule
  • But in 2007 SC not after 1973
• A31 C
  • Saving of laws giving effect to DPSP by 25th CAA
    • A39(b or c) in contravention of A14 and A19 is ok
    • No law containing declaration can be made void - SC in KB case unconstitutional
    • 42nd CAA extended A39(b or c) to any A39 - Minerva mill case unconstitutional

Criticism of FR

1. Excessive limitation on FR - Limitations on FR or FR and limitations thereon
2. No social and Economic rts(rt to work, social security, rest) - USSR and China
3. No clarity - vague phrases like public order, minorities, reasonable restriction, public interest
   • Constitution was made by lawyers for lawyers
   • Paradise of lawyers
4. No permanency
   • Only JR can save
5. Suspension during emergency
   • Except A20, 21
6. Expensive remedy
7. Preventive detention
   • No democratic country has it
8. No consistent philosophy so difficult to interpret - Sir Ivor Jennings

Significance of FR

• Bedrock of democratic system
• Necessary condition for the material and moral protection of man
• Bulwark of individual liberty
• Rule of law
• Interests of minorities
• Secular fabric
• Check the absoluteness
• Foundation stone of the social equality and social justice
• Dignity and respect
• Participation of people

Right outside Part III

• Constitutional or legal right or non-fundamental
  • No tax shall be levied or collected except by authority of law A265 part XII
  • No deprivation of property without law A300
  • Trade throughout India A301
  • Adult suffrage A326 PartXV

DPSP

• Part IV - A36 to 51
• From Irish constitution which in turn from Spanish constitution
• BRA- novel feature
• DPSP + FR = philosophy of constitution and is the soul of the constitution
• Granville Austin - Conscience of the constitution

Features

• Resembles instrument of Instructions of GOI Act 1935
• Comprehensive eco, soc, pol programme
• Aim at justice, liberty, equality & fraternity
• Embody concept of welfare state and not that of police state
• Economic and social democracy
• Non-justiciable but can help court in determining the constitutional validity of a law

Classification of the DPSP

1. Socialist
2. Gandhian
3. Liberal-intellectual

Socialist

• A-38 - Minimise inequalities in income, status, facilities & opportunities
• A39 - Adequate means of livelihood
  • Equitable distribution of material resources
  • Prevention of concentration of wealth
  • Equal pay for equal work
  • Health and strength of workers
  • Opportunities for healthy development of children
• A39A - free legal aid
• A41 - public assistance in case of unemployment, old age, sickness and disablement
• A42 - just and humane condition for work
• A43 - living wage
• A43A - worker participation in management of industries
• A47 - raise the level of nutrition and std of living of people

Gandhian

• A40 - village panchayat, self-government
• A43 - cottage industries
• A43B - co-operations
• A46 - educational and economic interest of SC, ST, weaker sections
• A47 - prohibit liquor
• A48 - prohibit slaughter of cows, calves and other milch and draught cattle

Liberal-intellectual principles

• A44 - UCC
• A45 - care and education till 6 years
• A48 - Agri and animal husbandry in scientific lines
• A48A - safeguard forests and wild life
• A49 - protect monument
• A50 - separate J from Exe
• A51 - promote international peace and security

New DPSP

• 42nd CAA
  • opportunity for healthy development of child
  • Free legal aid
  • Worker participation in management
• 44th CAA
  • Minimise inequalities in income, status
• 86th CAA
  • Education till 6 FR u/A21A
• 97th CAA
  • Co-operative societies

Sanctions behind DPSP

• Sir B N Rau (constitutional advisor) - Rts of individual justiciable(FRs) and non-justiciable(DPSP)
• Non-justiciable
  • No sufficient finance
  • Vast diversity and backwardness
  • Newly born independent Indian state

Criticism of DPSP

• No legal force
  • Pius superfluities
  • A check on a bank payable only when the resources of the bank permit
  • New year's resolutions, which are broke on 2nd Jan
  • Avertible dustbin of sentiments
  • Manifesto of aims and aspirations
  • Moral homily
  • Pious aspirations
• Illogically arranged
• Conservative
  • Outdated
• Constitutional conflict

Utility of DPSP

• Fundamental to the governance of the country
• Life-giving provisions of the constitution
• Philosophy of social justice
• Economic democracy
• Social revolution
• Moral pre-concepts for authorities of the state
• Instrument of instructions
• Beacon-lights to court
• Amplify the preamble
• Stability and continuity in domestic and foreign policies
• Supplementary to the FR - fill the vacuum in Part III
• Social and economic rts
• Political democracy without economic democracy has no meaning
• Enable opposition to exercise influence
• Crucial test on performance on govt
• Serve as a common political manifesto

Conflict between fundamental rights and directive principles

• Champakam Dorairajan case 1951 - FR will prevail over DPSP
  • But parliament can amend FR to give effect to DPSP
• Golaknath case 1967 - FR is sacrosanct and can't be amended for DPSP
  • 24th & 25th CAA reacted to golaknath case and gave parliament power amend FR in A31C
• KB case SC said A31C unconstitutional
  • 42nd CAA made DPSP above FR in reaction to KB case
• Minerva Mills case 1980 - the above made unconstitutional but accepted FR A14 &A19 subordinate to A39(b&c)
  • SC said the Indian constitution is founded on the bed rock of the balance between the FR and DPSP.
  • They together constitute the core of commitment to social revolution.
  • They are like two wheels of the chariot, one no less than the other. To give absolute primacy to one over the other is to disturb the harmony of the constitution.
  • The goals set out by the DPSP have to be achieved without the abrogation of the means provided by the FR
• Therefore FR enjoy supremacy over the DPSP. Yet parliament can amend FR without damaging basic structure

Implementation of DPSP

• PC
• Land reforms
• Nationalisation of banks
• Legal service authority act - free legal aid
• Khadi and village board

DPSP outside Part IV

• A335 Part XVI Claims of SCs and STs to services
• A350A part XVI Instruction in mother tongue
• A351 Part XVII Development of the Hindi Language

FD

• Rts and duties of the citizens are correlative and inseparable.
• Original constitution - only FRs not FD
• 42nd CAA
• From USSR
• Japanese constitution is perhaps the only democratic country with FDs

Swaran Singh Committee recommendation

• During internal emergency 1975-1977
• Part IVA
• Only one article A51A
• 8 recommended but 10 FD included
• Some not included
  • Punishment for non-compliance of FD
  • Law imposing such punishment or penalty can't be questioned in court
  • Duty to pay tax

FD

• Respect national flag and national anthem
• Ideals that inspired national struggle
• Uphold Sovereignty, unity and integrity of India
• Render national service if called upon
• Promote brotherhood and harmony and renounce practices derogatory to the dignity of women
• Preserve the rich  heritage of the country's composite culture
• Protect environment, lakes, rivers and wildlife and have compassion for living creatures
• Scientific temper, humanism and the spirit of inquiry and reform
• Safeguard public property and to abjure violence
• Strive towards excellence 
• Opportunity for education from 6 to 14 - CAA 86th 2002

Features of the Fundamental Duties

• Some are moral duties and other civic duties(national flag, constitution, anthem)
• Codification of tasks integral to the Indian way of life
• Don't extend to foreigners
• Non-justiciable
• No legal sanction against their violation - but can be enforced

Criticism

• Not exhaustive - casting vote, family planning, taxes excluded
• Vague, ambiguous - noble ideals, composite culture, scientific temper
• Superfluous
• Not on par with FRs

Significance

• Reminder to the citizens
• Warning against the anti-national and anti-social activities
• Source of inspiration for the citizens and promote a sense of discipline
• Court use it in constitutional validity of a law
• enforceable by law

Verma Committee on FD of the Citizens 1999

• Identified legal provisions for the implementations for FD
  • Prevention of insult to national honour act 1971
  • Criminal laws and punishment for encouraging enmity on grounds of language, race, place of birth, religion
  • Civil rights act 1955
  • Indian penal code
  • Unlawful activities (prevention) act 1967
  • Representation of people act 1951- disqualification on promoting enmity
  • Wildlife protection act 1972
  • Forest conservation act 1980

Emergence of the Basic structure

• 1st CAA - 1951 = Curtailed Rt to property
• But A13 = Laws inconsitent with FR is void but not CAA
  • Qn whether FR amended?
    • Shakari Prasad Case - 1951 = YES
    • Golaknath Case 1967 = NO (challenging 17th CAA)
• 24th CAA 1971 = amended A13 & A368 = power to parliament to even remove FR
• KB Case 1973 = can amend but subject to Basic Structure
• 42nd CAA 1976 = no limitation of parliament regarding amendment
• Minerva Mills Case 1980 = above provision invalidated bcos Basic Structure
• Waman Rao Case 1981 = BS Doctrine applies to CAA after 24 April 1973

Elements of the Basic Structure 

Present position  

• Parliament under Article 368 can amend any part of the Constitution including FR 
• But without affecting the 'basic structure' of the Constitution.  
• Supreme Court is yet to define or clarify as to what constitutes the 'basic structure' of the Constitution.  
• From the various judgments, the following have emerged as 'basic features' of the Constitution  
  • Supremacy of the Constitution 
  • Sovereign, democratic and republican nature of the Indian polity 
  • Secular character of the Constitution 
  • Separation of powers between the legislature, the executive and the judiciary 
  • Federal character of the Constitution 
  • Unity and integrity of the nation 
  • Welfare state (socio-economic justice) 
  • Judicial review 
  • Freedom and dignity of the individual 
  • Parliamentary system 
  • Rule of law 
  • Harmony and balance between Fundamental Rights and Directive Principles 
  • Principle of equality 
  • Free and fair elections 
  • Independence of Judiciary 
  • Limited power of Parliament to amend the Constitution 
  • Effective access to justice 
  • Principle of reasonableness 
  • Powers of the Supreme Court under Articles 32, 136, 141 and 142 

Part II - System of Government

• Two system of democracy
  • Parliamentary form = exe responsible to leg
    • a.k.a cabinet govt or responsible govt or westminister model(location of Br parliament)
    • Ivor Jennings - cabinet system (cabinet is nucleus of power of parliament)
    • In Br - PM = primus interpares (1st among equals)
  • Presidential system = exe not responsible to leg
    • a.k.a non-responsible govt or non-parliamentary govt or fixed executive sys
• A74 & 75 = Centre parliamentary form
• A163 & 164 = State parliamentary form

Features of Parliamentary Government

1. Nominal & Real Exe
   1. Prez = head of state = nominal head = de jure exe or titular exe
   2. PM = head of govt = real exe = de facto exe
   3. COM + PM = advice binding on prez - A74
2. Majority Party Rule
   1. PM appointed by prez
   2. Min appointed by prez on PM's advice
3. Collective responsibility - A75
   1. Min collectively responsible to parliament in general and LS in particular
   2. swim & sink together = NCM removes COM + PM
4. Political Homogenity
5. Double Membership
   1. Min members of leg & exe
   2. 6 month for non-member min to become members
6. Leadership of the PM
   1. to COM + parliament + party in power
7. Dissolution of Lower House
   1. By prez on PM's recommendation
8. Secrecy
   1. Oath of secrecy

Features of Presidential Government

1. Both head of the state & govt
2. By electoral college for 4 yrs
3. Impeached by congress only on grave unconstitutional law
4. Advisory body selected or non-elected departmental secretaries called cabinet or kitchen cabinet
5. not responsible to the congress
6. prez can't dissolve the house of reps
7. Strict SOP

Merits of parliamentary system

1. Harmony between leg & Exe
2. Responsible Govt - excess of parliament controlled
3. Prevents Despotism - COM + PM not just prez
4. Ready alternative
   1. Dr Jennings - leader of opposition is the alternative PM
5. Wide Representation

Demerits of parliamentary system

1. Unstable govt
   1. NCM
   2. Coalition - Moraji Desai, Charan Singh, V P Singh, Chandra Sekhar, Deva Gowda & I K Gujral
2. No continuity of policies
3. Dictatorship of cabinet - IG & RG
4. Against SOP - serious issue - Montesquieu, French Political Thinker (The Spirit of Laws 1748) = No SOP means no liberty
5. Govt by Amateurs

Reason for adopting parliamentary system

K T Shah favoured presidential system in constituent assembly but founding fathers chose parliamentary sys

1. Familiarity
2. Preferred r/p'ty over stability by BRA
3. Avoid leg -exe conflicts
4. Nature of Indian society - diverse & complex & heterogeneous

Swaran Singh Committee 1975 during emergency - Qn on parliamentary system to presidential ? but recommended parliamentary system

Indian vs British Parliamentary system

• Based on relation b/w centre & state
  • Federal
  • Unitary
• National govt = Federal govt = central govt = Union govt

Federal vs Unitary features of Govt

• Federation = foedus (latin) = treaty or agreement
• Units of federation
  • States - USA, India
  • Cantons - Switzerland
  • Provinces - Canada
  • Republics - Russia
• Formation thro
  • Integration - USA - weak states together
  • Disintegration - Canada - big strong state into autonomous small state
• US - 1st & Oldest federation - 1787 - After American Revolution 1775 - 83
• India
  • Reasons
    • Large size
    • Socio-cultural diversity
  • A1 - Union of state not Federation of State bcos
    • fed not result of agreement
    • no rt to cede
  • Based on Canadian model
    • formation - disintegration
    • Union of Canada or India
    • centralising tendency

Federal features of the Constitution

1. Dual Polity
   • union at centre
   • states at peripheral
2. Written constitution
   • specifies structure, org, powers and fn of state & centre
3. Division of power
   • 7th schedule
     • Union List - 100(97)
     • State List - 61(66)
     • Concurrent List - 52(47)
4. Supremacy of the constitution
5. Rigid constitution
   1. Spl Majority + 50% states ratification
6. Independent J
   1. Settle disputes b/w centre & state
7. Bicameralism

Unitary feature of the constitution

1. Strong Centre
   • Overriding authority over concurrent list
   • Residuary power
   • More subjects to centre and increase over time
2. States not indestructible
   • Indestructible union of destructible states
3. Single constitution
   • except J & K
4. Flexibility of the constitution
   • Less rigid than other federation
   • Only parliament can initiate amendment except LC
   • Most amendment - simple or spl majority
5. No equality of state representation
6. Emergency provision
7. Single citizenship
8. Integrated judiciary
   • Enforce both federal & state law
9. AIS
10. Integrated Audit Machinery
    • CAG audits both state & centre
    • CAG is appointed and removed by prez without consulting states
11. Parliaments authority over state list
    • If RS passes resolution
12. Appointment of Governor
    • agent of centre like Canadian (US election)
13. Integrated election machinery (US separate)
14. Veto over state bills
    • Prez has absolute veto not suspensive veto

Critical evalution of the federal system

• Tilting in BOP in favour of centre
• K C Wheare - Quasi Federal
  • Unitary state with subsidiary federal feature rather than federal state with subsidiary unitary features
• K Santhanam - practically unitary state but formally & legally federal bcos
  • dependence of states upon the central grants
  • PC
• Paul Appleby - Extremely federal
• Morris Jones - Bargaining federalism
• Ivor Jennings - federation with a strong centralising tendency
  • Mainly federal with unique safegaurds for enforcing national unity and growth
• Alexandrowicz - sui generis i.e unique in character
• Granville Austin - Cooperative federalism
  • New kind of federation to meet India's peculiar needs
• BRA
  • Federal - dual polity; independent leg & exe authority
  • No federalism word - both unitary or federal acc. to requirements of time & circumstances
  • Union not a league of states or states agencies of union
• Bommai Case 1994
  • Constitution is federal & fed is BS
  • Emergency is an exception & exceptions are not a rule - so ok
  • Fed is not administrative convenience but one of principle
• Fed represents compromise b/w two conflicting considerations
  • DOP & Autonomy
  • National Integrity & Strong Union under exceptional circumstances

1. Due to federalism legislature, executive and financial powers are divided between centre and state
2. But no division of Judicial Power - integrated J
3. But all residual powers are with centre - Unitary feature
4. 3 relationships
   1. Leg Rel
   2. Exe Rel
   3. Fin Rel

Legislative Relations

• A245-255 in Part XI
• 4 aspects of C-S leg relations
  • Territorial Extent of leg
  • Distribution of leg subjects
  • Parliament or centre can legislate on state subjects! - 5 extraordinary circumstances
  • Centre's control over state leg

Territorial Extent

• Parliament can legislate for whole of India
• State can legislate for whole of state or outside only after nexus with that state
• Parliament alone extraterritorial leg - So NRI and foreign assets
• Exception of Parliament's territorial jurisdiction
  • Prez can make laws - 4 UT's - A&N, D&D, D&N, Lakshadweep
  • Governor can stop certain laws in scheduled area
  • Governor of Assam in Tribal Areas(autonomous dist)
  • Prez in tribal areas of Meghalaya, Tripura, Mizoram

Distribution of Leg subjects

• 3 fold - 7th Schedule
  1. Union list 100(97)  - defence, banking, foreign affairs, currency, atomic energy, insurance, communication, inter-state trade and commerce, census, audit
  2. State list 61(66) - public order, police, public health and sanitation, agriculture, prisons, local government, fisheries, markets, theatres, gambling
  3. Concurrent 52(47) - criminal law and procedure, civil procedure, marriage and divorce, population control, electricity, labour welfare, economic and social planning, drugs, newspapers, books and printing press - incase of overlap centre law prevails except when prez assents
     • 42 CAA(state to concurrent) - education, forest and weights and measures, protection of wild animals and birds and administration of justice
• Residuary with centre like Canada (USA and Australia with states)
• Because GOI Act 1935 - Residuary with GG

When can centre or parliament legislate on state subjects - 5 extraordinary circumstances

1. When RS passes a resolution - A249
   1. 2/3 P&V
   2. Resolution valid for 1 year
   3. Law valid for 6 months after resolution expires
   4. State can also make laws, in case of inconsistency parliamentary law prevails
2. When ≥ 2 states make Request - A252
   1. Law applies only to those states
   2. Such law can be amended and repealed only by parliament
   3. Those States can't make laws on that matter
   4. E.g - Price Competition Act, 1955, Wild Life Act,1972, Water(Prevention and control of Pollution) Act 1974, Urban Land(Ceiling and Regulation) Act, 1976 and Transplantation of Human Organs Act, 1994
3. To implement International Agreements and treaties - A253
   1. E.g Indus water treaty, land boundaries
4. During a National Emergency
   1. Valid till 6 months after emergency
   2. Sate can also make laws
5. During president's Rule
   1. Law valid even after president's rule but can be repealed by state

Centre's control over state Leg

• Governor can reserve bill and prez can absolute veto
• Certain bill need prez approval for introduction
• Prez can reserve money and financial bill during financial emergency
• Sarkaria Commission on center-state relation said centre's supremacy is needed for stability

Dispute settlement on legislative relations by centre and state by Judiciary

Judiciary applies the following principles

1. Principle of incidental power i.e " if the parent subjects is yours then the power to legislate on the extension subject is also yours
2. Doctrine of pith and substance to see what is the core issue of legislation
3. Doctrine of colourable legislation to discover real agenda
4. Doctrine of harmonious construction i.e synthesis of different views on the subject.

Negatives of Raja Sabha

• Duplication
• Delays legislation
• Domicile residential requirements relaxed
• Election to R.S based on proportional representation - becomes more of a negotiated settlement among parties - such candidates have greater loyalty to party rather than to articulate state interest
• Unequal representation to states
• Backdoor entry to fallen horses (defeated candidates and burnout politicians can get rehabilitated)
• Less control over executive compared to LS
  • Even in joint session LS will score over RS due to its numerical majority.
• Recently V.P referred to RS as confederation of anarchist because he was disturbed by lack of decorum in the house

Positives of Raja Sabha

• Bicameralism - Having two houses to deliberate is better than single house - prevents impulsive legislation
• Permanent - Elected at different times, 1/3rd member retire every 2 years, not subject to dissolution. Therefore no institutional vacuum even if LS is dissolved. E.g during an emergency if LS is already dissolved then RS approval has to be taken
• Special powers to RS - A249, A312 co-equal status in A368
• Opportunities for people from diverse fields to serve even if they are not mass leaders
• RS debates perceived to have better quality, even the experience and diverse background on RS MP's is superior

Administrative Relations

• A256-263 Part XI
• Distribution of  executive powers is
  • Same as leg power distribution except in concurrent list, where execution is with state unless parliament specifically confers on centre - e.g Essential commodities act implemented by state but passed by centre
  • But this distribution is not water tight - Since the focus is on E3 and minimising conflicts - E.g Land is a state subjects but given the criticality of subjects like agriculture, L & O, there are central level ministries to deal with subjects at a macro level.
• Obligatary for state to follow centre's direction
  • to give ample scope to the centre for exercising its executive power - Else Prez Rule under A365
• Centre's direction to states A257
  • On construction and maintenance of means of communication, protection of railways, mother-tongue instruction (A350) for linguistic minorities, ST's welfare (A339) - need to be followed, else A365
• Mutual delegation of Executive function
  • Prez delegates to state(exe duty of centre) with state's permission
  • Govr delegates to centre(exe duty of state) with Centres's permission
  • Parliament can also delegate to state without state's permission

Cooperation between the centre and states

• Parliament can provide for adjudication of dispute regarding inter-state river & river valley
  • Prez (A263) can establish inter-state council to deal with c-s relations
    • Setup in 1990
    • Includes PM, Cab Minister, all CMs
  • Full faith and credit to public acts, records & judicial proceedings of the centre & state throughout India
  • Parliament can appoint authority to enforce the constitutional provisions relating to Interstate freedom of trade, commerce & intercourse

Traditional Issues

• Governor - to be updated
• A356 - to be updated
• AIS - All India Service
• Intervention during L&O w.r.t deployment of paramilitary forces
• Involvement of states in foreign policy
• Creation of new states

All India Service

• IAS, IPA, IFoS
  • Recruited & trained by centre
  • controlled jointly by centre & state
  • Ultimate control with centre
  • Immediate control with state
  • Evolution
    • 1947 - IAS replaced ICS
    • 1974 - IPS replaced IP
    • 1966 - IFoS was created as 3rd AIS
  • A 312 - Parliament can create an AIS if RS pass a bill
  • Issues
    • Violates federalism
    • Violates unity of command
    • Greater loyalty to centre
  • positives
    • High std of administration
    • Uniformity in admin
    • promotes national integration, uniformity and better coordination
    • facilitate co-operation, coordination b/w c-s

Intervention during L&O w.r.t deployment of paramilitary forces

• It is a state subject
• Centre role is restricted to co-ordination (macro-level)
• Cadre controlling authority of IPS is with centre
• Supervision of CAPF - Central Armed Police Force like CISF, CRPF, RPF ...etc is with centre

Intervention of centre in L&O w.r.t deployment of paramilitary forces have in the past caused political controversies since state oppose it as a unilateral measure of centre in a state subjects. and also L&O intervention by centre was seen as a preparatory ground for invoking A356, hence states were hesitant to request centre's A³.

However currently changing security challenges, internal security and national security are integrated and impact each other - Rise of global terrorism, LMN threat, sophistication in crimes, cyber crimes, economic crimes, impact of social media, have created a need for C&S to work together, some experts have even suggested that L&O should become a concurrent subject. In the era of globalisation failure of state government would pose a danger to national security also, states too realised the need for central A³, technical support, intelligent inputs, sharing of logistics and information in purposeful manner, In a disturbed states, there are even talks of setting up a joint command to overcome the coordination problem between paramilitary forces and police. Even from a developmental perspective, prolonged security problems like insurgency.....etc can't be unilaterally solved by states without centre's active participation. E.g Nagapact, special cell for N.E act east policy improvement of infrastructure, requires centre's policy and financial support.

States need to be proactive w.r.t conflict resolution. They should be aware of policy implications and accordingly take stake holders into confidence, create consensus and educate the affected parties w.r.t inevitability of PI and offer suitable compensation.

During sensitive situations like communal clashes riots - C&S need to make united and integrated efforts. Centre should not try to derive political mileage and instead offer A³ to states.

Political executives both at C&S level need to diffuse crisis and not make any hate speeches, radical comments, flash points as fault lines exist in a society - public order will get volatile if preventive steps are not in place. Upgrade intelligence, vigilance, use technology, avoid vote bank politics....etc

Border states - need better coordination among defence, paramilitary forces and local police. Centre should take the lead in incentivising states to take up police reforms which are long overdue despite SC directions. (States treat police, more as a force rather than as a public service)

Involvement of states in foreign policy

In the era of LPG states are valid stakeholders - should be consulted and taken into confidence but state can't be vested with virtual veto powers. The states tend to view IR issues from a parochial and emotional perspective. Which may adversely affect country's strategic concerns. States should be consulted, involved but nation interest should be given overriding priority in case there is a conflict. Centre should reach out to affected states and create consensus. (e.g Punchi commission solutions - compensation can be given to affected states in case of Teesta water issue and Srilankan issue)

Creation of new states - Big v/s small states

Background

Even before independence, the issue of state reorganization in the post-independent era on a linguistic basis is raised. However, due to centrifugal forces, the problem of integration of princely states, strong parochialism, the threat of Balkanisation prevented the country from states reorganisation. But constitutionally there is a provision for creating new states but there are no criteria mentioned. Reference to parent state is mandatory but its consent is not mandatory i.e parliament is the ultimate decider, not the states.

Earlier JVP committee rejected the idea of linguistic re-organisation but due to agitation for Andhra, It was promised to be created in 1953. Ultimately SRC was appointed under Fazil Ali and based on its recommendation states were reorganized in 1956. Considering geographical contiguity, admin convenience and language. Subsequently, other states have been created on a staggered basis considering regional aspiration, underdevelopment, cultural dissimilarities and intensity of demand. The last major reorganization was in 2000 with the creating of Jharkhand, Chattisgarh and Uttarakhand and 2014 Telangana was created as the 20th state (no of states have virtually doubled since 1947)

Argument for creation of new states

Smaller states are compact, therefore can be governed better. Focus on inclusive development possible. Committing local resources for local development address regional imbalance, neglect and underdeveloped. Identity issues need for autonomy within the federal framework will give a chance for stability and peace. e.g Mizoram, Tripura.

Indian states have democratic extremes, some states have more population and some have less, hence there is inherent logic to redraw state boundaries of unwieldy states which are too big to be governed.

Arguments against creation of new states

Ripple effect- chain reaction - parallel demand

Law of diminishing utility, sub fragmentation beyond a particular point is counter protective. There is no consensus on the ' ideal no of states ' to be created in a country like ours. Criteria can be challenged in a heterogeneous country. Cost of creation - admin expenses, non-development expenditure, physical bleeding, the economy of scale, pooling of resources. The problem of coordination -admin coordination, infrastructure, resources sharing - river and electricity, dispute settlement will take away energies.

Consensus building becomes difficult at the national level. E.g GST, interlinking of the river, demand for special status will increase, dependency syndrome of the centre. Smaller states will have smaller executive which in an FPTP system may lead to political instability and give scope for parliamentary malpractices.

Conclusion

Creation of new states is not a simple academic exercise. More than creation delivering good governance is a bigger challenge.

Wilson - It is easier to create a new state but difficult to operate it. Creation of new state is not the only alternative for addressing development issues - creation of exclusive regional council, autonomous areas, exclusive developmental boards and commission. If a new state has to be created then it should not be done for political mileage. It should be done on case to case basis looking at the merit of an argument. Financial sustainability, impact on parent state. Need to have proper transitional mechanism which will not burden the exchequer.

Other constitutional and Institutional framework in C-S relations

• Public Service Commission
  • Chairman and Members of SPSC appointed by Govr but removed by prez
  • Joint SPSC - Parliament establishes on states request
    • Chair & Members appointed by Prez
• Integrated Judicial System
  • Single system enforces both central & state laws
  • HC judge appointed by prez on consulting CJI + Govr
  • Parliament can establish common HC - Goa & MH or PB & HR
• Relationship during Emergency
  • National Emergency A352 - complete control by centre though state govt is not suspended
  • President's Rule A356 - Prez assumes powers of Govr & state and state govt is suspended
  • Financial Emergency A360 - Centre and Prez directs state govt
• Other Provisions
  • A355 - Protect state from external aggression and ensure constitution is followed
  • Govr - Pleasure of prez and agent of centre
  • State EC, Chairman and member of SPSC though govr appoints, only prez can remove
• Extra Constitutional Devices //institutional mechanism between c-s relation//
  • Advisory bodies & conferences
  • Non-constitutional Advisory Bodies
    1. Niti Ayog
    2. NDC
    3. National Integration council
    4. Central council of Health
    5. Central council of Local Govt & Urban development
    6. Zonal Councils
       • Statutory Body created after states reorganization. Zonal issues are discussed in meeting chaired by Union HM and attended by respective CM's of the zones. It is held in different states by rotation and the concerned chief secretary will provide secretarial assistance
    7. North-Eastern Council
    8. Central Council of Indian Medicine
    9. Central Council of Homeopathy
    10. Central Family Welfare Council
    11. Trasport development Council
    12. university Grants Commission
  • Conferences
    1. Govr's Conference presided by Prez
    2. CM's Conference presided by PM
    3. Conference of IGP
    4. CJ's Conference presided by CJI
    5. Conference of Vice-Chancellors
    6. Home Ministers Conference presided by Central Home Minister
    7. law Ministers Conference presided by Central Law Ministers

Financial Relations

• A268 - 293 - CS Fin Relation

Worldwide there is a federal ferment but there is no single model of federalism.

• Montesquieu - Federation is a confederation of sovereign city states
• Maddison - It is a compound government that can over-rise narrow local interest
• B.R.Ambedkar - Federalism is the chief Mark is a culturally, ethnically, linguistically diverse and heterogenous country

Indian federalism is probably best worked out federation which has the adequate framework for cooperation and negotiated settlement of disputes. Cooperation is formally and informally produced through complex and complimentary process i.e reciprocal dependence between C&S and S&S i.e self rule + shared rule.

Fiscal Federalism

There is a multilevel government system - centre, state and Local (2.5 lakh LSG units). Fiscal federalism deals with division of expenditure responsibilities and tax assignments and intergovernmental transfers. Centre to state to LSG and Centre to LSG.

It also includes PFM - Public Finance management

Objectives

• E⁴ - Economy, Efficiency, Equity and Effectiveness in allocation of resources.
• Establish a stable federal system
• Correct vertical and horizontal imbalance
• Multi layer character of federation necessitates multiple channel of transfer. e.g taxes, grands, CSS -with diverse objectives

Constitutional Provisions

Constitution has made detailed provisions w.r.t smooth conduct of Financial relations. The simple logic of tax distribution is if the subject is yours, then the power to levy tax is also yours. However, collecting taxes and utilizing the proceeds depends on who incurs the least expenditure of collecting taxes and who needs it more. There is also provision for appointing Finance Commission once in 5 years to recommend vertical and horizontal distribution and recommend grants to states.

Tax Allocation

• Allocation of Taxation power
  • Parliament on 13 subjects in Union List
  • State on 18 subjects in State List
  • 101st CAA - GST in Concurrent list
  • Residuary power with parliament - gift tax, wealth tax & expenditure tax
• Restriction on taxing powers of states by constitution
  • Professional taxes, trade taxes, employment taxes = <2500 per annum
  • No tax on Goods & Services, if
    • Supply outside state
    • Such supply takes place in the course of Import or export
  • Tax on consumption or sale of electricity is allowed
    • But not if consumed by centre
    • Railways
  • Tax on water or electricity developed by authority established by parliament on inter-state rivers need prez's assent
• Distribution of Tax Revenues
  • 80th CAA 2000
    • To give effect to 10th FC recommendation
    • 29% of total income to states retrospectively from 1996
    • a.k.a alternate scheme of devolution
  • 101st CAA 2016
    • GST - Concurrent List
    • Subsumed
      • Central Excise Duty
      • Additional Excise duties
      • Excise Duty levied under the medicinal and toilet preparations(Excise Duty) Act 1955
      • Service Tax
      • Additional Customs Duty or Countervailing Duty
      • Special Additional Duty of Customs
      • Central Surcharges and Cesses
      • State Value Added Tax / Sales Tax
      • Entertainment Tax (except local bodies)
      • Central Sales Tax (levied by the Centre and collected by the States)
      • Octroi and Entry Tax
      • Purchase Tax
      • Luxury Tax
      • Taxes on lottery, betting & gambling
      • State Surcharges and Cesses
• Taxes levied by centre but collected and appropriated by the state
  • A268
  • Stamp duties on bills of exchange
  • cheques
  • promissory notes
  • insurance policies
  • transfer of shares and others
• Taxes levied and collected by the centre but assigned to the states
  • A269
  • inter-state trade except newspaper
  • proceeds not part of consolidated fund of India
• Inter-State GST
  • A269-A
  • Collected by centre
  • Divided b/w centre & State in the manner provided by GST Council
• Taxes levied and collected by the centre but distributed between the centre and state
  • A270
  • Taxes in Union List except
    • the taxes mentioned above A 268, 269, 296 - A
    • Surcharges on taxes in A271
    • Cess
  • Manner of distribution prescribed by prez on FC recommendation
• Surcharge on taxes
  • A271
  • No share to states
  • GST exempted from surcharge
• Taxes levied, collected & retained by states
  • All taxes in state list (18)
    • land revenue
    • agricultural income
    • succession to agricultural land
    • estate duty on agricultural land
    • lands and buildings
    • mineral rights
    • alcohol, opium, Indian hemp and other narcotics( except medicine & toiletries containing alcohol )
    • consumption or sale of electricity
    • petrol, diesel, ATF but not inter-state trade
    • goods and passengers carried by road or inland waterways
    • taxes on vehicles
    • animals and boats
    • tolls
    • professions, trades, callings and employments
    • capitation taxes
    • entertainments and amusements
    • stamp duty (except those specified in the Union List)
    • fees on the matters in the State List (except court fees)

Distribution of Non-tax Revenues

1. Centre
   • post & telegraphs
   • railways
   • banking
   • broadcasting
   • coinage & currency
   • central psu
   • escheat & lapse
2. State
   • irrigation
   • forests
   • fisheries
   • state psu
   • escheat lapse

Grants-in-aid to the states - 3 types

1. Statutory Grants
   • A275 - Empowers centre to distribute
     • General grants to states in need
     • Also specific grants to states for promoting welfare of scheduled tribes
   • Only On FC recommendation
   • Charged on Consolidated fund of India
2. Discretionary Grants
   • A282 - Empowers centre and state to make any grants for any public purpose even if it is not within legislative domain
3. Other Grants
   • For temporary period - 10 years since commencement of constitution
   • In lieu of export duties on jute & its products in state of Assam, Bihar, Orissa, WB
   • Charged on Consolidated Fund of India
   • On FC recommendation

Finance Commission

• A280
• Quasi-judicial body
• Constituted by Prez every 5th year or earlier
• FC recommends prez on
  • Distribution of net tax between CS & among states
  • Principles governing grant-in-aids
  • Measures needed to augment the consolidated fund of state on basis of recommendation by State FC
  • Any financial matter referred by prez
• FC is the balancing wheel of fiscal federalism in India

Protection of the state's Interest

• To protect state's interest following bills can be introduced only Prez recommendation
  • tax on states share of proceeds
  • agricultural income
  • principles on money distribution to states
  • Surcharge on taxes

Borrowing by the centre and states

• Centre within India or outside upon CFI as security, within limit fixed by parliament(so far none)
• State within India only upon consolidated fund of state as security, within limit fixed by state legislature
• Centre can make loans(CFI) to any state or give guarantee
• State needs centre's consent to raise loan if still a loan is outstanding

Inter-Government Tax Immunities

1. Exemption of central property from state taxation
   • All properties of central govt
   • PSU not immune
2. Exemption of state property from central taxation
   • Property & income of state is exempted
   • Centre can tax income commercial operation
   • Property & income of local authorities taxable

Sources of Income for states

• Tax
• Non Tax
• Grants
• CSS
• Share from the pools given by Financial commission

Philosophy of allocation - Challenges and Constraints

• Being a developing country there is a resources pressure even for achieving basic developmental goals and priorities
• Problems of trust deficit among CS
• Contextual dynamics - LPG - divide between Bharat and India
  • Development is not uniformly distributed, all states are not on the same development path or degree or trajectory
• Ideological change - retreat of the state - states have become more of a promoter, facilitator and regulator
• Conflict between states aspiration and centre's need to control
• Problem between economic and politics - ideally good economics and good politics should co-exist with each other i.e where you stand in economics should not depend on where you sit in the parliament. It is difficult for political populism and rational economic choice to co-exist
• How much diversity, innovation and autonomy can be brought in without sacrificing unity and integrity will decide the course of fiscal federalism. Ideally, the path is cooperative, competitive, collaborative and consensual federalism.

Grievances of states

1. Ideological
   • In a true federation, states need greater fiscal space. Earlier there was an apprehension of centrifugal tendencies in the Union but today states have settled, mature even in Financial Management. Therefore greater scope for autonomy. Reduce or give up, command and control culture instead follow the principle of subsidiarity.
2. Problem with tax allocation - quantum
   • Inadequate when compared to developmental expenditure. There are more sources of central taxes. States have 57% of expenditure subjects but only 34% of revenue subjects. Therefore the need for expanding states tax domain.
3. Quality of taxes
   • Less elasticity of state taxes. e.g land revenue can't be increased without sacrificing people's interest
4. Unconventional non-tax sources with centre
   • e.g spectrum, coal block sales and windfall profits are not shared with states but although states have a claim or stake
5. Problem with grants
   • Politicisation
   • Lack of transparency
   • Tax devolution is better than grants because taxes are entitlement while grants are either discretionary or they are unpredictable
   • Grants have become conditional over time e.g 13th F.C grants
   • States indicate that more grants by centre mean more resources with centre
   • Grants are lumpsum while tax devolution can be progressive/incremental (Grants are frozen while tax devolution is dynamic)
   • States feel giving greater through tax and lesser through grants is good for cooperative federalism (14th Finance Commission has accepted states logic and given more through tax)

Centrally Sponsored Scheme - CSS

India is one of the most fiscally centralised country where union govt does PF and PI on many national priorities event though these subjects belong to states. CSS gives leverage to union govt to influence national priorities by incentivising states. It creates +ve externalities i.e one state's fiscal action will have an impact on other states and finally on the country and economy as a whole e.g MGNAREGA

States views on CSS

CSS expansion indicates extra fiscal space available with the centre. Centre unilaterally changes the ratio of sharing, contribution, conditionality is imposed on CSS which makes it difficult to access. Difficult to provide budgetary support to CSS, since it reduces the fiscal space of states. Mismatch between budgeted provision and actual release by centre to states.

Introduction and the unilateral announcement of CSS by centre put an unpredictable burden on states. Some CSS has one size fits all approach, not localised/customised.

• States like Kerala have commented that CSS is a missile on cooperative federalism.
• Niti Aayog Deputy Chairman on CSS earlier CSS dominated and decreased states productivity. Therefore there has to be limited CSS, so that states are treated as partners and not passive recipients.
• V.K.Chathurvedi committee recommended flexi fund and rationalising the no of CSS. Currently a subgroup headed by state CM is reviewing CSS.

However Abhijit Sain a member of 14th Financial Commission who has given a dissent note has observed that reducing CSS may mean even backward region grant fund and NCA - National central Assistance may get reduced. Similarly Panchayat Raj Institution schemes may get reduced in future. States anyway do not have the inclination to financially empower LSG and now with decreased CSS they don't even have the incentive. Similarly if MHA cuts down on police modernisation, then states have no incentive to takeup police reforms.

Conclusion

States are rarely given a budget envelope which will indicate the amount of money expected to be received by the state which increases unpredictability and inconsistency.

Also planning and budgeting of CSS are rarely linked to assessment of outcomes i.e did outlay result in outcome

There is also a concern that different states are at a different level of development and if too much of fiscal space is available to states, they may be prone to populism. Hence need for performance yardsticks to translate outlays into outcomes and promise into performance.

Grants to LSG

Grants to LSG reduce fiscal space with states. If centre is interested then there should be trifercation among centre, state and Local.

Changes in develeopmental philosophy

• Increase in citizen aspiration - Greater demand for quality goods and service
• Shift to Right based approach - i.e from welfare approach to statutory entitlement. e.g MGNAREGA, RTE, FSA. It increases states expenditure w.r.t creating, operating, maintaining, replenishment ...etc
• Increase in urban expenditure - cost of establishing and sustaining hard and soft infra
• Greater the underdevelopment, lesser the private investment, therefore vicious cycle of poor infrastructure leading to poor investments leading to poor capital formation leading to poor Job creation.

Restriction of borrowing of both domestic and foreign funds. Especially on those states which are indebed to the centre

Unilateral measures of centre

• Pay commission recommendation which increases admin expenditure and without any transitionary arrangements packages to meet the extra salary bailouts and arrears
• No sharing of cess and surcharge
• Problems with erstwhile Planning Commission
• Discretionary and discriminatory grants and transfers
• Problems with F.C - Finance Commission's formula keeps changing difference between Bharat and India w.r.t horizontal allocation (Interstate allocation)

Centre's Response

Steady increase in state's share earlier its used to be 1/4th to 1/3rd to 42% now. Empirically centre share before transfers 2/3rd but after transfers to states through CSS, Grants - Centre's share was reduced to 40%. Now after 14th FC total state's share is equal to 68% (42% tax allocation + 26% non-statutory transfers)

Centre spends 20% on state's subjects. E.g NHDP has multiplier effect and +ive externalities on Macro Development. CSS programmes are necessary for national priorities. Centre also requires resources for PF and PI on sectors where states have less inclination / less competance / less capacity.

Increase in the international obligation which requires a degree of uniformity. Therefore some centralisation is inevitable and it may even be positive. e.g GST (One country, one tax, one market)

Increase in economic integration requires the centre to be empowered and financially fit to absorb Global shocks, adopt counter cyclic measures, send the Right policy signals to assured markets.

Global opinion makers, credit rating agencies give more important to centre's financial position. Centre needs adequate fiscal space to transfer resources in sectors to states where there are +ve externalities but less capacity in states.

Govind Rao identified the following weaknesses in CS financial relations

• Indian did not benefit from magnitude and littleness
• Highly centralised system
• Absence of Satisfactory institutional mechanism to resolve C&S and interstate disputes

Amersh Bagchi indentified

• Overcentralisation of economic policies
• Faulty design of intergovernmental transfers - giving a perverse incentive (greater the gap greater the grants)
• Inadequate central oversight on state borrowings which increased sub-national debt and deficit.

Punchii Commission on Financial relations

• Comprehensively review all transfers
• Greater transfers to backward states and focus on governance in these areas
• Improve physical and human infra in backward areas. Through public investment and pro-active policies to attract private investment.
• Spend more on social sectors like health, education and have a area specific strategy.
• Future legislations should provide for cost sharing like RTE which is a mature attempt since there is functional and financial delineation. (Which level of govt take up or do what level of activity)
• Similarly JNNURM(now amrit) reflects the change in approach since it involves Centre, state and Local.

Financial Commission vis-a-via Centre state financial relations

New trends in C&S Financial Relations

• The recommendation of 14^th FC and its acceptance by centre.
• PM in his letter to CM
  • Increased devolution should improve financial prudence and discipline
  • Take a fresh look at previous schemes and programmes
  • Promised central support for any additional requirements
  • Evaluate performance rigorously
  • Establish performance rigorously
  • Establish quality bench mark
  • Speedy execution
  • Resources are not and will not be a problem. The issue is direction and the intent of our policies and the capacity to implement.
  • Maximise the outcome of every rupee spent
  • Improve the ease of doing business
  • Have a apex level officer coordinate ensure single window clearance
  • Focus on employment generation, poverty elimination and skill development
• Creation of NITI AAYOG
• Revision of royalty rates of minerals ( to states where mined )
• Inclination to let the states reform laws .e.g (Rajastan took a lead on labour reforms)
• Team India approach - CM seen as partners in progress rather than passive recipients
• Emphasis on cooperation and competition. e.g New Index to rank states on ease of doing business. e.g Jharkhand traditionally considered as laggard has improved its governance and figures in top 5
• New found engagement between C&S show easing potential of states at global forum. ( WEF - World Economic Forum)
• GST - Opportunity for India to have one country, one market and one tax but it needs a golden / grand bargain (13th FC), which will bring Indian on par with Global best practices. It will improve smart, avoid dual taxes and bring C&S closer.

Public Finance Management

• Attempt to delink planning from budgeting
• Focussing on outcomes rather than outlays
• Real time info sharing (PRAGATI) among different level of government.

Effect of Emergencies

• National Emergency
  • A352
  • Prez can modify distribution of revenue b/w C-S
• Financial Emergency
  • A360
  • Centre can direct state on
    • Financial propriety
    • Reduce salaries
    • Reserve all money & financial bills for prez consideration

Trends in C-S relations

Till 1967 C-S relation were smooth. After 1967 congress lost 9 seats and regional govt demanded more power & financial resources which lead to tension

Tension areas in c-s relations

1. Mode of appointment & dismissal of governor
2. Partisan role of governor
3. Prez rule for partisan interest
4. Deployment of central forces in states to maintain L & O
5. Reservation of state bill for prez consent
6. Discrimination in financial allocations to the state - Finance Commission and Planning Commission
7. Role of PC in approving state projects - Niti Aayog
8. Management of AIS
9. Use of electronic media for political purposes
10. Appointment of enquiry commission against CM
11. Sharing finances b/w C-S - Finance Commission
12. Encroachment on state list

These issues lead to the following developments

• Administrative Reforms Commission
• Rajamannar Committee
• Anandpur Sahib Resolution
• West Bengal Memorandum
• Sarkaria Commission
• Punchhi Commission

Administrative Reform Commission

• 1st ARC in 1966 under Moraji Desai(later K Hanumanthayya)
  • Establish Inter-state Council under A263
  • Govnr should have long experience in public life and administration and non-partisan attitude
  • Max delegation of power to states
  • Transfer more financial resource to state to reduce dependency
  • Deploy CAPF in states on request
• No action by centre on recommendation

Rajamanna Committee

• In 1969 by TN Govt under Dr. P.V.Rajamannar
• Reason for unitary trends
  • Constitution confers spl powers with centre
  • One-party rule in centre & states
  • State dependence on centre for fiscal resources
  • Central planning & PC
• Recommendations
  • Inter-state council to be setup immediately
  • FC be made permanent body
  • Replace PC with new statutory body
  • A356 , 357, 365 - totally omitted
  • Remove state ministry holds office during the pleasure of the governor
  • Certain Union list & concurrent list subjects be transferred to states
  • Residuary powers with states
  • AIS should be abolished
• Centre completely ignored the recommendation

Anandpur Sahib Resolution

• In 1971 by Akali Dal
• Recommendation
  • Centre's jurisdiction limited to defence, foreign affairs, communication & currency
  • Residuary powers with states
  • Equal representation to all states

West Bengal Memorandum

• 1977 by WB Communist Govt
• Recommendation
  • Union replaced with federal
  • Centre's jurisdiction limited to defence, foreign affairs, currency, communications and economic co-ordination
  • Residuary powers with states
  • A356, 357 (Prez Rule), 360 (Financial Emergency) repealed
  • State's consent obligatory for formation of new states
  • 75% total revenue to be allocated to states
  • RS equal powers with LS
  • AIS abolished

Sarkaria Commission

• 1st C-S Commission by GOI
• 1983 - Under R.S.Sarkaria, retired SC Judge
• 1988 - Submitted report
• Did not favour structural changes but favoured functional or operational aspects.
• Federalism is a functional arrangement for co-operative action than a static institutional concept
• strong Centre is essential to safeguard the national unity and integrity
• But strong centre doesn't mean centralization of powers
• Over centralisation leads to blood pressure at the centre and anaemia at the periphery
• Recommendations
  1. Setup permanent Inter-state council called Inter-governmental council under A263
  2. Use A356 sparingly
  3. Strengthen AIS and create more such services
  4. Residuary power of taxation with centre and other residuary powers in concurrent list
  5. Prez withholding state bills should be communicated to states
  6. NDC reconstituted as National Economic and Development Council
  7. Zonal council to be reactivated to promote the spirit of federalism
  8. Centre should have powers to deploy CAPF even without consent of states but yet should be consulted
  9. Consult states before legislating on state list
  10. procedure of consulting the CM appointing governor should be prescribed in the Constitution
  11. Proceeds from corporation tax be shareable with the states
  12. Govrnr can't dismiss COM as long as they enjoy majority
  13. No equiry commission against sate ministers unless demanded in parliament
  14. Surcharge on income tax should not be levied except for specific purpose & limited period
  15. Division of function b/w FC & PC to be continued
  16. Implement 3 language formula
  17. No autonomy for radio & TV but decentralise their operation
  18. No change in the role of RS & centre's power to reorganise the states
  19. Commissioner for linguistic minorities to be activated
• Centre implemented 180 out of 247 recommendations
• Most imp = Inter-state Council 1990

Punchhi Commission

• 2nd C-S commission by GOI in 2007
• Under Chair of Madan Mohan Punchhi, Former CJI
• Submitted report in 2010
• Took help from sarkaria commission, National commission to review the working of the constitution Report, 2nd ARC
• Gist of the report is cooperative federalism will be the key for sustaining India's, unity, integrity and social & economic development in future
• Purpose of commission is to examine & review
  • Existing arrangement of C-S relation in constitution
  • healthy precedents followed
  • court proceedings
  • functions & responsibilities in leg relations, administrative relations
  • Role of Govrnr
  • Emergency provisions
  • Financial relations
  • Economics & Social Planning
  • Panchayati Raj
  • Sharing of resources including river water
  • Socio-economic developments esp. since 1990's
• With due regard to constitutional framework & scheme
  • role, responsibility, jurisdiction of Centre vis-a-vis state during
    • communal violence, caste violence, social conflict
    • mega projects like inter-linking rivers
    • Devolution of power to LSG & Autonomous bodies
    • Independent planning & budgeting at district level
    • linking central assistance to performance of states
    • positive discrimination in favour of backward states
  • fiscal relations
  • Taxation
  • Freeing inter-state trade
  • Jurisdiction of Central law enforcement agency on crimes of inter-state nature
  • Deploying CAPF without consent under A355
• Recommendation
  1. Broad agreement between C-S while legislating on the concurrent list for effectiveness
  2. Greater flexibility to states on state list & concurrent list
  3. Keep concurrent list bare minimum
  4. Continue audit role of the inter-state council in management of overlapping jurisdiction
  5. Six months period for prez on assent or withholding assent to a state bill
  6. Limit the parliament's power on entry 14 of List 1 - treaty-making & implementing it through parliamentary legislation
  7. FC should take into account the financial implication arising out of treaties & agreements
  8. Selection of Governors
     • eminent
     • outside the state
     • detached figure from local politics
     • not in politics in recent past
  9. Governors - fixed tenure of 5 years
  10. Impeachment procedure for prez extended to the governor
  11. Discretionary powers u/A163 should be dictated by reason, activated by good faith, tempered by caution
  12. Governor - 6 months for assent or reserve a state bill
  13. Governors's role in appointment of CM in case of hung parliament
      1. Part or coalition that commands widest support
      2. pre-poll alliance or coalition
      3. Incase no 1 or 2 get clear majority
         1. Pre-poll alliance
         2. Largest single party
         3. post-electoral coalition
         4. Post-electoral coalition with some parties supporting from outside
  14. Dismissal of CM only after floor test within time limit
  15. Governor should have right to sanction prosecution against a state minister if cabinet decision is biased
  16. Governor's chancellorship banned
  17. A356 - limited strictly to rectifying "failure of the constitutional machinery in the state"
  18. Amend constitution incorporating the guidelines ruled in S.R.Bommai Vs UOI (1994) in invoking A356 for failure of constitutional machinery
  19. A352 & 356 as last resort instead localised emergency under A355 (duty of union to protect the state)
  20. Make Inter-state council a credible, powerful & fair under A263
  21. Zonal Council should meet at least twice a year
  22. Secretariat of inter-state council can be used for zonal council as well
  23. Setup Forum of CM chaired by one CM by rotation for policy matters of energy, food, education, environment & health just empowered committees of FM of States for inter-state coordination of fiscal matters
  24. IAS for health, education, engineering & judiciary
  25. Amend constitution to make RS more representative forum of states
  26. Equality of representation in RS for states
  27. Constitutional mandate for devolution of power to LSG
  28. All central legislation involving states should have cost sharing mechanism like RTE Act
  29. Royalty rates on major minerals revised every 3 years
  30. Current ceiling of professional tax should be completely done with.
  31. Scope for raising more revenue from taxes u/A268 should be examined afresh through FM or expert committee
  32. All fiscal legislation should be assessed, report submitted by an independent body annually to parliament and state legislature
  33. Terms of Reference of FM should involve states for equitability b/w states & centre
  34. Review all cess & surcharge to reduce centre's share in gross tax revenue
  35. Review distinction b/w plan & non-plan expenditure
  36. Coordinate & sync the periods covered by FC & PC
  37. FC division in MoFin should be converted into full-fledged department serving FC as permanent secretariat
  38. PC's should coordinate instead of micro manage central ministries & states
  39. Setup constitutional body called Inter-state trade and commerce commission u/A307 with advisory and executive role with decision making powers, that are final & binding on union & state, while aggrieved party can appeal to SC.

• Provisions in constitution regarding inter-state comity
  • Adjudication of inter-state water disputes
  • Coordination through inter-state councils
  • Mutual recognition of public acts, records and judicial proceedings
  • Freedom of inter-state trade, commerce and intercourse
• Zonal council by parliament for inter-state cooperation & coordination

Inter State Water Disputes

• A262
  • Parliament may by law provide for adjudication for inter-state water dispute
  • Also prevent SC or any other court's jurisdiction over inter-state water dispute
• U/A262 - two laws enacted
  • River Board Act 1956
    • River board for regulation & development of inter-state river
    • Established by centre on states request
  • Inter-state Water Dispute Act 1956
    • Empowers centre to setup ad-hoc tribunal
    • Decision of tribunal is final & binding
    • SC or other courts has no jurisdiction
    • 9 such tribunals so far

Inter-state Councils

• A263
• President can establish such council
• Can define the nature of duties
• A263 also specifies certain duties
  • Enquiring into disputes between states (advisory only not binding like SC)
  • Enquire into subject of common interest between states
  • Make recommendation over common interest between states
• Council's function to enquire and advise over dispute is complementary to SC's Juridiction under A131 which is also binding
• President established following council u/A263
  • Central Council of Health
  • Central Council of Local government and Urban Development
  • Four regional council for sales tax
• Central Council of Indian Medicine and Central council of of Homeopathy were set up under Acts of Parliament

Establishment of Interstate council

• Established in 1990 under Sarkaria Commission Recommendation by Janata Dal Govt under V.P.Singh
• Consists of
  • PM as Chairman
  • All CM
  • All UT CM
  • All Admins of UTs
  • Governors of state under Prez Rule
  • Six cabinet minister including HM nominated by PM
• 5 ministers of cabinet rank / Min of State independent charge nominated by chairman i.e PM are permanent invitees to the council
• Council is recommendatory body on
  • Inter-state relations
  • Centre-state relations
  • Centre-UT relations
• Council may meet at least thrice a year
• Meeting held in camera
• Decided by consensus
• Standing committee of the council
  • For continuous consultation
  • Members
    • HM as Chair
    • 5 Cabinet Minister
    • 9 CM
• Council assisted by Inter-state council secretariat
  • It also functions as secretariat of Zonal Council

Public Acts, Records and Judicial Proceedings

• Full faith and credit clause in constitution
• Full faith and credit throughout the territory of India to public acts, records and judicial proceedings of the centre and state
• Only civil judgement and not criminal judgement

Inter State Trade and Commerce

• A301 - 307
• Inter state trade, commerce and intercourse is free
• Exceptions provided in A302 to 305
  • Parliament can impose restrictions but can't give discriminate between states
  • State legislature can restrict in public interest but prior sanction from prez is needed and can't discriminate between states
  • State can impose tax but can't be discriminatory
  • State or Centre can nationalise any industry

Zonal Councils

• Statutory body not constitutional body
• Established by parliament under state reorganisation Act 1956
• Five Zones
  • Northern - Delhi HQ
  • Central - Allahabad HQ
  • Eastern - Kolkata HQ
  • Western - Mumbai HQ
  • Southern - Chennai HQ
• Members
  • HM as Chairman
  • CM of that zone as rotating Vice Chairman
  • 2 other ministers from each state
  • Admins of UT
• Associate Members without voting rights
  • Person Nominated by PC
  • Chief secy of each state
  • Development Commissioner of each state

North-Easter Council

• By an act of parliament - North Eastern Council Act of 1971
• Functions similar to zonal council

• Part XVIII of Constitution
• A352 to 360
• Reason
  • To safeguard the sovereignty, unity, integrity and security of the country, the democratic political system and the constitution
• Whats happens
  • Central govt becomes all powerful
  • Federal structure become Unitary one
• Three types
  • A352 - National Emergency
    • Due to war, external aggression or armed rebellion
    • Expression "proclamation of emergency" is used to denote National Emergency
  • A356 - President's Rule
    • Due to Failure of constitutional machinery
    • Known by two other names
      1. State Emergency
      2. Constitutional Emergency
  • A360 - Financial Emergency
    • Due to threat to financial stability

National Emergency

1. Grounds for Declaration
   • Prez can declare national emergency
   • for entire country or part(added in 42nd CAA 1976)
   • Due to war, external aggression or armed rebellion
   • or even before ware, external aggression or armed rebellion
   • Only on written recommendation of Cabinet ( PM + COM) not just PM(Indra G)
   • types
     • External emergency - war or external aggression
     • Internal emergency - armed rebellion (replaced internal disturbance in 44th CAA 1978)
   • 38th CAA 1975 - No JR but 44th CAA 1978 - deleted this clause
2. Parliamentary approval and Duration
   1. Approval both the houses within one month (from 2 month after 44th CAA 1978)
   2. If LS dissolved within this one month then until 30 days after 1st sitting of newly constituted LS, provided RS approves
   3. Needs approval every 6 months (44th CAA)
   4. Can be extended indefinite times
   5. Proclamation needs spl. majority (44th CAA)
      1. 50% of total membership
      2. 2/3 P & V
3. Revocation of Proclamation
   1. By prez anytime without parliamentary approval
   2. If LS passes resolution to revoke then prez revokes (44th CAA)
      • Simple majority
4. Effects of National Emergency
   1. Effects on Central state Relations
      1. Executive
         1. State govt under complete control but not suspended
         2. Executive order by centre on all subjects
      2. Legislative
         1. Parliament can legislate on state subject and override it
         2. Even prez can issue ordinance if parliament not in session
         3. Laws made by parliament is valid for 6 months post emergency
      3. 42nd CAA - Executive and legislative conseques are extended to any part or state that are not under emergency during emergency
      4. Financial
         1. Prez can modify distribution of revenues between state and centre but such order laid before both houses
         2. Such modification continues till the end of financial year in which financial emergency ceases
   2. Effect of life of the Lok Sabha and State Assembly
      1. Can be extended beyond 5 years one year at a time
      2. But can't continue beyond 6 months after emergency ceases
      3. B/w 1971 -1977 - twice extended for one year
   3. Effect on FRs
      1. Suspension of FRs u/A19 - A358
         1. 6 FRs under A19 automatically suspended
            1. But only for war or external aggression (44th CAA)
         2. Can make any law inconsistent with A19 (only)
      2. Suspension of other FRs except A20 & 21 - A359
         1. FRs not suspended only enforcement suspended
         2. Only enforcement mentioned in presidential order suspended
         3. Suspension extended for short period or throught emergency or part or whole of country
         4. Order laid before both houses for approval
         5. Enforcement of A20 - Rt to protection in respect of conviction for offences & A21 - Rt to personal life and liberty
   4. Distinction between A358 and 359

5. Declaration made so far
   1. 3 times National Emergency
      1. 1962 - 1968 - Indo China War
         1. Emergency continued untill and after Indo-pak war of 1965
      2. 1971 - 1977 - Indo Pak War
      3. 1975 - 1977 - Indira Gandhi due to internal disturbance i.e few incited armed forces against the discharge of their duties and their normal functioning
         1. Most controversial
         2. IG lost power to Janata Party
         3. Janata Party appointed Shah commission and its recommendations implemented through 44th CAA

President's Rule / State Emergency / Constitutional Emergency

1. Grounds of Imposition
   1. Under A356 - When provisions of constitution not followed by the state - With or without governor's report prez can issue proclamation
   2. Under A365 - If state does comply with centre's direction
2. Parliamentary Approval and Duration
   1. Approval by both houses within 2 months
   2. If LS dissolved - within 30 days after 1st sitting but RS approves in meantime
   3. Max 3 years but approval every 6 months
   4. If no LS - within 30 days after 1st sitting but RS approves in meantime
   5. Approval or continuation - Simple majority (50% P& V)
   6. 44th CAA - Beyond 1 year extention needs National Emergency in whole India or whole or any part of that state
   7. EC must certify - Elections not possible
   8. Revocation by prez can be done anytime and needs no parliamentary approval
3. Consequences of President's Rule
   1. Prez takes over functions and powers of state govt or governor
   2. Can declare parliament subsumes role of state legislature
   3. Parliament passed bills and state budget
   4. Parliament can delegate lawmaking power to prez or authority specified by prez
   5. "Laws made remains even after emergency ceases but state can repeal or alter it"
   6. Suspend any constitutional body in that state except HC
   7. Prez dismisses state CM + COM
   8. Prez either suspends or dissolves state assembly
   9. Governor behalf of prez governs the state Chief Secy or advisor appointed by Prez helps governor
4. Use of A356
   1. Used 100s of times
   2. 1st state - Punjab in 1951
   3. Bommai Case 1994 upheld validity of proclamation on saving secularism
   4. BRA - Dead Letter & measure of last resort
   5. Dead letter became deadly weapon
   6. HV Kamath - BRA is dead and articles are very much dead
5. Scope of Judicial Review
   1. 38th CAA 1975 - Satisfaction of prez is final and no JR
   2. Both 44th CAA 1978 - removed it
   3. Bommai Case 1994 recommendation Subject to JR
   4. Burden to justify imposition in court is with centre
   5. Court has power to restore dismissed state govt & dissolved assembly
   6. Assembly dissolved only after parliament approves it, untill then only suspension and if no approval assembly is reactivated
   7. Anti-secular politics liable to action u/A356
   8. Losing confidence put to vote on the floor before unseating
6. Cases of Proper and Improper Use - Based on Sarkaria report and Bommai case
   1. Proper in following situation Hung Assembly - No majority by any party
   2. Majority party declines to form govt and can't find coalition commanding majority
   3. If ministry resigns and no other party commanding majority is willing to form ministry
   4. Constitutional direction of centre is disregarded
   5. Internal subversion fomenting violent revolt
   6. Physical breakdown leading to willfully defaulting constitutional breakdown
   7. Improper in following situation Ministry resigns and governor recommends prez rule without probing alternative ministry
   8. Governor recommends emergency without allowing to prove majority
   9. If ruling party looses in LS
   10. Internal disturbances not amounting to internal subversion
   11. Maladministration or corruption
   12. State govt not given prior warning to rectify itself
   13. Where power used to sort out intra-party problems

Financial Emergency - A360

1. Grounds of Declaration
   1. In a situation threatening financial stability or credit of India
   2. 38th CAA 1975 - Satisfaction of president final and conclusive
   3. 44th CAA 1978 - Satisfaction of prez not beyond JR
2. Parliamentary approval and duration
   1. Approval by both houses within 2 months - Simple Majority ( 50% P & V)
   2. If LS is dissolved - until 30 days from 1st sitting
   3. Duration Continues indefinitely until revoked
   4. No max period or parliamentary approval for extention
   5. Can be revoked by prez anytime and needs no parliamentary approval
3. Effects of financial Emergency
   1. Centre gets full control over state on financial matters
   2. Similar to National Recovery Act of USA in 1933 post great depression
4. Criticism of the Emergency Provision
   1. Federalism is destroyed
   2. Concentration of power with union executive
   3. President becomes dictator
   4. FRs become meaningless
   5. Single chapter lays foundation of totalitarian state, police state
   6. Constitutional dictatorship
5. Defence against criticism
   1. safety valve

• A52 - 78
• Part V deals with union executive
  • President
  • Vice Prez
  • PM
  • COM
  • Attorney General of India
• Prez
  • Head of Indian state
  • First citizen of India
  • Symbol of unity, integrity, solidarity of the nation

Election

• Indirectly through electoral college of
  • Elected members of
    1. Parliament = LS & RS
    2. State legislative assemblies
    3. UTs legislative assemblies of Delhi & Puducherry
  • Non-participants
    • Nominated members of
      • parliament
      • State Assembly
      • UT's legislative assembly
    • Members - elected & nominated
      • State legislative council
    • Members of dissolved assemblies
• Uniformity among states & parity b/w centre and state
  • Uniformity
    • Value of vote of MLA = Total population of state / Total elected MLA x 1000
  • Parity
    • Value of vote of MP = Total value of all MLA / Total elected MPs
• System of proportional representation with simple transferable vote (secret ballot)
  • Must secure fixed quota of votes
    • Electoral Quota = [Total number of valid votes polled/(1+1)] + 1
  • Voters indicate their preferences by marking 1, 2, 3, 4
  • Phase 1
    • 1st preference vote > Electoral quota then won
    • Else phase 2
  • Phase 2
    • Least preferred candidates removed
    • and his 2nd preference votes are transferred as 1st preference votes of other candidates
    • This process continues until votes cross electoral quota
• SC decision on disputes in election of prez is final
• Reason for indirect election
  • Nominal head not rival power house for PM + COM
  • Direct elections = costly, time consuming
• Technical Issues
  • proportional representation is misnomer bcos it is used for two or more seats not single seat like prez, so use preferential vote system or alternate vote system
  • No single transferable vote since every voter has plural votes

Qualification

• Citizen of India ( unlike USA every citizen not only naturalised citizen)
• > 35 years old
• Eligible to be elected as MP of LS
• No office of profit except
  • Prez
  • Vice Prez
  • Governor
  • Any minister of union or state
• Nomination of candidate needs
  • >50 electors as proposers
  • >50 electors as seconders
  • Rs.15k security deposit with RBI (forfeited if didn't secure 1/6th votes)
    • To discourage non-serious candidates

Oaths or Affirmation

• Administered to CJI
• In his absence = senior-most judge of SC
• Oath
  • faithfully execute office
  • preserve, protect and defend the constitution and the law
  • devote to service and well-being of people

Conditions of president's office

• Not a member of parliament or state legislature
  • If such members elected = deemed to have vacated
• No office of profit
• Entitled to use Official residence(Rashtrapathi Bhavan) without payment
• Perks determined by parliament
• Perks can't be diminished during his term
• Personal immunity from legal liability for his official acts
• Criminal immunity during the office
• Civil proceeding immunity subject to 2 months notice

Term

• 5 years
• can resign to Vice prez
• Can be Impeached
• Eligible for re-election any no of times(unlike US prez = twice)

Impeachment

• only for violation of the constitution
• but violation not defined in constitution
• Impeachment initiated in any house of parliament
  1. Charges signed by 1/4th members
  2. 14 days notice to prez
• Special Majority - 2/3rd of total membership of both houses
• Quasi-judicial process
  1. Nominated members also can participate though not in election
  2. elected member of UTs of Delhi & Pondicherry don't participate though they participate in election
• No prez impeached so far

Vacancy in prez's office

• Circumstances
  • tenure expires
  • resigns
  • impeached
  • death
  • disqualified as election declared void by SC
• Elections held before expiration date, if not possible outgoing prez continues after 5 years until election - prevents interregnum
• Vacant due to death, resignation, impeachement..etc
  • within 6 months election
  • Vice-prez acts as prez until election
  • If Vice-prez not available then CJI
  • If CJI not available senior-most judge of SC

Powers and function

1. Executive power
2. Legislative power
3. Financial power
4. Judicial power
5. Diplomatic power
6. Military power
7. Emergency power

Executive Power

• All actions of govt in his name
• Appoints
  • PM + COM and holds office during his pleasure
  • Attorney general and holds office during his pleasure
  • CAG
  • CEC & other Election comissioners
  • Chair + members of UPSC
  • Governors
  • Chair + members of FC
• Can appoint commission to investigate into conditions of SCs, STs & OBC
• Can appoint inter-state council
• Administers UTs through admins appointed by him
• Can declare any area scheduled area and can administer scheduled areas and tribal areas

Legislative Power

• Summons or prorogue the parliament the parliament
• Summons joint sittings (speaker of LS presides)
• Dissolves LS
• Addresses Parliament in 1st session of each year or 1st session after general election
• Can appoint any member of LS to preside if speaker and dy.speaker is absent, similarly in RS
• Nominates 12 member to RS - literature, science, art and social science
• Disqualifies MP after consulting EC
• Prior recommendations to - expenditure on consolidated fund of India, alteration of boundaries of states or creation
• Bills sent to prez after passing in parliament
  • give assent
  • withhold assent
  • return (except money bill)
    • if passed again with or without amendments - give assent
• Bill sent to prez after passing in state legislature
  • give assent
  • withhold assent
  • return (except money bill)
    • if passed again with or without amendments - no obligation to give assent
• Promulgate ordinance - Approved by parliament within 6 weeks after reassembly
• Lays report of
  • CAG
  • UPSC
  • FC
  • others to parliament
• Make regulations for A&N, Lakshadweep, D&N, D&D
  • In case of Puducherry only if assembly suspended or dissolved

Financial Powers

• Money bills need prez's prior recommendation
• Lays before parliament - Budget or Annual financial statements
• No demand for grants without his recommendation
• Spends from contingency fund of India to meet unforeseen expenditure
• Constitutes FC every 5 year for C-S revenue sharing

Judicial Power

• Appoints
  • CJI
  • SC Judges
  • HC Judges
• Can seek advice from SC on law but advice not binding
• Can grant - all cases of court martial, death sentence, or punishment for against Union of India
  • Pardon
  • Reprieve
  • Respite
  • Remission
  • Suspend
  • Remit or Commute

Diplomatic Power

• Represents India in International forums
• All treaties and agreements concluded on his behalf but subject to parliament's approval

Military Power

• Supreme commander of defence forces
• Declare war or conclude peace subject to parliament's approval

Emergency Power

1. National Emergency - A352
2. Presidents Rule - A356 & 365
3. Financial Emergency - A360

Veto Powers

• A111 - Bill presented to prez for his assent
  • Assent
  • Withhold - "Absolute Veto"
  • Return Bill (Except Money Bill) - "Suspensive Veto"
• Objective of veto
  • To prevent hasty ill-considered legislation
  • To prevent unconstitutional legislation
  • But no veto on constitutional amendment bill (24th CAA - 1971)
• Types of Veto
  1. Absolute Veto - withhold assent
  2. Qualified Veto - overridden by higher majority (Not available for Indian prez but US prez)
  3. Suspensive Veto - Overridden by ordinary majority
  4. Pocket Veto - takes no action - neither assent or withhold or return

Absolute Veto

• Withholds assent - bill doesn't become act
• Usual scenarios
  • Private member Bill
  • After old cabinet resigns and new cabinet advises prez
• E.g
  • 1954 - Dr.Rajendra Prasad withheld assent to PEPSU Appropriation Bill
  • 1991 - R Venkataraman withheld assent to Salary, Allowances and Pension of Members of Parliament (Amendment Bill)

Suspensive Veto

• Returns a bill (except money bill)
  • Returned bill passed again with or without amendments with simple majority, prez need to assent
• Money Bill either given assent or withheld

Pocket Veto

• No time limit for assent or withhold or return
• USA - 10 days time to return
• Pocket of Indian prez bigger than US prez
• E.g
  • 1986 - Zail Singh pocket vetoed Indian Post Office (Amendment) Bill

Presidential Veto over State Legislature

• State Bills become act after assent of
  • Governor
  • Or Prez if governor reserves it
• A200 - Governor has 4 alternative for state Bills
  • Assent
  • Withhold
  • Return (not money bill)
  • Reserve for prez's consideration
• A201 - Prez has 3 alternatives for bills reserved by governor
  • Assent
  • Withhold
  • Return (not money bill)

Ordinance making power of the president

• A123 - prez can promulgate ordinance during the recess of Parliament (not found in USA/UK)
  • Only when both or either of the house not in session
    • Not a parallel power of legislation
  • Only if prez satisfied that circumstances exist for ordinance
    • Cooper Case - 1970 - SC can question in case of malafide intention
    • 1975 - 38th CAA prez satisfaction final & court can't question
    • 1978 - 44th CAA said SC can question
  • After parliament reassembles
    • Approved within 6 weeks - Ordinance becomes act
    • Else ceases after 6 weeks
    • Ceases even before 6 weeks if both houses pass resolution disapproving it
    • If summoned to reassemble on different dates - 6 weeks from later of those dates
      • So max life of ordinance - 6 months(max gap b/w two sessions) & 6 weeks
  • Ordinance making power not discretionary but on advice of COM + PM
  • Can be retrospective
  • Can not be issued to amend constitution
• Ordinance power misused - Bihar govt promulgated 256 ordinance and many re-promulgated for upto 14 years - D C Wadhwa Case 1987

Pardoning power of President

• A72 - pardoning power to prez on following convictions
  • Punishment for offence against union law
  • Punishment by court martial or military court
  • Death sentence
• Objective
  • To correct any judicial errors
  • To afford relief to unduly harsh punishment
• Powers
  • Pardon - Completely absolves from all sentences, punishment and disqualification
  • Commutation - Substitute with lighter punishment
  • Remission - Reduction in period of sentence without change in character
  • Respite - Lesser sentence due to special fact like physical disability or pregnancy
  • Reprieve - Temporarily stay execution of sentence (esp. death) to provide time, so convict can seek pardon or commutation
• Powers of Governor
  • Has all the above powers
  • But can't pardon death sentence but can commute, remission, respite or reprieve death sentence
  • Can't pardon sentences by court-martial or military court

Constitutional position of president

• Prez is nominal executive = needs aid & advice of COM + PM(A74)
• Real executive = PM + COM
• 42nd CAA 1976 - Prez bound by advice of COM + PM
• 44th CAA 1978 - Prez can return a matter for reconsideration but reconsidered advice is binding
• Prez has no constitutional discretion but has situational discretion
  • Appointment of PM
    • when no party has clear majority
    • If PM dies and no obvious successor
  • Dismissal of COM when it can't prove confidence of LS
  • Dissolution of LS if COM lost its majority

Vice President

• Modelled on the lines of American Vice-president
• 2nd highest office in the country

Election

• Like president indirectly elected
• Electoral college
  • Members of both the house
  • Includes nominated members unlike prez
• For prez
  • All elected members of LS, RS, State assemblies, UT's assemblies

Qualification

• Citizen of India ( unlike USA every citizen not only naturalised citizen)
• > 35 years old
• Eligible to be elected as MP of RS
• Not hold any office of profit except
  • Prez
  • Vice Prez
  • Governor
  • Any minister of union or state
• Nomination of candidate needs
  • >20 electors as proposers
  • >20 electors as seconders
  • Rs.15k security deposit with RBI (forfeited if didn't secure 1/6th votes)
    • To discourage non-serious candidates

Oaths or Affirmation

• Administered to President or some person appointed on his behalf by him
• Oath
  • faith & allegiance to the constitution
  • discharge duties of his office

Conditions of office

• Not a member of parliament or state legislature
  • If such members elected = deemed to have vacated
• No office of profit

Term

• 5 years
• can resign to prez
• No need of impeachment
• But removal resolution by RS with absolute majority & agreed by LS
• Removal resolution needs 14 days advance notice to VP
• no ground mentioned in constitution for VP removal unlike prez
• Eligible for re-election any no of times

Vacancy in prez's office

• Circumstances
  1. tenure expires
  2. resigns
  3. removed by resolution
  4. death
  5. disqualified as election declared void by SC(final) (acts done before disqualification is valid)
• Elections held before expiration date, if not possible outgoing prez continues after 5 years until election - prevents interregnum
• Vacant due to death, resignation, impeachement..etc
  • within 6 months election

Powers and function

• Ex-officio chairman of RS (similar to american VP)
• Acts as prez when office of prez is vacant
  • Max 6 months within which new election to be conducted

Indian vs American Vice-President

• American VP succeeds to presidency for remaining period of presidency if office of president is vacant
• Indian VP becomes acting Prez(not even prez) only for 6 months
  • So scholars call him "His superfluous Highness"

Prime Minister

• Prez is nominal executive or de jure executive
  • Head of State or Union
• PM is real executive or de facto executive
  • Head of Govt

Appointment of PM

• Constitution doesn't provide procedure for selection and appointment of PM
• Parliamentary convention is to appoint leader of majority party in LS as PM
  1. When no party gets Majority = Prez discretion
     • Usually leader of largest party or coalition + Vote of confidence in 1 month
     • Neelam Sajiva Reddy (prez) appointed Charan Singh coalition after fall of Morarji Desai govt
  2. When prez dies and no obvious successor = Prez discretion
     • Prez Zail Singh appointed Rajiv G after Indira G died
     • But prez has no choice if ruling party elects new leader
• Cases
  • 1980 - Delhi HC - Can appoint PM before proving majority within 1 month
  • 1997 - SC - Non member of LS & RS can be appointed as PM but should become one in 6 months
    • PM can be member of either LS or RS (UK only house of commons)

Oaths and Term

• Prez administers to PM - Oath of Office and secrecy
  • faith and allegiance to constitution
  • uphold sovereignty and integrity of India
  • faithfully and conscientiously discharge duties of his office
• Term
  • Not fixed
  • Holds office during the pleasure of the prez
  • A74 - But prez can't dismiss PM as long as he enjoys majority in LS

Powers and functions of the PM

In relation to COM

• A 75 - Recommends appointment of ministers to prez
• Allocates and reshuffles portfolios
• Ask minister to resign or advice prez to dismiss him
• Presides over meeting of COM
• Guides, directs, controls and coordinates the activites of all ministers
• Can collapse COM if he resigns
  • Resignation or death of PM collapses COM

In relation to Prez

• A 78 - Channel of communication b/w Prez & COM
  • His duty to
    • Communicate decisions made by COM + PM
    • Furnish info relating to administration & legislation if prez asks for
• Informs about appointment of
  • Attorney General of India
  • CAG
  • Chair & members of
    • UPSC
    • FC
  • Election commissioners ...etc

In relation to Parliament

• Leader of LS
  • So advises prez regarding
    • Summoning
    • Proroguing
    • Dissolution of LS
  • Announces govt policies on the floor of house

Other powers & Functions

• Chair of
  • PC or now NITI Ayog
  • National development Council
  • National Integration Council
  • Inter-state Council
  • National water resources Council
• Significant role in shaping foreign policy
• Chief spokesman of Union
• Crisis manager-in-chief at the political level during emergency
• Leader of Nation
• Leader of party in power
• Political head of the services

Role Descriptions

• Lord Morley
  • primus inter pares (first among equals)
  • key stone of cabinet arch
  • head of the cabinet is primus inter pares
• Herbert Marrison
  • primus inter pares
• Sir William Vernor Harcourt
  • inter stellas luna minores - a moon among lesser stars
• Jennings
  • Sun around which planet revolve
  • Keystone of constitution
  • All roads in the constitution lead to the president
• H.J.Laski
  • Relation b/w PM & COM
    • central to its formation
    • central to its life
    • central to its death
  • Pivot around which entire governmental machinery revolves
• H.R.G Greaves
  • Govt is the master of the Country
  • PM is the master of the Govt
• Munro
  • Captain of the ship of the state
• Ramsay Muir
  • steersman of the steering wheel of the ship of the state
• Humphrey Berkely
  • Basic defect is super-ministerial powers of PM
• Many observers
  • Prime ministerial government

Central council of Ministers

• COM headed by PM is real executive authority of our politico-administrative system
• Principles of parliamentary form of govt not detailed in constitution but A74 & A75 deal in general manner

Constitutional Provisions

• A74 - COM to aid & advise prez
  • Prez may require COM to reconsider such advice but reconsidered advice is binding
  • Advice tendered by COM not questionable in court
• A75 - Other provisions as to ministers
  • PM appointed by Prez
  • Other ministers appointed by Prez on PM's advice
  • COM + PM < 15% of total strength of LS - 91st CAA 2003
  • If disqualified on defection grounds then disqualified to become minister - 91st CAA 2003
  • Ministers hold office during pleasure of prez
  • COM collectively responsible for LS
  • Prez shall administer oaths of office and secrecy to ministers
  • Minister who is not a MP for 6 months ceases to be a minister
• A77 - Conduct of Business of the GOI
  • All executive order of GOI taken in the name of President
  • Method of execution is specified in rules made by Prez
  • Prez makes rules for convenient transaction of business
• A78 - Duties of PM
  • Communicate to Prez all decisions made by COM
  • Furnish any info relating to administration or legislation if prez asks for

Nature of advice by Ministers

• A74 - COM + PM aid and advise the Prez in exercise of his function
• 42nd & 44th CAA made advise binding
• Advice tendered by ministers can't be enquired by court
• 1971 - SC said even after dissolution of LS, COM need to aid & advice Prez so COM are not dissolved
• 1974 - SC wherever Constitution says satisfaction prez = satisfaction of COM + PM not personal satisfaction

Appointment of Ministers

• PM is appointed by Prez
• Other ministers appointed by Prez on advice of PM
• Usually members of LS or RS is appointed as Ministers
• But non-members can also be appointed but should become one in 6 months
• Minister of one house has rt to speak and take part in proceedings in other house but

Oath

• Prez administers oath to ministers
• 1990 - Oath by Devi Lal as deputy PM contested but SC said Dy.PM is just description doesn't give any PM powers so its ok

Responsibility of Ministers

1. Collective Responsibility
   1. A75 - Ministers collectively Responsible to LS
   2. They work as a team and swim or sink together
   3. NCM passed against COM or individual ministers = all ministers has to resign
   4. If COM recommends Prez to dissolve LS then Prez has to oblige
   5. Collective Responsibility means cabinet decision binds all ministers even if the ministers disagree they need to support within & outside parliament
   6. If any minister disagree they need to resign
2. Individual Responsibility
   1. A75 - PM can ask a minister to resign or recommend Prez to dismiss him
3. No legal Responsibility
   1. Any order passed by Prez needs no countersigning of ministers (UK needs it)
   2. Nature of advice tendered not enquired in court but UK they can be.

Composition of the council of Ministers

• PM
• Cabinet Ministers
  • Heads Ministry like home, defence, finance
  • They are members of cabinet
• Ministers of State
  • With independent Charge of department or Ministry
    • Works independent of Cabinet Ministers w.r.t their department
  • Attached to Cabinet Minister
    • Works under attached Cabinet Minister
• Deputy Ministers
  • Attached to Cabinet minister or Minister of State with independent charge
• Parliamentary Secretaries
  • They have no department under them
  • Attached to senior ministers and assist them
  • Since 1967 no parliamentary secretaries are appointed
• Some times COM can include Deputy Minister for political reasons

COM vs Cabinet

Role Description

• Ramsay Muir
  • Steering wheel of the ship of the state
  • Dictatorship of the cabinet
• Lowell
  • Keystone of the political arch
• Sir John Marriott
  • Pivot around which political machinery revolves
• Gladstone
  • Solar orb around which other bodies revolve
• Barker
  • Magnet of policy
• Badgehot
  • hyphen that joins, the buckle that binds the executive and legislative together
• Sir Ivor Jennings
  • Core of British Constitutional system
• L.S.Amery
  • Central directing instrument of Govt

Kitchen Cabinet

• Smaller decision-making body smaller than cabinet called as inner cabinet or Kitchen cabinet
• Informal body (extra-constitutional body)
• real center of power
• where decisions are cooked and placed before cabinet for approval
• Can have members from outside cabinet like friends, family ..etc
• Merits
  • Efficient
  • can meet often
  • takes decision quickly
  • maintains secrecy
• Demerits
  • Reduces authority of cabinet
  • Not people's representative body

Cabinet Committees

Features of Cabinet Committees

• Extra constitutional - not mentioned in constitution
• But mentioned in Rules of Business
• Two types
  • Standing - permanent
  • Ad hoc - temporary
• Setup by PM time to time so the names change
• Membership varies from 3 to 8
• Usually includes cabinet ministers only but other ministers are also included
• Mostly headed by PM if he is a members else others like finance or home ministers heads it
• Formulates proposals for cabinet to take decision
• They are based on principles of division of labour and effective delegation to reduce load on cabinet

List of Cabinet Committees & its functions (2020)

1. Committee on Political Affairs - PM heads
   1. Policy matters of domestic & Foreign affairs
   2. Most powerful = a.k.a super cabinet
2. Cabinet Committee on Economic Affairs - PM heads
   1. Directs & coordinates economic matters
3. Appointments Committee of the Cabinet - PM heads
   1. Decides appointment of central Secretariat, Public Enterprises, banks and Financial Institutions
4. Cabinet Committee on Security
5. Cabinet Committee on Parliamentary Affairs - HM Heads
6. Cabinet Committee on Accommodation
7. Cabinet Committee on Investment and Growth
8. Cabinet Committee on Employment and Skill Development

Groups of Ministers

• Constituted to look into different issues
• May be empowered to make recommendations to cabinet
• Ad-hoc bodies

2nd ARC recommendations w.r.t GOM

1. Large no of GOM resulted in delays in work completion
2. Selectively constitute and empower them to take decisions behalf of cabinet
3. Selective GOM with clear mandate with prescribed time limit would be helpful