Polity impotant points

Law: a tool of social control backed by the sovereign. (CJI NV Ramana)

British colonial power- law as a tool of political repression - Rule BY Law, not of law. -> Freedom struggle -> Journey towards establishing Rule of Law.
Covid backdrop: pause and analyse to what extent have we used Rule of law - to ensure protection, welfare
Conceptions of Rule of Law:

Law be clear and positive

No secretive laws, no Ambiguous language

Equality before law

Gender Equality

Prejudice and bias => injustice

Right to participate in creation and refinement of laws

Oath: " “without fear or favour, affection or ill-will,”

Democracy:

Julia Stones in 'The Province of Law' - elections, political discourses, criticism, voicing protests- integral to democracy
Telegu Mahakavi Gurujada Appa Rao: “a nation is not merely a territory. A nation is essentially its people. Only when it's people progress, the Nation progresses”.
Annual Report by Swedish V-Dem - ‘Autocratization goes viral’ - India’s status downgraded from 'world’s largest democracy' to ‘electoral autocracy'

muzzling of media, overuse of sedition laws, use of UAPA placed constraints on civil society

Reports Without Borders (RSF) placed India alongside China, Russia, Iran and Saudi Arabia in a list of press freedom’s “worst digital predators
Fell 26 places to rank 105 in Global economic freedom index by Fraser institute
Procedural and substantive democracy:

Procedural:

Free n fair elections
Constitutional govt
Political equality
Effective institutions

Substantive:

Importance of Rule of law
Social-economic equality
Tolerance
Accountability of rulers

Free speech:

Arrest of journalist Siddiqui Kappan on his way to covering Hathras rape story
Comedian Munawar Faruqui arrest.
Sedition:

Landmark judgements:

Law commission- only criminalise acts having intention to disrupt public order/overthrow govt using violence/illegal means.
1979, India ratified the International Covenant on Civil and Political Rights (ICCPR), which sets forth internationally recognized standards for the protection of freedom of expression.

Political parties:

Registration:

S29A of RPA 1951. EC registers, deriving powers from A324 and S29A of RPA

Notice period of 30 days
Publish in 2 local and national papers

Anti-defection:

Venkatachaliah Commission - application must be limited to crucial votes like No-confidence, passing budget.

* SC

1. A.127 - Ad-hoc judges | CJI appoints | sitting judge of HC, duly qualified to be a J, SC | quorum

2. A.128 - Retired judges | CJI requests | retired J, SC/J, HC (qualified for SC) | not deemed to be a J,SC

* HC

1. A.223 Acting CJHC | Vacant/Absent/Unable to perform duties | President appoints | any other judges of the HC

4. A224A Retired judges | CJHC requests | J,HC | Allowances decided by Prez | not deemed to be judge

ELections:

Independence of SECs: (A243K)

SC recently - independent persons and not bureaucrats be appointed SECs. Giving govt employees additional charge as SEC is ‘mockery of the constitution'
SC in 2006 case Kishan singh TOmar vs Ahmedabad Municipal corporation - State govts should abide by SEC orders during local electins jsut like they abide by EC during assembly and parliamentary polls
Although appointed by state governors, can only be removed by Impeachment
Recent trend of eroding independence:

2008 - Mh SEC Nand lal was arrested and jailed for 2 days

ELection symbols allotment power - Under ES Order 1968
SC in Sadiq Ali case - EC is the only authority to decide issues related to disputes and mergers.
Successive court decisions have made A324 a reservoir of powers - residuary powers to ECI
MCC:

Legality:

Certain provisions derive enforceability from Section 123 of RPA 1951, IPC
2013 report of parliamentary standing committee recommends statutary backing to MCC

Corrupt practises:

Election petition - HC, within 45 days from date of poll result
Section 100, RPA 1951 - grounds for filing election petition

S123: corrupt practises - bribery,etc
Countering malpractises

Allahabad HC verdict, 1975- set aside IG's election, 4 yrs later, on ground of corrupt practises

Credibility:

Toothless
no power to de-register
VVPAT Issue
inadequate action in fake news tackling
Namo tv - allegations of partisanship
2 ECs can out-vote CEC (equality of votes)
depends on central govt for funds

Even during the 2019 elections it took strict measures like suspending campaign for 72 hours of prominent politicians for hate speeches, cancelling election in Vellore for use of money power, the outreach of ECI through social media and other awareness program has results in the highest ever voter turn in 2019, VVPAT data of 2019 elections also showed EVM were credible. H

Way:

Equal constitutional protection for all three ECs
Expenses of ECI be charged on CFI
Appointment via collegium
power to de-register

Funding:

Electoral Trusts scheme 2013:

CBDT
procedure for approval to electoral trusts that receive voluntary contri and disburse to political parties (parties regd under S29A of RPA)

NOTA:

2013
Not for Rajya Sabha elections. SC in PUCL

NPR:

First collected in 2010, updated in 2015
Citizenship-Act-1955
Would-have-data of every person enumerated during the Census operations irrespective of age.
biometric data and UID Number of every person of age 15 years and above
demographic as well as biometric particulars.

Rights:

A14:

Anti-Discrimination law:

Need:

(Essay): A couple turned down for a home as tenants, because Muslim. A qualified professional rejected for job, wheelchair bound; couple of students denied campus facilities, caste and ethnicity; air-hostess dismissed for being over-weight, while males of that weight continue at work
Housing Discrimination Priject - Jindal LAw school - extensive discrimination throughout country
A15- bars only state, and not private individuals from discriminating on basis of ethnicity, nationality, sexual orientation, disability etc.
Patan Jamal vs State of AP - SC recognized Intersectional discrimination . Eg: Dalit women - both as a Dalit, and a woman
2006 Sachar committee - need for an AD law
Pvt members bill proposed in 2016 - lapsed
Kerela govt - in process of drafting one

A21:

Right to privacy:

Phone tapping:

Telegraph Rules
IT Rules
Section 419A of Telegraph rules: safeguard - directions by officer not below rank of Joint secy, duly authorized by home secy.
S69A. IT Act: interception, monitoring and decryption of digital information “for the investigation of an offence
PUCL v/s UoI 1996 - SC pointed out lack of procedural safeguards in Telegraph Act, w.r.t. phone tapping

Stand:

UN-Declaration-of-human-rights,International-Covenant-on-Civil-and-political-rights-:Right-to-privacy
UNHCR-annual-report-2014:

Digital-communication-technologies:amplified-voice-of-human-rights-defenders---via-new-tools-to-document/expose-abuse
But-also,enhanced-capacity-of-surveillance,interception,data-collection

UN-GA-Resolution-68/167:Rights-held-by-people-offline-must-also-be-protected-online.

Right-to-speedy-trial:

Bhima-koregaon-case:speedy-trial-part-of-FR
Kartar-Singh-vs-Punjab
Hussainara Khatoon v. State of Bihar, 1979:where under trial prisoners have been in jail for duration longer than prescribed, if convicted, their detention in jail is totally unjustified and in violation to fundamental rights under article 21.

Detention:

SC-in-manipur-activost-cow-dung-comment-as-cvid-cure-case:continued detention would be a violation of his fundamental right to life and the due process of law

Federalism:

River-water disputes:

International:

Convention on the Protection and Use of Transboundary Watercourses and International Lakes- 1996.- UN Economic Commission for Europe

Parli Functioning:

Parli privileges:

A105
Code of Civil Procedure 1908 - freedom fron arrest and detention under civil process during continuation of meeting/committee and 40 days before/after

Motions:

Adjournment

Fundamental Rights:

Right to Counsel in custody:

A20(3), A22, CrPC
DK Basu judgement - an arrestee may be permitted to meet lawyer during interrogation, but not throughout interrogation.

Right not to be deported:

SC recently in a plea for deportation of Rohingya from J&K to myanmar:

Right not to be deported not under A14 or 21 (available to both citizens and foreigners). It is an ancillary right to A19 - right to reside/settle in any part - which is only for citizens

General:

Article 164: A minister not member of House for 6 months ceases to be minister.

SR Chaudhari vs State of PUnjab: SC clarified 6 month window is only for one-time. Repeated appointment for 6 months not allowed

PRIs and empowerment:

Representation of various sections:

Measly 8% representation of women in parliament and state LAs, but 14 lakh elected women representatives who chase local bodies.

PESA- helped indigenous people fight for their rights in Vedanta and Posco mining cases.
District planning committees - inclusion of policy framing
11th schedule subject devolution
13th, 14th FCs - allocated a sizeable portion to local bodies, recognizing their potential
NK singh 15th FC - proposed to increase current funding by 2% of divisible pool

RPA:

Section 11: Allows election Commission to remove disqualification for reasons to be recorded

Elections and PPs:

Registration of PPs: Section 29A of RPA 1951. EC registers
Voting

Proxy voting/e-voting

ETPBS: Electronically transmitted postal ballot system.

Developed by ECI, with help of C-DAC< for use by service voters.
2 layers of security- OTP and PIN

Absentee voting: has been extended to disabled and people above 80 yrs, by Ministry of Law and Justice, amending the conduct of election rules on advise of EC.
Thomas Jefferson: ‘We…. do not have government by the majority. We have government by the majority who participate"

Code of conduct for MPs and MLAs:

Paliamentay standing committees on ethics exist in both houses.
A code for union ministers was adopted in 1964

Election manifestos:

S Subramaniam Balaji vs Govt of TN and ors 2013: Directed EC to include guidelines on election mainfestos in MCC.
Thus, MCC guidelines:

Manifesto be not repugnant to constitutional ideals
avoid promises that have undue influence on voters/vitiate the purity of election process
Only promises which are possible to fulfil
Not be released during prohibitory period - period of 48 hours ending with hour fixed for poll conclusion

Nominated candidates:

Section 151A of RPA 1951: a bar on govt’s discretionary power to nominate members to legislative council -

Can a minister, if after expiry of 6 months, still not a MP, be re-nominated? In 2001, SC declared the resign and re-appoint bid as improper, undemocratic, unconstitutional and invalid.
Legislative council:

A169. SLA passes resolution,Parli considers
UP, Bihar, Mh, AP, Telangana, ktk - 6 states with LCs presently (J&K did too. ab nahi)

State election commissions:

2006, SC: SECs enjoy same powers as ECI. State govts should abide by orders of SECS during Municipal and panchayat elections, just as thy follow EC during assembly and parli polls

RS elections:

NoTa option not available. Struck down by SC in 2018
No secret ballot. Vote to be shown to authorized party agent
Not voting for party would not attract disqualification under anti-defection, ruled SC. But since open voting, party will know the vote and is free to take disciplinary action.
SC ruled that a member can vote in rs polls even before taking oath as legislator
Candidates have to be proposed by 10 legislators, or 10% of part strength, whichever is less, as proposers
Only elected members of concerned Legislative assemblies can vote

ECI:

Number of EC - president determine
Conditions of service, tenure- Presi determine
all matters decided by majority, i.e. CEC and EC have equal powers. Equal salary, allowances, benefits

Subramanian swami vs ECI: paper trail indispensable for free and fair lections. Voter’s confidence in EVM will be achieved only with intro of paper trail
PUCL vs UoI - NOTA
Lily thomas
ADR vs UoI and PUCL cases - affidavits by candidates. Freedom of expression promoted by info about candidates in election fray
Krishnamoorthy vs Shiv Kumar - disclosure of criminal antecedents by a candidate was a ‘categorical imperative’

Facts:

UN is NOT a state U/A 12, not amenable to jurisdiction under A226. Judiciary is also not mentioned under definition of state U/a 12. (When SC acting in judicial capacity, does not come under state defn. But when acting in admn capacity, does come under defn of state. Rupa Ashok hurra vs ashok hurra)

President:

Mercy plea:

Subject to JR
Rejection also subject to JR (Recent Nirbhaya convicts case)
In several rulings, court has held that solitary confinement for long would be a reason for grant of mercy.

Rajya Sabha:

First bicameral legislature in British India introduced in 1919 as a consequence of Montagu- Chelmsford reforms.

Issues of polity:

Criminalization of politics:

ADR report - in 2014, 34% of the elected LS MPs had declared criminal cases against them. 22% for RS MPs.

Now, in 2019 - 43% (In 2004, 24%)

Measures -

Section 8, RPA 1951 - disqualifies a person convicted of offence with imprisonment of 2 or more years. (Ramesh dalal vs UoI)
EC:

Fill form and mention about criminal cases against you. Also to be displayed on party website
recommended two ballot system. would make very difficult for criminals to win, since widest possible support needed.

UoI vs ADR (2002): every candidate to declare criminal records, financial records, and educational qualifications
NOTA introduced in (2013)
Public interest foundation vs UoI - directions to EC and parties to make disclosures
2014 judgement - directed all subordinate courts to decide on cases involving legislators within a year, or give reasons for not doing so to the chief justice of the high court
Lily Thomas vs UoI 2013 - Section 8(4) of RPA 1951 declared unconstitutional. (allowed convicted MP/MLA to continue till appeal disposed off)
2017 - special fast track courts
Feb 2020 judgement, SC: Pol parties to state the reason for such selection , and why other individuals without criminal antecedents could not be selected as candidates. Reason cannot be merely ‘winnability’.

Other reco:

Right to recall
State funding

NOTA:

2019 Mh assembly elections, NOTA became a runner up in 2 constituencies.
Provides democratic means to express dissent. Eg: 2017 book ‘Dramatic Decade: Landmark Cases of Modern India’ by Indu Bhan - give examples like a gp of women in Kerela out on roads urging people not to elect any candidate if no woman present in the fray.
2018: Former CEC TS Krishnamurthy recommended holding fresh elections if victory margin less than NOTA votes
2018: MH SEC orders - fresh elections for a seat if NOTA gets highest no of valid votes.

Way forward:

ECI be given power to audit financial accounts of PPs
Greater transparency
Improve broader governance

Cap on no of ministers - 91st amendment act to A164. 15% of size of House
Office of profit - laid as criteria for disqualification of an MP/MLA under A102 and A191 of constitution. ‘Office of Profit’ not defined in RPA or Constitution.

SC in Pradyut Bordoloi vs Swapan Roy (2001) - 4 basic principles:

Whether govt exercises control over appointments, removal, performance of functions
Whether remuneration attached
Whether the body in which office is held has govt powers - releasing money, land allotment, granting licenses.
Whether the office enables holder to influence by way of patronage

Functioning of Parliament:

15 point reform charter unveiled by VP Venkaiah Naidu - review of anti-defection, review of whip, parties to ensure attendance of atleast 50% of their legislators etc.
Parliamentary scrutiny declining: As per PRS legislative research, only 25% bills were referred to committees in 16th Lok Sabha, as compared to 71% in 15th.
Private members bills:

Only 14 pvt member bills (5 originating in RS) have become law so far. 5 of them in 1956
Since 1970, no private members’ bill has become law. - PRS
In 14th Lok Sabha, of over 300 pvt members’ bills introduced, only 4% were discussed..
From 2014-2018 about 900 private member Bills were introduced in the Parliament but not even 2% of these bills were discussed.
Shows that role of individual parliamentarians has been declining
Need to amend anti-defection law. The UK, for example, has the concept of a free vote allowing MPs to vote as they wish on particular legislative items

Disruption:

Speaker under Rules for the COnduct of Business - has powers necessary to preserve order of house. May direct a member to withdraw from the house for the remaining of the day’s sitting.

Parliamentary committees: Draw authority from A105 (privileges of parli members) and A118 (Parli’s authority to making rules for regulating its procedure and conduct of business)

Not bound by party whips, dedicated discussion time, expertise, executive scrutiny.
NCRWC - research support be made available to strengthen the committee system
Been mandated that Parliamentary fora cannot intervene in functioning of Department related standing committees.

Private members bills:

Acc to PRS, 372 bills were introduced in 15th Lok Sabha, only 11 were discussed.
Till date, only 14 have been passed and become law
Last was in 1970 - Supreme court (enlargement of criminal appellate jurisdiction) bill

Joint sitting:

Only 3 bills passed in joint sitting till date - Dowry prohibition 1950, Banking service commission repeal, 1977 and Prevention of Terrorism bill 2002

Summoning of sessions:

15 day gap between date of summoning and commencement of House - to allow necessary collection, collation, scrutiny of info related to Questions, beflore placed in the house. - not mentioned in consti. Decided by Parli. Many states follow 21 days. Also, rule flexible, as says ‘unless speaker otherwise decides'

Party issues

Hero-worship, cult of one-man politics

‘In politics … hero-worship is a sure road to degradation and eventual dictatorship’ - Ambedkar in Constituent assembly debates

Defections

Committees:

2 new cabinet committees - Investment and growth, Employment and skill devp. Chaired by PM
Cabinet comm on parli affairs - given to Defence minister.
Public account committee: 1921. 22 members (15 + 7). Elected members, prop representation. Chairperson nominated by speaker, from opposition party.
Estimates committee: 1921. John Mathai committee (30 members, all LS). Elected, prop representation. Chairperson nominted, ruling party.
CPU (committee on public undertakings) - 1964. Krishna menon committee (22, 15+7). Elected members, prop representation. Chairperson nominated from ruling party.
Standing financial committee - members from LS only

Leader of opposition:

10% rule not mentioned in parliamentary statute. The 1977 Act (Salary and Allowances of LO Act) mentions LoP as leader in that House of the party in opposition having largest strength and recognised by the Chairman RS/ Speaker LS . So, Chairman/Speaker can choose to not follow 10% rule, and recognise leader of largest oppn. as LoP
1st LS speaker, GV mavalankar, specified the 10th rule, 1956. As a ruling by speaker, it is enforceable in court of law. :Later incorporated as a direction in Parliament (facilities) act.
No leader of opposition in 16th and17th LS
Leader of INC(O) - Ram Subhag ugh, became the first person to be formally recognized as leader of the opposition in LS. (Following 1969 splits INC into INC(O) and INC(R) )
LoP in LS and RS enjoy same status.
Why LoP?

Consulted during important appointments - lOkpal, CVC, CIC
Given rank of a Cabinet minister. Constructive criticism of govt policies.
Conclusion: Effective opposition is a categorical imperative to success and survival of democracy.
Fundamental right to dissent.

Speaker:

LS - have been from ruling party since independence. Only 1 exception - SOmnath Chatterjee during UPA-1
Powers:

Direct a member to withdraw(for remaining part of day), or Suspend a member.(for period not more than remaining of session). Acts under Rules of Procedure and Conduct of Business, if member’s conduct is grossly disordered.

Authority for revocation of suspension is not vested in speaker. The house can do so, under a motion.

Unlike speaker, RS Chairman does not have power to suspend. Can only direct to withdraw. But he may name a member, and house can pass a motion to suspend
sole representative of the house in international forums
Ultimate interpretor and arbitrator of provisions

No sitting Speaker of the House of Commons in Britain has lost his or her seat. This is because of the convention of not fielding candidates in the Speaker’s constituency. So in Britain, it Is known as ‘Once a Speaker, Always a Speaker’
British Parli automatically elevats speakers to house of Lords after they demit office.
British speaker is nominated based on consensus in house, not elected
In Britain, The speaker consults senior Parliamentarians to decide whether a bill is a Money bill
V.S. Page committee : disallow speaker to contest next elections in case of partial conduc

Leader of House:

Defined in rules of procedure of LS and RS.
Is PM, if member of the house, or a Minister who is a member of the house and nominated by the PM.
PM is invariably the leader of the LS
Functions: Arrangement of govt business is his ultimate responsibility.

Makes Proposals for date of summoning and prorogation of house - approved by chair
Fixes priorities for various items of business
LoH in LS Never sits in business advisory committee, is represented there by the Minister for parliamentary affairs. LoH in RS generally sits in Business advisory committee.

Anti-Defection: Law came up in 1985

Speaker’s decision subject to Judicial review (1992 SC judgement - Kihoto Hollohan)
Exceptions: Law allows a party to merge with/into another party provided a 2/3rd majority favours merger. Provision allowing split deleted by 91st amendment.
Judgements:

Kihoto Hollohan case, 1992:

Speaker’s decision subject to Judicial review
Recognised pivotal role in speaker in parliamentary democracy, as guardians of rights and privileges of house.

recommendations:

Law commission report and Dinesh Goswami committee - recommend for issuance of whips only in critical cases. Dinesh goswami - anti-defection only for voluntary giving up membership or whip violation in case of no-confidence motion
EC: Decision under 10th schedule should be made by president/Governor on binding advise of EC
Of the 17 defecting MLAs of Ktk recently, 11 got re-elected on BJP tickets in by-elections. Very problematic. Former CEC SY Quershi recommends extending disqualification period to at least 6 yrs to ensure defecting MLAs stay out for atleast 1 election cycle.

Politics of ‘sequestration’ - recently witnessed in Maharashtra elections. Parties confine their MLAs to hotels/resorts, guarded by party ‘bouncers’ to prevent opposing parties from enticing them for support in forming the govt.
Recent SC ruling: Disqualifications under 10th schedule be adjudicated by a mechanism outside parliament. Recommended a permanent tribunal headed by a retired Supreme Court judge or a former High Court Chief Justice as a new mechanism
1985 - LS speaker first framed rules under 10th sch.

Rule 6: a member can file petition seeking disqualification of a member. Rule requires petitioner to satisfy himself about reasonableness of grounds of disqualification (satisfy himself, not speaker)
Rule 7: Speaker shall consider whether peititon complies with req of Rule 6, and forward. If not complies, dismiss. (only see complaince with Rule 6. Not go into reasonableness of grounds cited in petition at this stage) .Forward to member concerned and require him to submit comments within 7 days (word ’show cause notice’ not mentioned in rule 7)

DPSPs:

Apart from directives contained in part IV, there are other directives contained in Constituton. Like A350-A Part XVII - Instructions in mother tongue.

Fundamental rights and duties:

Balance

Swami vivekananda - ‘Duty of every person to contribute in the development and progress of India'
Gandhi - The very performance of a duty secures us our rights
Rig veda: ,”O, citizens of Bharat! As our ancient saints and seers, leaders and preceptors have performed their duties righteously, similarly, you shall not falter to execute your duties”.
Universal Declaration of Human rights - Everyone has duties to the community in which alone the free and full development of his personality is possible.
Rights without duties will lead to anarchy.

Issuance of whip:

One line whip: Inform party members of a vote, allows them to abstain in case they do not want to follow party line
2 line whip: directs presence
3 line whip: strongest. Employed on important occasions. Obligation on members to toe the party line.
Anti defection law allows speaker/chairperson to disqualify member defying 3rd line whip. Exception: when more than one-third legislatures vote against a directive, effectively splitting party.

Elections:

EC: powers:

Cannot deregister a political party
Cannot disqualify a candidate based on electoral malpractices. Can only direct registration of case. But Constitution empowers EC to decide qualification in case of office of profit.

Checks and balances:

Tools of accountability:

Question hour - mentioned in rules of procedue
Number of starred questions fixed at 20 per question hour, from 4th session of 5th LS, 1972.

Articles- 50 - separation of judiciary and executive.
Judges can’t be discussed in parli.
Parli sessions cannot be called into question by judiciary
Diluting:

Delegated legislation
Judicial activism
Weakened legislative scrutiny.
Executive excesses - CIC, RTI, dilution of institutions
NJAC struck down, Collegium
Weakening opposition

Way forward:

Judiciary must set example, as SC is custodian of constitution
Introducing Legislative Impact assessment - bills eval on social, eco, env, admn impact
Strengthen opposition - shadow cabinet

Decentralization:

Principle of subsidiarity should be followed. Holds that social and political levels should be dealt with at the most immediate level that is consistent with
Haryana- recently passed bill on right to recall Panchayat mmbers

ISSUES IN FEDERALISM

Cooperative Federalism:

Economic changes have made cooperative federalism necessary:

2nd gen reforms (1st gen - 1991) have shifted emphasis from product to factor markets - land, labour, taxation - which need consent of states. Eg: GST - clash of interests not just between centre and states but also between producing and consumer states
Changing dynamics of fiscal federalism: Greater autonomy to states in determining their expenditure. ALso, while centre 60% of combined revenue, it spends only 40% of combined expenditure (states colect 40% but spend 60%)

RBI recent report - Quality of expenditure at state level has. multiplier effect on overall devp outcomes.

States’ critical role in creating a conducive investment climate (Hence,EODB)

Cooperative and competitive federalism reflected in:

Business reform action plan - launched by DPIIT, in partnership with WB group. All states and UTs are currently Aspirers (below 80%). Released first in 2015.

Recommendations for reform of regulatory processes - labour, contract enforcement, registering prop etc.

Composite water mgmt index of NITI
LEADS Index

Special category status:

Context: Andhra P. revived its demand. (Was a bifurcation promise)
No provision for SCS in constitution. Concept emerged in 1969, based on Gadgil formula. (5th FC) (hilly terain, low density & significant tribal popn, border proximity, eco backwardness. Provided 30% of total central assistance, centre bears 90% of centrally sponsored schemes & rest 10% as loan to state at 0%,exempted from custom duty, corp tax, income tax etc, unspent money carries forward rather than lapse etc , funds under Accelerated irrigation beenfit scheme)
14th FC - no extra declution to SCS. Centre may continue special features (funding 90:10)
ES 16-17: Aid curse. SCS have made no tangible progress
Centre extends fin assistance to states that are at a comparative disadvantage.
First SCS in 1969 to J&K, Assam and Nagaland. Over years, 8 more- HP and remaining 6 NE states.

3-language formula:

First official reference in national policy on education, 1968. Asked the states to vigorously implement the 3-language formula at secondary stage. (Study of Hindi, English and a modern regional language). Promotion of Hindi as a link language
Origin of linguistic row goes back to the debate on official language in the constituent assembly.
As early as 1959, Nehru had given assurance in the parliament that English would continue to be in use as long as non-Hindi states wanted it.
Hindi: 343 declares it official language. A351 - duty of Union to encourage the spread of Hindu language - for it to serve as medium of communication.

Special provisions of J&K:

Governor’s and president’s rule:

According to j&K constitution, Governor’s rule is first imposed for 6 months (A370, Section 92) after an approval by President. In case assembly in not dissolved within 6 months, President’s rule under A356 is extended after 6 months.
Governor may assume to himself, power to make laws. Any such law to have effect for 2 years from date on which proclamation ceases to have effect.
Under Governor’s rule, all legislative powers exercised by Governor. Now, as state moves under President’s rule, legislative power be exercised under authority of parliament.

Initiatives:

Back to village programme - direct development efforts in rural areas through community participation, create in rural masses - desire for decent standards of living.

Officers to visit all the panchayat halqas in the state , get grassroots level feedback from general public.

Udan Scheme for youth

New developments:

Special status revoked. Divided into 2 UTs - Ladakh and J&K. A few clauses were added to A367, saying all references to Sadar-i-riyasat will be construed as Governor, and to Constituent assembly as to Legislative assembly of state. such that Governor was assumed to represent constituent assembly of J&K. No constitutional amendment has been done. Only a presidential order has been issued for all these modifications, amending A 367
UT of J&K to have a legislative assembly, with all state subjects except police and public order.
Dixon Plan of 1950. -first attempt at dividing J&K
Common LG for UT of J&K and Ladakh
President shall appoint G under A 239
LG shall appoint CM and other ministers
In case of UT of J&K, LG shall act in discretion on issues outside the purview of powers of legislative assembly, judicial functions, and matters related to All India services and Anti-corruption bureau.
HC of J&K will be a common high court.
UT of J&Kill have an advocate general.
Remember: A370 has not been scrapped, only modified to withdraw all special arrangements of J&K.
History:

Maharaja Hari Singh signed instrument of accession in Oct 1947. A370 was not incorporated at the time of accession, but in Oct 1949 at the instance of Sheikh Abdullah, member of the constituent assembly. In 1952, elections for Constituent assembly proclaimed, J&K national conference won all 75 seats. Assembly ratified accession to India in Feb 1954.
Princely state of Kashmir was formed in 1848, with the Treaty of Amritsar
Delhi Agreement 1952 - Distribution of legislative powers between central and state legislature. Gave power to J&K legislature to make laws for special rights to subjects.Extended articles 52, 62 of constitution to the state.
Constitution order (Application to J&K), 1954 - issued by Presi under A 370 - extended jursidiction of SC, ECI, CAG, UPSC to J&k. Added A35A to constitution. Empowered state to define permanent residents, give them special rights and privileges.

THE Special status was meant to go, but with the concurrence of the people. Kashmir’s autonomy arrangements have been eroded under successive governments. Since 1954, as many as 94 of the 97 entries in Union list , and 2/3rd of constitutional articles have been extended to the state.
Issues in news:

J&K Public safety act (PSA)

Received governor’s assent in 1978. Allows detention without trial upto 2 yrs of anyone above 16. Upto 2 years in security of state cases, 1 year - law and order . Detention order issued by DC or DM.
Section 22 of act - -provides protection to actions taken in good faith under the Act
Does not provide for Judicial review of detention.
Procedure: govt to refer case to an Advisory board within 4 weeks of detention order. Board to give reco within 8 weeks of order.
Person under detention has limited rights. Rights like legal representation, challenge arrest not available, unless sufficient grounds can be estb that the detention is legal.

J&K reorg order 2020: amended 2010 legislatio J&K civil services act. Replaced permanent resident with domicile. 2010 act was for employment of distt, divisional and state cadre posts only. Domicile rules are for recruitment to ALL govt posts in J&K.

Power to issue domicile certi - Tehsildar
Domicile- resided for 15 yrs/studied for 7 yrs and appeared in 10th/12th exams in UT of J&K/registered as a migrant by Relief and Rhabilitation Commissioner. Also, children of officials of all india/central service/PSU/PSB/statutary body/central univ who have served J&K for 10 yrs eligible too. Also, children of residents who reside outside coz of vocational reasons.

International status:

UNSC Resolution 47: Based on India’s complaint in 1948.

UNSC’s investigating council involved the 5 permanent members and 6 other members.
Resolution 39 - Concerning peace in J&K and holding of plebiscite.
Required Pak to withdraw all forces, And then for India to withdraw forces, reducing to a min strength required for peace.
Conferred powers on a Plebiscite administration.

Asymmetric federalism: Granting of differential rights to certain federal subunits. A common feature of federalism in diverse societies
Demands for autonomy:

‘Greater Nagalim'

History: British annexed Assam in 1826. 881 - Naga Hills became a part of it. Naga Club, 1918 - first sign of Naga resistance

1946 - Naga Nationalist COuncil - demand for sovereign Naga state
1958 - GoI sent in army to crush the movement, enacted AFSPA
1981 - NSCN formed, refused to accept Shillong accord
1998 - NSCN split into NSCN(K), NSCN(IM)
NSCM(IM) - Greater nagalim. Ceasefire signed in 1997. Derecognized as militant orgn

Assam:

Bodo Accord 2020: Signed in Jan, between Assam, Central govt and Bodo groups.

BTAD renamed as Bodoland territorial region (BTR), to comprise of the 4 distt (in fig below) - 11% of assam’s area,10% of its population. Bodos constitute 5-6% of assam’s popn (single largest notified ST of assam)
Bodo as official associate language.
Separate directorate for Bodo medium schools, a cultural complex-cum centre of excellence in kakrajhar.
Towards “self-rule"

’shared-rule’ provisions by broadening area, scope of power and autonomy of Bodos.
Unlike prior two accords, Legislative powers, in addition to executive, adm and financial, on 12 additional subjects.

Strength of BTC increased from 40 to 60. But unlike 2003 Accord (with 35/40 reserved for tribals), this accord does not specify seat share of tribals and other communities.
Bodo Kachari welfare council, for Bodo villages outside Bodo Council area

About bodos:

Single largest community among notified STs in Assam. 5-6% of Assam’s popn.
:
Bodoland territorial council - formed as a result of 2nd Bodo Accord in 2003. (1st accord in 1993 resulted in Bodoland Autonomous council)

Bodo language:

Officially written in Devnagari script.
First tribal language to be included in 8th sch (2003, after Bodo accord)
Associate official language of Goalpare distt since 1986. Under 2020 Accord, official associate language for entire Assam

Issues of the NE:

Assam-Mizoram border violence. (Insurgents from Mizoram) - Bomb blast in schools, etc

President’s rule

Elected state govt temporarily dissolved, and Governor replaces the CM as the chief executive of the state.
Imposition requires sanction of both houses of parliament. If approved, can go on for 6 months.
Cannot be extended for more than 3 years. Approval needed every 6 months.
Bommai Judgement: President’s rule to be resorted only as a last option, when all recourses have failed.

Simultaneous elections:

Recommendations of reports:

117th Law commission’s report: SLAs whose terms nd within 6 months of LS elections can be clubbed, but results declared later.
NITI Aayog’s 3 yr action agenda: Free and fair and synchronised elections. Would at max require a one time curtailment/extension of SLA terms.

Against:

Tendency of voters to vote for same party at centre and in state.
Constitutional changes needed:

A 172, 174 (duration and dissolution of stat legislatures respectively)
Presidents rule (A356)

Requirement of EVMs, police forces etc will increase enormously.
Interest of regional parties may be subsumed as national times and issues may overpower regional ones.

Integration of the North-East:

Steps:

North-East council = Under NEC Act 1971. Home minister-Chairman, Minister of state, Min of DONER - Vice chairman. Members - All CMs and governors of NE states

NRC and RIIN:

Register of Indigenous inhabitants of Nagaland - different from NRC in that exclusion or inclusion will not determine a person’s Indian citizenship.

Barcoded indigenous inhabitant certificates will be issued, and all existing inhabitant certificates would become invalid.
Current:

Nagaland created as 16th state via ’16 point agreement’ .
Eligibility for inhabitant certificate:

Settled permanently in Nagaland prior to Dec, 1963
Were paying house tax prior to this date
Acquired property and a patta (land certificate) prior to this cut off date.

Issues of the North-east:

Illegal migrants

Assam NRC exercise. Assam Accord.
Measures to boost border security:

Need for a National Immigration Commission - frame a National Migration policy and a national refugee policy. Examine ways to - strengthen Foreigners Act 1946, Issue photo ID cards, work permits for migrants.
Border fencing be completed on a war footing.

Laws:

Bengal Eastern Frontier Regulation, 1873: Also called Inner line permit law. Allows AP, Manipur, Mizoram, Nagaland to not let NRIs in, without inner line permit for a temporary stay. (Mizoram, before being a UT was the Lushai hills distt of Assam)

5th and 6th Schedules:

6th sch - 10 autonomous distt:

Village councils - distt and regional councils within their territorial jurisdiction can estb village councils or courts for trial or suits or cases between tribes. They hear appeals from them. Jurisdiction of High courts is specified by governor
distt councils can make regulations for control of money lending by non-tribals
governor can appoint a commission to examine/report on autonomous distts, regions. Governor may dissolve a distt or regional council on recommendation of COMMISSION

Nagaland - A 371(A) - No act of PArli shall apply in several areas of state unless assembly decides by resolution

Delhi and Puducherry:

Puducherry has wider legislative and executive powers than Delhi. (A239AA restricts Delhi from creating laws on subjects - police, public order and land, UTs Act 1963 which governs Puducherry vests Legislative assembly with power o make laws on any subject in state or concurrent list)
A239AA - Delhi. Powers of public order and police to the Union, with some exceptions however - CrPC sections 129, 130

CrPC Sec129: Executive magistrate can use the civil force (police) to disperse an unlawful assembly
CrPC Sec130: if above fails, Exec Magistrate can call an officer of the armed forces of Union, to disperse an assembly. Invoked for ’public security'
As per CrPC 130, except for the limited purpose of dispersing an “unlawful assembly” and arresting its members, neither the state government nor any authority under it has been conferred by the Constitution any legal right to call the armed forces while dealing with a public disorder or “internal disturbance”.

LG of Delhi:

Chairman of Delhi disaster mgmt authority.
Empowered to issue orders under disaster mgmt act.

Office of Governor:

A156 and 157 specify eligibility requirements for the post of governor.
Does not have a fixed term. Holds office at the pleasure of the ruling party at centre.
There is no retirement age of the Governor, as he or she stays in office for a fixed term. There is no provision for a Governor to be impeached from office, unlike that of a President.
Appointment:

Constituent assembly debates -Nehru preferred a Governor acceptable to the govt of the province, and yet not part of the party machinery of the province.
BP Singhal vs UoI, 2010: Governor not an employee of the Union govt, nor an agent of the party in power.
Sarkaria commission, NCRWC - should be a person who has taken not too great a part in politics generally, and particularly in the recent past.

Issues

Partisanship. Recent Maharashtra case - governor invited BJP led post-poll alliance to form govt.

Sarkaria Commission: task of governor is to see that a govt is formed, and not try to form a govt which will pursue policies he approves
Rameshwar Prasad case (2005) - Nothing wrong in installing a post-poll combination, governor cannot decline formation of govt on grounds that it is being done through unethical means

Discretion - scope and misuse:

summon, prorogue, dissolve assembly - on advise of CoM. Not a discretionary power (2016 SC in Nabam Rebia vs Deputy Speaker). Context: Recent Rajasthan crisis
Shamsher singh vs state of Punjab (1974): Governor has no right to refuse to act on advice of CoM. Such a position is antithetical to concept of ‘responsible government’

States’ demands - autonomy

State flag - constitution does not prohibit. Neither do laws. Prevention of Insult to National Honours Act, 1971.

FLag Code of India, 2002 - authorises flying other flags - given they’re not hoisted on the same masthead as national flag, or placed higher than it.

Interstate issues:

River water disputes:

Entry 17 of state list - deals with water. Water supply, Irrigation, canals etc
Entry 56 of union list: regulation and development of inter state river and river valleys/
A 262 - water disputes - Parliament provides for adjudication.
Inter-state river water disputes (Amendment) Bill 2019:

Dispute resolution committee - to resolve inter-state water disputes amicably. 1 yr + 6 months for resolution.
Tribunal: If disputes not resolved through DRC. All existing tribunals will be dissolved and cases transferred the new tribunal. it can have multiple benches
Benefits:

Time limit for dispute resolution, missing in Act earlier

Issues:

River water controlled by CWC and ground water by CGWC. Both work independently, no common forum for discussion with states.
Lack of finality: Appeals to SC. Only 3/8 Tribunals have given awards accepted by states

Disputes:

Krishna water: Ongoing for decades, beginning with erstwhile Hyderabad and Mysore states. PResent dispute: AP and Telangana seeking a relook at the Tribunal’s 2010 order, want Telangana be included as a separate party post its creation. Mh and Ktk oppose the move.

Way forward:

Mihir shah report - Bring water into concurrent list
Scientific management of crop patterns
Depoliticize the issue

Platforms for cooperation:

Zonal councils - statutary, under Stats reorganization Act 1956. Deliberative, advisory bodies. Promote inter-state coop and coordination

5 - Northern, Central, Eastern, Western, Southern
Composition:

Chairman - Union Home minister, for all
VC - CMs of concerned states, by rotation, one year at a time
members - CMs, 2 other ministers nominated by Governor from each state, two members from UTs
Advisors - One Nominated by NITI Aayog, Chief secretaries, another officer nominated by each state.

North-East council under North East Council Act, 1972

Economic issues in federalism:

Need for an independent Fiscal council: (as reco by NK Singh review panel, 13th and 14th FCs))

Cesses and surcharge as proportion of divisible revenue increasing
Finance comm and GST council - no coordination at all
A293 - checks on borrowing by states. No such restriction on centre.

Legislature:

Comparison with other countries:

US - House of the People, and Senate

Removal of President:

House committees probe charges - case sent to judiciary committee - if sufficient evidence, floor test in house of the people - if 2/3rd vote in favour of impeachment, President impeached - now senate holds trial - if two-third vote for conviction - President removed (Notice, impeachment different from removal. House Impeaches, Senate removes) . (House of Representatives has sole power of impeachment, Senate has sole power to try all impeachments)

Constitution: ‘India’s enduring document of governance’

At the age of 70, one of the world’s oldest and most enduring.
The Lifespan of Written Constitutions, by Thomas Ginsburg - mean lifespan across the world since 1789 - 17 yrs.
The life of the law has not been logic. It has been experience.” - Justice Oliver Holmes.
Preamble- 'Mahakavya' of the Constitution, in President Kovind’s words.

126th amendment bill to constitution - no reservation for anglo-indians

Anglo-Indian first appears in GoI Act 1935
Kerela has max number. Then TN, AP, Mh
As per census 2021, only 296. 8 states. Orissa, chh, wb, ktk

NITI Aayog:

Citizenship:

Sonowal judgement (2005): Burden of proof of citizenship lies on the state, not person accused of non-citizenship.
Territorial differentiation admissible only when rational nexus with Act's objective

Citizenship Amendment Act:

Allow illegal migrants from certain minority communities in Afghanistan, Pakistan, Bangladesh eligible for Indian citizenship.
Minority communities- Hindu, Sikh, jain, Parsi, Buddhist and Christains - grant citizenship after 6 yrs of stay in India even if they do not possess valid docs. (Current requirement - 12 yrs of stay)
Registration of OCI cardholders may be cancelled if they violate any central law.
Not applicable to:

Tribal areas of Assam, Meghalaya, Tripura, Mizoram (6th sch areas)
Areas under the Inner Line under bengal Eastern Frontier Regulation.

Issues

demographic threat to indigenous communities. Mizoram fears Buddhist Chakmas, Hindu Hajongs from Bangladesh
Contradicts Assam Accord, 1985
Equality
Introduced religion as a new principle in Citizenship law.

OCI:

Do not have constitutional rights guaranteed by constitution. Govt in response to a RTI plea by an OCI clarified, they merely enjoy statutary rights under citizenship act.
Introduced by Citizenship Amendment act 2005.
No right to vote, hold constit. posns, buy agri property.

Fundamental rights:

Right against phone tapping - Under A 19
Test of Proportionality:

Evolved by the SC in Modern Dental college case (2016) for a law imposing restrictions on fundamental rights (eg Section 144, IPC):

Law is meant to achieve a proper purpose
Measures taken to achieve the purpose are rationally connected to the purpose
Such Measures are necessary

Puttaswamy case - four-fold test: Measures must have a

Legitimate goal
Rational connection to goal
Necessary
Balance - must not have disproportionate impact on the rightholder.

Constitution:

Ambedkar:

Fundamental unit of constitution remains the individual
Fundamental duties must be correctly interpreted. Eg: An Early 80s judgement of SC: upheld the differential treatment of male and female flight attendants -

Basic structure:

SR Bommai - Secularism, social justice
Indira sawhney - Rule of Law
Welfare state - Bhim singhji case, 1981
equality of status - Indira Nehru Gandhi case, 1975
Doctrine of basic structure aims to protect the essence and soul of the Constitution. In this manner the doctrine strengthened the concept of popular sovereignty (essence of the constitution was provided by Consittuent assembly, which was popular sovereignty. Also, parli does NOT POSSESS popular sovereignty. It represents popular sovereignty (held by SC in keshwananda bharti)

C.As:

1st CA: A31a, 31b, 9th Schedule
35th CA act - Taken election of PM and Speaker out of perview of Judicial review. In RAj Nrain Case, SC declared this as unconstitutional.
100th - Land boundary agreement
101st - GST

Added 3 new articles:

A246A - Parli to make laws wrt GST
A279A - GST Council
A269A: GST Inter-state trade and commerce

102nd - Constitutional status to NCBC. A338B
103rd - 10% reservation to EWS
104th - extended reservation to SCs and STs for further 10 years, but not to Anglo-Indian community
85th CA - consequential seniority in promotion to SCs and STs with retrospective effect from 1995
42nd:

Transferred 5 subjects from state to concurrent list:

(a) education,
(b) forests,
(c) weights and measures,
(d) protection of wild animals and birds, and
(e) administration of justice; constitution and organisation of all courts except the Supreme Court and the high courts.

J&K reorganization act 2019 (Prelims):

Discretion of LG of UT of J&K:

for matters outside perview of powers conferred on LEgislative assembly
Matters related to All india services and anti-corruption bureau
Required to act in discretion under any law/act, or to exercise any judicial functions

LG may nominte two women members to Legislative assembly, if in his opinion not adequately represented
Merged UT of DAman, diu and dadra nagar to have 2 seats in Lok Sabha (earlier, each had one). To merge, 1st schedule amended. Not deemed to be amendment to constitution
CM appointed by LG. Ministers - max 10% of strength of LA (CM of Delhi is appointed by President)
5 seats to J&K, 1 seat to ladakh in Lok Sabha
RS: 4 members from J&K. No member from ladakh. (RS has representation from only UTs of Delhi and pudu)
Provisions under A239a which are applicable to UT of Puducherry shall now also be applicable to UT of J&K
Total seats in LA of UT of J&K to be filled by direct election - 107 (24 vacant - PoK)
Seats be reserved for SCs and STs in LA of J&K (for the first time)
2011 census for all population purposes
Speaker salary and allowances - Legislative assembly to determine. Until that happens, LG will determine
Quorum. -1/10th members
Disqualification - decision of LG is final.
Powers to make laws in state and concurrent list, except ‘public order’ and ‘police'
Seats for LA increased from 107 to 114
Legislative Council of J&K be abolished
the commissions in the state will be dissolved - the state Human Right Commission, women’s commission, information commission, accountably commission, etc. However, the Public Service Commission will stay for some time
Sectin 55: LG shall make rules for convenient transactio of business, incuding procedure to be adopted in case of conflict.

Pre:

Disputes relating to election of Presi/VP: SC (A71)
Election to parli/State LAs: High court with appeal to SC (A329)
Election to municipalities - lower courts (as per laws by state govts)
Grants:

Statutary: basis of reco of Finance commission. To needy states. A275. Charged on CFI. Utilized for central sector schemes
Discretionary grants - A282. Both centre and states can provide discretionary grants. Constitution does not mention which body provides these grants to states. Earlier, planning comm did. Now, Ministry of Finance does

6th sch - village and district council courts to adjudicate on cases/customary laws when both parties as tribals. COurts of appeal - district and regional council courts. No other court except the High Court and the Supreme Court of India have jurisdiction over suits and cases decided by the Council Court

COMPARISON OF SPECIAL MECHANISMS FOR 5th and 6th sch area

Class Notes 4 You

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Polity impotant points

Convention on the Protection and Use of Transboundary Watercourses and International Lakes- 1996.- UN Economic Commission for Europe

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