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VISION IAS ™
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G.S. PAPER II – CONSTITUTION & POLITY

SEPARATION OF POWERS BETWEEN VARIOUS ORGANS DISPUTE


REDRESSAL MECHANISMS AND INSTITUTIONS

Copyright © by Vision IAS


All rights are reserved. No part of this document may be reproduced, stored in a retrieval system or
transmitted in any form or by any means, electronic, mechanical, photocopying, recording or
otherwise, without prior permission of Vision IAS
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1 INTRODUCTION ............................................................................................................................................................. 3
2 ORIGIN .............................................................................................................................................................................. 3
3 DEFINITIONS................................................................................................................................................................... 3
3.1 TRADITIONAL (CLASSICAL) APPROACH ................................................................................................................................... 4
3.1.1 Montesquieu’s strict doctrine (tripartite system) .....................................................................................................4
3.1.2 Summary of doctrine ..............................................................................................................................................................4
3.2 MODERN (CONTEMPORARY) APPROACH ................................................................................................................................. 5
3.3 MARXIST-LENINIST APPROACH ................................................................................................................................................. 5
4 DOCTRINE OF SEPARATION OF POWERS IN INDIA ........................................................................................... 5
4.1 CONSTITUTIONAL POSITION....................................................................................................................................................... 6
4.1.1 Separation of powers ..............................................................................................................................................................6
4.1.2 Functional Overlap ..................................................................................................................................................................6
4.2 JUDICIAL PRONOUNCEMENTS ON THE DOCTRINE IN INDIA .................................................................................................. 7
4.2.1 re Delhi Laws Act case............................................................................................................................................................7
4.2.2 KesavanandaBharti case ......................................................................................................................................................8
4.2.3 Indira Nehru Gandhi v. Raj Narain ..................................................................................................................................8
4.2.4 Other cases...................................................................................................................................................................................8
4.3 CHECKS AND BALANCES .............................................................................................................................................................. 8
4.4 JUDICIAL REVIEW......................................................................................................................................................................... 9
5 SEPARATION OF POWER IN OTHER COUNTRIES ............................................................................................ 10
5.1 SEPARATION OF POWER IN USA ............................................................................................................................................ 10
5.2 SEPARATION OF POWER IN ENGLAND................................................................................................................................... 10
5.3 SOME OTHER COUNTRIES ........................................................................................................................................................ 11
6 CONCLUSION ................................................................................................................................................................ 11

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1 INTRODUCTION
“Power corrupts and absolute Power tends to corrupt absolutely”

We know that it the government’s role to protect individual rights, but governments have historically been the major
violators of these rights. Thus, a number of measures have been derived to reduce this likelihood. The concept of
Separation of Powers is one such concept. The basic assumption behind this is that when a single person or group has
a large amount of power, they can become dangerous to citizens. The Separation of power is a way of removing the
amount of power in any group’s hands, making it more difficult to abuse.

The doctrine of separation of power claims that state power is not a single entity but rather a composite of different
governmental functions (i.e. legislative, executive, and judicial) carried out by state bodies independently of each
other. The legislature enacts laws; the executive enforces laws; and the judiciary interprets laws.

This idea of separation of functions stems from the logical conclusion that if the law-makers should also be the
administrators and dispensers of law and justice, then the people at large will be left without a remedy in case any
injustice is done as there will be no superior authority.

The value of this doctrine lies in that it attempts to preserve human liberty by avoiding the concentration of powers in
any one person or body of person. As stated by Madison- “The accumulation of all powers, legislative, executive and
judicial, in the same hands whether of one, a few, or many and whether hereditary, self-appointed or elective, may
justly be pronounced the very definition of tyranny.” And for the prevention of this tyranny, the doctrine of separation
of power holds its greatest importance.

2 ORIGIN
The theory of separation of powers may be traced back in the writings of classical and medieval thinkers such
as Aristotle (384–322 BC). For instance, Aristotle in his book (“The Politics”) proclaimed that:

There are three elements in each constitution in respect of which every serious lawgiver must look for what is
advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in
constitutions are bound to correspond to the differences between each of these elements. The three are, first, the
deliberative, which discusses everything of common importance; second, the officials; and third, the judicial element.

Further, Aristotle believed that any single form of government was unstable leading to a permanent cycle of disasters.
In the same vein, Cicero preferred powers to be vested in the people and authority in the state. Apart
from Aristotle and Cicero, other thinkers who rebelled against concentrating powers in one absolute leader were John
Locke and Jean Bodin. For instance, Locke stressed that the executive and legislative powers should be separate for the
sake of liberty. As liberty is likely to suffer when the same human being makes the law and execute them.

Such thinking during the Age of Enlightenment (reasons) in Europe were refined and reformulated as a doctrine in the
mid-18th Century by the celebrated French philosopher, Charles de Secondat, Baron de Montesquieu (1689-1755)
in his book, “De l’Esprit des Lois” (i.e. the Spirit of Laws), 1748.

Between 16-18th Centuries, the doctrine of separation of powers occupied an upper hand in the struggle of the
bourgeoisie against absolutism and the arbitrary rule of kings (i.e. feudal monarchy). Again, the doctrine was used in a
number of countries to justify a compromise between the bourgeoisie, which had won control over the legislature and
judiciary, and the feudal-monarchical circles that had retained executive power. With the establishment of the
capitalist system the principle of separation of powers was proclaimed as one of the fundamental principles of
bourgeois constitutionalism.

3 DEFINITIONS
The phrase ‘separation of powers’ is ‘one of the most confusing in the vocabulary of political and constitutional
thought’. According to Geoffrey Marshall (1971:97), the phrase has been used ‘with varying implication’ by
historians and political scientists, this is because the concept manifests itself in so many ways. In understanding the
concept of ‘separation of powers’ one has to take on board the three approaches i.e. traditional (classical), modern
(contemporary) and Marxist-Leninist approaches.

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3.1 TRADITIONAL (CLASSICAL) APPROACH

The traditional views are presented by Montesquieu who vigorously advocated for a “strict or pure or total or
complete or absolute” separation of powers and personnel between three organs of the state i.e. the Executive,
Legislature and Judiciary.Power being diffused between three separate bodies exercising separate functions with no
overlaps in function or personnel.

3.1.1 MONTESQUIEU’S STRICT DOCTRINE (TRIPARTITE SYSTEM)


• In every government there are three sorts of power i.e. legislature, executive and judiciary. The executive, makes
peace or war, send or receives embassies, establishes the public security and provides against invasions.
The legislature, prince and magistrate enact temporary or perpetual laws and amend or abrogate those that
have been already enacted. The judiciary, punishes criminals, or determines the disputes that arise between
individuals.
• Montesquieu warned his countrymen about the danger of vesting all state powers in one person or body of
people as follows;

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there
can be no liberty……….Again, there is no liberty if the power of judging is not separated from the legislative and
executive. If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary
control; for the judge would then be the legislator. If it were joined to the executive power, the judge might behave
with violence and oppression. There would be an end to everything, if the same man, or the same body, whether of
the nobles or the people, were to exercise those three powers, that of enacting laws, that of executing public affairs,
and that of trying crimes or individual causes.

• That concentrated power is dangerous and leads to despotism of government (tyranny);


• Legislature should not appoint members of the Executive [i.e. Parliament should not elect the President or the
Prime Minister]; and for the same reason the Executive should not have a role in electing members of the
Legislature. Neither the Executive nor the Legislature should appoint members of the Judiciary, for if they do
the Judiciary will lose its independence. Again, judges should not appoint members of the Executive.
• That it is the people who should elect members of executive, legislature and judicial officers.
• State officials should not form part of or belong to two or more organs.
• He argued, if separate powers of government are placed in different hands, no individual or group of people
can monopolize political powers (i.e. differentiation of functions). Thus, he was against absolute power
residing in one person or body exercising executive, legislative and judicial powers.
• To him, the state will perish when the legislature power become more corrupted than the executive.
• He based this model on the Constitution of the Roman Republic and the British constitutional
system. Montesquieu took the view that the Roman Republic had powers separated so that no one could
usurp complete power.
• He (mistakenly) believed that the English constitution establishes functional separation between the
legislature, executive and judicial powers. In England, the monarch exercises executive powers, legislative
power are shared by hereditary nobility and the peoples’ elected representatives, judging powers vested in
persons drawn from the body of the people.

3.1.2 SUMMARY OF DOCTRINE


The Doctrine of Separation of powers includes the following distinct but overlapping aspects;

• Institutional separation of powers: (a tripartite separation of powers) – the need to have three major
institutions or organs in a state i.e. Legislature, Executive and Judiciary.
• Functional separation of powers: state power/functions must be vested and exercised by three separate
institutions or organs i.e. law making, enforcement and interpretation.
• Separation of personnel: (each organ with own personnel) – no person should be a member of more than one
organ.
• Limitation of appointing powers: state organs should not appoint or elect members for each other.
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3.2 MODERN (CONTEMPORARY) APPROACH


The doctrine of separation of powers has become an integral part of the governmental structure. But, the practical
application of the doctrine differs to a great extent. In theory, the doctrine of separation of powers is supposed to have
a threefold classification of functions and corresponding organs. But because of the diverse and complex nature of a
modern state, where the process of law making, administration and adjudication cannot be clearly demarcated or
assigned to separate institutions, the application of this doctrine in strict sense is very difficult.

This approach somehow departs or otherwise tries to refine Montesquieu’s strict doctrine of separation of powers.
Essentially, this approach point out practical difficulties in the application of Montesquieu’s strict doctrine and thus
advocates for a ‘mixed government’ or ‘weak separation of powers’ with ‘checks and balances’ to prevent abuses.
Therefore, this concept insists that the primary functions of the state should be allocated clearly and that there should
be checks to ensure that no institution encroaches significantly upon the function of the other.

To them, Montesquieu’s strict doctrine presents the following problems:-

• A complete separation of the three organs may lead to constitutional deadlock (disunity of powers). Thus, a
complete separation of powers is neither possible nor desirable.
• Partial separation of powers is required to achieve a mixed and balanced constitutional structure.
• It would be impractical to expect each branch of government to raise its own finances.
• The theory is based on the assumption that all the three organs of the government are equality important, but in
reality it is not so. In most cases, the executive is more powerful of the three branches of government.

3.3 MARXIST-LENINIST APPROACH

Unlike, the other two approaches, the Marxist-Leninist approachrefute the application of the doctrine by arguing that
the theory of the separation of powers is “nothing but the profane industrial division of labour applied for purposes of
simplification and control to the mechanism of the state”. In essence, Marxist-Leninist theory rejects the theory of the
separation of powers because it ignores the class nature of society. The existence in a socialist state of state bodies
with different jurisdiction means that a certain division of functions in exercising state power is essential while
maintaining the unity of state power.

4 DOCTRINE OF SEPARATION OF POWERS IN INDIA


Indian state represents a contemporary approach in constitutionalising the doctrine of separation of powers.
Essentially, there is no strict separation of powers under constitution, both in principle and practice.

In India, there are three distinct activities in the Government through which the will of the people are expressed. The
legislative organ of the state makes laws, the executive forces them and the judiciary applies them to the specific cases
arising out of the breach of law. Each organ while performing its activities tends to interfere in the sphere of working
of another functionary because a strict demarcation of functions is not possible in their dealings with the general
public. Thus, even when acting in ambit of their own power, overlapping functions tend to appear amongst these
organs. The question which is important here is that what should be the relation among these three organs of the
state, i.e. whether there should be complete separation of powers or there should be co-ordination among them.

In the words of Dr. Durgas Das Basu,

“So far as the courts are concerned, the application of the doctrine (the theory of separation of powers) may involve
two propositions: namely,

a) that none of the three organs of Government, Legislative Executive and Judicial, can exercise any power which
properly belongs to either of the other two;

b) that the legislature cannot delegate its powers.” 


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What is significant is the word “properly” and therefore conceives of a broad division of powers where the core
function is one which is exclusively conferred on that particular organ of State, though there may be some overlap in
regard to the fringe areas of the topics so entrusted. The pronouncement on this aspect of law by the courts is that
under the Indian Constitution there is a broad separation of powers.

4.1 CONSTITUTIONAL POSITION


4.1.1 SEPARATION OF POWERS

The Constitution of India embraces the idea of separation of powers in an implied manner. Despite there being no
express provision recognizing the doctrine of separation of powers in its absolute form, the Constitution does make
the provisions for a reasonable separation of functions and powers between the three organs of Government.

By looking into the various provisions of the Constitution, it is evident that the Constitution intends that the powers of
legislation shall be exercised exclusively by the legislature. Similarly, the judicial powers can be said to vest with the
judiciary. The judiciary is independent in its field and there can be no interference with its judicial functions either by
the Executive or by the Legislature. Also, the executive powers of the Union and the State are vested in the President
and the Governor respectively.

The constitution of India lays down a functional separation of the organs of the State in the following manner:

• Article 50 lays down that State shall take steps to separate the judiciary from the executive. This is for the
purpose of ensuring the independence of judiciary.
• Article 122 and 212 provides validity of proceedings in Parliament and the Legislatures cannot be called
into question in any Court. This ensures the separation and immunity of the legislatures from judicial
intervention on the allegation of procedural irregularity.
• Judicial conduct of a judge of the Supreme Court and the High Courts’ cannot be discussed in the
Parliament and the State Legislature, according to Article 121 and 211 of the Constitution.
• Articles 53 and 154 respectively, provide that the executive power of the Union and the State shall be
vested with the President and the Governor and they enjoy immunity from civil and criminal liability.
• Article 361 declared that the President or the Governor shall not be answerable to any court for the
exercise and performance of the powers and duties of his office.

4.1.2 FUNCTIONAL OVERLAP

• The legislature besides exercising law-making powers exercises judicial powers in cases of breach of its
privilege, impeachment of the President and the removal of the judges.
• The executive may further affect the functioning of the judiciary by making appointments to the office of
Chief Justice and other judges.
• Legislature exercising judicial powers in the case of amending a law declared ultra vires by the Court and
revalidating it..
• While discharging the function of disqualifying its members and impeachment of the judges, the
legislature discharges the functions of the judiciary.
• Legislature can impose punishment for exceeding freedom of speech in the Parliament; this comes under
the powers and privileges of the parliament. But while exercising such power it is always necessary that it
should be in conformity with due process.
• The heads of each governmental ministry is a member of the legislature, thus making the executive an
integral part of the legislature.
• The council of ministers on whose advice the President and the Governor acts are elected members of the
legislature.
• Legislative power that is being vested with the legislature in certain circumstances can be exercised by
the executive. If the President or the Governor, when the legislature or is not in session and is satisfied

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that circumstances exist that necessitate immediate action may promulgate ordinance which has the
same force of the Act made by the Parliament or the State legislature.
• The Constitution permits, through Article 118 and Article 208, the Legislature at the Centre and in the
States respectively, the authority to make rules for regulating their respective procedure and conduct of
business subject to the provisions of this Constitution. The executive also exercises law making power
under delegated legislation.
• The tribunals and other quasi-judicial bodies which are a part of the executive also discharge judicial
functions. Administrative tribunals which are a part of the executive also discharge judicial functions.
• Higher administrative tribunals should always have a member of the judiciary. The higher judiciary is
conferred with the power of supervising the functioning of subordinate courts. It also acts as a legislature
while making laws regulating its conduct and rules regarding disposal of cases.

Besides the functional overlapping, the Indian system also lacks the separation of personnel amongst the three
departments.

Applying the doctrines of constitutional limitation and trust in the Indian scenario, a system is created where none of
the organs can usurp the functions or powers which are assigned to another organ by express or necessary provision,
neither can they divest themselves of essential functions which belong to them as under the Constitution.

Further, the Constitution of India expressly provides for a system of checks and balances in order to prevent the
arbitrary or capricious use of power derived from the said supreme document. Though such a system appears dilatory
of the doctrine of separation of powers, it is essential in order to enable the just and equitable functioning of such a
constitutional system. By giving such powers, a mechanism for the control over the exercise of constitutional powers
by the respective organs is established.

This clearly indicates that the Indian Constitution in its plan does not provide for a strict separation of powers.
Instead, it creates a system consisting of the three organs of Government and confers upon them both exclusive and
overlapping powers and functions. Thus, there is no absolute separation of functions between the three organs of
Government.

4.2 JUDICIAL PRONOUNCEMENTS ON THE DOCTRINE IN INDIA

The debate about the doctrine of separation of powers, and exactly what it involves in regard to Indian governance, is
as old as the Constitution itself. Apart from the directive principles laid down in Part-IV of the constitution which
provides for separation of judiciary from the executive, the constitutional scheme does not provide any formalistic
division of powers. It appeared in various judgments handed down by the Supreme Court after the Constitution was
adopted. It is through these judicial pronouncements, passed from time to time, that the boundaries of applicability of
the doctrine have been determined.

4.2.1 RE DELHI LAWS ACT CASE

In the re Delhi Laws Act case, it was for the first time observed by the Supreme Court that except where the
constitution has vested power in a body, the principle that one organ should not perform functions which essentially
belong to others is followed in India. By a majority of 5:2, the Court held that the theory of separation of powers
though not part and parcel of our Constitution, in exceptional circumstances is evident in the provisions of the
Constitution itself.As observed by Kania, C.J.:

“Although in the constitution of India there is no express separation of powers, it is clear that a legislature is created by
the constitution and detailed provisions are made for making that legislature pass laws. Does it not imply that unless it
can be gathered from other provisions of the constitution, other bodies-executive or judicial-are not intended to discharge
legislative functions?”

In essence, this judgment implied that all the three organs of the State, i.e., the Legislature, the Judiciary, and the
Executive are bound by and subject to the provisions of the Constitution, which demarcates their respective powers,
jurisdictions, responsibilities and relationship with one another. Also, that it can be assumed that none of the organs of
the State, including the judiciary, would exceed its powers as laid down in the Constitution.
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4.2.2 KESAVANANDABHARTI CASE

In practice, from time to time, disputes continued to arise as to whether one organ of the State had exceeded the
boundaries assigned to it under the Constitution. This question of what amounts to an excess, was the basis for action
in the landmark KesavanandaBharti case of 1973. The question placed before the Supreme Court in this case was in
regard to the extent of the power of the legislature to amend the Constitution as provided for under the Constitution
itself. It was argued that Parliament was “supreme” and represented the sovereign will of the people. As such, if the
people’s representatives in Parliament decided to change a particular law to curb individual freedom or limit the
scope of judicial scrutiny, the judiciary had no right to question whether it was constitutional or not. However, the
Court did not allow this argument and instead found in favour of the appellant on the grounds that the doctrine of
separation of powers was a part of the “basic structure” of our Constitution.

Thus, the doctrine of “separation of powers” is acknowledged as an integral part of the basic features of our
Constitution. It is also agreed that all the three organs of the State, i.e., the Legislature, the Judiciary, and the Executive
are bound by and subject to the provisions of the Constitution, which demarcates their respective powers,
jurisdictions, responsibilities and relationship with one another. It is assumed that none of the organs of the State,
including the judiciary, would exceed its powers as laid down in the Constitution. It is also expected that in the overall
interest of the country, even though their jurisdictions are separated and demarcated, all the institutions would work
in harmony and co-operation to maximize the public good.

As per this ruling, there was no longer any need for ambiguity as the doctrine was expressly recognized as a part of the
Indian Constitution, unalterable even by an Act of Parliament. Thus, the doctrine of separation of powers has been
incorporated, in its essence, into the Indian laws.

4.2.3 INDIRA NEHRU GANDHI V. RAJ NARAIN

However, it was after the landmark case of Indira Nehru Gandhi v. Raj Narain that the place of this doctrine in the
Indian context was made clearer. It was observed: “That in the Indian Constitution, there is separation of powers in a
broad sense only. A rigid separation of powers as under the American Constitution or under the Australian
Constitution does not apply to India.”Chandrachud J. also observed that the political usefulness of the doctrine of
Separation of Power is not widely recognized. No Constitution can survive without a conscious adherence to its fine
check and balance.

4.2.4 OTHER CASES

The doctrine of separation of powers was further expressly recognized to be a part of the Constitution in the case of
Ram JawayaKapur v. State of Punjab, where the Court held that though the doctrine of separation of powers is not
expressly mentioned in the Constitution it stands to be violated when the functions of one organ of Government are
performed by another. This means the Indian constitution had not indeed recognized the doctrine of separation of
powers in its absolute rigidity but the functions of different parts or branches of the Govt. have been sufficiently
differentiated and consequently it can very well be said that our constitution does not contemplate assumption, by one
organ or part of the state, of functions that essentially belongs to another.

In I.C. GolakNath v. State of Punjab, Supreme Court took the help of doctrine of basic structure as propounded in
KesvanandaBharati case and said that Ninth Schedule is violative of this doctrine and hence the Ninth Schedule was
made amenable to judicial review which also forms part of the basic structure theory. It was observed: “The
Constitution brings into existence different constitutional entities, namely, the Union, the States and the Union
Territories. It creates three major instruments of power, namely, the Legislature, the Executive and the Judiciary. It
demarcates their jurisdiction minutely and expects them to exercise their respective powers without overstepping
their limits. They should function within the spheres allotted to them.”

4.3 CHECKS AND BALANCES


The concept of constitutional checks arose as an outgrowth of the classical theory of separation of powers. The
purpose of this, and of the later development of checks and balances, was to ensure that governmental power would
not be used in an abusive manner. To prevent one branch from becoming supreme, protect the "opulent minority"
from the majority, and to induce the branches to cooperate, government systems that employ a separation of powers
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need a way to balance each of the branches. Typically this was accomplished through a system of "checks and
balances", the origin of which, like separation of powers itself, is specifically credited to Montesquieu. Under the
system of checks and balances, one department is given certain powers by which it may definitely restrain the others
from exceeding constitutional authority. It may object or resist any encroachment upon its authority, or it may
question, if necessary any act or acts which unlawfully interferes with its sphere of jurisdiction and authority.

The Indian Constitution provides for a scheme of checks and balances between the three organs of government
namely, the legislature, the executive and the judiciary, against any potential abuse of power. For example,

• The judges of the Supreme Court and the High Courts in the States are appointed by the executive i.e. the
President acting on the advice of the Prime Minister and the Chief Justice of the Supreme Court. But they may
be removed from office only if they are impeached by Parliament. This measure helps the judiciary to function
without any fear of the executive.
• Similarly, the executive is responsible to Parliament in its day to day functioning. While the President
appoints the leader of the majority party or a person who he believes commands a majority in the LokSabha
(House of the People or the Lower House) a government is duty bound to lay down power if the House adopts
a motion expressing no confidence in the government.
• Similary the judiciary keeps a check on the laws made by Parliament and actions taken by Executives,
whether they conform to the constitution or not, using the tool of Judicial Review.

4.4 JUDICIAL REVIEW


There is, however, one facet in any democratic constitution which cannot be wished away, and that is, the necessity to
have a machinery by which an authority is brought into existence to decide on the interpretation of constitutional
provisions, or as to what the Constitution says and means and to resolve disputes, with finality, between the Central
Government and the States, or between the three organs of the State inter se. In every such democratic Constitution it
is the apex court of the country, which is conferred such jurisdiction and powers.

Article 144 of the Constitution declares that all authorities, civil and judicial, shall come to the aid of the Supreme
Court. Article 141 is to the effect that the law declared by the Supreme Court is binding on all courts within the
territory of India. Articles 129 and 142(2) expressly confer the power of contempt on the Supreme Court of India and
Article 215 correspondingly confers such power on the High Courts of the country. This, history has shown, is the most
potent weapon in the hands of the superior courts to compel obedience to its will.

It is only the fear of being sent to jail, which makes the clients and lawyers to be disciplined and respectful to the
judges and to faithfully carry out their judgments and orders. It is therefore clear that the founding fathers did not
allow the Indian Supreme Court to go the way of the US Supreme Court where a belligerent President could turn
around and say, “the judge has made his decision, let him now enforce it.”

Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive.
However the only check on judicial power is the self-imposed discipline of judicial restraint. Therefore this doctrine
cannot be liberally applied to any modern government, because neither the powers can be kept in water tight
compartments nor can any government can run on strict separation of powers.

In Suman Gupta v. State of Jammu and Kashmir,the respective State Government reserved certain seats in medical
colleges for the students residing in the particular state on reciprocal basis, this policy of state was challenged on the
ground that it discriminate among the students on the ground of place of birth. The Supreme Court rejected the policy
on the ground of discrimination but meanwhile the students who are the beneficiaries of this policy had completed
their substantial education, and now it is not in the interests of justice to cancelled their admission, therefore here
supreme court applied the doctrine of prospective overruling and held that the government must not apply the
impugned policy from next academic year.

Therefore, by using the doctrine of prospective overruling in the above to cases, the Supreme Court maintained the
balance between judiciary and other organs of the government. It can also be maintained by using the self restraint by
the judges.

In Divisional Manager, Aravali Golf club v. Chander Hass and Another, the Supreme Court warned the High court
for its over activism. The Supreme Court held that since there was no sectioned post of tractor driver against which
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the respondents could be regularized as tractor driver, the direction of the first appellate court and the single judge to
create the post of tractor driver and regularizing he services was completely beyond their jurisdiction. The court
cannot direct the creation of post. Creation and sanction of post is a prerogative of the executive or legislative
authorities and the court cannot arrogate to itself this purely executive or legislative function, and direct creation of
posts in any organization. The court further said that the creation of a post is an executive or legislative function and it
involves economic factors. Hence, the courts cannot take upon themselves the power of creation of post.

Similarly, in MadhuHolmagi v. Union of India, wherein one Advocate filed a public interest litigation challenging the
“Agreement 123” i.e. Indo-US nuclear treaty proposed to be entered by the Indian government, petitioner contended
that court must have to scrutinize the all documents relating to the agreement 123 and must have to prevent the
Indian government from entering in to the nuclear deal. In this court dismissed the petition and also imposed a cost of
Rs 5000 on the petitioner stating that it is an abuse of court proceeding. Because the question raised by the petitioner
is a question of policy decision, which is to be decided by the parliament and not by the judiciary.

5 SEPARATION OF POWER IN OTHER COUNTRIES

5.1 SEPARATION OF POWER IN USA


The United States Constitution has a more rigid separation of powers than the Constitutions of other democracies. In
the United States Constitution, Article 1 Section I gives Congress only those "legislative powers herein granted" and
proceeds to list those permissible actions in Article I Section 8, while Section 9 lists actions that are prohibited for
Congress. The vesting clause in Article II places no limits on the Executive branch, simply stating that, "The Executive
Power shall be vested in a President of the United States of America." The Supreme Court holds "The judicial Power"
according to Article III, and it established the implication of Judicial review in Marbury v. Madison.

Checks and balances allow for a system based regulation that allows one branch to limit another, such as the power of
Congress to alter the composition and jurisdiction of the federal courtsThe following are illustrations where there are
checks and balances:

a) the lawmaking power of the Congress is checked by the President through its veto power, which in turn
maybe overturn by the legislature
b) the Congress may refuse to give its concurrence to an amnesty proclaimed by the President and the
Senate to a treaty he has concluded
c) the President may nullify a conviction in a criminal case by pardoning the offender
d) the Congress may limit the jurisdiction of the Supreme Court and that of inferior courts and even abolish
the latter tribunals
e) the Judiciary in general has the power to declare invalid an act done by the Congress, the President and
his subordinates, or the Constitutional Commissions.

5.2 SEPARATION OF POWER IN ENGLAND


Although the doctrine of separation of power plays a role in the United Kingdom's constitutional doctrine, the UK
constitution is often described as having "a weak separation of powers". For example, in the United Kingdom, the
executive forms a subset of the legislature, as did—to a lesser extent—the judiciary until the establishment of the
Supreme Court of the United Kingdom. The Prime Minister, the Chief Executive, sits as a member of the Parliament of
the United Kingdom, either as a peer in the House of Lords or as an elected member of the House of Commons (by
convention, and as a result of the supremacy of the Lower House, the Prime Minister now sits in the House of
Commons) and can effectively be removed from office by a simple majority vote. Furthermore, while the courts in the
United Kingdom are undoubtedly amongst the most independent in the world, the Law Lords, who were the final
arbiters of judicial disputes in the UK sat simultaneously in the House of Lords, the upper house of the legislature,
although this arrangement ceased in 2009 when the Supreme Court of the United Kingdom came into existence.

Until 2005, the Lord Chancellor fused the Legislature, Executive and Judiciary, as he was the ex officio Speaker of the
House of Lords, a Government Minister who sat in Cabinet and was head of the Lord Chancellor's Department which
administered the courts, the justice system and appointed judges, and was the head of the Judiciary in England and
Wales and sat as a judge on the Judicial Committee of the House of Lords, the highest domestic court in the entire
United Kingdom, and the Judicial Committee of the Privy Council, the senior tribunal court for parts of the
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Commonwealth. The Lord Chancellor also had certain other judicial positions, including being a judge in the Court of
Appeal and President of the Chancery Division. The Lord Chancellor combines other aspects of the constitution,
including having certain ecclesiastical functions of the established state church, making certain church appointments,
nominations and sitting as one of the thirty-three Church Commissioners. These functions remain intact and
unaffected by the Constitutional Reform Act.

In 2005, the Constitutional Reform Act separated the powers with Legislative functions going to an elected Lord
Speaker and the Judicial functions going to the Lord Chief Justice. The Lord Chancellor's Department was replaced
with a Ministry of Justice and the Lord Chancellor currently serves in the position of Secretary of State for Justice.

5.3 SOME OTHER COUNTRIES


The Commonwealth of Australia Constitution Act, 1900 clearly demarcates the boundaries of the three organs and
therefore provides for a very rigid separation of powers. Similarly, the French Constitution also provides for
separation of powers and divides the national government into the executive, legislative and judicial branch.

6 CONCLUSION
The doctrine of separation of power in its true sense is very rigid and this is one of the reasons of why it is not
accepted by a large number of countries in the world. The main object as per Montesquieu in the Doctrine of
Separation of Power is that there should be government of law rather than having will and whims of the official. Also
another most important feature of the said doctrine is that there should be independence of judiciary i.e. it should be
free from the other organs of the State and if it is so then justice would be delivered properly. The judiciary is the scale
through which one can measure the actual development of the State. If the judiciary is not independent, then it is the
first step towards a tyrannical form of government i.e. power is concentrated in a single hand and if it is so then there
is a very high chance of misuse of power. Hence the Doctrine of Separation of Power does play a vital role in the
creation of a fair government and also fair and proper justice is dispensed by the judiciary as there is independence of
judiciary.

The doctrine of separation of powers has come a long way from its theoretical inception. Today, the doctrine in its
absolute form is only recognized in letter as it is entirely unfeasible and impractical for usage in the operational
practices of a government. With the passage of time, States have evolved from being minimal and non-interventionist
to being welfare oriented by playing the multifarious roles of protector, arbiter, controller and provider to the people.
In its omnipresent role, the functions of the State have become diverse and its problems interdependent hence, any
serious attempt to define and separate the functions would only cause inefficiency in the government.

The modern day interpretation of the doctrine does not recognize the division of Government into three water-tight
compartments but instead provides for crossing rights and duties in order to establish a system of checks and
balances. The mere separation of powers between the three organs is not sufficient for the elimination of the dangers
of arbitrary and capricious government. Even after the distinguishing the functions, if an authority wielding public
power, is provided an absolute and sole discretion within the body in the matters regarding its sphere of influence,
there will be a resultant abuse of such power. Therefore, a system of checks and balances is a practical necessity in
order to achieve the desired ends of the doctrine of separation of powers. Such a system is not dilatory to the doctrine
but necessary in order to strengthen its actual usage.

In conclusion, it is evident that governments in their actual operation do not opt for the strict separation of powers
because it is undesirable and impracticable, however, implications of this concept can be seen in almost all the
countries in its diluted form. The discrepancies between the plan and practice, if any, are based on these very grounds
that the ideal plan is impractical for everyday use. India relies heavily upon the doctrine in order to regulate, check
and control the exercise of power by the three organs of Government. Whether it is in theory or in practical usage, the
Doctrine of Separation of Powers is essential for the effective functioning of a democracy.

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VISIONIAS ™
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COMPARISON OF THE INDIAN CONSTITUTIONAL SCHEME WITH THAT OF


OTHER COUNTRIES
Revised Value Addition Material

Contents
1] Comparison Scheme .....................................................................................................................................................4

2] British Constitution.......................................................................................................................................................4

2.1 Salient Features ...........................................................................................................................................................4


2.1.1 Unwritten ................................................................................................................................................................... 4
2.1.2 Evolutionary ............................................................................................................................................................... 4
2.1.3 Flexibility .................................................................................................................................................................... 4
2.1.4 Unitary vs. Federal Features....................................................................................................................................... 4
2.1.5 Parliamentary Executive............................................................................................................................................. 5
2.1.6 Sovereignty of Parliament .......................................................................................................................................... 5
2.1.7 Role of Conventions .................................................................................................................................................... 5
2.1.8 Rule of Law ................................................................................................................................................................. 5
2.1.9 Independence of Judiciary .......................................................................................................................................... 6
2.2 Organs of the State ......................................................................................................................................................6
2.2.1 Executive .................................................................................................................................................................... 6
2.2.2 Legislature .................................................................................................................................................................. 8
2.2.3 Judiciary ................................................................................................................................................................... 11

3] Constitution of the United States of America ............................................................................................................. 12

3.1 Salient Features .........................................................................................................................................................12


3.1.1 Nature of the Constitution ....................................................................................................................................... 12
3.1.2 Nature of Federalism ................................................................................................................................................ 12
3.1.3 Form of Government ................................................................................................................................................ 13
3.2 President ...................................................................................................................................................................13
3.2.1 Qualification ............................................................................................................................................................. 13
3.2.2 Election of the President .......................................................................................................................................... 13
3.2.3 Functions of the President of USA ............................................................................................................................ 14
3.2.4 Legislative Proposals ................................................................................................................................................ 14
3.2.5 Date of Retirement and Oath ................................................................................................................................... 15
3.2.6 Primaries .................................................................................................................................................................. 15
3.2.7 Impeachment of the President of USA ..................................................................................................................... 15
3.3 Vice President ............................................................................................................................................................16
3.3.1 Election of Vice President ......................................................................................................................................... 16
3.3.2 Tenure of a Vice President as a President ................................................................................................................ 16
3.3.3 Functions of the Vice President of USA .................................................................................................................... 16
3.4 US Legislature/US Congress.......................................................................................................................................16
3.4.1 House of Representatives ......................................................................................................................................... 16
3.4.2 Senate ...................................................................................................................................................................... 16
3.5 Committee System in USA .........................................................................................................................................16
3.6 Duration of Representative bodies at the Centre ..................................................................................................... 16
3.6.1 US ............................................................................................................................................................................. 16
3.6.2 India ......................................................................................................................................................................... 17

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3.7 Doctrine of Separation of Power and the System of Checks and Balances ...............................................................17
3.7.1 US ............................................................................................................................................................................. 17
3.7.2 India ......................................................................................................................................................................... 17
3.7.3 Checks and Balances ................................................................................................................................................ 17
3.8 Fundamental Rights ...................................................................................................................................................18
3.9 Distribution of Legislative Power...............................................................................................................................19
3.9.1 India ......................................................................................................................................................................... 19
3.9.2 US ............................................................................................................................................................................. 19
3.10 Emergency and Suspension of Writs .......................................................................................................................19
3.11 Judiciary ...................................................................................................................................................................19
3.12 Amendment of the Constitution .............................................................................................................................20
4] Chinese Constitution .................................................................................................................................................. 20

4.1 Salient Features of the Constitution..........................................................................................................................20


4.1.1 Preamble .................................................................................................................................................................. 20
4.1.2 Nature of Constitution.............................................................................................................................................. 20
4.1.3 Basic Principles ......................................................................................................................................................... 21
4.1.4 Unitary System ......................................................................................................................................................... 21
4.1.5 Democratic Centralism ............................................................................................................................................. 21
4.1.6 One Party System ..................................................................................................................................................... 21
4.1.7 Legislature ................................................................................................................................................................ 21
4.1.8 Executive .................................................................................................................................................................. 23
4.1.9 Judiciary ................................................................................................................................................................... 23
4.1.10 Central Military Commission .................................................................................................................................. 23
4.1.11 Rights and Duties ................................................................................................................................................... 23
4.1.12 Communist Party of China...................................................................................................................................... 24

5] French Constitution .................................................................................................................................................... 25

5.1 Introduction...............................................................................................................................................................25
5.2 President ...................................................................................................................................................................25
5.3 The Legislature ..........................................................................................................................................................26
5.3.1 National Assembly.................................................................................................................................................... 26
5.3.2 The Senate ................................................................................................................................................................ 26
5.4 Prominent Features of the French Constitution........................................................................................................ 26
5.5 Amendment of the Constitution ...............................................................................................................................27
6] Germany’s Constitution .............................................................................................................................................. 27

6.1 Salient Features .........................................................................................................................................................27


6.1.1 Chancellor’s Democracy ........................................................................................................................................... 27
6.1.2 Cabinet Principle ...................................................................................................................................................... 27
6.1.3 Constructive Vote of No-Confidence ........................................................................................................................ 27
6.1.4 Parliament ................................................................................................................................................................ 27

7] Constitution of Japan.................................................................................................................................................. 29

8] Constitution of Canada ............................................................................................................................................... 29

8.1 Salient Features .........................................................................................................................................................29


8.1.1 Constitutional Monarchy .......................................................................................................................................... 29
8.1.2 Parliamentary Government...................................................................................................................................... 29
8.1.3 Federalism ................................................................................................................................................................ 30
8.1.4 Judiciary ................................................................................................................................................................... 30
8.1.5 Rights ....................................................................................................................................................................... 31

9] Constitution of Australia............................................................................................................................................. 31

9.1 Salient Features .........................................................................................................................................................31


9.1.1 Form of Government ................................................................................................................................................ 31
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9.1.2 Nature of the Constitution ....................................................................................................................................... 31


9.1.3 Parliament ................................................................................................................................................................ 32
9.1.4 Nature of Elections ................................................................................................................................................... 32
9.1.5 Voting ....................................................................................................................................................................... 32
9.1.6 Relations between Levels of Government ................................................................................................................ 32

10] Constitution of Switzerland ...................................................................................................................................... 33

11] Features-wise Constitutional Comparison Scheme ................................................................................................... 33

11.1 The Preamble ..........................................................................................................................................................33


11.2 Written Constitution ...............................................................................................................................................33
11.3 Nominal Head ..........................................................................................................................................................33
11.4 Cabinet System ........................................................................................................................................................33
11.5 Bicameral System of Parliament..............................................................................................................................34
11.6 Concept of Lower House being more Powerful ......................................................................................................34
11.7 Speaker in the Lower House ....................................................................................................................................34
11.8 Judiciary Adaptations ..............................................................................................................................................34
11.8.1 Concept of Supreme Court ..................................................................................................................................... 34
11.8.2 Laws on which Supreme Court Function ................................................................................................................ 34
11.8.3 Independence of Judiciary and Judicial Review ...................................................................................................... 35
11.8.4 Method of removal of Supreme/High Court Judges ............................................................................................... 35
11.9 Fundamental Rights .................................................................................................................................................35
11.9.1 Suspension of Fundamental Rights during Emergency .......................................................................................... 35
11.10 Fundamental Duties ..............................................................................................................................................36
11.11 Scheme of Federation ...........................................................................................................................................36
11.12 Freedom of Trade and Commerce ........................................................................................................................37
11.13 Directive Principles of State Policy ........................................................................................................................37
11.14 Election of Members by the President ..................................................................................................................37

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1] Comparison Scheme
Our discussion on Comparison of the Indian Constitutional Scheme with that of Other Countries would center
around two main pivots:
1) Brief knowledge of the Constitution of various countries, deemed important owing to their current
status or the fact that the Indian Constitution draws implicitly or explicitly from them.
2) Comparison drawn vis-a-vis features of the Constitution (for example: Fundamental Rights, DPSPs,
Federalism et al)

2] British Constitution
2.1 Salient Features
2.1.1 Unwritten
One of the most important features of the British constitution is its unwritten character. There is no such thing
as a written, precise and compact document, which may be called as the British constitution.
The main reason for this is that it is based on conventions and political traditions, which have not been laid down
in any document, unlike a written constitution, which is usually a product of a constituent assembly.
Indian Constitution, in comparison, is the lengthiest written constitution in the world.
2.1.2 Evolutionary
The British constitution is a specimen of evolutionary development. It was never framed by any constituent
assembly. It has an unbroken continuity of development over a period of more than a thousand years. It is said
that the British Constitution is a product of wisdom and chance.
The Indian Constitution has certain similarities as well as differences on this particular aspect. It differs from the
British Constitution to the extent that it is a written document and has well defined provisions. However, it too is
open to evolution, given that the provision of amendment is kept such, so as to allow for the Constitution to
evolve according to the need and sensibilities of the time.
2.1.3 Flexibility
The British constitution is a classic example of a flexible constitution. It can be passed, amended and repealed by
a Simple Majority (50% of the members present and voting) of the Parliament, since no distinction is made
between a constitutional law and an ordinary law. Both are treated alike. The element of flexibility has provided
the virtue of adaptability and adjustability to the British constitution. This quality has enabled it to grow with
needs of the time.
Indian Constitution, in contrast, is both flexible as well as rigid. This compliments the basic ideology of the Indian
Constitution quite well, wherein certain features like Sovereignty, Secularism, and Republic et al have been held
sacrosanct, but otherwise the Constitution lends itself to amendability.
2.1.4 Unitary vs. Federal Features
The British constitution has a unitary character as opposed to a federal one. All powers of the government are
vested in the British Parliament, which is a sovereign body. Executive organs of the state are subordinate to the
Parliament, exercise delegated powers and are answerable to it. There is only one legislature. England, Scotland,
Wales etc. are administrative units and not politically autonomous units.
The Indian Constitution, on the other hand, is federal.
Unitary Federal Confederation
All power lies with the Centre Powers for Provincial Units come together and form the state.
Government comes from the
Constitution.
Centre delegates power to the Example: India Real power with the units.
provincial government.
Example: Britain Opposite to Unitary
Example: EU, USA
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2.1.5 Parliamentary Executive


This is one important similarity between the British and the Indian Constitution. (In addition to the
Sovereignty of Parliament)
Britain has a Parliamentary form of government. The King, who is sovereign, has been deprived of all his powers
and authority. The real functionaries are Ministers, who belong to the majority party in the Parliament and
remain in office as long as they retain its confidence.
The Prime Minister and his Ministers are responsible to the legislature for their acts and policies. In this system,
the executive and legislature are not separated, as in the Presidential form of government
2.1.6 Sovereignty of Parliament
The term Sovereignty means Supreme Power. A very important feature of the British constitution is sovereignty
of the British Parliament (a written constitution being absent).
The British Parliament is the only legislative body in the country with unfettered power of legislation. It can
make, amend or repeal any law.
Though in India’s case, we have legislature at state level too, yet the law making power of the Indian Parliament
roughly corresponds to that of the British Parliament.
The courts have no power to question the validity of the laws passed by the British Parliament. The British
Parliament may amend the constitution on its own authority, like an ordinary law of the land. It can make illegal
what is legal and legalize what is illegal.
Here, there is a marked difference, vis-à-vis the power of Indian Judiciary to keep a tab on the legality of the law
framed. Also, the ‘Basic Structure’ doctrine, lends the Indian Judiciary further power to question the legality of
the law, in light of the fact that the Supreme Court of India is the highest interpreter of the Constitution of India.
2.1.7 Role of Conventions
Conventions are known as unwritten maxims (rules) of the Constitution. They provide flexibility and avoid
amendments.
Most constitutions of the world have conventions. A necessary corollary to the unwritten character of the British
constitution is that conventions play a very vital role in the British political system. For example, while the Queen
has the prerogative to refuse assent to a measure passed by the British Parliament, but by convention, she
doesn’t do so and the same has become a principle of the constitution itself.
However, the legal status of conventions is subordinate to the written law.
2.1.8 Rule of Law
Another important feature of the British constitution is the Rule of Law. Constitutionalism or limited government
is the essence of Rule of Law. This checks the arbitrary action on part of the Executive. According to Dicey, there
are three principles of Rule of Law, found in Britain:
• Protection from arbitrary arrest and the opportunity to defend oneself.
• Equality before Law: All persons are equal before law, irrespective of their position or rank. Equality
before Law is different from the concept of Administrative Law, which gives immunity of various types to
public servants. In the absence of Constitution and Fundamental Rights in Britain, the judiciary protects
this law. So this system is called as the Principle of Common Laws (in USA – Principle of Natural Law; in
India – Maneka Gandhi case).
• The rights of people in Britain are guaranteed by the judiciary. The Judiciary gives recognition to the
common laws. Thus, the people in Britain enjoy rights, even in the absence of a Bill of Rights or
Fundamental Rights.
However it has been seen that Rule of Law isn’t practiced in its real sense.
Several reasons are attributed for it:
1. Growth of Administrative Law
2. Growth of Delegated Legislation
3. Internal and External Emergencies
These developments have been termed as ‘New Despotism’.
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New Despotism: it is defined as prevalence of conditions wherein Bureaucrats enjoy disproportionate power, in
spite of a democratic system being in place. Consequently, the term ‘New Despots’ is used for bureaucrats, who
enjoy a lot of power even in a democratic country.
2.1.9 Independence of Judiciary
The Rule of Law in Britain is safeguarded by the provision that judges can only be removed from office for
serious misbehavior and according to a procedure requiring the consent of both the Houses of Parliament. So,
the judges are able to give their judgments without any fear or favor.
The same has been adopted in India, where independence of Judiciary is hailed as an unmistakable part of the
Constitution (one of the features of the ‘Basic Structure’ doctrine).
2.2 Organs of the State
2.2.1 Executive
The Executive in Britain is called as Crown. Earlier, the Crown symbolized King. Now, the King is part of the
Crown.
The Crown, as an institution, consists of the following:
• King
• Prime Minister
• Council of Ministers (CoM)
• Permanent Executive, the Civil Servants
• Privy Council
Crown: King is dead. Long live the King.
In Britain, initially all power lied with the King. Later on, power shifted out of the institution of the King to the
institution of CoM headed by the P.M., Permanent Executive and the Privy Council etc. Today, the Crown
comprises of all these institutions. Hence, the first part of the statement describes the King as a person, while
the second part describes the King or Crown as an institution.
Nature of Monarchy
Britain has a constitutional monarchy and a constitutional monarchy is not incompatible with democracy. This is
because essentially the powers of the monarch as head of the state - currently Queen Elizabeth II - are
ceremonial. The most important practical power is the choice of the Member of Parliament to form a
government, but invariably the monarch follows the convention that this opportunity is granted to the leader of
the political party or coalition, which has majority in the House of Commons.
Despite its lack of real power, the monarchy still have several important roles to play in contemporary Britain.
These include:
• Representing UK at home and abroad
• Settings standards of citizenship and family life
• Uniting people despite differences
• Allegiance of the armed forces
• Maintaining continuity of British traditions
• Preserving a Christian morality
In addition, consider the following:
• Parliamentary system requires two heads:
o First head, as head of the state. He represents the nation and provides continuity to the
administration.
o Second head is the head of the government. He has real powers because the house has
confidence in the Prime Minister. The P.M. is the leader of the House. He represents the
majority of the House.
• The institution of kingship is a source of psychological satisfaction. It is said that, “with the King in the
Buckingham Palace, the Englishmen sleep peacefully in their houses”.

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• The King is of great help in critical times. He usually has a very long experience and can give valuable
advice in the interest of the country.
• According to Bagehot, the King has three rights:
o Right to warn
o Right to encourage
o Right to be informed
• Abolishing the kingship will require an elected head. An elected head, with no real powers, will have its
own set of problems.
In contrast, no provision of Monarchy exists in case of Indian Constitution. Indeed, holding of titles like King etc.
are forbidden as per Article 18, a Fundamental Right, thus emphasizing Equality of all Indian citizens.
British Prime Minister and the Council of Ministers
Britain has a Cabinet form of government. A cabinet is a plural or collegiate form of government. The power
doesn’t lie in one person, but the entire Council of Ministers. The principle is, “all Ministers sink and swim
together”. It is based on collective responsibility towards the Lower House.
The Cabinet has its origins in the Privy Council set up to advise the King. The roles of cabinet include the
following:
• Approving policy (major policy making body)
• Resolving disputes
• Constraining the Prime Minister
• Unifying government
• Unifying the parliamentary party
Moreover, the Cabinet is the ultimate body of law making in the Parliamentary system. It is formed out of the
party/group, which enjoys majority in the House. The cabinet meetings are held in private.
British Prime Minister
1. Position of the Prime Minister
• P.M. is the captain of the ship of the state.
• P.M. is the head of the Cabinet.
• The party of the P.M. enjoys majority in the House.
• He is the connecting link between the King and the Cabinet as well as the King and the Parliament.
• The life of the House depends on the P.M. He may advice the dissolution of the House.
• The other Ministers are appointed on the advice of the P.M.
• The term of the other Ministers also depends on the P.M.
2. The P.M. as first among equals: this is also called as Primus Inter Pares or Inter Stella Luna Minores. This
explains the P.M.’s position w.r.t. other ministers. In the cabinet system, there is a principle of collective
responsibility; hence other ministers are also important.
The relative position of the P.M. and other ministers in a Parliamentary system can be compared to the
relative position of the President and his secretaries in the Presidential system.
In the Presidential system, members of the Cabinet are chosen by the President. In USA, spoils system
exist. The Secretaries are not members of the Congress.
In the Parliamentary system, ministers are also the members of either House. The P.M. cannot treat
them as his subordinates. Theoretically, the P.M. should consider himself as only first among equals,
must give due respect to other members of the Cabinet and should take decisions in consultation with
them.
However, the P.M. is first because:
• He is the one who is appointed first, since he is the leader of the House of Commons.
• Other ministers are appointed on his advice.
• Other ministers can be removed on his advice.

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P.M. as moon among stars:


This statement gives a more realistic view of the position of P.M. In practice, the P.M. gains prominence
and he is not simply the first among equals. Both formal and informal factors are responsible for this.
• Formal Factors: He is the link between the Parliament and the King, and ministers are
appointed/removed on his advice etc.
• Informal Factors: Personality factors, position of his party, external/internal emergency like
situation
Difference between the British and Indian PM
Constitutional position of the Indian P.M. is modeled on the British P.M., with one difference. In India, the PM
can be a member of either House of Parliament, i.e. Lok Sabha or Rajya Sabha. However, this is not so in Britain.
It is a convention in Britain that the P.M. will always be a member of the Lower House (House of Commons) only.
Privy Council
It has been one of the advisory bodies to the King. It has lost relevance because of the emergence of the Cabinet.
Cabinet decisions are the decisions of the Privy Council. It has some supervisory role w.r.t. University of Oxford,
Cambridge etc. It also has some role in resolution of disputes related to the Church as well as a Court of Appeal
in some admiralty cases.
Permanent Civil Servants/British Bureaucrats
Indian bureaucracy is modeled on the British bureaucracy.
Some features:
• Bureaucracy in Britain is generalist
• They are expected to be politically neutral
• Recruited through competitive exams
• Enjoy a lot of immunities
• It is said that the British bureaucracy is not representative. It is still elitist
• Bureaucrats are known as New Despots
• It is said that the Bureaucracy thrives behind the cloak of ministerial responsibility
• It has also been compared with Frankenstein’s monster (overpowering the Ministers)
2.2.2 Legislature
Essential differences between the two systems:
There is a natural tendency to compare the Parliament of India with the British Parliament.
But our Parliament and Parliamentary Institutions and procedures are not a copy of the Westminster system.
There are fundamental differences between their system and ours.
British Parliament has grown through some three hundred years of history. In Britain, the Parliament can said to
be the only institution, which exercises sovereign powers and on which there are no limits because there is no
written constitution.
India, on the other hand, has a written constitution. Powers and authorities of every organ of the Government
and every functionary are only as defined and delimited by the constitutional document.
The power of Parliament itself is also clearly defined and delimited by the Constitution. However, within its own
sphere, the Parliament is supreme.
Also, Parliament is a representative institution of the people. But it is not sovereign in the sense in which the
British Parliament is sovereign and can do or undo anything. The point is that in the sense of constitutional
sovereignty, their powers are not limited by a constitutional document.
Moreover, our constitutional document provides for fundamental rights of the individual, which are justiciable in
courts of law. And any law passed by the Parliament, which abridges any of the fundamental rights can be
declared ultra vires by the courts.

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The courts adjudicate the disputes and while doing so, they can interpret the constitution and the laws. Also,
Parliament has the constituent powers and within certain limitations it can suitably amend the constitution.
The British Parliament is bicameral, that is there are two houses or chambers – The House of Lords (strength not
fixed) and The House of Commons (strength fixed at 650 members). The House of Lords has hereditary
members. Moreover, it has the largest number of Life Peers, Church/Religious peers (Ecclesiastical Peers) and
Law Lords.
The House of Lords
The House of Lords is the second chamber, or upper house, of the United Kingdom's bi-cameral (two chamber)
Parliament. Together with the House of Commons and the Crown, the House of Lords form the UK Parliament.
There are four types of members of the house:
1. Life peers: These make up the majority of the membership. The power to appoint belongs formally to
the Crown, but members are essentially created by the Queen on the advice of the Prime Minister. Life
peers’ titles cease on death.
2. Law lords: Up to 12 Lords of Appeal in Ordinary are specially appointed to hear appeals from the lower
courts. They are salaried and can continue to hear appeals until they are 70 years of age.
3. Bishops The Anglican Archbishops of Canterbury and York, the Bishops of Durham, London and
Winchester and the 21 senior Diocesan Bishops from other dioceses of the Church of England hold seats
in the House. This is because the Church of England is the ‘established’ Church of the State. When they
retire the bishops stop being members of the House.
4. Elected Hereditary peers: The House of Lords Act, 1999 ended the right of hereditary peers to sit and
vote in the House of Lords. Until then there had been about 700 hereditary members. While the Bill was
being considered, an amendment was passed (known as the Weatherill amendment after Lord
Weatherill who proposed it), which enabled 92 of the existing hereditary peers to remain as members.
The House of Lords can propose and make changes, known as amendments. However its powers are limited; if it
doesn’t approve of a piece of legislation, it can only delay its passage into law for up to a year. After that, there
are rules to ensure that the wishes of the House of Commons and the Government of the day prevail.
In fact, the House of Lords could be labeled as one of the weakest upper house in the world. Since the passage of
the Act of 1919 and 1949, the House of Lords has lost all real legislative powers. It is simply a delaying chamber
now. It can delay an ordinary bill for a maximum period of one year and money bill for a maximum period of one
month.
In comparison to Rajya Sabha, the House of Lords is a weak house. Rajya Sabha has equal powers with LokSabha,
as far as an ordinary bill is concerned (though, there is provision of a joint session, but it is an extraordinary
device).
Rajya Sabha has equal power with Lok Sabha as far as the amendment of the Constitution is concerned. Rajya
Sabha is also a delaying chamber, like the House of Lords, as far as a Money Bill is concerned. Rajya Sabha can
delay the bill for a maximum of fourteen days. Rajya Sabha does have some special powers, which are not
available to Lok Sabha; for example: Articles 249 and 312.
Comparison between the House of Lords and Senate of USA
• Senate is called as the strongest Upper House. It enjoys equal power with the House of Representative in
the context of an Ordinary Bill, a Constitutional Bill and even in passage of a Money Bill. It is customary
to introduce Money Bill in the Lower House.
• The Senate also enjoys some special powers not available to the House of Representatives. For example,
ratification of international treaties, ratification of higher appointments.
The House of Lords did enjoy a privilege that it used to be the highest Court of Appeal in Britain. But this has now
ceased to exist, as the Supreme Court has been created by the Constitutional Reform Act, 2005 (SC established
in 2009).
Reforms in the House of Lords
The House of Lords has been witnessing reforms for a long period now. Some prominent reforms done:

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• Introduction of Life Peers


• Limiting the number of hereditary peers
• The Act of 1919 and 1949, reducing it to the status of delaying chambers
• The Constitutional Reform Act, 2005 eroded its role as the highest Court of Appeal
• In place of Lord Chancellor, it is now being presided over by the Lord Speaker
Pending Reforms:
• Changing the title, as it is non-democratic
• Reducing the strength, as a large number are nominated members. The proposal is to have elected
members
• Ending the status of hereditary peers
The House of Commons
This is the lower chamber, but the one with most authority. It is chaired by the Speaker. Unlike the Speaker in the
US House of Representatives, the post is non-political and indeed, by convention, the political parties do not
contest the Parliamentary constituency held by the Speaker. The number of members varies slightly from time to
time to reflect population change.
In modern practice, the Prime Minister is the head of the Government and is always a member of the majority
party or coalition in the House of Commons. The Cabinet comprises primarily leading House of Commons
Members of the majority, although Members of the House of Lords have served as Cabinet ministers. In fact,
designating someone outside Parliament as a “life peer” has been one recent means of bringing someone
essentially from private life into the Government.
The Prime Minister, although head of the Government and an MP, is now not usually the Leader of the House of
Commons. The Leader of the House of Commons, a member of the Government, is the chief spokesman for the
majority party on matters of the internal operation of the House of Commons. The Office of the Leader issues
announcements of the impending House of Commons schedule, and a routine inquiry from the Opposition’s
counterpart serves as an occasion for the Leader to announce the business for the next two weeks of session.
In the House of Commons, party organizations (akin to the Republican Conference or Democratic Caucus) meet
regularly to discuss policy, and to provide an opportunity for backbench party members to voice their views to
ministers or shadow cabinet members in a private forum.
The Position of Speaker of the House of Commons and its Comparison with the Indian and American Speaker
Features of British Speaker
• The position of the Speaker is a position of great prestige and dignity. In UK, there is a convention that
once a Speaker, always a Speaker. It means that a Speaker’s constituency is unchallenged. Once a person
is appointed as a Speaker he gives formal resignation from his political parties. He has a casting vote and
ultimate disciplinary powers with respect to the conduct of the House and MPs.
US Speaker (Speaker of House of Representatives)
• He is expected to be a party man, not expected to be neutral; instead he favours his party. He does not
have final disciplinary powers, which lie with the House itself. In USA, the Speaker can vote in the
beginning.
Speaker of Lok Sabha
Though our position is midway between the British and the US model, it is theoretically closer to the British
model. But similar conventions do not exist. For instance:
• It is not necessary for the Speaker to resign from his party
• If he decides to resign, he will not be disqualified under the Anti-defection law.
• No convention in India that he will be elected uncontested.

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2.2.3 Judiciary
Under the doctrine of Parliamentary sovereignty, the judiciary lacks the intrinsic power to strike down an Act of
Parliament. However, the subordination of common law to statute law does not mean the subordination of the
judiciary to the executive. Courts in Britain retain certain powers:
• Of interpreting the precise meaning of a statute.
• Of reviewing the actions of ministers and other public officials by applying the doctrine of ultra vires
(beyond powers).
• Of applying the concept of natural justice to the actions of ministers and others.
Because Parliament is sovereign, the government can seek to overturn the decisions of the courts by passing
amendment legislation. The power of judicial review provides the judiciary with a potentially significant role in
the policy process.
In recent decades, there has been an upsurge in judicial activism for several reasons:
• Judges have been more willing to review and quash ministerial action
• British membership of the EU
• The incorporation of the ECHR (European Convention on Human Rights) into domestic law
• Devolution of powers to elected assemblies in Scotland, Wales and Northern Ireland
• The creation of a Supreme Court in 2009.
Comparison between the Indian and British Judiciary
Differences
• In case of British system, the lack of concept of ‘Basic Structure’ makes amending power of the
Parliament supersede any judicial pronouncement. Whereas, in case of the Indian Judiciary system, the
concept of ‘Basic Structure’ has provided a potent tool to Judiciary by which it can scuttle down any
Executive or Legislative action, which it deems as against the basic spirit of the Constitution.
• British legal system is completely based on ‘Common Law System’. Common Law System implies that law
is developed by the judges through their decisions, orders, or judgments (also referred to as
precedents). However, unlike the British system, which is entirely based on the Common Law System,
where it had originated from, the Indian system incorporates the Common Law System along with the
statutory and regulatory laws.
Similarities
• The actions of Executive can be declared ultra vires in both the systems
• The judiciary is considered the highest interpreter of the Constitution
• Off late, there has been a splurge in judicial activism in Britain and judiciary is becoming more and more
active. A similar evolution of judiciary has been noticeable in the Indian case too
Note: By Constitutional Reform Act, 2005 the Supreme Court has come into existence as the highest Court of
Appeal. A National Judicial Appointment Commission has also been introduced.
Brief Synopsis of comparison drawn above:
British Constitution:
Product of history and the result of evolution
There is a difference between theory and practice
Flexible and unitary constitution
Parliamentary government
Rule of law and civil liberties applicable

Indian Constitution British Constitution


Written Unwritten
Federal Unitary
Power is divided between Centre and states Power is the with the Centre
No Monarchy/Republic Has King/Queen
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Comparison between British Monarch and Indian President


British Monarch Indian President
Position of the King is hereditary Elected
King enjoys absolute immunity; it’s said that In India the President can be impeached for violation of the
King can do no wrong Constitution
King has no discretionary powers. He is In India, there was a lack of clarity w.r.t. the Indian President.
known as ‘Golden Zero’ There was confusion whether he has any discretionary power
or is merely a rubber stamp.
• 24th Amendment clarifies that he doesn’t have any
discretionary powers. Real power lies with the PM,
while the President is merely a ‘rubber stamp’.
• 44th Amendment Act again changed the stand,
providing some scope for Presidential discretion. He
could now send the request back to the CoM, though
only once.

Comparison between British Monarch and the US President


British Monarch US President
King as titular head US President is both – a real as well as titular head.
Hereditary Elected and can be impeached
No discretionary powers Real executive powers, subject to checks and balances.

3] Constitution of the United States of America


3.1 Salient Features
While American Constitution is the shortest (of any major government in the world) and the first written
constitution, India’s Constitution is the lengthiest written constitution in the World.
American Constitution is a very rigid constitution consisting of only Seven Articles and twenty-seven
amendments, so far. Originally, the India Constitution consisted of 395 Articles in 22 Parts, with 8 Schedules.
Now, it consists of 448 Articles in 22 Parts, with 12 Schedules.
The US Constitution was finalized in a convention held on September 17, 1787, which required its ratification by
a minimum of nine States, for it to be enforced. By the end of July 1788, eleven States had ratified it and the
Constitution was put into operation on 13th September 1788. The Indian Constitution, on the other hand, was
adopted by her Constituent Assembly on 26th November 1949, and came into effect on 26th January 1950.
America has adopted the doctrine of dual ship in respect of its Constitution and citizenship. It has two
Constitutions, one, for America as whole and another for each State. American people have two citizenships, one
of USA and another of their respective State. On the other hand, India has one constitution and concept of single
citizenship for every citizen of the country.
3.1.1 Nature of the Constitution
The American Constitution is described as a truly Federal Constitution. It was ratified by 50 Independent States.
Further, the Federal Government and States have their own Constitutions and do not interfere in each other’s
functions.
On the other hand, India has only one Constitution, wherein the Central government interferes with functions of
State governments in the form of, inter alia:
• Appointment of Governors.
• Governor having the power of reserving the States’ bills for consent of the President.
• Central government’s power to impose President’s rule in the States.
3.1.2 Nature of Federalism
While USA is a Dual Federation, India is a Cooperative Federation.
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Dual Federation (USA) – both the Centre and Cooperative Federation (India) – Interdependence of Centre
state are completely independent. They are and state govt. Neither of them is independent of the other.
complete governments Centre usually has the role of big brother
Centrifugal federalism Centripetal federalism
Symmetrical federalism – all states are given Asymmetrical federalism –
equal representation in Senate 1. States have been given representation in Rajya Sabha on
the basis of their population.
2. Articles 370, 371 provide special provisions to few states.
USA is a Legislative federation. This means India is an Executive federation. This means that states are
that States have dominance in law making. important at the executive level only.
USA is an indestructible union of India is an indestructible union of destructible states
indestructible states
USA constitution provides a role to states in There is no such provision for states in the Indian
ratifying the international treaties through Constitution
the Senate

3.1.3 Form of Government


USA
• America has adopted a Presidential form of government, in which the people directly elect the executive
President.
• The President is powerful and not accountable to the House of Congress.
• The term of the American President is 4 years (fixed term).
• One can hold the office of the President for only two terms.
• The President can appoint his own staff, which may be neither from the House of Representative or
Senate, in assisting in the administration of the government. The staff is not accountable to the Houses of
Congress.
This means that the President is independent in the administration of the government and rather directly
responsible to the people of USA.
India
• India has adopted a Parliamentary form of government.
• The President of India is the executive head of the Indian government. He is indirectly elected by the
legislators of Centre and states, and is not accountable to the Parliament.
• The President runs the government with the aid and advice of the Prime Minster and the Council of
Ministers.
• Unlike USA, the Indian President holds the office for five years.
• He can be elected any number of times.
The impeachment of the President by the legislature is the only similarity in both the Constitutions.
3.2 President
The position of the American President combines both the Head of State and the Head of Government into one.
3.2.1 Qualification
Only a natural born citizen of USA can become the President, and not a person who has acquired the citizenship.
Also, he must have attained the age of 35 years and must have stayed in USA for at least 14 years.
On the other hand, the Indian President should be a citizen of India, wherein citizenship might be either natural
or acquired.
3.2.2 Election of the President
Presidential election is indirect, through Electoral College.

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Electoral College
• Strength of Electoral College = Total members in House of Representatives + Senate + 3 members from
Washington D.C. = 435 + 100 + 3 = 538
• Winning Candidate requires an absolute majority (50% + 1) of the total members of the Electoral
College, i.e. 270.
In the House of Representatives, members from different states are not fixed, while in Senate members from
different states are equal and fixed.
Election of Electors
• The voters vote for the members of the Electoral College
• System of election is the List System
• Each state has a responsibility to conduct these elections
• The party that wins the majority of the votes represents the state in entirety
• Electors meet in their respective capital and vote for the Presidential candidate
3.2.3 Functions of the President of USA
Executive Functions
• Appointments
• Representing the country
• Preparation of the Budget
Legislative Functions
• No presence in legislature
• The President doesn’t address the legislature
• He cannot dissolve the legislature
• He can send messages to the legislature (the system of sending messages exists in USA because there is
Separation of Power. So this is the way that the President can interact. The system of sending messages
is found in India also, but the logic of the provision is not clear because the President has no
discretionary power and he has to act on the advice of the P.M.)
Veto Power
Under the Constitution, the President may respond to a bill passed by the Congress in one of the three
ways. He may sign it, veto the bill by returning it to Congress, or do nothing. If he does nothing, the bill
becomes a law after the passage of ten days, excluding Sundays. However, if the Congress adjourns
sooner than ten days, the bill dies, under the “pocket veto” provision. If the President vetoes a bill, the
Congress can still enact it into a law bypassing the measure again with two-thirds majority in both the
houses.
3.2.4 Legislative Proposals
The Constitution also authorizes the President to “recommend to Congress’ consideration such measures as he
shall judge necessary and expedient.” Unlike the veto, which is a limited and somewhat negative instrument for
stopping legislation, the duty to recommend legislation has over time become the primary mechanism, by which
the nation's political agenda is influenced.
Indian President
• In India, the President has the power to send back a bill to the Parliament for reconsideration. But, when
the Parliament has reconsidered the bill and then passes it with the required majority, the President has
no option but to sign the bill.
• Practically, the Prime Minster and his Cabinet almost always enjoy a simple majority, except in a
coalition government. So, it does not pose a major hurdle for the Prime Minster and his cabinet to get
the consent of the President for the bill.
However, a significant departure from the US Presidential Scheme of things is that unlike the US, the Indian
Constitution does not prescribe any time limit for signing the bill by President. Therefore, he can keep the bill

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without signing it for an indefinite period under the disguise of consideration, which can frustrate the Prime
Minster and his cabinet. Obviously, this leads us to the question whether the Indian President’s pocket veto is
more powerful than the US President’s pocket veto.
3.2.5 Date of Retirement and Oath
US
• A unique feature of the US Constitution is that it has prescribed the date and timing of retirement of the
outgoing President as well as members of the Congress.
• The terms of President and Vice President shall end at noon on the 20th day of January.
• It means that the new President and Vice President shall take oath of the office on 20th January (or 21st
January, if 20th is a Sunday) at noon of their first year of office.
• The election of the President and Vice president are held in the month of November and in the same
month results are announced.
Thus, Americans are informed much earlier about their new President.
Naturally, the question is how this time schedule is maintained. In case of President’s death, resignation, or
impeachment, the Vice President shall become the President for the remaining period. In this way, duration of
the President is kept intact and the next elected President takes oath on the scheduled date.
India
• In India, if the President dies or is impeached, or submits resignation, the Vice President becomes the
President till fresh elections are held. The newly elected President holds the office for a full term of five
years.
• Hence, unlike the American system the time schedule cannot be maintained, in the case of India.
3.2.6 Primaries
• Primaries are elections to select the candidate
• They are conducted by Political Parties
3.2.7 Impeachment of the President of USA
• Reasons: Treason, Bribery, High Crimes of Misdemeanor. No system of impeachment for violation of the
Constitution, unlike the Indian Constitution
• Process
o Charges will be leveled against the President in the House of Representatives
o It has to be passed by 2/3rd majority
o Senate will be the investigating house
o In this process, the Chief Justice of the Supreme Court of USA will be the presiding officer
o If convicted, he can be removed only when 2/3rd members of the Senate pass a resolution in this
context
Some terms of the US Constitution
Filibustering: It’s a privilege of Senators that they can exercise his right to speak for an unlimited period. It’s an
ultimate device to stop the passage of a bill. However, now a rule has emerged, by which 2/3rd of the members
can bring a motion, which will deny this privilege to the Senators.

Senatorial Courtesy: A convention has developed by which the President, before formally sending the names
for appointments in higher posts, informs the Senate about the probable candidates to be appointed. The idea
in such situations should not arrive, where the Senate does not ratify the President’s proposal.
Gerrymandering: It is the process of demarcating the electoral districts that give advantage to the party in
power in the state. They create electoral districts in a manner that the supporters of the party get concentrated
and the supporters of the opposition party get dispersed, with the objective of electoral gains.
Log Rolling: The members of a party may support a bill or viewpoint of the other party. Strict party discipline is
not only existing, but also not required
Pork Barrel: It represents the politics in the House o Representatives where local interest dominates and the
representatives want to take maximum benefits for their constituencies.
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3.3 Vice President


3.3.1 Election of Vice President
The qualification for the President and the Vice President is the same. Since the elections take place
simultaneously, the process of elections is also the same.
Earlier Method: The candidate coming first used to be declared as the President and second as the Vice
President.
Present Method: Separate elections, but at the same time and in the same manner.
3.3.2 Tenure of a Vice President as a President
A Vice President may become a President because of vacancy in the office of the President. There are two
situations:
• If the Vice President has come to the office when the President has already served the office for more
than two years. Then the Vice President can be President for the remaining term and in addition for two
more terms he can serve as a President
• If the Vice President came to the office when the remaining term of the outgoing President was more
than two years, then he will be eligible for only one more term
3.3.3 Functions of the Vice President of USA
• Ex-officio chairperson of Senate and has casting vote
• The office of the Indian Vice President is modeled on the US office, with some differences
• The office of Vice President is called as His Superfluous Highness
3.4 US Legislature/US Congress
It consists of two houses: House of Representatives and the Senate.
3.4.1 House of Representatives
• One of the weakest lower house in the world
• It consists of 435 members
• System of direct elections
• Representation of people may differ in number from different states
3.4.2 Senate
• Permanent body
• Strongest upper house in the world
• It has equal powers in ordinary bills, amendment bills and money bills.
• Term of a Senator is six years. 1/3rd of the members/Senators retire every two years.
3.5 Committee System in USA
USA has the strongest committee system in the world. It is said that the US Congress works in the Committees.
Difference from British and Indian System:
• In Britain and India, a bill is introduced in the House and the first reading takes place and then it is
referred to the Committee
• In USA, a bill is introduced and then directly referred to the Committee, before even the first reading
Pigeon Hole: A bill in USA may get killed at the Committee stage itself. This is known as Pigeon Holing the bill.
3.6 Duration of Representative bodies at the Centre
3.6.1 US
• America’s House of Representative and Senate are permanent bodies.
• The terms of the members of the Representative and Senate come to an end on 3rdJanuary.

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3.6.2 India
• In India, during an emergency, the duration of Lok Sabha can be extended by one year, or can be
shortened by holding pre-matured elections.
• The ruling party forms opinion based on their party’s prospects in the next election. It may recommend
for the dissolution of Lok Sabha and suggest the President to hold the election at an appropriate time,
which may be based on political expediency.
3.7 Doctrine of Separation of Power and the System of Checks and Balances
The theory of Separation of Powers started with John Locke and became popular with Montesquieu (18th century
philosophers).
Why Separation of Powers/Functions?
• According to Montesquieu – liberty is not protected, unless there is Separation of Power.
• Separation of Power with judiciary is a universal feature in all democracies.
• The Presidential system provides Separation of Power w.r.t. all three organs of the government,
whereas in the Parliamentary system there is a fusion of legislative and executive powers.
3.7.1 US
• The US Constitution strictly adheres to the doctrine of Separation of Power proposed by Locke and
Montesquieu. Separation of Power is complete in US.
• All the three branches of the government have separate functions.
• The term of Legislature and Executive are fixed and do not depend on each other.
• None of the member of the Legislature can be a member of the Executive.
• The Houses of Congress enact the law; the President executes the law; and the Supreme Court interprets
the law.
• The American President has no privilege of law making power. Moreover, he is neither a member of the
House of Representative nor that of Senate.
• By confirming veto power but equally not confirming the law-making power to the President, the
Congress controls the Presidents and vice versa. In this way, ‘Checks and Balance’ are maintained.
3.7.2 India
• Theoretically, we may say that the doctrine of Separation of Power is adopted in our Constitution, but it
is only between the Executive and Judiciary.
• The President is a part of the Union Executive. Yet, it is the Prime Minster and the Council Ministers who
are the real executive because the President has to act on the aid and advice of the Council of Ministers.
• They have dual capacity:
o One, in capacity of executive; and
o Two, in the capacity of lawmaker.
• The Prime Minster, in his capacity as the leader of the ruling party can enact a law, which his
administration executes. Thus, the Prime Minster and his Council Ministers enact the law and the
administration executes the same, which is per se, contradictory to the doctrine of Separation of Power.
3.7.3 Checks and Balances
No organ of the government can be given complete liberty. Hence there have to be checks and balances.
How are checks and balances achieved in the US Constitution?
• Judiciary checks on other branches of the government, by judicial review of the executive as well as
legislative acts.
• How Congress checks the President or powers of the President?
o It is necessary to ratify the international agreements and higher appointments
o Principle of no taxation without representation
o Impeachment of the President
• How President checks the Congress

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o By the use of veto powers (Congress can pass a bill against Presidential veto with 2/3rd majority.
So the President doesn’t have absolute veto.
o Pocket Veto: Two situations arise –
Congress in session for ten days: Bill can be passed even without the assent of the
President
Congress in session for less than ten days: Bill will lapse.
• President and Congress applying checks on Judiciary
o Appointment of Judges: appointed by the President and ratified by the Senate
o Removal of Judges: removed through impeachment by the Congress and approved by the
President
o Salaries and emoluments controlled by the President
3.8 Fundamental Rights
While US has incorporated the “Bill of Rights”, India has incorporated “Fundamental Rights” in its Constitution.
However, the American Constitution has provided additional human rights, which are not to be explicitly found
in the Indian Constitution.
• Freedom of press is explicitly provided under the 1st amendment of the US Constitution, while in India it
is implicitly read under the Article 19[1][a], freedom of speech and expression.
Petition to the Supreme Court is a fundamental right in India, where as in US it is the government that is
petitioned (In case of US, the word “government” has a wider connotation and encompasses not only
the executive, but also the higher judiciary).
• The Americans have a right to keep arms and guns for the protection of their life and property. This was
provided under the 2ndamendment.
Therefore, guns and arms are sold like any other commodity in US without legal hassles, whereas
in India it is a total contrast, because apart from not being a fundamental right, it is a highly regulated
legal right.
5th amendment to the US Constitution guarantees that an accused will be tried for criminal offence with a
system of “Grand Jury”. Grand Jury means that common people are selected by the government randomly,
representing the community. They play a part in deciding the guilt of the accused persons. The number of
persons selected to be in the grand jury varies from 6 to 12, or even more, if the case is controversial.
On the other hand, in India criminal trials are adjudicated by the Judges only.
• Further, in US, no person’s life and liberty shall be deprived without “due process” of law.
o Due process means that the content and procedure of law must be just, fair, and equitable,
which will be decided by the judiciary.
o Legislative power of depriving a person’s liberty is restricted and scrutinized and evaluated by
the judiciary.
• In India, a person’s life and liberty shall be deprived according to the “procedure established by law”.
o The world “procedure established by law” gives wide discretionary power to the legislature to
restrict the liberty.
o Nevertheless, the Supreme Court in Maneka Gandhi case (even though the court did not use the
word due process) held that the procedure established by law must be fair, just and equitable.
• The Indian Parliament deleted the Right to Property from the list of Fundamental Rights in 1978.
Whereas, in US, the right to property is still a fundamental right and no property shall be acquired
without just compensation.
• A person accused of crime enjoys certain explicit rights under the 6th Amendment to the US Constitution:
speedy and public trial, notice of accusation, compulsory process of obtaining witness in his favor and
assistance of legal counsel of his choice.
o All these rights in India are not expressly mentioned in the Constitution. Nonetheless, these
rights are provided by the Supreme Court by broadly interpreting the Right to Life and Liberty
under Article 21.

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• Further, the 8th amendment to the US Constitution says that bail shall not be denied to an accused, the
imposed fine should not be excessive and inflicted punishment shall not be cruel. These rights are also
made available to Indian people because of well-established precedents pronounced by the Supreme
Court under Article 21.
• 9th amendment to the US Constitution is quite important because it says that mere enumeration of
certain rights in the Constitution shall not be interpreted to deny the other rights retained by the
American people. In spite of the statutory rights in the Constitution people enjoy other rights, which are
given by nature. The American Constitution is highly influenced by Locke’s philosophy of inalienable
natural rights of human being. The Indian Constitution, on the other hand, does not contain any such
notable Article. Therefore, Indians enjoy only those rights recognized by the Constitution, which are
based on the philosophy of Austin and Bentham’s theory of law.
3.9 Distribution of Legislative Power
3.9.1 India
Seventh Schedule of the Indian Constitution distributes the legislative power between the Central and State
governments. The Central and State governments have exclusive power to make laws on 97 and 66 subjects,
listed in the Union and State list respectively. On the 47 matters of Concurrent list both the Centre and State can
make laws. In case of conflicting laws, law of the Centre would prevail.
97th subject in the Union list says that any subject, which does not belong to any other list would automatically
confer power to the Parliament to make a law regarding that subject. Thus, our constitution makers have
created stronger Central and weaker State governments, which depend on the Central government for the
financial assistance.
3.9.2 US
It is quite contrary in the case of US, where no elaborative mechanism is provided. Few expressly mentioned
subjects are with the federal and rest of the matters with State governments.
3.10 Emergency and Suspension of Writs
In India, an emergency can be declared on the ground of War and Armed Rebellion. During such emergency all
fundamental rights except the right to life can be suspended. The American Constitution does not use the phrase
of emergency but says that in case of Rebellion and Invasion of Public Safety, the writ of Habeas Corpus can be
suspended.
3.11 Judiciary
There is no qualification mentioned for the appointment of judges of the Supreme Court. In America, the
President has the final say in the appointment of Supreme Court Judges. He suggests the names of judges to the
Senate and on the advice and consent of the Senate, judges are appointed by the President. The Judicial
Committee of Senate plays a very significant role in evaluating the credentials of the proposed judges of the
Supreme Court. They make the investigation of the background of judges, they hold a face-to-face interaction
with the judges, the judges are queered and grilled and questions are put. The whole process happens in public
and in a transparent manner. If a citizen of the US has any information about judges’ integrity, he can send that
information, with evidence, to the Senate Judicial Committee, which further investigates to ensure that no
unworthy candidate is appointed as a Judge to the Supreme Court. In the appointment of Judges the people of
US also participate and the judiciary of US has no role to play in the appointment of judges. The entire process of
appointment of judges is crystal clear.
There is no fixed tenure of the judges. However, if they are retiring at the age of 70 years, they will get salary and
perks as a working judge.
In India, on the other hand, the entire process of appointment of judges happens in a darkroom, between the
judiciary and executive. The people of India come to know of the judges only after their appointment. Neither
are the people informed in advance, nor does the executive make an open enquiry about judges. The President
appoints Judges to the Supreme Courts based on a process, in which the Chief justice and four senior judges of
the SC play a very dominant and decisive role. The entire process of appointment of judges happens in the

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backyard and under the carpet without involvement of the people, which is cited by many as a serious flaw of
the Indian legal system. The judges hold the office up to the age of 65 years.
3.12 Amendment of the Constitution
There are two ways to amend the Constitution:
• Proposed by the Congress and ratified by the States
o Amendment to be passed by 2/3rd majority in both the Houses
o To be ratified by the State Legislatures of at least 3/4th of the States
• Proposed by States and ratified by the States
o 2/3rd of the States should pass a resolution to this effect
o They will communicate to the Congress. The Congress will call the convention.
o In the convention, it has to be ratified by 3/4th of the States
In case of India, the amendment process is easy and flexible as compared to the US. In India, it is only the
Parliament that can propose an amendment to the Constitution and States do not have any role to play in this
matter. While some of the Articles can be amended by a simple majority, special majority is required for others,
and in some limited Articles, ratification by more than half of the States is also required. Majority here means
majority of the Members of the Parliament present on the date of the amendment, and is not related to the
total strength of the Parliament.
The fact that the US Constitution got amended only 27 times in the last 225 years, shows how rigid it is to amend
the US Constitution, in contrast to the Indian Constitution.

4] Chinese Constitution
China is a socialist country. There is supremacy of socialist ideology in China. The Chinese Constitution accepts
the leadership of the Communist Party of China (CPC).
Communist Party of China (CPC) is the largest political party in the world, having millions of local level members.
It works on the principle of Democratic Centralism. The full meeting of the party is called as National Party
Congress (NPC), which is convened once in five years. Though theoretically all power lies with the people, but in
practice, it is with the top leaders.
NPC members select the members of the Central Committee. The Central Committee selects the Polit Bureau
(around 200 members). The Polit Bureau selects the Standing Committee of the Polit Bureau (at present 24
members; the most powerful members of the party).
4.1 Salient Features of the Constitution
4.1.1 Preamble
The paramount position of Marxism, Leninism and Mao’s teachings has been acknowledged in relation to
ideological goals of the political system. Traditional principle of Democratic Centralism has also been given due
place within the Constitutional setup. The old definition of China as a “Dictatorship of the Proletariat” has been
replaced with “People’s Democratic Dictatorship.”
The Preamble clearly recognizes Taiwan as an integral part of China and its liberation is declared as a liability of
Chinese People. Five points have been set as the underlying principles to be observed in the field of foreign
relations. These include:
a) Respect and Preservation of the territorial integrity of all nations
b) Avoidance of aggression
c) Non-interference in the internal affairs of other countries
d) Promotion of international cooperation
e) Peaceful coexistence
4.1.2 Nature of Constitution
It has close affinity in letter and spirit, with the constitution of the former Soviet Union. It is neither too rigid nor
too flexible.

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4.1.3 Basic Principles


Under the Constitution, People’s Republic of China is a Socialist State established in the name of People’s
Democratic dictatorship, wherein Communist Party performs a leadership role to guide the people. People are
declared as fountain of power and authority and they will exercise it through National People’s Congress.
4.1.4 Unitary System
The People's Republic of China is a unitary multi-national state created jointly by the people of all its
nationalities.
In China, a strong central government exists while regional governments, as distinct entities, have not been
created under the Constitution. Therefore, In order to encourage people’s participation in policy-making and
preserve their interest in public affairs, decentralization has been introduced in the governmental affairs. The
central government has delegated much authority and powers to the regional and local administrative units.
4.1.5 Democratic Centralism
Like the political system of former Soviet Union, the principle of “Democratic Centralism” prevails in People’s
Republic of China as well. Keeping in view democratic norms, elective principle has been introduced at all levels
not only within the governmental institutions but also within the Party organization. All the citizens have been
secured the right to vote on the basis of adult suffrage.
4.1.6 One Party System
• The Communist Party enjoys almost dictatorial powers within the constitutional framework and has
been regarded as the sole source of political authority for all practical purposes.
• Party organization runs parallel to that of the governmental institutions. Party elite hold all top-notch
positions in the government.
• In practice, no other political party enjoys real freedom to act.
o Certain youth organizations, loyal to the party and working groups affiliated with the Party,
enjoy the right to participate in decision-making.
4.1.7 Legislature
• The National People’s Congress (NPC) comprises the legislative branch.
• It is a unicameral legislature with more than 3000 members.
• Theoretically, it is the top decision making body in China. It has the ultimate say on policies,
amendments and appointment of ministers in the government.
• It has been declared as an organ through which the people exercise state power.
• Congressmen are elected by regional Congresses, by autonomous regions, by Municipalities working
under the central government and by People’s Liberation Army, each according to its quota.
• The mode of election is based on secret ballot, while the constitution guarantees holding of free and fair
elections.
• The real work of NPC is done by a smaller body known as Standing Committee of NPC, consisting around
150 members.
Duration

The Congressmen are elected for a period of five years but the Congress can be dissolved before the expiry of its
term and it can be extended as well. The Standing Committee of the Congress is responsible for making proper
arrangements for holding fresh elections prior to the completion of its term.

Sessions

Sessions of the Congress are held once a year in Beijing. The Standing Committee of the Congress normally
summons its session. In addition to it, the Chairman of the Congress can also summon the session on the request
of one fifth of its members.

Powers

The National People’s Congress is the supreme law-making body, which is fully authorized to enact laws, alter or
repeal the existing ones. It also approves the administrative policy for the state.
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1. Enactment of Laws
During its sessions, the Congress enacts new laws and makes necessary alterations in the existing ones, if
circumstances so demand. The Constitution can be amended with the support of two-thirds majority of the
members of the Congress, whereas ordinary laws are enacted by a simple majority. It is to be noted, that the
acts of the Congress cannot be challenged in the Supreme Court.
2. Executive Powers
National People’s Congress is also empowered under the Constitution, to supervise the execution of
constitutional laws and statutes. It can affect and control administrative policies through its choice regarding
the appointment of superior public officials. All the administrative departments along with their ministers in
charge are accountable to the Congress in respect of performing their official functions. Congress also
exercises the power to approve National Economic Policy and the annual budget. Congress is fully authorized
under the constitution to exercise all such powers as it thinks expedient and necessary within its sphere of
action.
3. Elective functions
NPC holds a pivotal position within governmental structure by virtue of its power to elect the top-notch
occupants of the governmental authority. Under the Constitution, it also elects the President and Vice
President of the Republic and appoints Premier of the State Council on the recommendation of the
President. On the advice of the Premier, it also appoints other ministers. Congress is also empowered to
remove the ministers. It also exercises the power to appoint or remove the President of the Supreme Court
and Chief Procurator of the Supreme Procurate.

Though the NPC is fully authorized by the Constitution to exercise all the foregoing powers, in practice, it is
not an active body. Rather its position, as a free law-making body is merely in theory. Major reasons being:
• Its sessions are rarely held on a regular basis.
o It meets only once a year, that too for not more than a few days.
• The powers of Congress are virtually exercised by its Standing Committee.
Standing Committee
The Standing Committee of the Congress is an effective and active body, as it exercises, in practice, most of the
Congressional powers. It is outwardly a body subordinate to the Congress, as a matter of principle. It is
accountable to the parent body and is bound to present regular reports of its working. All the members of the
Committee are elected by the Congress and liable to be removed on its discretion.
Powers
1. The Committee summons the sessions of the Congress, in addition to the issuance of orders to hold its fresh
elections.
2. It performs the function of interpreting the statutes as well as the laws of the Constitution. The performance
of this judicial type of function enhances its importance and the scope of power.
3. It supervises the functioning of the State Council, of superior courts and that of Procurator. These functions
have been assigned to the Standing Committee by the Constitution.
4. The Committee has the authority to alter or repeal any inappropriate decision of the official departments,
autonomous regions, provinces and that of the Municipalities working under the Central government.
5. It is actually the repository of real powers during the interval in which the Congress is out of session. During
this period, it wields the authority to issue orders regarding the appointment of new ministers and removal
of the previous ones, on the advice of the Premier. It can issue orders for the appointment or removal of the
Vice President as well as the Deputy Chief Procurator.
Chairman
The Chairman of the Committee has been regarded as the most powerful person in the political setup. He
presides over the meetings of the Standing Committee. He has also been endowed with the power to issue
decrees and promulgate ordinances. His list of duties include:
• To receive the diplomatic envoys of other countries;
• Ratification of the treaties made with other countries; and
• Appointment of the members of diplomatic corpse assigned to other countries.

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Other Committees
The People’s Congress forms a number of Committees during its term, such as National Committee on fiscal and
economic affairs, Committee on education, science, culture and health issues, Committee on foreign affairs,
Committee on matters relating to Chinese settled abroad. All these committees work under the supervision of
the Standing Committee of National People’s Congress during the period the latter is not in session.
Keeping in view the aforesaid functions and powers of the Standing Committee, it is apparent that it is a
powerful and effective body. As the Congressional annual session lasts a few days only, its powers are virtually
exercised by the Standing Committee for the remaining period the parent body is not in session. The
Committee’s members, being the members of the Chinese Communist Party, perform important role in
administrative affairs as well.
4.1.8 Executive
State Council
The State Council is the Cabinet or Executive of China. It is headed by the Premier, four Vice Premiers and State
Councillors. Under the Constitution, State Council is the chief executive organ of the government. All its
members are elected by the Congress and accountable to it. Enforcement of law, formation and execution of the
administrative policy is the major function of the Council. The members of the State Council introduce the bills
on the floor of the Congress in the form of proposals and later manage to get these translated into law on
parliamentary lines.
Premier
The Premier performs a very important role as head of the administration and holds a pivotal position within the
administrative set up.
President
• The President of the Republic is regarded as head of the state.
• He is elected by the Congress for a period of five years.
• The President enjoys the most prestigious position in the administrative setup.
4.1.9 Judiciary
China has a committed Judiciary, i.e. committed to the goal of Socialism. The highest organ is the Supreme
People’s Court. China also has a Court of Procuratorates – it deals with corruption cases of officials.
Chinese law has never been codified in a systematic form. Most of the disputes and controversies are settled in
quasi-judicial institutions. The Chinese judicial system has been held together more by conventions, rather than
by laws.
4.1.10 Central Military Commission
• The party and the government maintain control on the military through the Central Military Commission
• Military is also described as the defenders of the Communist Party.
4.1.11 Rights and Duties
Rights
• The Chinese Constitution gives Fundamental Rights and prescribes certain duties for its citizens.
• All citizens at least18 years of age are secured the right to vote. They also enjoy the right to contest
elections. Right to secrecy of all correspondence, freedom of speech and expression, freedom to join or
form associations, and right to hold public meetings even to the extent of staging demonstration or
resorting to strike for articulation of demands, have been secured under the Constitution.
• According to the constitution, the government is under obligation to afford full protection to the
preservation of family life in addition to the integrity of a person. All citizens have the right to personal
security against illegal detention. The constitution also recognizes equal right of all citizens to education
and cultural freedom. Equality of men and women has also been recognized in all areas of life.

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Duties
The Chinese constitution explicitly prescribes certain duties of the citizens, which are justiciable. It is the first and
foremost duty of the citizens to cooperate with the Socialist leadership in every respect, abide by the
Constitution and all other state laws. They are required to protect public property and extend a helping hand in
the maintenance of law and order. To defend the country against foreign aggression is also another duty of the
citizens.
4.1.12 Communist Party of China
The Chinese Communist Party came into being in 1921. Lenin sent one representative to China to assist in
organizing the newly established party. Cheng Tu-hisu was appointed as the first Secretary General of the
Chinese Communist Party and within a short period many branches of the Party were established in the towns
and cities.
Ideological Foundations
Ideology of the Chinese Communist Party had been shaped by the teachings of Marx and Lenin right from its
inception. It developed a deep linkage with the global Communist Movement in its early phase. Mao also played
a pivotal role in the socialist struggle of the Chinese People.
Party Organization
The party operates on the principle of Democratic Centralism. Accordingly all office bearers of the Party are
elected. Primary unit of the Party elects District Congress while District Congress elects the deputies of the
Congress of the upper level.
Party members enjoy right to criticize party leadership and may initiate proposals for framing party policies. On
the same pattern, primary party branches may lodge complaints for the consideration of higher leadership.
On the other hand, strict party discipline is maintained and strong centralism operates in the decision-making
process. It is obligatory on the lower ranked party members to abide by the decisions of the higher ranked party
leadership. In practice, most of the decisions are thrust upon by the higher ranks within the central leadership.
Politburo
The Politburo has been regarded as the most powerful body in the decision-making process, as it makes all-
important decisions; so much so that it summons the sessions of the Central Committee. It also has a Standing
Committee consisting of seven members. Like its counterpart within the government, the Standing Committee of
the Politburo exercises all the powers of the Central Committee when the latter is not in session.
National Congress of the Communist Party of Congress
National Congress of the Communist Party of Congress holds a pivotal position in the policy-making of the Party.
Members of the Congress numbering in thousands with no fixed size are elected by the respective regional and
local party congresses for a period of five years.
Central Committee
The National Congress of the Communist Party of Congress holds its sessions for a few days, once every five
years. The Central Executive Committee, comprising limited membership, exercises the power of the Congress
when the latter is not in session. The powers of the Central Executive Committee are also exercised in practice,
by its Politburo, as the former rarely holds its meetings. The Central Committee elects the members of its
Politburo, as well as its Chairman and Vice Chairman.
Other Parties and Groups
Single party system, on the lines of Soviet Union, has not been adopted in the People’s Republic of China; rather
such smaller parties, as Kumintang Revolutionary Committee, Democratic League, National Construction
Association and various Youth Organizations are allowed to function. Hence, China is a multi-national and multi-
party country. In China, the term democratic parties refer to the eight other parties apart from the Chinese
Communist Party. These have developed cooperation with the Chinese Communist Party on different levels,
since the inception of the new order.

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But, the Communist Party enjoys political monopoly in China, while other parties have merely dejure existence.
Party Organization runs parallel to that of the government. A person holding important position as a public
official is also assigned office within the Party. The Central leadership of the Party is mainly responsible for
chalking out government policies. The importance of any government department can’t be assessed keeping in
view merely its legal status, since its role within the Party matters.

5] French Constitution
5.1 Introduction
• France is known as ‘Laboratory of Political experiment’.
• It has a unitary form of government and nature of the government is called as semi-Presidential type
• It has some features of Parliamentary system and others of Presidential system
• The French Parliament does not have supremacy even in law making. There is a list for which the
legislature can make laws, whereas rest of the matters are taken care of by the President (i.e. he makes
the laws).
• This is perhaps the only Democratic Constitution based on the Principle of Supremacy of Executive.
• France suffered from political instability. Hence, the Constitution of the 5th Republic provides a strong
President, with a fixed term of 5 years, and he enjoys a lot of powers.
5.2 President
• The French President is the most powerful within the French system as well as amongst all other
executive across world democracies
• Privileges of the Office of the President of US, i.e. security of tenure and being the head of the
Government as well as head of the State is combined with the privileges of the Office of the British P.M.
i.e. power to dissolve the Assembly (which the American President doesn’t enjoy)
• France has PM as well as President
o French PM, unlike that in India and Britain, is assistant to the President
o There is a division of functions, rather than division of power between the two positions
The French President deals with foreign policy and national concerns
The PM, on the other hand, deals with day to day routine functions of the Government and local
domestic issues
• PM is appointed by the President
o The President doesn’t have a completely free-hand in PM’s election
o The person appointed as PM must enjoy the confidence of the House
• Concept of ‘Cohabitation’
o A situation where the President and the PM belong to different political parties
• PM may choose his cabinet colleagues
• None of the members of the Govt. can be a part of the legislature
• Cabinet is presided over by the President
• The Lower House can pass the ‘Censure Motion’ against the PM and his CoM, which would imply that
they must resign
• The President is elected for a fixed term. Initially the term was 9 years, reduced to 7 years and at present
is 5 years.
• They follow Second Ballot system (i.e. absolute majority of the total votes polled is needed)
o The President of the Republic shall be elected by an absolute majority of votes polled: if in the first
round of elections, no person gets absolute majority only the top two candidates remain and the
rest are eliminated. Second round of election takes place, in which one person is able to get the
absolute majority.
Removal of the President
• The President can be impeached on the same ground as the US President. However, the process is
ambiguous.
• Article 67 of the Constitution suggests that both the Houses should pass identical motion.
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• After this, the President’s case will be dealt with by a special body called the High Court of Justice.
• This body also trails cases of corruption and conspiracies against the state by government ministries.
Emergency Powers of the President
Article 16 of the Constitution gives the real emergency powers to the President. In this situation he assumes
unlimited powers and it is like democratic dictatorship or democratic coup-detat.
Comparative Analysis of the US and French Presidents
• The US President cannot dissolve the Assembly, whereas the French President can do so. The only
limitation is that he can’t do so more than twice a year.
• Unlike the US President, the French President can assume dictatorial powers under Article 16.

Comparative Analysis of the French President and British P.M.

• The British P.M. can remain in office only as long as he enjoys majority in the lower house. The President
of France, on the other hand, is elected for a fixed term.
5.3 The Legislature
The Legislature is clearly subordinate to the Executive in the French system. Article 37 of the Constitution puts
clear limitation on the legislative power of the French Parliament. It mentions that the Parliament can make laws
only on the matters enumerated in the Constitution. On all other matters, the government can make laws by
simple order or decree.
The President can directly influence the legislative functions of the assembly through the P.M. If the assembly
doesn’t agree to a particular bill, it can be given for referendum by the President.
The French Parliament is bicameral, consisting of two houses: National Assembly and the Senate
5.3.1 National Assembly
As is the case with other bicameral Parliaments, the French bicameralism is an unequal system since the
National Assembly has much broader powers than those of the Senate:
• It alone can hold the Government accountable by refusing to grant it ‘confidence’ or by passing a censure
motion (following the same idea, only the National Assembly can be dissolved by the President of the
Republic).
• In the case of disagreement with the Senate, the Government can decide to grant the National Assembly
“the final say” in the legislative procedure (except for constitutional acts and institutional acts concerning
the Senate);
• The Constitution provides the National Assembly with a more important role in the examination of the
finance bill and the social security financing bill. Thus, the tabling for a first reading of such bills must be
before the National Assembly and the time limits granted for their examination are much longer for the
National Assembly.
5.3.2 The Senate
In contrast to the National Assembly, the Senate cannot be dissolved. The fact that Senate is a permanent body
plays an important role in accounting for the stability of the Government when the post of the French Republic’s
President falls vacant. Owing to above, it’s the President of the Senate who is appointed the President of French
Republic if the latter is prevented from doing so, if he falls ill or resigns. Thus, a case of power vacuum is
prevented, in case the President’s office falls vacant.
This interim is limited to the time needed to organize a presidential election (in practice, it lasts around 50 days).
5.4 Prominent Features of the French Constitution
• Organic Law: An organic or fundamental law is one that forms the foundation of a government or
organization. A Constitution is a particular form of organic law for a sovereign state. The French
Constitution has certain laws mentioned as organic laws. Laws made by the Parliament and the orders of
the Executive must confirm to the Organic laws. So these laws have to be reviewed by a body known as

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the Constitutional Council. It has 9 members – three are representatives of the President, three are
representatives of the French National Assembly, and the remaining three are representatives of the
Senate.
• High Council of Justice: The purpose is the nomination of the judges. This body is headed by the
President and the members of the Judiciary. The President is also known as the ‘guardian of Judiciary’.
• Economic and Social Council: Constitutional advisory body on social and economic issues.
5.5 Amendment of the Constitution
• Rigid process
• Both the Houses of Parliament have to pass a resolution by 3/5th majority.
• The President may also choose to refer the amendment to people by referendum.

6] Germany’s Constitution
• Germany is a federation and the residuary powers in Germany lie with the states.
• The states are referred to as ‘Landers’.
• It has a Parliamentary form of Government, modeled on the British Parliamentary form. But it is not just a
replicate of the system.
• Germany is called as ‘Chancellor’s Democracy’.
• Chancellor is the PM.
• President is the Constitutional Head.
6.1 Salient Features
6.1.1 Chancellor’s Democracy
• The Chancellor has a clear-cut superiority over other Ministers.
• Chancellor Principle: Chancellor has a privilege to determine the broad policy and other ministers are
expected to act as per these guidelines. While a minister works under these guidelines, he enjoys a lot of
autonomy with respect to his department.
This mechanism ensures the stability of the coalition government.
6.1.2 Cabinet Principle
It comes into existence only when there is a dispute among different departments. In such a situation decision is
taken collectively.
6.1.3 Constructive Vote of No-Confidence
• The motion of no-confidence against the Chancellor is permitted only when those bringing the notion can
prove that they are in a position to form an alternative government.
• This is also to deal with the problems of Hung Assembly (Coalition Government)
6.1.4 Parliament
Germany has two houses:
The Bundestag
The lower house in the German political system is the Bundestag. Its members are elected for a four-year term.
The method of election is known as Mixed Member Proportional Representation (MMPR), a more complicated
system than First-Past-The-Post (FPTP), but one which gives a more proportional result (a variant of this system
known as the additional member system is used for the Scottish Parliament and the Welsh Assembly).
Manner of Elections
Half of the members of the Bundestag are elected directly from 299 constituencies using the first-past-the post
method of election. The other half – another 299 - are elected from the list of the parties on the basis of each
Land (the 16 regions that make up Germany).
This means that each voter has two votes in the elections to the Bundestag:

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• The first vote allows voters to elect their local representatives to the Parliament and decides which
candidates are sent to Parliament from the constituencies.
• The second vote is cast for a party list and it is this second vote that determines the relative strengths of
the parties represented in the Bundestag.
The 598 seats are only distributed among the parties that have gained more than 5% of the second votes or at
least 3 direct mandates. Each of these parties is allocated seats in the Bundestag in proportion to the number of
votes it has received.
Reason behind adopting the above Election System
This system is designed to block membership of the Bundestag to small, extremist parties. As a consequence,
there are always a small number of parties with representation in the Bundestag.
Overhang Seat
In addition to the above, there are certain circumstances in which some candidates win what is known as an
‘Overhang Seat’, when the seats are being distributed. This situation occurs if a party has gained more direct
mandates in a Land than it is entitled to, according to the results of the second vote, when it does not forfeit
these mandates because all directly elected candidates are guaranteed a seat in the Bundestag.
Comparative analysis of Bundestag
One striking difference when comparing the Bundestag with the American Congress or the British House of
Commons is the lack of time spent on serving constituents in Germany.
This is so because:
• Only 50% of Bundestag members are directly elected to represent a specific geographical district.
• A serving constituency seems not to be perceived, either by the electorate or by the representatives, as
a critical function of the legislator.
• There is also a practical constraint on the expansion of constituent service in the form of a limited
personal staff of Bundestag members (especially compared to members of the US Congress).
The Bundestag
The upper house in the German political system is the Bundesrat.
At a first glance, the composition of the Bundesrat looks similar to other upper houses in federal states such as
the US Congress, since the Bundestag is a body representing all the German Lander (or regional states).
However, there are two fundamental differences in the German system:
1. Its members are not elected (neither by popular vote nor by the State Parliaments). They are members
of the State Cabinets, which appoint them and can remove them at any time. Normally, a state
delegation is headed by the head of government in the Land, known in Germany as the Minister-
President.
2. The States are not represented by an equal number of delegates, since the population of the respective
state is a major factor in the allocation of votes (rather than delegates) to each particular Land. The vote
allocation can be approximated as 2.01 + the square root of the Land's population in millions with the
additional limit of a maximum of six votes so that it is consistent with something called the Penrose
method based on game theory. This means that the 16 states have between three and six delegates.
This unusual method of composition provides for a total of 69 votes (not seats) in the Bundesrat. The State
Cabinet may then appoint as many delegates as the state has votes, but is under no obligation to do so; it can
restrict the state delegation even to one single delegate. The number of members or delegates representing a
particular Land does not matter formally, since in stark contrast to many other legislative bodies, the delegates
to the Bundesrat from any one state are required to cast the votes of the state as a bloc (since the votes are not
those of the respective delegate). This means that in practice it is possible (and quite customary) that only one of
the delegates (the Stimmführer or "leader of the votes" - normally the Minister-President) casts all the votes of
the respective state, even if the other members of the delegation are present in the chamber.
Even with a full delegate appointment of 69, the Bunsderat is a much smaller body than the Bundestag with over
600 members. It is unusual for the two chambers of a bicameral system to be quite so unequal in size. But the
Bundesrat has the power to veto a legislation that affects the powers of the states.
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7] Constitution of Japan
• Japan has a Parliamentary system of Government.
• It has a constitutional Monarchy
o King is more like a ‘Rubber stamp’ authority while PM is head of the Cabinet
• Election of the PM
o PM is elected by both the Houses of Japanese Parliament (called Diet).
o The two houses of the Diet are:
House of Representatives; and
House of Councillors
o It is not enough for a person to be a leader of the majority party. He has to be elected by both the
houses of the Parliament.
If no agreement is reached upon between the two houses on a candidate, then the matter is
taken care of by a Joint Committee of both the houses. The Committee gets 10 days to arrive
upon a decision.
After 10 days, if an agreement cannot be reached, then the will of the lower house prevails.
• A significant feature of Japanese Constitution is contained in Article 9.
o Herein, Japan formally renounces the policy of war for the settlement of international disputes.
However, it can keep forces for self-defence.

8] Constitution of Canada
The Canadian Constitution encompasses a wide set of principles and values that govern key political
relations in the Canadian society.
8.1 Salient Features
8.1.1 Constitutional Monarchy
• It is the central component of Canada’s constitutional framework.
• The Constitution Act, 1867 states that executive government and authority in Canada is vested in
the Canadian Monarchy (which Canada shares with Great Britain and some other former British
colonies). The British Queen is the formal head of the state.
o The Act further provides for the offices of the Governor General of Canada (at the federal level)
and Lieutenant Governors (at the provincial level), recognized as the Monarch’s representatives in
Canada.
• It is important to note, however, that while the written constitution explicitly places executive authority
in the hands of the Monarch and his/her representatives, the unwritten constitutional convention holds
that this authority is actually exercised by the Prime Minister and his/her Cabinet.
8.1.2 Parliamentary Government
The Canadian Constitution also provides for a Parliamentary system of government.
Features of Parliamentary Government as given in Constitution Act, 1867:
• The Act established a federal Parliament, consisting of the Monarchy and two legislative chambers,
the House of Commons (or Lower House) and the Senate (or Upper House).
• The Act further states that the powers and authority of these legislative chambers are to be modeled
upon those found in the British Parliament.
• Further, the Act also established legislative chambers at the provincial level.
In addition to the written provisions of the Act, there also exist several unwritten constitution conventions that
are fundamental to the operation of Canada’s parliamentary system. These include executive dominance by the
Prime Minister and the Cabinet (at the federal level) and by the Premier and the Cabinet (at the provincial
level), as well as the practice of responsible government.

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The House of Commons


In the Canadian political system, the lower chamber is the House of Commons, which takes its name from the
lower house in the British political system. The Commons consists of 308 members known as - like their British
counterparts - Members of Parliament (MPs).
Manner of Election
Members are elected by the first-past-the-post system (as in Britain) in each of the country's electoral districts,
which are colloquially known as ridings (known as ‘constituencies’ in Britain). Seats in the House of Commons are
distributed roughly in proportion to the population of each province and territory, but some ridings are more
populous than others and the Canadian constitution contains some special provisions regarding provincial
representation.
Term and Tenure
The maximum term of MPs is four years, but it is common for a general election to be called earlier.
Powers
As in the British political model, the House of Commons is much the more powerful of the two chambers.
Although all legislation has to be approved by both chambers, in practice the will of the elected House usually
prevails over that of the appointed Senate. The processes and conventions of the Commons reflect very much
those of its British namesake.
The Senate
In the Canadian political system, the upper chamber is the Senate, which takes its name from the upper house in
the American political system.
The Senate consists of 105 members, appointed by the Governor-General on the advice of the Prime Minister.
Seats are assigned on a regional basis, with each of the four major regions receiving 24 seats, and the remaining
nine seats being assigned to smaller regions.
8.1.3 Federalism
The Constitution also provides for a federal system in Canada, meaning there are two key levels of government:
the federal (or national) government and the provincial (or regional) governments. Canada is a federation with
a strong Centre, wherein residuary powers lie with the Centre.
The Constitution Act, 1867 outlines specific powers and jurisdictions for each of these levels of government, such
as what public policy fields each may legislate in, as well as how each level of the government may raise revenue.
Over the years, these constitutional provisions have been further clarified and evolved by judicial decisions (first
by the British Judicial Committee of the Privy Council, and later by the Supreme Court of Canada).
Changes in the nature of Canadian Federalism
There have also been several constitutional amendments that have had significant consequences for Canada’s
federal system. Over the years there has been a shift towards giving greater powers to the states.
For example, the Constitution Act, 1930, transferred ownership of natural resources in Western Canada from the
federal government to the Western provinces. Another significant amendment was the Constitution Act, 1982,
which committed the federal government and provinces to ensuring some level of economic and social equality
between Canadian regions. This, in turn, has led to the development of the Equalization Program and the sharing
of public funds between governments.
8.1.4 Judiciary
The Supreme Court of Canada is the highest court and final authority on civil, criminal and constitutional
matters.
The court's nine members are appointed by the Governor-General on the advice of the Prime Minister and the
Minister of Justice. They serve until the age of 75.
Each province operates its own individual court system. The country's legal system is based mainly on English
common law, but in the province of Québec, it is modelled on French civil law.
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8.1.5 Rights
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada, which
forms the first part of the Constitution Act, 1982. The Charter guarantees certain political rights to Canadian
citizens and civil rights of everyone in Canada. The Charter applies to government laws and actions (including the
laws and actions of federal, provincial, and municipal governments and public school boards), and sometimes to
the common law, but not to private activity.
The courts, when confronted with violations of Charter rights, have struck down as unconstitutional, federal and
provincial statutes and regulations in whole or in part.

9] Constitution of Australia
Australia’s system of government is founded in the liberal democratic tradition. Based on the values of religious
tolerance, freedom of speech and association, and the rule of law, Australia’s institutions and practices of
government reflect British and North American models. At the same time, they are uniquely Australian.
• Australian federation is modeled on the US federation. For example, residuary powers are with the
states, Governors of the states are elected by the people and formally appointed by the British Queen.
• In Australia, there has been a growth of Cooperative Federalism.
9.1 Salient Features
9.1.1 Form of Government
One of the oldest continuous democracies in the world, the Commonwealth of Australia was created in 1901,
when the former British colonies—now the six states—agreed to federate. The democratic practices and
principles that shaped the pre-federation colonial Parliaments (such as ‘one man, one vote’ and women’s
suffrage) were adopted by Australia’s first federal government.
The Australian Constitution sets out the powers of government in three separate chapters—the legislature, the
executive and the judiciary—but insists that members of the legislature must also be members of the executive.
In practice, Parliament delegates wide regulatory powers to the executive.
The popularly elected Parliament consists of two chambers: the House of Representatives and the Senate.
Ministers appointed from these Chambers conduct executive government, and policy decisions are made in
Cabinet meetings. Apart from the announcement of decisions, Cabinet discussions are not disclosed. Ministers
are bound by the principle of Cabinet solidarity, which closely mirrors the British model of Cabinet government
responsible to the Parliament.
Although, Australia is an independent nation, Queen Elizabeth II of Great Britain is also formally the Queen of
Australia. The Queen appoints a Governor-General (on the advice of the elected Australian Government) to
represent her. The Governor-General has wide powers, but by convention acts only on the advice of the
ministers on virtually all matters.
9.1.2 Nature of the Constitution
Like the United States, Australia has a written constitution. The Australian Constitution defines the
responsibilities of the federal government, which include foreign relations, trade, defence and immigration.
Governments of the States and territories are responsible for all matters not assigned to the Commonwealth,
and they too adhere to the principles of responsible government. In the States, the Queen is represented by a
Governor for each State.
The High Court of Australia arbitrates on disputes between the Commonwealth and the states. Many of the
court’s decisions have expanded the constitutional powers and responsibilities of the federal government.
Procedure of Amendment
The Australian Constitution can be amended only with the approval of the electorate through a national
referendum in which all adults on the electoral roll must participate. A bill containing the amendment must first
be passed by both houses of Parliament, or, in certain limited circumstances, by only one House of Parliament.
Any constitutional change must be approved by a double majority—a national majority of electors as well as a
majority of electors in a majority of the states (at least four of the six). Where any state or states are particularly
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affected by the subject of the referendum, a majority of voters in those states must also agree to the change.
This is often referred to as the ‘triple majority’ rule.
The double majority provision makes alterations to the Constitution difficult. Since federation in 1901, only eight
out of 44 proposals to amend the Constitution have been approved. Voters are generally reluctant to support
what they perceive as increases in the power of the federal government. States and territories may also hold
referendums.
9.1.3 Parliament
The government is formed in the House of Representatives by the party able to command a majority in that
chamber.
Minority parties often hold the balance of power in the Senate, which serves as a chamber of review for the
decisions of the government. Senators are elected for six-year terms, and in an ordinary general election only
half the senators face the voters.
In the Australian Parliament, questions can be asked without notice, and there is a strict alternation between
Government and Opposition questions to ministers during the Question Time. The Opposition uses its questions
to pursue the government. Government members give ministers a chance to put government policies and
actions in a favourable light, or to pursue the Opposition.
Anything said in the Parliament can be reported fairly and accurately without fear of a suit for defamation. The
rough-and-tumble of Parliamentary Question Time and debates is broadcast and widely reported. This has
helped in establishing Australia’s reputation for robust public debate, and serves as an informal check on the
executive power.
9.1.4 Nature of Elections
A national general election must be held within three years of the first meeting of a new federal Parliament. The
average life of Parliaments is about two-and-a-half years. In practice, general elections are held when the
Governor-General agrees to a request from the Prime Minister, who selects the date of the election.
The governing party has changed almost every five years on an average, since federation in 1901. The Liberal
Party led a coalition with the longest hold on government—23 years—from 1949 to 1972. Prior to World War II,
several governments lasted less than a year, but since 1945 there have been only seven changes in the
government.
9.1.5 Voting
For all citizens over the age of 18 it is compulsory to vote in the election of both federal and state governments,
and failure to do so may result in fine or prosecution.
9.1.6 Relations between Levels of Government
State parliaments are subject to the national Constitution as well as their state constitutions. A federal law
overrides any state law not consistent with it.
In practice, the two levels of government cooperate in many areas where states and territories are formally
responsible, such as education, transport, health and law enforcement. Income tax is levied federally, and
debate between the levels of governments about access to revenue and duplication of expenditure functions is a
perennial feature of Australian politics. Local government bodies are created by legislation at the state and
territory level.
The Council of Australian Governments (COAG) is a forum to initiate, develop and implement national policy
reforms requiring cooperative action between the three levels of government: national, state or territory, and
local. Its objectives include dealing with major issues by cooperating on structural reform of government and on
reforms to achieve an integrated, efficient national economy and a single national market.
• COAG comprises the Prime minister, State Premiers, Chief Ministers of the territories, and the President
of the Australian Local Government Association.
In addition, Ministerial Councils (comprising national, state and territory ministers, and, where relevant,
representatives of local government and of the governments of New Zealand and Papua New Guinea) meet
regularly to develop and implement inter-governmental action in specific policy areas.
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10] Constitution of Switzerland


• The Spirit of Republicanism is a prominent theme of the Swiss Constitution.
• Another important feature of the Constitution is its federal features.
• Switzerland is known for its direct democracy.
• It is hailed as a Dynamic Constitution (features like protection of individual, welfare state et al)
Comparison scheme w.r.t Indian Constitution
Indian Constitution Swiss Constitution
Executive vested in the President Executive vested in the Federal Council
President elected by electoral college Federal Council elected by Federal Assembly
Party Government Absent
States cannot conclude treaties Cantons can conclude treaties
Supremacy of Judiciary Judiciary cannot rule invalid a federal law
No referendum Referendum possible

Institutions for Direct Democracy:


1. Referendum: It means referring bills for ratification to the people. It is not similar to plebiscite. Plebiscite
means taking opinion of the people on any issue.
2. Initiative: It is a bill initiated by the people and people conveying it to the assembly.
3. Recall: It means calling the representative back at any point of time, if voters are not satisfied by his
work.

11] Features-wise Constitutional Comparison Scheme


11.1 The Preamble
The Preamble is a brief introductory statement that sets out the guiding purpose and principles of the
document.
The language and the structural format of the Preamble of India have been derived from the United States of
America.
11.2 Written Constitution
The concept of a written constitution has been taken from USA, which was the first written constitution in the
world. This allows ease of access and revision, as and when required, and also provides immunity to laws form
any arbitrary interference by the government at its free will.
11.3 Nominal Head
In Britain In India
The Queen is the Head of the State. As a The President of India is:
Constitutional Monarch, she does not rule the o Head of the state and the first citizen of India.
country, but fulfills important ceremonial and o S/He is also the “formal head” of all the three branches
formal roles with respect to the Government. of Indian Democracy - Legislature, Executive and
Judiciary.
o He is also the Supreme Commander of the Indian Armed
Forces

11.4 Cabinet System


Both in India and England:
• The Cabinet is the collective decision-making body of the government consisting of the Prime Minister
and his Council of Ministers.
• The PM chooses the Cabinet of Ministers, appointed by the head of the state (President in India and
Sovereign in England.)

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The Cabinet Ministers are at the disposal of PM and can be dismissed at any time on advice of the PM, by the
Head of the State.
11.5 Bicameral System of Parliament
A bicameral Parliament or bicameral legislature is a legislature, which consists of two chambers or houses
• In England: There is the House of Commons and House of Lords.
• In India: There is Lok Sabha (the House of people) and Rajya Sabha (Council of States).
11.6 Concept of Lower House being more Powerful
In England In India
House of Lords (the Upper House) is restrained Money Bills can only be introduced in Lok Sabha
from any financial bills.
PM loses his post if he loses majority in the PM loses his post if he loses majority support in lower
House of Commons. house, motion of no confidence can only be introduced in
Lok Sabha.
Upper House can only delay the bills passed in With most of the bills (except CAB), Rajya Sabha cannot
Lower House for a maximum of two reject bills passed in Lok Sabha. It can only delay it for a
parliamentary terms, but cannot reject it. maximum of 14 days.
11.7 Speaker in the Lower House
In England In India
The Speaker of the House of Commons chairs debates The Speaker of the Lok Sabha conducts the business
in the Commons chamber and the holder of this office in the house.
is an MP who has been elected by other members of
Parliament.
The Speaker is the chief officer and highest authority He/she decides whether a bill is a money bill or a
of the House of Commons and must remain politically non- money bill.
impartial at all times. During debates they keep order
and call MPs to speak.
The Speaker also represents the Commons to the He/she maintains discipline and decorum in the
monarch, the Lords and other authorities and chairs house and can punish a member for their unruly
the House of Commons Commission. behaviour by suspending them.
He/she permits the moving of various kinds of
motions and resolutions like motion of no
confidence, motion of adjournment, motion of
censure and calling attention notice as per the rules

11.8 Judiciary Adaptations


11.8.1 Concept of Supreme Court
It was adapted from the United States of America. US was the first country to introduce the highest court of
justice, called the Supreme Court.
As we know, it is an essential requirement for a federal form of government.
11.8.2 Laws on which Supreme Court Function
This has been adopted from the constitution of Japan
Japanese Constitution Indian Constitution
The Chief Justice is appointed by Head of the The Chief Justice is appointed by Head of the State-
State-Emperor President
The Supreme Court is the highest judicial The Supreme Court is the highest judicial authority of the
authority of the nation nation
Other judges in the Supreme Court form smaller Other judges in the Supreme Court form smaller benches
benches for court or hearing of cases. for court or hearing of cases.

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Supreme court mainly acts as an appellate court, Supreme court mainly acts as an appellate court, most
most hearings being appeals and hearings being hearings being appeals and hearings being petitions
petitions against unsatisfactory decisions of against unsatisfactory decisions of lower courts.
lower courts.

11.8.3 Independence of Judiciary and Judicial Review


• Independence of the judiciary is the principle that the judiciary should be politically shielded from the
legislative and the executive power. That is, courts should not be subjected to reprehensible influence from
other branches of the government, or from personal or adherent interests.
• Judicial review is the doctrine under which legislative and executive actions are subject to review (and
possible invalidation) by the judiciary.
Specific courts with judicial review power must annul the acts of the state when it finds them
incompatible with a higher authority such as the constitution.
Both of these principles are adopted from the constitution of USA.
They are very important to keep a check on the other two branches of the government.
11.8.4 Method of removal of Supreme/High Court Judges
This has been adopted from the Constitution of United States.

US Constitution Indian Constitution


It varies from state to state where sometimes Impeachment requires an order of the President passed
recommendation of enquiry committee is after an address in each House of Parliament, supported
enough, while in some majority support by more by a majority of the total membership of that House of not
than two-third members of both houses is less than two-thirds of members present and voting, and
required for impeachment of a judge. presented to the President in the same Session for such
removal on the ground of proved misbehavior or
incapacity.

11.9 Fundamental Rights


The purpose of Fundamental Rights is to act as limitations, not only upon the powers of the Executive, but also
upon the power of the Legislature.

In Other Countries In India


The concept of fundamental comes from USA. Fundamental rights in the Constitution of India constitute the
longest description in the world.
The right to freedom of: speech, assembly They include:
and religion have been adopted from USSR Right to Equality (14-18)
Right to Freedom (19)
Right against Exploitation (23-24)
Right to Freedom of Religion (25-28)
Cultural and Educational Rights (29-30)
Right to Constitutional remedies (32-35)
Right to freedom and equality before law are
an adoption from the French rights

11.9.1 Suspension of Fundamental Rights during Emergency


This concept of suspension of rights during emergency has been adopted from the Weimar constitution of
Germany.
This is very important as it vests the supreme power in the head of the state- the President.
• During emergency only 3 rights of the citizens stand valid-Right to Equality, Right to Freedom (in certain
cases) and the Right to Life.
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11.10 Fundamental Duties


The fundamental duties of India seem to be an adoption from the Constitutions of Japan, Yugoslavia, Republic of
China as well as the Constitution of Soviet Union (USSR).
Indeed, Japan is the only democratic country to have legally enforceable Fundamental duties.
These have been incorporated in the Indian Constitution to remind every citizen that they should not only be
conscious of their rights, but also of their duties.
11.11 Scheme of Federation
This refers to the Distribution of powers between the centre and the states.
It is very significant in the case of a diverse country like India, to handle the local issues effectively.
This has been done in case of both legislative and administrative powers.
Scheme of federation with a strong Centre
Both the Centre & the states are expected to be co-operative& coordinating institutions, having independence &
ought to exercise their respective powers with mutual-adjustment, respect, understanding & accommodation.
Prevention as well as amelioration of conflicts is necessary. Thus, the Indian-federation was devised with a
strong-centre.
Comparison of Indian Federalism with American Federalism
Indian Constitution
1. Indian federation is not the result of an agreement between States.
2. There is concept of single citizenship for both the States and Union.
3. Each State sends MPs to the Parliament depending upon the population of the State.
4. There is no principle of equality between the states.
5. There are three Lists- Union List-(First List); State List (Second List); and Concurrent List – (Third List). The
Parliament can legislate only the subjects of the State List and Concurrent List. The States are not
sovereign. The Union can encroach upon State’s Lists.
6. No State can secede from Territory of India.
7. The Parliament, i.e. Center has residuary powers.
8. There is only one Constitution for Union and States.
9. India achieved uniformity in basic civil and criminal laws, except personal laws in some matters.
10. The Indian Union is an indestructible Union of destructible States. The area, identity of a state can be
changed by Parliament. The States are destructible. But the Union cannot be changed. The Union is
indestructible.
11. The Central Government has the power to form a new State, to increase the area of any State, to
diminish the area of any State; to alter the boundaries of any State; to alter the name of any State; and
to form a new State by separation of territory from any State or by uniting two or more States or parts of
States or by uniting any territory to be a part of any State(Article 3).
12. The word “Federal” is not at all used in our Constitution. The framers described simply “Union”.
13. The Supreme Court has been given very wide powers, including appellate (Civil and criminal) jurisdiction.
14. No referendum is necessary. For the amendment of the Constitution, the people need not give their
consent. It is sufficient to get the majority of MPs, and in certain cases, the majority of the State
legislatures.
American Constitution

1. American Federation is the result of an agreement between States.


2. There are dual citizenships- one Federal Citizenship and another State Citizenship.
3. Each State sends equal number of representatives to the Senate.
4. There is principle of equality between the States, irrespective of its population, extent etc.
5. There is a clear division of legislative powers between the Federal Govt. and the Units. The Union as well
as each Unit is sovereign in its sphere. The Union and the units are sovereign in their respective

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legislative fields. One cannot strictly trench upon the other’s area of power. Each is confined to its own
sphere.
6. The State, if wants, can theoretically separate itself from the Federal, the relation being based only an
‘Agreement ’.Hence, it is said that the American Union is a destructible Union of indestructible States.
7. The States have residuary powers.
8. There are two Constitutions.
9. There are different civil and criminal laws, differing from State to State.
10. The word “Federal” is used in the Constitution very often.
11. The Supreme Court of America has not been given appellate jurisdiction of the same kind as the
Supreme Court in India.
12. For the amendment of Federal Constitution, a referendum must be conducted. Amendment to the
Constitution can be made only with the consent of the people.
11.12 Freedom of Trade and Commerce
Australia India
There is a free trade clause under Section 92 of the Article 301 containing the free trade clause in Indian
Australian Constitution, which provides that “on the constitution has been taken almost verbatim from
imposition of uniform duties of customs, trade, section 92 of the Australian constitution
commerce and intercourse among the States whether
by means of internal
carriage or ocean navigation shall be absolutely free.
The court considered that legislature should be
given more powers than judiciary and all trade and
commerce activities were subjected to reasonable
restrictions, imposed by the State as mentioned in
the constitution

Advantages of this adoption


Free movement and exchange of goods throughout the territory of the country is essential for the economic
unity of the nation
Therefore, in all federations, an attempt is made through constitutional provisions to prevent local barriers to
economic activity, to remove the impediments in the way of inter-state trade and commerce and thus to make
the country as one in economic resources.
Thus, the base of freedom of trade and commerce was adopted from Australian Constitution with amendments.
11.13 Directive Principles of State Policy
These are principles laid down to create social and economic conditions under which citizens can live a good life.
In India, the Directive Principles of State policy have been adopted verbatim from the Constitution of Ireland.
The DPSP of Ireland were in turn adopted from Spain.
11.14 Election of Members by the President
The upper house in India consists of 250 members from which 12 are nominated by the Nominal head-the
President of the country for their exemplary work in their respective fields.
This saves these members from the turmoil of election
This system has been adopted from the constitution of Ireland.

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Complete Overview of the adaptations in Chart form


Following are the borrowed features of constitution from different countries.

• Nominal Head – President (like Queen)


• Cabinet System of Ministers
• Post of PM
• Parliamentary Type of Govt.
From U.K.
• Bicameral Parliament
• Lower House more powerful
• Council of Ministers responsible to Lowe House
• Speaker in Lok Sabha
• Written Constitution
• Executive head of state known as President and his being the Supreme
Commander of the Armed Forces
• Vice- President as the ex-officio Chairman of Rajya Sabha
• Fundamental Rights
From U.S.
• Supreme Court
• Provision of States
• Independence of Judiciary and judicial review
• Preamble
• Removal of Supreme court and High court Judges
• Fundamental Duties
From USSR
• Five year Plan
• Concurrent list
From AUSTRALIA • Language of the preamble
• Provision regarding trade, commerce and intercourse
From JAPAN • Law on which the Supreme Court function
From WEIMAR CONSTITUION
• Suspension of Fundamental Rights during the emergency
OF GERMANY
• Scheme of federation with a strong centre
From CANADA • Distribution of powers between centre and the states and placing.
Residuary Powers with the centre
• Concept of Directive Principles of States Policy(Ireland borrowed it
from SPAIN)
From IRELAND
• Method of election of President
• Nomination of members in the Rajya Sabha by the President.

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transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise,
without prior permission of Vision IAS

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TOPIC: COMPARISON OF INDIAN CONSTITUTION (GS: PAPER III)

Section A Introduction

Section B Political Systems around the World

Section C Salient features of constitution of various

democratic countries

Section D Borrowed Features of Indian Constitution

Section E Comparison of Indian Constitution with that of

others

Section F Conclusion

Section G Model Questions

Copyright © by Vision IAS

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any form1 or by any means, electronic, mechanical, photocopying, recording or otherwise,©VISION
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SECTION A: INTRODUCTION
“If men were angels, no government would be necessary. If angels were to govern
men, neither external nor internal controls on government would be necessary. In
framing a government which is to be administered by men over men, the great
difficulty lies in this: you must first enable the government to control the
governed; and in the next place oblige it to control itself.”

The above statement defines the importance and need of a constitution for a country. A
constitution is the highest law of a country and reflects the fundamental principles on which a
system of government and administration of a country is based.

The term constitution comes through French from the Latin word constitutio, used for
regulations and orders, such as the imperial enactments.

A constitution is a set of fundamental principles or established precedents according to which


a state or other organization is governed. These rules together make up, i.e. constitute, what the
entity is.

A constitution of a country needs to reinvent itself to keep pace with the global changes. Hence,
comparative analysis gains importance in this respect. However, before going into the details of
that, a cursory glance at various political systems in the world needs attention.

SECTION B: POLITICAL SYSTEMS ACROSS THE WORLD


Various Political systems prevalent across the world are explained below:

1. Dictatorship is a form of government in which the ruler is an absolute dictator (not


restricted by a constitution or laws or opposition from the people).

2. Democracy is the government by the people, exercised either directly or through elected
representatives.

3. Republic is slightly different from a democracy and is a government in which supreme


power resides in a body of citizens entitled to vote and is exercised by elected officers
and representatives responsible to them and governed according to law.

4. Anarchy is the absence of government; the state of society where there is no law or
supreme power; a state of lawlessness; political confusion.

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From the above diagram, it can be inferred that comparison of Indian constitution with other democratic countries
like USA,UK, Japan, France, Russia and Germany will serve the purpose of comparative analysis.

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SECTION C:SALIENT FEATURES OF THE CONSTITUTIONS OF VARIOUS


DEMOCRATIC COUNTRIES
Constitution of USA

The United States of America is a federal republic consisting of fifty states and a federal district.

Main features of its constitution are:

1. Presidential Democracy-President is the head of state and head of government.


2. Federal System-It is a federal state that emerged from an initial agreement between a
numbers of separate states.
3. The Constitution and the Rule of Law-In the United States, the Constitution is "king." Only
laws passed through the mechanisms established by the Constitution are valid.
Furthermore, any law that is inconsistent with the limitations, structures or principles
established by the Constitution is considered, by definition, invalid.
4. The Separation of Powers and Checks and Balances-Another prominent feature of the U.S.
Constitution is its scheme of separated powers. The Framers were well aware of the need to
preserve liberty while establishing order with the new Constitution.

Constitution of UK

The United Kingdom of Great Britain and Northern Ireland, commonly known as the United
Kingdom (UK) and Britain, is a sovereign state located off the north-western coast of continental
Europe. The country includes the island of Great Britain, the north-eastern part of the island
ofIreland and many smaller islands.

The UK's form of government is a constitutional monarchy with a parliamentary system and
its capital city is London. It consists of four countries: England, Scotland, Wales and Northern
Ireland.
Characteristics or features of the U.K. constitution:

1. The Constitution is not `written' in the sense of having a single document defining the
powers of government and rights of individuals. Nevertheless many sources of
constitutional law are written and these together with the non-legal rules make up the
British Government.
2. The constitution is flexible and based on continuity of development.
3. In the absence of a written constitution having the status of fundamental, or higher law,
the concept of Parliamentary sovereignty, or legislative supremacy represents the
cornerstone of the constitution.

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4. There is no strict separation of powers between the executive, legislature and judiciary,
although a separation of functions exists and the concept retains importance under the
constitution.
5. The United Kingdom has a constitutional monarchy.
6. The United Kingdom is a unitary, as opposed to a federal state.
7. The legislature is bicameral in nature.
8. The judiciary is independent.

Constitution of France

France is a unitary semi-presidential republic located mostly in Western Europe.

The current Constitution of France was adopted on 4 October 1958. It is typically called the
Constitution of the Fifth Republic, and replaced that of the Fourth Republic dating from 1946 .
Since then the constitution has been amended eighteen times, most recently in 2008.

Salient Features of its constitution are:

1. The preamble of the constitution recalls the Declaration of the Rights of Man and of the
Citizen from 1789 and establishes France as a secular and democratic country, deriving
its sovereignty from the people.
2. It provides for the election of the President and the Parliament, the selection of the
Government, and the powers of each and the relations between them.
3. It ensures judicial authority and creates a High Court (a never convened court for
judging the President), a Constitutional Council, and an Economic and Social Council. It
was designed to create a politically strong President.
4. It enables the ratification of international treaties and those associated with the
European Union.
5. The Constitution also sets out methods for its own amendment either by referendum or
through a Parliamentary process with Presidential consent.

Constitution of Russia

Russia is a federal semi-presidential republic, comprising 83 federal subjects.

Salient features of its constitution are:

1. The Russian Constitution is based on world standards for human rights and basic
principles of democratic state-building such as ideological neutrality of the
state, political pluralism, competitive elections and separation of powers.

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2. The constitution establishes a semi-presidential system, resembling the French system


but with stronger executive power, due to the increased independence of the president
in comparison to the French model.
3. The President of the Russian Federation holds primary power in the Russian political
system. The President, who is elected for a six year term (following the2008
Amendments to the constitution), is the head of state and the Supreme Commander-in-
Chief of the Armed Forces of the Russian Federation.
4. The constitution prescribes that the Government of Russia, is the executive branch of
state power and is consisting of a prime minister (chairman of the Government), deputy
prime ministers, and federal ministers and their ministries and departments.
5. The legislature’s innate checks and balances are reflected in the ability of the Federal
Council to examine and subsequently revise or reject legislation passed by the Duma.
6. The Russian Constitution provides for a Constitutional Court, a Supreme Court, a
Supreme Court of Arbitration, and for the development of various lower courts. In
contrast, the Constitution withholds several areas of traditional court jurisdiction from
the Court and instead gives them to the President.

Constitution of Germany

Germany is a federal parliamentary republic in western-central Europe. The country consists


of 16 states.

Salient Features of its constitution are:

1. The Basic Law for the Federal Republic of Germany (German: Grundgesetz für die
Bundesrepublik Deutschland) is the Constitution of Germany. It was approved on 8 May
1949, and, with the signature of the western Allies of World War II on 12 May, came into
effect on 23 May.
2. Basic rights are fundamental to the Basic Law, in contrast to the Weimar Constitution,
which listed them merely as "state objectives”.
3. The Basic Law established Germany as a parliamentary democracy with separation of
powers into executive, legislative, and judicial branches.
4. The executive branch consists of the largely ceremonial Federal President as head of
state and the Federal Chancellor, the head of government, normally (but not necessarily)
the leader of the largest grouping in the Bundestag.
5. The legislative branch is represented by the Bundestag, elected directly through a
mixture of proportional representation and direct mandates.
6. The judicial branch is headed by the Federal Constitutional Court, which oversees the
constitutionality of laws.

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7. Basic Law may be amended by an absolute two-thirds majority of the Bundestag along
with a simple two-thirds majority of the Bundesrat
8. Germany has switched between confederal, federal and unitary rule, since the German
Confederation was founded in 1815. The current Germany is a federal system of states.

Constitution of Japan

Japan is a constitutional monarchy where the power of the Emperor is very limited. As a
ceremonial figurehead, he is defined by the constitution as "the symbol of the state and of the
unity of the people"

Salient features of its constitution are:

1. The constitution provides for a parliamentary system of government and guarantees


certain fundamental rights.
2. The constitution, also known as the "Postwar Constitution" is most characteristic and
famous for the renunciation of the right to wage war contained in Article 9 and to a
lesser extent, the provision for de jure popular sovereignty in conjunction with the
monarchy.
3. It is a rigid document and no subsequent amendment has been made to it since its
adoption.
4. Legislative authority is vested in a bicameral National Diet and, whereas previously
the upper house had consisted of members of the nobility, the new constitution
provided that both chambers be directly elected.
5. Executive authority is exercised by a Prime Minister and cabinet answerable to the
legislature, while the judiciary is headed by a Supreme Court.

Constitution of India

The constitution of India was framed by the Constituent Assembly, set up in 1946 under the
provisions of cabinet mission plan. Dr. Rajendra Prasad was the president of Constituent
assembly and Dr. B.R. Ambedkar was the Chairman of the seven –member Drafting Committee
which drafted the constitution.

The Indian constitution is the lengthiest and most detailed written constitution in the world.
Though most of the features of our constitution are substantially borrowed from others, the
framers gathered the best features of each of the existing constitutions and modified them
according to the existing needs and conditions of the country.

The preamble of the constitution declares India a sovereign, Socialist, Secular, and democratic
republic. It highlights justice, liberty, equality and fraternity as objectives of the constitution.

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The Constitution of India consists of a preamble, 22 parts and 12 schedules. Although it is


federal in nature it also has a strong unitary bias.

Parts
The individual Articles of the Constitution are grouped together into the following Parts:

Part I – Union and its Territory Part XI – Relations between the Union and the

States.

Part II – Citizenship Part XII – Finance, Property, Contracts and

Suits

Part III – Fundamental Rights Part XIII – Trade and Commerce within the

territory of India

Part IV – Directive Principles of State Policy Part XIV – Services under the Union, the

States.

Part IVA – Fundamental Duties Part XIVA – Tribunals

Part V – The Union. Part XV – Elections

Part VI – The States Part XVI – Special Provisions Relating to

certain Classes.

Part VII – States in the B part of the I Part XVII – Languages

schedule

Part VIII – The Union Territories Part XVIII – Emergency Provisions

Part IX – The Panchayats Part XIX – Miscellaneous

Part IXA – The Municipalities. Part XX – Amendment of the Constitution

Part IXB – The Cooperative Societies Part XXI – Temporary, Transitional and

Special Provisions

Part X – The scheduled and Tribal Areas Part XXII – Short title, date of commencement,

Authoritative text in Hindi and Repeals

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Schedules
Schedules are lists in the Constitution that categorize and tabulate bureaucratic activity
and policy of the Government.

First Schedule (Articles 1 and 4) - This lists the states and territories of India

Second Schedule (Articles 59(3), 65(3), 75(6), 97, 125, 148(3), 158(3), 164(5), 186 and 221)- –

This lists the salaries of officials holding public office, judges, and CAG

Third Schedule (Articles 75(4), 99, 124(6), 148(2), 164(3), 188 and 219)—Forms of Oaths –

This lists the oaths of offices for elected officials and judges

Fourth Schedule (Articles 4(1) and 80(2)) – This details the allocation of seats in the Rajya

Sabha (the upper house of Parliament) per State or Union Territory

Fifth Schedule (Article 244(1)) – This provides for the administration and control of Scheduled

Areas and Scheduled Tribes

Sixth Schedule (Articles 244(2) and 275(1))— Provisions for the administration of tribal areas

in Assam, Meghalaya, Tripura, and Mizoram

Seventh Schedule (Article 246)—The union (central government), state, and concurrent lists of

responsibilities

Eighth Schedule (Articles 344(1) and 351)—The official languages.

Ninth Schedule (Article 31-B) – Originally Articles mentioned here were immune from judicial

review on the ground that they violated fundamental rights. but in a landmark judgement in

2007, the Supreme Court of India held in I.R. Coelho v. State of Tamil Nadu and others that laws

included in the 9th schedule can be subject to judicial review if they violated the fundamental

rights guaranteed under Article 14, 15, 19, 21 or the basic structure of the Constitution.

Tenth Schedule (Articles 102(2) and 191(2))—"Anti-defection" provisions for Members of

Parliament and Members of the State Legislatures

Eleventh Schedule (Article 243-D)—Panchayati Raj (rural local government)

Twelfth Schedule (Article 243-W)—Municipalities (urban local government)

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SECTION D: BORROWED FEATURES OF INDIAN CONSTITUTION

Indian constitution has assimilated various features from other countries into its domain which
imparts it a special character.

Following are the borrowed features of constitution from different countries.


From U.K. • Nominal Head – President (like Queen)
• Cabinet System of Ministers
• Post of PM
• Parliamentary Type of Govt.
• Bicameral Parliament
• Lower House more powerful
• Council of Ministers responsible to Lowe House
• Speaker in Lok Sabha

From U.S. • Written Constitution


• Executive head of state known as President and his being
the Supreme Commander of the Armed Forces
• Vice- President as the ex-officio Chairman of Rajya Sabha
• Fundamental Rights
• Supreme Court
• Provision of States
• Independence of Judiciary and judicial review
• Preamble
• Removal of Supreme court and High court Judges

From USSR • Fundamental Duties


• Five year Plan

From AUSTRALIA • Concurrent list


• Language of the preamble
• Provision regarding trade, commerce and intercourse

From JAPAN • Law on which the Supreme Court function

From WEIMAR • Suspension of Fundamental Rights during the emergency


CONSTITUION OF
GERMANY
From CANADA • Scheme of federation with a strong centre
• Distribution of powers between centre and the states and
placing. Residuary Powers with the centre

From IRELAND • Concept of Directive Principles of States Policy(Ireland


borrowed it from SPAIN)
• Method of election of President
• Nomination of members in the Rajya Sabha by the
President

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SECTION E: FEATURES OF INDIAN CONSTITUTION COMPARED WITH OTHER


COUNTRIES

1. Written Constitution

A written constitution is a formal document defining the nature of the constitutional settlement,
the rules that govern the political system and the rights of citizens and governments in a codified
form.
• India-Written and longest known constitution
• USA-Written. It’s a product of 1787 constitutional document and subsequent
amendments, the congressional statutes, executive orders, judicial interpretations and
the political conventions.
• Great Britain: British constitution is unwritten. Only small portion of British constitution
is covered by written documents. The British constitution is an evolved one and not
enacted one. Various sources of British constitution are: Conventions, Great Charters,
Statutes, Common Law, Legal Commentaries.
• France: Since French revolution France has changed its constitution quite often. The
present French constitution which established the Fifth republic is a written
constitution.
• Japan: Present constitution of JAPAN became operative in 1947.It is also a written
constitution.
2. Flexible or Rigid

A flexible Constitution is one that can be changed by ordinary law making process and the one
which requires a special procedure for amendment is called rigid.
• India: constitution is more flexible than rigid. It is only few the amendment of few of the
provisions of the constitution that requires ratification by state legislatures and even
then legislation by ½ states would suffice. The rest of the constitution could be amended
by a special majority by union parliament. But with the rise of regional parties and
coalition govt. even getting the legislation by half of the states is becoming difficult as is
evident in the issue relating to NCTC.
• USA: It has a rigid constitution. It can be amended by the congress by means of a special
process provided by the constitution for that purpose.
• Britain: Has flexible constitution. It requires no special procedure for its amendment and
can be amended by the parliament in the same manner as ordinary laws are made.
• France: Rigid Constitution-Needs Special procedure-60% majority votes in both the
house of parliament is needed. Alternatively President can call a national referendum on
constitutional amendment.

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• Japan: Rigid- Requires special process:


o The amendment shall be initiated by the diet. Such a proposal must be passed by
a majority of two-thirds of its membership.
o After that it is submitted to the people for ratification at a special referendum or
special election.
• Germany: Rigid- Article 79 states the Basic Law may be amended by an absolute two-
thirds majority of the Bundestag along with a simple two-thirds majority of
the Bundesrat, excluding amendment of those areas defined by the eternity clause.

3. Unitary or Federal

Federalism is a system of government in which sovereignty is constitutionally divided between a


central governing authority and constituent political units (like states or provinces). A unitary
system is governed constitutionally as one single unit, with one constitutionally created legislature.
1. India: It is federal system with unitary bias. Though normally the system of govt is federal;
the constitution enables the federation to transform itself into unitary state in emergencies.
• Federal features: Division of power, written constitution, Supremacy of constitution,
Rigid constitution, Independent judiciary, bicameralism.
• Some Non- Federal features:
o Single constitution
o Contitution has made centre very strong by vesting more powers in it such
as governor is appointed by president, parliament can change the territories,
borders and names of states by simple majority(article 3).
o Constitution more flexible than rigid.
o Single citizenship
o Single integrated judicial system
2. USA: It is a federal state. The constitution provides for division of power between central
govt and state govt. residuary powers are vested in the states. Each state has its own
constitution, elected legislature, governor and Supreme Court.
3. Great Britain: It is a unitary state and all powers are vested in a single supreme central govt.
The local govts are created only for administrative convenience and they derive their
authority from central govt which can also abolish them altogether at any time.
4. France: France is a unitary state. The local govts are created and abolished by central govt
only for administrative convenience.
5. Japan: Japanese constitution provides for a unitary state.

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4. Type of Govt (Parliamentary v/s Presidential)

In a parliamentary form of govt executive is responsible to legislature for its policies and acts. In
presidential form of government the executive is completely separated from the legislature and is
not accountable to legislature.
1. India: The constitution of India provides for a parliamentary form of govt both at the centre
and in states. The parliamentary system of GOI is largely based on the British parliamentary
system.
• Principles of parliamentary govt of India:
o Nominal and Real executives: President is the nominal executive and prime
minister is real executive.
o Majority party rule: The political party which secures majority seats in lok sabha
forms the govt.
o Collective responsibility: The ministers are collectively responsible to the
parliament/Lok sabha.
o Double membership: Ministers are members of both, legislature and executive.
o Dissolution of the lower house: The lower house can be dissolved on the
recommendation of prime minister.
2. USA: Has presidential form of govt. with following features:
o President is both head of state and head of govt.
o The president is elected by an electoral college for a fixed tenure of four years
and can’t be removed by congress except by process of impeachment for a grave
unconstitutional act.
o President governs with the help of a Cabinet, an advisory body whose members
are selected and appointed by him and can be removed by him at any time.
o The president cannot dissolve the ‘house of representatives’ – lower house of
congress.
o The president and his secretaries are not responsible to congress for their acts.
3. Great Britain: Has parliamentary form of govt where King is the nominal executive.
4. France: Has quasi presidential and quasi prime ministerial .On one hand, it provides for a
powerful president who is directly elected by the people for a seven year term. On the other
hand, there is a nominated council of ministers headed by prime minister which is
responsible to the parliament.
5. Japan: Has parliamentary system with largely British parliamentary features except for the
following:
o The prime minister is chosen as well as appointed by king/queen but in Japan
PM is chosen by Diet but appointed by emperor.

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o In Britain ministers are appointed by king/queen but in Japan by PM.


o Britain-PM can’t remove ministers but in Japan PM can remove.
o Britain-All ministers must be members of parliament, in Japan only majority
must be members of Diet.
5. Sovereignty of Parliament

Parliamentary sovereignty (also called parliamentary supremacy or legislative supremacy) is a


concept in the constitutional law of some parliamentary democracies. It holds that the legislative
body has absolute sovereignty, and is supreme over all other government institutions,
including executive or judicial bodies. The concept also holds that the legislative body may change
or repeal any previous legislation, and so that it is not bound by written law (in some cases, even a
constitution) or by precedent.
1. UK: Parliament has the supreme power:
o It can make, amend, substitute, and repeal any law.
o The parliament can make constitutional laws by the same procedure as ordinary
laws.
o There is no system of judicial review in UK i.e. parliamentary laws cannot be
declared as invalid by judiciary as being unconstitutional.
2. France: Has a parliament with limited powers vis a vis political executive. It can only make
laws on those items which are defined in the constitution. On all other matters govt is
empowered to legislate by executive decree.
• Constitutional council: France has a constitutional council with nine members who are
appointed for a term of nine years. It functions as a judicial watchdog. It is only an
advisory body.
3. Supremacy of constitution and judicial review- India, Japan, USA: In all three countries the
written constitution is regarded as the highest law of the land and Supreme Court acts as
custodian of the constitution through its power of judicial review. But there is a difference.
American Supreme Court does not derive its power of judicial review from constitution but
Indian and Japanese Supreme Court does so.

6. Republic v/s Constitutional Monarchy

A REPUBLIC is a form of government, and any state so governed, where the MONARCH (King or
Queen) is not in fact or law or constitutionally the head of state. In essence, the word REPUBLIC
connotes ownership and control of a given state by the population at large. The head of state of a
REPUBLIC is usually held by one person, a President (e.g.: the U.S.A., Trinidad, France, Guyana)

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who may be appointed or elected by the Prime Minister or the populace at large respectively;
depending on the constitutional arrangements and essentials.

A constitutional monarchy is a form of government established under a constitutional system


which acknowledges a hereditary or elected monarch as head of state.

• Republic Countries-India, USA, France, Germany, Russia


• Constitutional Monarchy- UK, Japan

7. President
1. India: The President of India is the nominal head of state of the Republic of India.
• The real executive being council of ministers headed by Prime minister. He/She has to
exercise his powers and functions with the aid and advice of council of ministers headed
by PM.(Art 53, 74,75)
• The President is indirectly elected by the people through elected members of
the Parliament of India (Lok Sabha and Rajya Sabha) as well as of the state legislatures
(Vidhan Sabhas), and serves for a term of five years.
• President can be removed from his/her office before completion of term by
impeachment for violation of constitution.
2. USA: The President of the United States of America is the head of state and head of
government of the United States.
• The president leads the executive branch of the federal government and is
the commander-in-chief of the United States Armed Forces.
• Constitutionally president is elected by an electoral college constituted by an electoral
college constituted for the purpose. The members of this college are elected directly by
the people of all the states .The College is a special body which is formed only for
electing the president and gets dissolved after elections. The American presidency is one
of the strongest democratic office in the world.
• President holds his office for a fixed term of 4 years. He is eligible for re election but only
once. He can be removed from his office before expiry of his term through impeachment
proceedings for treason, bribery or other high crimes. The house of representatives
initiates the impeachment proceedings by a majority vote. The case is then tried by
Senate. If the senate also passes the impeachment resolution by a two-thirds majority,
president stands impeached.
• Article II of the U.S. Constitution vests the executive power of the United States in the
president and charges him with the execution of federal law, alongside the responsibility
of appointing federal executive, diplomatic, regulatory, and judicial officers, and

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concluding treaties with foreign powers, with the advice and consent of the Senate. The
president is further empowered to grant federal pardons and reprieves, and to convene
and adjourn either or both houses of Congress under extraordinary circumstances
3. France- The president is the pivot of the constitution and occupies a dominant position in
the system of govt. He is the real head of the state.
• The President is directly elected by suffrage.
• The length of the term was reduced from 7 yrs. A president cannot serve more than two
consecutive terms. The president can be removed from the office through an
impeachment process for high treason.
• The impeachment resolution should be passed by both houses of parliament by an
absolute majority.After this president is tried by high court of justice.
4. Germany-The President of the Federal Republic of Germany As Germany has
a parliamentary system of government with the Chancellor running the government, the
President has mainly ceremonial and supervisory duties.
• President can give direction to general political and societal debates and has some
important "reserve powers" in case of political instability
• All federal laws must be signed by the President before they can come into effect; he can
only refuse to sign a law that he believes to violate the constitution.
• The President is elected by the Federal Convention, a body established solely for that
purpose.
• While in office the president enjoys immunity from prosecution and cannot be voted out
of office or recalled. The only mechanism for removing the president is impeachment by
the Bundestag orBundesrat for willfully violating German law. Once the Bundestag
impeaches the president, the Federal Constitutional Court is charged with determining if
he or she is guilty of the offence. If the charge is sustained the court has authority to
remove the president from office.

8. Citizenship
1. India-The Indian citizenship and nationality law and the Constitution of India provide single
citizenship for all of India. The provisions relating to citizenship upon adoption of the
constitution are contained in Articles 5 to 11 in Part II of the Constitution of India. It does
not allow dual citizenship. But govt of India is increasingly becoming more flexible with
regards to its dual citizenship rules for persons with Indian origin(PIOs) and overseas citizens
of India.
2. USA- A U.S. citizen may acquire foreign citizenship by marriage, or a person naturalized as a
U.S. citizen may not lose the citizenship of the country of birth. U.S. law does not mention

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dual nationality or require a person to choose one citizenship or another. Also, a person who
is automatically granted another citizenship does not risk losing U.S. citizenship. However, a
person who acquires a foreign citizenship by applying for it may lose U.S. citizenship. In
order to lose U.S. citizenship, the law requires that the person must apply for the foreign
citizenship voluntarily, by free choice, and with the intention to give up U.S. citizenship.
3. UK-When becoming a British citizen one does not need to give up your present citizenship
or nationality to become a British citizen.One will not normally lose British nationality if
he/she becomes a citizen or national of another country.
4. France-Dual citizenship has been permitted since 1973. Possession of one or more other
nationalities, does not, in principle, affect the French nationality.
5. Germany- Dual citizenship is allowed under certain circumstances
6. Australia: With effect from 4 April 2002, there are no restrictions (under Australian Law) on
Australians holding the citizenship of another country.

9. Fundamental Rights , Directive Principles and Fundamental Duties

Fundamental Rights
1. India- Indian constitution has certain fundamental rights modelled on American Bill of
Rights. But unlike USA fundamental rights in india are not absolute and hence govt can
impose reasonable restrictions on them. Whether the restrictions are reasonable or not is to
be decided by the courts.
The six fundamental rights recognised by the constitution are:
• Right to equality, including equality before law, prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth, and equality of opportunity in
matters of employment, abolition of untouchability and abolition of titles.
• Right to freedom which includes speech and expression, assembly, association or union
or cooperatives, movement, residence, and right to practice any profession or
occupation (some of these rights are subject to security of the State, friendly relations
with foreign countries, public order, decency or morality), right to life and liberty, right
to education, protection in respect to conviction in offences and protection against
arrest and detention in certain cases.
• Right against exploitation, prohibiting all forms of forced labour, child labour and traffic
in human beings;
• Right to freedom of religion, including freedom of conscience and free profession,
practice, and propagation of religion, freedom to manage religious affairs, freedom from
certain taxes and freedom from religious instructions in certain educational institutes.

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• Cultural and Educational rights preserving Right of any section of citizens to conserve
their culture, language or script, and right of minorities to establish and administer
educational institutions of their choice.
• Right to constitutional remedies for enforcement of Fundamental Rights.
2. USA- The Bill of Rights lists specifically enumerated rights. The Supreme Court has extended
fundamental rights by recognizing several fundamental rights not specifically enumerated
in the Constitution
3. Similarly the constitution of USSR and Japan also guarantees certain fundamental rights. But
there are no such rights enumerated in the constitution of Great Britain.

Fundamental duties

1. India- Fundamental duties have been taken from USSR. No other major country has it.
Fundamental Duties are the ones that are recognized as moral obligations the citizens are
expected to perform. Article 51A under Part IV A of the Constitution of India speaks of the
Fundamental duties. One cannot enforce these fundamental duties legally. It was through
the 42nd Amendment that these duties were introduced in the Constitution.
There are 10 Fundamental duties that the citizens are expected to discharge. They are:
• The citizens of India are expected to be abide by the Constitution and respect all its
ideals. Likewise, the citizens are expected to respect the National Flag and the National
Anthem.
• The noble ideals that inspired our freedom struggle have to be cherished and followed.
• The sovereignty, unity and integrity of India needs to be upheld and protected.
• Citizens should be ready to defend and render national service towards India.
• The spirits of common brotherhood and harmony have to be promoted by all the
citizens wherein they need to transcend all forms of diversities pertaining to religion,
language and region. All the practices that are derogatory to the dignity of women have
to be renounced.
• India has a rich, varied and composite culture and one needs to preserve it.
• Natural environment including the forests, lakes, rivers and wildlife are expected to be
preserved by the citizens.
• People of India are expected to develop within themselves humanism, scientific
temperament, and spirits of inquiry and reform.
• Public property is expected to be safeguarded and violence needs to be avoided.
• People are expected to strive for the excellence of all the individuals and collective
activities to help in the development of the country.

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Directive principles

The constitution of India contains certain directive principles (Part 4) which confer no
justiciable rights on individuals but are regarded to be fundamental in the governance of the
country-being in the nature of principles of social policy as contained in the Constitution of
Republic of Ireland.

10. Due process of law/Procedure established by law

DUE PROCESS - It is the legal requirement that the state must respect all of the legal rights that
are owed to a person and laws that states enact must confirm to the laws of the land like - fairness,
fundamental rights, liberty etc. It also gives the judiciary to access the fundamental fairness,
justice, and liberty of any legislation.
PROCEDURE ESTABLISHED BY LAW - It means that a law that is duly enacted by legislature or the
concerned body is valid if it has followed the correct procedure. Say a law enacted by Indian
legislature. Article 21 of Indian Constitution says that- 'No person shall be deprived of his life or
personal liberty except according to procedure established by law'.
Situation in India
In India, there is no mention of the word 'Due Process'. A strict literal interpretation of
Procedure established by Law give the legislative authority an upper hand and they may enact
laws which may not be fair from a liberal perspective.
However, in India a liberal interpretation is made by judiciary after 1978 and it has tried to
make the term 'Procedure established by law' as synonymous with 'Due process' when it comes
to protect individual rights. In Maneka Gandhi vs Union of India case (1978) SC held that -
'Procedure established by law' within the meaning of article 21 must be 'right and just and fair'
and 'not arbitrary, fanciful or oppressive' otherwise, it would be no procedure at all and the
requirement of Article 21 would not be satisfied. Thus, the 'procedure established by law' has
acquired the same significance in India as the 'due process of law' clause in America.
Due process is not used in contemporary English law, though two similar concepts are natural
justice (which generally applies only to decisions of administrative agencies and some types of
private bodies like trade unions) and the British constitutional concept of the rule of law as
articulated by A. V. Dicey and others. However, neither concept lines up perfectly with the
American theory of due process.

11. Emergency provisions


1. India-Part XVIII of the Constitution of India contains Articles 352-360 which deals with
'Emergency Provisions'.
• There are three kinds of provisions according to the Constitution:

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o National Emergency
o State Emergency-Earlier it was misused quite often but with judicial ruling in SR
BOMMAI case and rise of regional parties its no longer misused.
o Financial Emergency-This type of emergency has never been declared so far.
• Grounds for Proclamation of Emergency: Before the 44th amendment to the
Constitution of India, the following are the grounds under which the President can
proclaim emergency:
o War
o External Aggression
o Armed Rebellion
2. Australia-Unlike India, State-of-emergency legislation differs in each state of Australia.
3. Canada- The federal government of Canada can use the Emergencies Act to invoke a state of
emergency. A national state of emergency automatically expires after 90 days, unless
extended by the Governor-in-Council. There are different levels of emergencies: Public
Welfare Emergency, Public Order Emergency, International Emergency, and War
Emergency.
4. France- Three main dispositions concern various kind of "state of emergency" in France:
article 16 of the Constitution of 1958 allows, in time of crisis, "extraordinary powers" to the
president. Article 36 of the same constitution regulates "state of siege" .Finally, the April 3,
1955 Act allows the proclamation, by the Council of Ministers, of the "state of emergency"
The state of emergency in France is framed by the Constitution of 1958, which states that it
can be decreed by the president in the Council of Ministers, but must be confirmed by
Parliament in order to be held after 12 days.
5. Germany-In the post-war Federal Republic of Germany the Emergency Acts state that some
of the basic constitutional rights of the Basic Law may be limited in case of a state of
defence, a state of tension, or an internal state of emergency or disaster (catastrophe).
6. United States-In the United States, there are several methods for government response to
emergency situations.
• A state governor or local mayor may declare a state of emergency within his or
her jurisdiction. This is common at the state level in response to natural disasters.
• The president of the United States, as head of the executive branch, has the authority to
declare a federal state of emergency. The only emergency provisions in the U.S.
Constitution are: "The Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may require it.

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Country India UK USA Russia Japan France Germany


Feature
Written/Unwritten Written Unwritten Written Written Written
Constitution
Flexible/Rigid Both Flexible Rigid Rigid Rigid Rigid Rigid
Unitary/Federal Federal with Unitary Federal Federal Unitary Unitary Federal
Unitary Bias

Parliamentary/Presidential Parliamentary Parliamentary Presidential Semi Parliamentary Quasi Presidential Parliamentary


Democracy Democracy Democracy Democracy Presidential Democracy and Quasi Prime Republic
ministerial

Sovereignty of Parliament Supremacy of Supremacy of Supremacy Supremacy of Parliament with


Constitution Parliament of Constitution limited Powers
Constitution

Republic/Monarch Republic Constitutional Republic Republic Constitutional Republic Republic


Monarchy Monarchy

President Ceremonial Executive Executive Executive Ceremonial


Indirect Election Direct Direct Direct Election Indirect Election
Election Election

Dual Citizenship Not recognised Recognised Recognised Recognised Not Recognised In principle, not
Recognised recognized.

Fundamental rights Yes No Yes Yes Yes Yes Yes


Due Process of Procedure Rule of Law Due Process Procedure
Law/Procedure established established by of Law Established by
by Law Law Law

Table: Summary of Comparison of various features

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SECTION F: WORKING OF INDIAN CONSTITUTION: ANALYSIS (Conclusion)

The working of the constitution has stood the test of the time but certain recent developments
such as fragmented polity, rise of regional political parties and governments formed by regional
parties in the states, for eg in Tamil Nadu, Bihar, W Bengal etc has posed new challenges for the
centre-state relations. Similarly, the advent of coalition govt post late 1980’s has raised certain
questions for which constitution provides either ambiguous answers or no answers at all.

Considering the complexities and huge quantum of the task of modern day govt and changing
nature of Indian politics there is a need to review and amend the constitution. Some of the areas
in which changes are required are:

1. Eligibility of legislators: Those candidates facing corruption and criminal charges should not
be allowed to contest the elections.
2. Frequent disruptions of parliamentary sessions have become the norm of the day. Minimum
hours for which parliament have to work should be incorporated in the constitution.
3. Changes in civil services rules to ensure impartiality and neutrality.
4. The fundamental rights under part III of our constitution too need to include many of those
rights that have developed over a history of various judicial pronouncements. These rights
though not really stated in part III have been recognized as fundamental in nature and are
better known as ‘implied fundamental rights’. For eg: Right to food, right to livelihood, right
to clean potable drinking water, right to fresh and clean environment.

Hence, today if it’s getting harder to run the constitution then the problem does not lie in the
constitution but in the “working” of the constitution. As the architect of Indian Constitution said
that:

“Indeed, if I may say so, if things go wrong under the new Constitution, the reason will
not be that we had a bad Constitution. What we will have to say is, that Man was vile.”
– Dr. B.R. Ambedkar, November 4, 1948

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SECTION G: MODEL QUESTIONS

1. Indian constitution is a borrowed constitution. Discuss.

2. Indian constitution is a ‘slavish imitation of the west’. Do you agree? Give reasons
with examples.

3. Inspite of borrowing majority of features from other constitutions, Indian


constitution has failed to survive the present day complexities of the India’s political
and administrative situation. Do you agree? Give examples.

4. India should shift from Parliamentary form of governance to presidential form of


governance. Critically analyse.

5. India is a quasi federal state. Do you agree?

Sources:

1. D D Basu

2. M Laxmikanth

3. Fadia and Fadia

4. Wikipedia

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G.S. PAPER II – CONSTITUTION & POLITY


POWERS, FUCNTIONS & RESPONSIBILITIES OF VARIOUS
CONSTITUTIONAL BODIES

CONTENT

1. Election Commission of India

2. CAG: The Comptroller and Auditor General of India

3. Union Public Service Commission

4. National Commission for SCs and STs

5. Special Officer for Linguistic Minorities

6. Attorney General

7. Solicitor General of India

8. Finance Commission

Copyright © by Vision IAS


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transmitted in any form or by any means, electronic, mechanical, photocopying, recording or
otherwise, without prior permission of Vision IAS

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1. ECI- The Election Commission of India

The Constitution of India has vested in the Election Commission (EC) of India the superintendence, direction and control
of the entire process for conduct of elections to Parliament and Legislature of every State and to the offices of President
and Vice-President of India.

Originally, the commission had only a Chief Election Commissioner. It currently consists of Chief Election Commissioner
and two Election Commissioners. For the first time two additional Commissioners were appointed on 16th October 1989
but they had a very short tenure till 1st January 1990. Later, on 1st October 1993 two additional Election Commissioners
were appointed. The concept of multi-member Commission has been in operation since then, with decision making power
by majority vote.

1.1 Constitutional Provisions:

• Art. 324: broadly speaks of the functions of EC and its composition.


• Art. 325: there shall be one general electoral roll for every territorial constituency for election to either House of
parliament and State legislature. It establishes equality among citizens by affirming that no person shall be
ineligible for inclusion in the electoral roll on the grounds of religion, race, caste or sex.
• Art. 326: lays down adult suffrage as the basis of elections to the Lok Sabha and to the Legislative Assemblies of
States.
• Art. 327: confers on Parliament the power to make provisions with respect to elections to federal and state
legislatures
• Art. 328: confers on State Legislature the power to make laws with respect to elections to such legislature
• Art. 329: bars interference by courts in electoral matters. Notwithstanding anything said in the constitution i.e.
validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies
shall not be called in question in any court

No election to either House of Parliament or either House of the Legislature of a State shall be called in question
except by an election petition. Any elector or candidate can file an election petition on grounds of malpractice during
the election. In respect of elections to the Parliament and State Legislatures they can only be filed before the High
Court and in respect of elections for the offices of President and Vice-President, such petitions can only be filed before
the Supreme Court.

1.2 Composition and Conditions of Service:

1. EC shall consist of the chief election commissioner and such number of other election commissioners, if any, as the
president may from time to time fix (presently CEC + 2 ECs)
2. The appointment of the chief election commissioner and other election commissioners shall be made by the president
3. The president may also appoint after consultation with the election commission such regional commissioners as he
may consider necessary to assist the election commission

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4. The conditions of service and tenure of office of the election commissioners and the regional commissioners shall be
determined by the president
5. When any election commissioner is appointed, the chief election commissioner acts as the Chairman of the Election
Commission
6. The chief election commissioner and the two election commissioners draw salaries and allowances at par with those of
the Judges of the Supreme Court of India
7. The chief election commissioner or an election commissioner holds office for a term of 6 years from the date on which
he assumes his office or till he attains the age of 65 years, whichever is earlier
8. Election commissioner or a regional commissioner shall not be removed from office except on the recommendation
of the chief election commissioner

Q: Are the commissioners and the CEC equal?


In S.S. Dhanoa vs Union of India (1991), the SC held: “The chief election commissioner does not appear to be primus inter
pares, i.e. first among equals, but he is intended to be placed in a distinctly higher position”
In T.N. Seshan vs Union of India (1995), the SC held that the CEC and ECs are equal. CEC is given the power of
recommending the removal of ECs with the intention of shielding them and not to use it against them. CEC cannot use it
suo moto as he is an equal to them

The Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Act, 1991, as amended,
provides that in case of difference of opinion on any matter, such matter shall be decided by the opinion of the majority.
Thus the CEC cannot over-ride any decision of the commission by himself. As Chairman of the Election Commission he
presides over the meetings, conducts the business of the day and ensures smooth transaction of business of the commission.

1.3 Independence of the Election Commission:


Article 324 of the Constitution has made the following provisions to safeguard and ensure the independent and impartial
functioning of the election commission:
1. The CEC is provided with the security of tenure. He holds office for a term of 6 years from the date he assumes office
or till he attains the age of 65 years, whichever is earlier
2. Art. 324(5) says that the CEC cannot be removed from his office except in like manner and on like grounds as a Judge
of the Supreme Court i.e. he can be removed by the president on the basis of a resolution passed to that effect by
both the Houses of Parliament with special majority, either on the ground of proved misbehaviour or incapacity
3. Any other election commissioner or a regional commissioner cannot be removed from office except on the
recommendation of the CEC
4. The service conditions of the CEC cannot be varied to his disadvantage after his appointment
Some flaws:
1. The constitution has not prescribed the qualifications (legal, educational, administrative or judicial) of the members of
the Election Commission
2. The constitution has not debarred the retiring election commissioners from any further appointment by the government
3. The administrative expenditure of the EC or the salaries, allowances and pensions of the CEC and ECs are not
charged on the Consolidated Fund of India
1.4 Powers and Functions of the Election Commission:

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1.4.1 Administrative Functions:


1. Art. 324(1) vests in the Commission the powers of superintendence, direction and control of the elections to the offices
of the President and Vice-President, both Houses of the Parliament and both Houses of the State Legislature.
2. ECI appoints the following-
• Chief Electoral Officer- ECI in consultation with State Government/Union Territory Administration nominates or
designates an Officer of the said State/UT as the Chief Electoral Officer to supervise the election work in the
State/UT
• District Election Officer- ECI in consultation with the State Government/ Union Territory Administration
designates an officer of the said State/UT as the District Election Officer to supervise the election work of a
district
• Returning Officer- ECI in consultation with State Government/Union Territory Administration nominates or
designates an officer of the Government or a local authority as the Returning Officer for each assembly and
parliamentary constituency. Returning Officer is responsible for the conduct of elections in the parliamentary or
assembly constituency and may be assisted by one or more Assistant Returning Officers (again appointed by ECI)
in the performance of his functions
• Electoral Registration Officer- ECI appoints the officer of State or local government as Electoral Registration
Officer for the preparation of Electoral rolls for a parliamentary/ assembly constituency
3. To prepare and periodically revise electoral rolls and to register all eligible voters
4. To supervise the machinery of elections throughout the country to ensure free and fair elections
5. To notify the dates and schedules of elections and to scrutinise nomination papers
6. To register political parties for the purpose of elections and grant them the status of national or state parties on the
basis of their poll performance
7. To grant recognition to political parties and allot election symbols to them
8. To act as a court for settling disputed relating to granting of recognition to political parties and allotment of election
symbols to them
9. To enforce the Model Code of Electoral Conduct that is mutually agreed upon by the political parties
10. To prepare a roster for publicity of the policies of the political parties on radio and TV in times of elections
11. To enforce limits on expenditure on elections
12. It has the power to postpone or order re-polls or countermand elections in the event of rigging, booth capturing,
violence and other irregularities

1.4.2 Advisory Functions:


1. To advise the President and the Governor on matters relating to the disqualifications of the members of parliament
and members of the state legislature respectively. The opinion of the Commission as given to the President ot the
Governor is binding.
2. Cases of persons found guilty of corrupt practices at elections which are dealt with by SC and High Courts are also
referred to the Commission for its opinion on the question as to whether such a person is to be disqualified and, if so,
for what period
3. To advise the president whether elections can be held in a state under President’s rule in order to extend the period of
emergency after 1 year
1.4.3 Quasi-Judicial Jurisdiction:

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1. The commission has the power to disqualify a candidate who has not lodged an account of his election expenses
within the time and in the manner prescribed by law. The commission also has the power to remove/reduce the period
such disqualifications ad any other disqualification under the law
2. It has quasi-judicial jurisdiction in the case of settlement of disputes between the splinter groups of a recognised party

1.5 Electoral Reforms:

1.5.1 Model Code of Conduct


• EC first issued a Model Code of Conduct for political parties at the time of the fifth general elections, held in 1971.
• Since then, the Code has been revised from time to time and lays down guidelines as to how political parties and
candidates should conduct themselves during elections.
• A provision was made under the Code that from the time the elections are announced by the Commission, Ministers
and other authorities cannot announce any financial grant, make promises of construction of roads, carry out any
appointments in government and public undertakings which may have the effect of influencing the voters in favour of
the ruling party.
• Despite the acceptance of the Code of Conduct by political parties, cases of its violation have been on the rise. It is a
general complaint that the party in power at the time of elections misuses the official machinery to further the electoral
prospects of its candidates.
• The misuse of official machinery takes different forms, such as issue of advertisements at the cost of public exchequer,
misuse of official mass media during election period for partisan coverage of political news and publicity regarding
their achievements, misuse of government transport including aircraft/helicopter, vehicles.

1.5.2 Disclosure of Antecedents by Candidates


• In June 2002, the EC on the direction of the Supreme Court, issued an order under Article 324 that each candidate
must submit an affidavit regarding the information of his/her criminal antecedents; assets (both movable and
immovable) of self and those of spouses and dependents as well; and qualifications at the time of filing his/her
nomination papers for election to the Lok Sabha, the Rajya Sabha and the State Legislative Assemblies.
• But political parties believed that the EC and the judiciary were overstepping their powers. At the all-party meeting,
held on July 8, 2002, representatives of 21 political parties decided that the EC’s order should not be allowed to be
implemented. The Supreme Court again came out as a guardian of the citizen’s right to information. The Supreme
Court made it clear that failing to furnish the relevant affidavit shall be considered as a violation of the Supreme
Court’s order and as such the nomination papers shall be liable to be rejected by the Returning Officer. Furnishing of
wrong or incomplete information shall result in the rejection of nomination papers, apart from inviting penal
consequences under the Indian Penal Code. The 2004 General Elections were conducted under these rules.
• The above order is an effective step to make democracy healthy and unpolluted. Citizens have every right to know
about the persons whom they prefer as their representatives. The EC has directed all Returning Officers to display the
copies of nomination papers and affidavits filed by candidates to the general public and representatives of print and
electronic media, free of cost.

1.5.3 Registration of Political Parties

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The party system is an essential feature of parliamentary democracy. However, there is no direct reference of political
parties in the Constitution of India. The statutory law relating to registration of political parties was enacted in 1989 which
was quite liberal. As a result, a large number of non-serious parties mushroomed and got registered with the Commission.
Many of them did not contest elections at all after their registration. It led to confusion among electors as to whom to vote.
To eliminate the mushrooming of parties, the EC had to take some rigorous steps:
• The Commission now registers a party which has at least 100 registered electors as its members and is also
charging a nominal processing fee of Rs 10,000 to cover the administration expenses which it will have to incur
on correspondence with the parties after their registration.
• In order to ensure that the registered political parties practice democracy in their internal functioning, the
Commission requires them to hold their organizational elections regularly in accordance with their constitutions.
The measures taken by the EC to streamline the registration of political parties have shown effective results.

1.5.4 Checking Criminalisation of Politics


The EC has expressed its serious concern over the entry of anti-social and criminal persons into the electoral arena. It has
set down norms and made recommendations to the government to curb the menace of criminalization of politics.
• The Commission has urged all political parties to reach a consensus that no person with a criminal background
will be given the party ticket.
• The candidates to an election are also obliged to submit an affidavit in a prescribed form declaring their criminal
records, including convictions, charges pending and cases initiated against them. The information so furnished by
the candidates is disseminated to the public, and to the print and electronic media.

1.5.5 Limits on Poll Expenses


• To get rid of the growing influence and vulgar show of money during elections, the EC has fixed legal limits on the
amount of money which a candidate can spend during the election campaign.
• These limits are revised from time to time. The EC, by appointing expenditure observers keeps an eye on the
individual accounts of election expenditure made by a candidate during election campaign. The contestants are also
required to give details of expenditure within 30 days of the declaration of the election results.
• Apart from this, the EC is also in favor of holding the Lok Sabha and the Assembly elections simultaneously, and to
reduce the campaign period from 21 to 14 days. This, they feel, will lead to trim down the election expenditure.

1.5.6 Use of Scientific and Technological Advancements

i. EVMs:
EC has been trying to bring improvements in election procedures by taking advantage of scientific and technological
advancements. The introduction of ‘electronic voting machines’ (EVMs) is one of the steps in that direction by
reducing malpractices and also improving the efficiency of the voting process. On an experimental basis, the EVMs
were first tried in the State of Kerala during the 1982 Legislative Assembly Elections. In June 1999 Assembly
elections, Goa became the first State to successfully use EVMs in all its Assembly constituencies. In the 2004 Lok
Sabha elections, the machines were used all over the country.
It is a major initiative taken by the EC to make the electoral process simple, quick and trouble-free. It has saved
money, solved several logistical issues and also contributed to the conservation of environment through saving of
paper. Another major advantage of these machines is that the counting of votes becomes more fast and accurate.
ii. IT:
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EC has not lagged behind in making use of Information Technology for efficient electoral management and
administration. It launched a website of its own in 1998. This is now a good source to have accurate information about
elections, election laws, manuals and handbooks published by the Commission.

iii. Computerization of Electoral Rolls:


With a view to prevent impersonation of electors at the time of voting and to eliminate bogus and fictitious entries into
electoral rolls, EC took a bold step in 1998 to take a nationwide programme for the ‘computerisation’ of electoral rolls.
The printed electoral rolls as well as CDs containing these rolls are available to the general public for sale national and
State parties are provided these free of cost after every revision of electoral rolls. The entire country’s electoral rolls
are available on its website. Karnataka became the first State to prepare electoral rolls with the photographs of voters
in the 2008 elections.

iv EPICs:
In an attempt to improve the accuracy of the electoral rolls and prevent electoral fraud, the Election Commission in
August 1993 ordered the issuance of electors’ photo identity cards (EPICs) for all voters. During the 2004 Assembly
elections, it was mandatory for people possessing EPICs to furnish it at the time of voting. The distribution of EPICs,
on the part of Election Commission, was a major step to reduce electoral malpractices. Only genuine voters were listed
in the rolls with the issuance of voter identity cards.

1.5.7 De-criminalization of politics


• For preventing persons with criminal background from becoming legislators, the Commission has made a proposal for
disqualifying (from contesting election) a person against whom charges have been framed by a Court for an offence
punishable by imprisonment of 5 years or more.
• There is a provision of disqualification once a person is convicted and sentenced to imprisonment of two years or
more. The Commission’s proposal is for disqualification even prior to conviction, provided the court has framed
charges.
• As a precaution against foisting false cases on the eve of election, it has been suggested that only those cases in which
charges are framed six months prior to an election should be taken into account for that election.

1.5.8 Political parties reforms


• The political parties should be legally required to get their accounts audited annually. The audited accounts should
be put in public domain.
• There should be transparency in the fund raising and expenditure of political parties. Income tax exemption for
donations should be given only for those political parties which contest election and win seats in the Parliament/State
Legislature.
1.5.9 Misuse of religion for electoral gain
• The Commission has proposed that the provision in that Bill should be considered for avoiding misuse of religion by
political parties.

1.5.10 Amendment of law to make `paid news’ an electoral offence


• The Commission has been proposed amendment in the Representation of People Act(RoPA) , 1951, to provide therein
that publishing and abetting the publishing of `paid news’ for furthering the prospect of election of any candidate or

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for prejudicially affecting the prospect of election of any candidate be made an electoral offence with punishment of a
minimum of two years imprisonment.

1.5.11 Negative/neutral voting


• In the ballot paper and on the ballot unit, after the particulars relating to the last candidate, there should be provisions
for a column `none of the above’ to enable a voter to reject all candidates if he so desires.

1.5.12 Ban on transfer of election officers on the eve of election


• In the case of general election, there should be a ban against transferring any election related officer without the
concurrence of the Commission for a period of six months prior to the expiry of the term of the House.

1.5.13 Punishment for false affidavit by candidates


RoPA, 1951 provides that furnishing false information in the affidavit filed by the candidate is an offence punishable by
imprisonment up to six months or with fine. There is no clear provision for follow-up action in the event of candidates
filing false affidavits.
• EC has recommended that RoPA, 1951 should be amended to provide that any complaint regarding false statement in
the affidavit filed by the candidates in connection with the nomination paper shall be filed before the Returning Officer
(RO) concerned within a period of 30 days from the date of declaration of the election and that it shall be the
responsibility of the RO to take proper follow-up action. Alternatively, complaint can lie directly to the Magistrate
Court.

Summing Up
Over the years, EC has conducted a number of laudable electoral reforms to strengthen democracy and enhance the fairness
of elections. These reforms are quite adequate and admirable. Undoubtedly, the election machinery, under the aegis of the
EC, deserves credit for conducting elections in a free and fair manner.
However, our system is still plagued by many vices. To win votes, political parties resort to foul methods and corrupt
practices. Such maladies encourage the anti-social elements to enter the electoral fray. The problem is not lack of laws, but
lack of their strict implementation. In order to stamp out these unfair tendencies, there is a need to strengthen the hands of
the EC and to give it more legal and institutional powers. The EC must be entrusted with powers to punish the errant
politicians who transgress and violate the electoral laws.

2. CAG: The Comptroller and Auditor General of India


The Constitution of India provides for an independent office of the Comptroller and Auditor General of India (CAG). He is
the head of the Indian Audit and Accounts Department. He is the guardian of the public purse and controls the entire
financial system of the country at both the levels- the centre and state. His duty is to uphold the Constitution of India and
the laws of Parliament in the field of financial administration.

CAG helps the parliament/state legislatures hold their respective governments accountable. He is one of the bulwarks of
the democratic system of government in India; the others being the SC, the ECI and the UPSC. It is for these reasons Dr. B
R Ambedkar said that the CAG shall be the most important Officer under the Constitution of India and his duties are far
more important than the duties of even the judiciary.

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2.1 A Brief History


The role of the CAG evolved in British India with Lord Canning initiating a major administrative drive before the Mutiny
of 1857. In May 1858, for the first time, a separate department was set up with an Accountant General, who was
responsible for accounting and auditing the financial transactions under the East India Company. After Mutiny, the British
Crown took over and passed the Government of India Act 1858. This laid the foundation stone of Imperial Audit. Sir
Edward Drummond took charge in 1860 as the first Auditor General and the term 'Comptroller and Auditor General of
India' was first used in 1884. Under the Montford Reforms of 1919, the Auditor General became independent of the
government. The Government of India Act 1935 strengthened the position of the Auditor General by providing for
Provincial Auditors General in a federal set-up.

Why Comptroller?
In the 15th century, the word Controller developed the alternate spelling Comptroller as a result of an association between
the first part of the word, cont, and an unrelated word count and its variant, compt. Many people pronounce comptroller
like controller but both are acceptable. But the word Comptroller has a different meaning-someone who maintains and
audits business. Comptrollers are controllers but controllers are not comptrollers.

Comparison with UK:


In India the institution of CAG only audits the accounts after the expenditure is committed. It does not have control over
the withdrawal of moneys as in UK where the name Comptroller is justified since no money can be drawn from the
public exchequer without the approval of the CAG

2.2 Constitutional provisions


• Art. 148: broadly speaks of the CAG, his appointment, oath and conditions of service
• Art. 149: broadly speaks of the Duties and Powers of the CAG
• Art. 150: The accounts of the Union and of the States shall be kept in such form as the President may, on the advice of
the CAG, prescribe.
• Art. 151: Audit Reports:- The reports of the Comptroller and Auditor-General of India relating to the accounts of the
Union shall be submitted to the president, who shall cause them to be laid before each House of Parliament.

The reports of the Comptroller and Auditor-General of India relating to the accounts of a State shall be submitted to the
Governor of the State, who shall cause them to be laid before the Legislature of the State.

2.3 Independence of the Institution of CAG


For effective functioning of this important institution of the CAG it is paramount to ensure independence. There are several
provisions enshrined in the Constitution to safeguard CAG’s independence:
1. He is appointed by the President by a warrant under his hand and seal and his oath of office requires him to uphold
the Constitution of India and the laws made there-under
2. He is provided with a security of tenure and can be removed by the President only in accordance with the procedure
mentioned in the Constitution (same as a judge of SC)
3. He is not eligible for further office, either under the Government of India or of any state, after he ceases to hold his
office

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4. His salary and other service conditions though determined by the Parliament cannot be varied to his disadvantage
after appointment
5. His administrative powers and the conditions of service of persons serving in the Indian Audit and Accounts
Department shall be prescribed by the President only after consulting him.
6. The administrative expenses of the office of CAG, including all salaries, allowances and pensions of persons serving in
that office are charged upon the Consolidated Fund of India and are not subject to the vote of Parliament.

2.4 Duties and Powers of the CAG


2.4.1 Sources of the Audit Mandate of CAG
• Constitution- The existence and mandate of the Comptroller and Auditor General of India emanates from Articles 148
to 151 of the Constitution. Article 149 stipulates the Duties and Powers of the Comptroller and Auditor General
• Statute- DPC Act, 1971 (Duties, Powers and Conditions of Service Act) lays down the general principles of
Government accounting and the broad principles in regard to audit of receipts and expenditure
• Regulations- Regulations on Audit and accounts as framed and notified in the official Gazette .
• Scope of audit: Within the audit mandate, the Comptroller and Auditor General is the sole authority to decide the
scope and extent of audit to be conducted by him or on his behalf

2.4.2 Duties
• He audits the accounts related to all expenditure from the Consolidated Fund of India, Consolidated Fund of
each state and UT having a legislative assembly
• He audits all expenditure from the Contingency Fund of India and the Public Account of India as well as the
Contingency Fund and Public Account of each state
• He audits all trading, manufacturing, profit and loss accounts, balance sheets and other subsidiary accounts kept
by any department of the Central Government and the state governments.
• He audits the receipts and expenditure of all bodies and authorities substantially financed from the Central or State
revenues; government companies; other corporations and bodies, when so required by related laws

2.4.3 Functions
• He audits all transactions of the Central and state governments related to debt, sinking funds, deposits,
advances, suspense accounts and remittance business
• He audits the accounts of any other authority when requested by the President or Governor e.g. Local bodies
• He advises the President with regard to prescription of the form in which the accounts of the Centre and states
shall be kept
• He submits his audit reports relating to the accounts of the Centre to the President, who shall, in turn, place them
before both the houses of Parliament
• He submits his audit reports relating to the accounts of a State to the Governor, who shall, in turn, place them
before the state legislature
• He ascertains and certifies the net proceeds of any tax or duty and his certificate is final on the matter
• He acts as a guide, friend and philosopher of the Public Accounts Committee of the Parliament
• He compiles and maintains the accounts of state governments. In 1976, he was relieved of his responsibilities with
regard to the compilation and maintenance of accounts of the Central government due to separation of accounts
from audit

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• He submits 3 audit reports to the President- audit report on appropriation accounts, audit report on finance
accounts and audit report on public undertakings

2.4.4 There are the following limitations on the powers of CAG:


• Its report is post-facto i.e. after the expenditure is incurred and has only prospective value in improving systems
and procedures
• Secret service expenditure is outside the purview of the CAG and he cannot call for particulars of expenditure
incurred by the executive agencies, but has to accept a certificate from the competent administrative authority
that the expenditure has been so incurred
• Since the legislation, the government has increased its participation with the private sector through the PPT
(public-private-transfer) and BOT (build-own-transfer) model. However the rules have not undergone a significant
change and CAG does not have the power to audit PPP (Public Private Partnership) investments.
• There is no provision for auditing of funds that are given to an NGO and elected local bodies. Today when NGOs
have become a conduit for a multitude of government schemes.
• CAG presently does not have the full authority to audit the PRIs and ULBs. In most states, the Examiners
functioning under the Finance Department audit the accounts of local bodies.
• DRDAs (District Rural Development Authority) today are managing large sums of money for rural
development yet they also are outside the purview of CAG audits

In light of the above limitations and changes in the Indian polity such as increasing role of civil society and NGOs,
liberalisation of the economy, PPP mode of investments the DPC Act, 1971 must be reviewed to bring in greater
accountability and transparency in every sphere that touches public life. CAG’s work should go beyond the question of
whether government funds are being spent appropriately to ask whether programs and policies are meeting their objectives
and the needs of society

2.5 Types of Audit performed by CAG

i. Regulatory Audit: It is an audit to ascertain whether the moneys spent were authorised for the purpose for which they
were spent and also that the expenditure incurred was in conformity with the laws, rules and regulations

ii. Supplementary Audit: CAG takes up supplementary audits in PSUs, even after the commercial audits are done by the
auditors appointed by the CAG, for detection of leakages.

iii. Propriety Audit: It focuses on whether the expenditure made is in public interest or not i.e. it moves beyond mere
scrutiny of expenditure to question its wisdom and economy in order to identify cases of improper expenditure and waste
of public money

iv. Efficiency Audit: Efficiency audit as the name suggests answers the question whether the money invested yields
optimum results. The main purpose of the efficiency audit is to ensure that the investment is prioritized and channelled into
its most profitable utilization

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v. Performance Audit: Performance audit answers whether the government programmes such as NREGA have achieved
the desired objectives at the lowest cost and given the intended benefits. It generally does not get into the merits-demerits
of a particular policy/scheme rather looks into the effectiveness with which the scheme is implemented and any
deficiencies thereof

vi. Environmental Audit: This is a relatively new area of concern for the CAG keeping in mind the challenges facing
India with respect to conservation and management of the environment. More than 100 audits on environmental issues like
bio-diversity, pollution of rivers, waste management have been conducted by the CAG to identify critical issues and
suggest possible solutions by involving all stakeholders

2.6 Recent Issues

i. Mode of Appointment
• The present selection process for the CAG is entirely internal to the Government machinery; no one outside
has any knowledge of what criteria are applied, how names are shortlisted and how a final selection is made.
Thus presently there is a lack of clarity on the criterion, the definition of field of choice, the procedures for
the selection of this high constitutional functionary. In most of the other countries there is no scope for the
head of the Supreme Audit Institution to be chosen at the discretion of the Government. It is desirable that
India adopts the international practice of appointing head of Supreme Audit Institution to be independent of
the discriminatory power of the Executive.
• Another related issue is that of the appointment of IAS officers as the CAG. In the last 48 years since 1966
only one IAAS officer has been chosen while all other postings went to senior civil servants. From the
viewpoint of IAAS this looks like the systematic exclusion of that service and the virtual absorption of the
post of CAG in the IAS cadre. This perception has had a demoralising effect on the IAAS cadre. Whether
that feeling is right or wrong, it exists; and it is bound to have some effect on the commitment, zeal and
courage with which the audit function is performed. The answer to it is not to exclude the IAS, nor to reserve
the post exclusively for the IAAS, but to ensure that the appointment processes are such as to leave no room
at all for a sense of unfairness or suspicions of impropriety; and that the selected person, from wherever he or
she be drawn, is of such unquestionable suitability as to command respect both within and outside the audit
department. The field of choice should certainly be wide, and should include the IAAS, other central accounts
services (civil accounts, railway accounts and defence accounts), the IAS, and a limited number of accounts,
finance and management experts from outside the government.
• ICAI (Institute of Chartered Accountants in India) Code of Ethics states that an auditor’s independence has
two aspects- independence in fact and independence in appearance. The appointment of former secretaries as
CAG may compromise the independence of this institution because of apparent/perceived conflict of
interest.

Recent Example:
There are 2 PILs have been filed in the SC against the appointment of former defence secretary Shashi Kant
Sharma as the new CAG. Before being appointed the CAG, Mr. Sharma had served in key positions in the defence
ministry that involved decision making powers over purchases including the Augusta Westland Chopper deal and the

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Tatra trucks deal. His appointment is thus being questioned in the context of conflict of interest and also that it goes
against the code of ethics of auditors.

2.7 Recommended Mode of Appointment


There is a need to frame a transparent selection procedure based on definite criteria and constitute a broad-based non-
partisan selection committee, which after calling for applications and nominations would recommend the most suitable
person for appointment as CAG. There needs to be an institutionalised process of selection for the post of CAG, a
selection committee as seen in the appointment of CVC (involving PM, Leader of Opposition and Home Minister) and
the Chairman of the NHRC may be considered. The above steps could go a long way in ensuring that an outstandingly
able person of great independence and integrity is selected to this high constitutional office.

2.8 Should the CAG go into policy decision?

• In the recent past CAG’s reports on 2G, Coal blocks allocation, Delhi Airport PPP have made the Government
very uncomfortable with the audit findings. In order to defend its position, some members of the ruling party
have raised questions about CAG’s jurisdiction and observed that he has exceeded his mandate. What is the
veracity of such criticism? The CAG’s role should be viewed in the context of our constitutional scheme u-
nder which the executive is accountable to Parliament. CAG is an essential instrument for enforcing the
accountability mechanism as the CAG’s reports on government’s stewardship of public finance are required
to be placed in Parliament and state legislatures under Article 151 of the Constitution. To enable him to
discharge this responsibility, without fear or favour, he has been given an independent status under Article
148 analogous to that of a Supreme Court judge.
• The word ‘audit’ has not been defined in either the Constitution or in the CAG Act, 1971. We have so far
been going by 150 years of history, tradition, existing provisions and international practice. The CAG has not
formulated his own policy in the above reports and has only gone by policy prescriptions recommended
internally at various levels within the government. It is within the mandate of CAG to comment on a policy in
cases wherein-

• The financial implications of a policy were not gone into at all before the decision was made
• The assessment of financial implications was quite clearly wrong
• The numbers were correct but the reasoning behind the decision was questionable

Further, the CAG is bound by the oath of office to uphold the Constitution of India and thus is bound to comment
on policy matters that seem unconstitutional. If the government were to formulate a scheme or policy that
selectively confers benefits from public funds on an individual or a group to the exclusion of others, it is the CAG’s
duty to point this out. Thus the CAG was well within his mandate to comment on the above policy decisions.

Another criticism has been of the Notional and Presumptive loss figures as claimed in the reports. There is a genuine
dilemma here. If the reports were to make a bland statement that an alternative procedure would have yielded more
revenue to the government or would have meant less discretionary patronage, it would give no indication of the
financial dimensions of the decision or the importance of the matter. Putting a number on it brings this home. On the
other hand, when a number is mentioned, the discussion tends to focus on it and not on the issues involved. There is no

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easy way out of this dilemma. All that one can say is that the ‘notional’ number should e carefully estimated, making
the assumptions and methodology clear. This is what the CAG has done. He has not claimed that his figures are
definitive. The assumptions can be questioned, the methodology can be questioned, the resulting number can be
debated; what cannot be questioned is the procedural or substantive lapse to which the figure points.

3. Union Public Service Commission


UPSC is an independent constitutional body and is the central recruiting agency in India authorized to conduct
examinations for appointment to the various civil services of the Union. Articles 315 to 323 in Part XIV of the
Constitution contains elaborate provisions regarding the composition, appointment and removal of members along with
the independence, powers and functions of the UPSC.

3.1 A Brief History


Indianization of the superior Civil Services became one of the major demands of the political movement compelling the
British Indian Government to consider setting up of a Public Service Commission for recruitment to its services in the
territory. The first Public Service Commission was set up on October 1st, 1926. However, its limited advisory functions
failed to satisfy the people’s aspirations and the continued stress on this aspect by the leaders of our freedom movement
resulted in the setting up of the Federal Public Service Commission under the Government of India Act 1935. Under this
Act, for the first time, provision was also made for the formation of Public Service Commissions at the provincial level.

The Constituent Assembly, after independence, saw the need for giving a secure and autonomous status to Public Service
Commissions both at Federal and Provincial levels for ensuring unbiased recruitment to Civil Services as also for
protection of service interests.

With the promulgation of the new Constitution for independent India on 26th January, 1950, the Federal Public Service
Commission was accorded a constitutional status as an autonomous entity and given the title – Union Public Service
Commission (UPSC).

3.2 Composition
UPSC has been established under Article 315 of the Constitution of India. The Commission consists of a Chairman and ten
Members appointed by the President of India. The Constitution, without specifying the strength of the commission has left
the matter to the discretion of the President.

Further, no qualifications are prescribed for the Commission’s membership except that one-half of the members should be
such persons who have held office for at least 10 years either under the Government of India or under the
government of a state.

The Constitution has authorized the President to determine the conditions of service of the Chairman and other Members of
the Commission. Accordingly, the terms and conditions of service of Chairman and Members of the Commission are
governed by the Union Public Service Commission (Members) Regulations, 1969.

The Commission is serviced by a Secretariat headed by a Secretary. The expenses of the Union or a State Public Service
Commission, including any salaries, allowances and pensions payable to or in respect of the members or staff of the

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Commission, shall be charged on the Consolidated Fund of India or, as the case may be, the Consolidated Fund of the
State.

The Chairman and Members of the Commission hold office for a term of 6 years or until they attain the age of 65 years,
whichever is earlier. However, they can relinquish their offices at any time by addressing their resignations to the
President. The President can appoint one of the members of the UPSC as an acting chairman in the following
circumstances when the office of the chairman falls vacant or when the chairman is unable to perform his functions due to
absence or some other reason

3.2.1 Removal of Chairman or a member


The President can remove the chairman or any other member of UPSC from the office under the following circumstances:
a) If he is adjudged an insolvent
b) If he engages, during the term of his office, in any paid employment outside the duties of his office
c) If he is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body
The President can also remove the chairman or any other member of the commission for misbehaviour. However, in this
case, the President has to refer the matter to the SC for an enquiry. If the SC after the enquiry upholds the cause of removal
and advises so, the President can remove the chairman or the member. The advice so tendered by the SC is binding on
the President. Here the term ‘misbehaviour’ refers to- interest in any contract or agreement made by the Government of
India or the government of a state or participation in any way in the profit of such contract or agreement or in any other
benefit

3.3 Independence of UPSC


The Constitution has made the following provisions to safeguard and ensure the independent and impartial functioning of
the UPSC:
1. The chairman or a member of the UPSC can be removed from office by the President only in the manner and on the
grounds mentioned in the Constitution. Thus, they enjoy security of tenure.
2. The conditions of service of the chairman or a member, though determined by the President, cannot be varied to his
disadvantage after his appointment.
3. The entire expenses including the salaries, allowances and pensions of the Chairman and members of the UPSC are
charged on the Consolidated Fund of India and are not subject to the vote of Parliament.
4. The chairman of the UPSC on ceasing to hold office is not eligible for further employment in the Government of
India or any state
5. A member of the UPSC is eligible for appointment as the Chairman of UPSC or a State Public Service Commission
but not for any other employment in the Government of India or any state
6. The chairman or a member of UPSC is not eligible for reappointment to that office for a second term

3.4 Functions of UPSC


The Union Public Service Commission has been entrusted with the following duties and role under the Constitution:
1. Recruitment to services & posts under the Union through conduct of competitive examinations;
2. Recruitment to services & posts under the Central Government by selection through interviews;
3. Advising on the suitability of officers for appointment on promotion as well as transfer-on-deputation;
4. Advising the government on all matters relating to methods of recruitment to various services and posts;

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5. Disciplinary cases relating to different civil services; and


6. Miscellaneous matters relating to grant of extra ordinary pensions, reimbursement of legal expenses etc.
3.5 Recruitment Rules and Disciplinary Matters
In accordance with Article 320 of the Constitution, Recruitment Rules of all Group ‘A’ and Group ‘B" posts in various
Ministries/Departments of Government of India are required to be framed in Consultation with the Commission.
Consultation with the Commission is also necessary for framing/amending Recruitment Rules for certain categories of
posts under the Employees State Insurance Corporation, The Delhi Municipal Corporation, The New Delhi Municipal
Council, Employees Provident Fund Organisation etc. under the relevant Acts made by Parliament in pursuance of the
provisions of Article 321.
Under Article 320(3) of the Constitution the Commission are required to be consulted on the quantum of penalties in
disciplinary cases affecting a person serving under the Government of India in a civil capacity.

3.6 UPSC and CVC


Since the emergence of CVC, the role of UPSC in disciplinary matters has been affected. Both are consulted by the
government while taking disciplinary action against a civil servant. Here, UPSC being an independent body has an edge
over CVC which got statutory status in 2003. Recently, in order to ensure speedy finalisation of disciplinary matters and to
avoid possibilities of difference of opinion between UPSC and CVC, it has been decided as a policy to prescribe only one
consultation- either with CVC or UPSC. However, in disciplinary cases wherein UPSC is not required to be consulted, the
consultation with CVC would continue to be made.

3.7 Extension of Functions to Local Bodies


Article 321 also empowers the Parliament to extend the functions of the Public Service Commission to any local authority
or other body corporate constituted by Law or by any public institutions.

3.8 Binding nature of the advice of the Commission


A convention (not mandated by the Constitution) has been established by the Government of India, that in the following
classes of the cases referred to the Commission, the recommendations made by them shall be accepted, save in exceptional
circumstances.
a. Quasi-judicial cases.
b. Selection for appointments of candidates.
c. Appointment of a candidate on a higher initial pay than that of a minimum pay of the posts.
d. Claims of expenditure incurred by the Government servants in defending legal proceedings instituted against him
in respect of acts done or purporting to be done in the execution of his duty.

3.9 Exemptions:
In order to exempt some posts which for reasons of National Security or some other reasons may not be required to be
referred to the Commission for their advice, the Union Public Service Commission (Exemption from Consultations)
Regulations were issued on September 1, 1958, under Article 320(3)(a) and (b) of the Constitution. These Regulations are
amended or revised as and when the need arises. The following matters are kept outside the purview of UPSC:
a) While making reservations of appointments or posts in favour of any backward class of citizens
b) While taking into consideration the claims of scheduled castes and scheduled tribes in making appointments to
services and posts
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c) With regard to the selections for chairmanship or membership of commissions or tribunals, posts of the highest
diplomatic nature and a bulk of group C and group D services
d) With regard to the selection for temporary appointments for not more than a year

The President can exclude posts, services and matters from the purview of the UPSC. The President can also, in respect to
the all-India services and Central services and posts may make regulations specifying the matters in which it shall not be
necessary for UPSC to be consulted. All such regulations shall be laid before the Parliament which can amend or repeal
them.

3.10 Mechanisation - Project Sampera


The Commission have recently undertaken a project called "SAMPERA" (Screening and Mechanised Processing of
Examination and Recruitment Applications). A simplified single sheet common application form for all the examinations
has been devised which will be scanned by using OMR/ICR technology. The implementation of this project will mainly
help in high speed scanning of data from forms eliminating manual entry. Other benefits will be accurate and faster
generation of Admit Cards, Attendance lists with photo replica and signature facsimile of each candidate, and Error-free
list of doubtful cases. The main aim of this project is to cope with the increasing volume of applications through
innovations and mechanised handling so as to reduce the processing time and send communications faster to minimised
errors. The cases of impersonation/malpractices will also be eliminated and wasteful expenditure will be reduced.

3.11 Suggestions for rejuvenating UPSC


1. To serve as a Think-tank on personnel issues: It should go beyond the recruitment role to answer evolving issues
relating to civil services and their role in a rapidly changing society.
2. Association of Research Institutes and Universities in the functioning of UPSC: Services are often out of touch with
new developments in technology and knowledge. UPSC should liaison with such institutions to conduct regular
specially designed courses for administration
3. Need of Decentralisation on the pattern of US: The increase in work of the commission has been manifold, it
currently handles more than 14 lakh applications and scrutinises and advises in regard to 650 Recruitment Rules of
different services/posts. There is a need of decentralization to effectively align with this increase in workload
4. Keep in sync with changing times: UPSC so far has worked with remarkable competence, impartiality and integrity.
However a new world based on openness, accountability and delivery has emerged. UPSC needs to be in sync with
these changes

4. National Commission for Scheduled Castes and Scheduled Tribes


The National Commission for SCs is a constitutional body in the sense that it is directly established by Article 338.
Originally, Article 338 of the Constitution provided for the appointment of a Special Officer for SCs and STs to investigate
all matters relating to the constitutional safeguards for the SCs and STs and to report to the President on their working. He
was designated as the Commissioner for SCs and STs and assigned the said duty.

4.1 Chronology of major changes


• 1978: Govt. set up a non-statutory, multi-member commission for SCs and STs through an executive resolution,
the Office of the Commissioner for SCs and STs also continued to exist.
• 1987: Govt. modified the functions of the commission and renamed it as National Commission for SCs and STs.
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• 1990: 65th Constitutional Amendment provides for the establishment of a high-level multi-member National
Commission for SCs and STs in place of the single Special Officer for SCs and STs.
• 2003: 89th Constitutional Amendment bifurcated the combined National Commission for SCs and STs into 2
separate bodies, namely the National Commission for SCs (under Article 338) and the National Commission for
STs (under Article 338A)

4.2 National Commission for SCs:


It came into existence in 2004 and consists of a chairperson, a vice-chairperson and three other members. They are
appointed by the President by a warrant under his hand seal and their conditions of service and tenure of office are also
determined by the President

4.2.1 Functions and Duties of the Commission:


1. To investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under this
Constitution or under any other law and to evaluate the working of such safeguards.
2. To inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes.
3. To participate and advise on the planning process of socio-economic development of the Scheduled Castes and to
evaluate the progress of their development under the Union and any State;
4. To present to the President, annually and at such other times as the commission may deem fit, reports upon the
working of those safeguards;
5. To make in such reports recommendations as to the measures that should be taken by the Union or any State for the
effective implementation of those safeguards and other measures for the protection, welfare and socio-economic
development of the Scheduled Castes; and
6. To discharge such other functions in relation to the protection, welfare and development and advancement of the
Scheduled Castes as the President may specify.
7. The Commission, while investigating any matter, has all the powers of a civil court trying a suit and in particular in
respect of the following matters.
• Summoning and enforcing the attendance of any person from any part of India and examining him on oath;
• Requiring the discovery and production of any documents;
• Receiving evidence on affidavits;
• Requisitioning any public record or copy thereof from any court or office;
• Issuing commissions for the examination of witnesses and documents;
• Any other matter which the President may by rule, determine;

8. The Union and every State Government shall consult the Commission on all major policy matters affecting
Scheduled Castes

4.2.2 Report of the Commission


The commission presents an annual report to the president. It can also submit a report as and when it thinks necessary. The
President places all such reports before the Parliament, along with a memorandum explaining the action taken on the
recommendations made by the Commission. The memorandum should also contain the reasons for the non-acceptance of
any such recommendations. The President also forwards any report of the Commission pertaining to a state government to
the state governor. The governor then places it before the state legislature.

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4.3 National Commission for STs


The National Commission for Scheduled Tribes (NCST) was established by amending Article 338 and inserting a new
Article 338A in the Constitution through the Constitution (89th Amendment) Act, 2003. It consists of a chairperson, a
vice-chairperson and three other members. They are appointed by the President by a warrant under his hand seal and their
conditions of service and tenure of office are also determined by the President

4.3.1 Functions and Duties of the Commission


1. To investigate & monitor matters relating to safeguards provided for STs under the Constitution or under other
laws or under Govt. Order, to evaluate the working of such Safeguards.
2. To inquire into specific complaints relating to Rights & Safeguards of STs;
3. To participate and advise in the Planning Process relating to Socio-economic development of STs, and to
Evaluate the progress of their development under the Union and any State;
4. To submit report to the President annually and at such other times as the Commission may deem fit, upon/
working of safeguards, measures required for effective implementation of Programmers/ Schemes relating to
Welfare and Socio-economic development of STs;
5. To discharge such other functions in relation to STs as the President may specify;
6. The Commission would also discharge the following other functions in relation to the protection, welfare and
development & advancement of the Scheduled Tribes
7. Union and every State Govt. to consult the Commission on all major Policy matters affecting Scheduled Tribes
8. For Investigation and Inquiry, the Commission is vested with powers of a civil court having authority to:
• Summon and enforce attendance of any person and examine on oath;
• Discovery & production of any documents;
• Receive evidence on affidavits;
• Requisition any public record or copy thereof from any court or office;
• Issue Commissions for examination of witnesses and documents; and
• Any matter which President, by rule, may determine.

4.3.2 Report of the Commission


The commission presents an annual report to the president. It can also submit a report as and when it thinks necessary. The
President places all such reports before the Parliament, along with a memorandum explaining the action taken on the
recommendations made by the Commission. The memorandum should also contain the reasons for the non-acceptance of
any such recommendations. The President also forwards any report of the Commission pertaining to a state government to
the state governor. The governor then places it before the state legislature.

4.4 Constitutional Safeguards for SCs & STs


4.4.1 Educational & Cultural Safeguards
• Art. 15(4):- Special provisions for advancement of other backward classes (which includes SCs and STs);
• Art. 29:- Protection of Interests of Minorities (which includes SCs and STs);
• Art. 46:- The State shall promote, with special care, the educational and economic interests of the weaker
sections of the people, and in particular, of the Scheduled Castes, and the Scheduled Tribes, and shall protect them
from social injustice and all forms of exploitation

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• Art. 350:- Right to conserve distinct Language, Script or Culture & instruction in Mother Tongue.

4.4.2 Social Safeguards

• Art. 23:- Prohibition of traffic in human beings and beggar and other similar form of forced labour;
• Art. 24:- Forbidding Child Labour.

4.4.3 Economic Safeguards


• Art.244:- Provisions of Fifth Schedule shall apply to the administration & control of the Scheduled Areas and
Scheduled Tribes in any State other than the states of Assam, Meghalaya, Mizoram and Tripura which are
covered under Sixth Schedule.
• Art. 275:- Grants in-Aid to specified States (STs&SAs) covered under Fifth and Sixth Schedules of the
Constitution.

4.4.4 Political Safeguards


• Art.164(1):- Provides for Tribal Affairs Ministers in Bihar, MP and Orissa;
• Art. 330:- Reservation of seats for SCs and STs in Lok Sabha;
• Art. 337- Reservation of seats for SCs and STs in State Legislatures;
• Art. 334:- 10 years period for reservation (Amended several times to extend the period.);
• Art. 243:- Reservation of seats in Panchayats.
• Art. 371:- Special provisions in respect of NE States and Sikkim

4.4.5 Service Safeguards


Under Art.16(4),16(4A),164(B) Art.335, and Art. 320(40)

5. Special Officer for Linguistic Minorities:


Originally, the Constitution of India did not make any provision with respect to the Special Officer for Linguistic
Minorities. Later, the States Reorganization Commission, 1953 made a recommendation in this regard. Accordingly, the 7th
Constitutional Amendment Act of 1956 inserted a new article 350-B in Part XVII of the Constitution. The article contains
the following provisions:
• There should be a Special Officer for Linguistic Minorities. He is to be appointed by the President of India
• It would be the duty of the Special Officer to investigate all matters relating to the safeguards provided for
linguistic minorities provided under the Constitution. He would report to the President upon those matters at such
intervals as the President may direct. The President should place all such reports before each House of Parliament
and send to the governments of the states concerned

The Constitution does not specify the qualifications, tenure, salaries and allowances, service conditions and procedure for
removal of the Special Officer for linguistic minorities. In pursuance of the provision of Article 350-B, the office of the
Special Officer for Linguistic Minorities was created in 1957. He is designated as the Commissioner for Linguistic
Minorities.

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The Commissioner has his headquarters at Allahabad and there are three regional offices at Belgaum, Chennai and
Kolkata which are each headed by an Assistant Commissioner. At the centre, the commissioner falls under the Ministry of
Minority Affairs. Hence he submits the annual reports or other reports to the President through the Union Minority Affairs
Minister.

6. Attorney General of India


The Constitution (Article 76) has provided for the office of the Attorney General for India. He is the highest law officer in
the country and is responsible for giving advice to the Government of India upon such legal matters and to perform such
other duties of legal character as may be referred or assigned to him by the President.

6.1 Appointment and Term


• The Attorney General is appointed by the President. He must be person who is qualified to be appointed a judge
of the Supreme Court i.e. he must be a citizen of India and he must have been a judge of a high court for five
years or an advocate of a high court for ten years or an eminent jurist in the opinion of the President.
• The term of Office of the AG is not fixed by the Constitution and it is also silent on the procedure and grounds
for his removal. He holds office during the pleasure of the President and may be removed by him at any time. He
may also quit his office by submitting his resignation to the president. Conventionally, he resigns when the
government resigns or is replaced, as he is appointed on its advice.
• The remuneration of the AG is not fixed by the Constitution and is determined by the President. It must be noted
that the AG is not a full-time counsel for the Government. He does not fall in the category of government servants
and is not debarred from private legal practice.

6.2 Duties and Functions:


As the Chief Law Officer of the Government of India, the duties of the AG include the following:
1. To give advice to the Government of India upon such legal matters which are referred to him by the president
2. To perform such other duties of a legal character that are assigned to him by the president
3. To discharge the functions conferred on him by the Constitution or any other law

6.2.1 The president has assigned the following duties to the AG:
1. To appear on behalf of the GoI in all cases in the Supreme Court in which the GoI is concerned
2. To represent the GoI in any reference made by the president to the Supreme Court under Article 143 of the
Constitution
3. To appear in any high court in any case in which the GoI is concerned

6.3 Rights and Limitations:


The AG has the right of audience in all courts in the territory of India. Further, he has the right to speak and participate in
the proceedings of both the Houses of Parliament or their joint sitting or any committee of the Parliament of which he
may be named a member, but without the right to vote. He enjoys all the privileges and immunities that are available to a
member of Parliament.

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6.4 Limitations
The AG does not have any executive authority as these functions are performed by the Law Minister of India; further,
following limitations are placed on the AG in order to avoid any complication and conflict of duty:
1. He should not advise or hold a brief against the Government of India
2. He should not advise or hold a brief in cases in which he is called upon to advise or appear for the GoI
3. He should not defend accused persons in criminal prosecutions without the permission of the GoI
4. He should not accept appointment as a director in any company or corporation without the permission of GoI

7. Solicitor General of India:


In addition to the AG, there are other law officers of the GoI- the solicitor general of India and additional solicitors general
of India. These law officers are subordinate to the AG and assist him in the fulfilment of his official responsibilities. Unlike
the AG, SG does not tender legal advice to the GoI and his functions are confined to appearing in courts on behalf of the
GoI. It is not a constitutional post as Article 76 has no mention of the solicitor general or the additional solicitors general.

8. Finance Commission
The Finance Commission is constituted by the President as a quasi-judicial body under article 280 of the Constitution,
mainly to give its recommendations on distribution of tax revenues between the Union and the States and amongst the
States themselves. Two distinctive features of the Commission’s work involve redressing the vertical imbalances between
the taxation powers and expenditure responsibilities of the centre and the States respectively and equalization of all public
services across the States.

8.1 Composition
• The Finance Commission is constituted by the President every fifth year or at such earlier time as he considers
necessary. It consists of a chairman and four other members. They hold office for such period as specified by the
president in his order and are eligible for reappointment.
• The Constitution authorises the Parliament to determine the qualifications of members of the commission and the
manner in which they should be selected. Accordingly, the Parliament has specified the qualifications of the
chairman and other members of the commission. The Chairman should be a person having experience in public
affairs; and the four other members should be selected from amongst the following:
1. A judge of high court or one qualified to be appointed as one
2. A person who has specialised knowledge of finance and accounts of the government
3. A person who has wide experience in financial matters and in administration
4. A person who has special knowledge of economics.

8.2 Functions
It is the duty of the Commission to make recommendations to the President as to:
• The distribution between the Union and the States of the net proceeds of taxes which are to be, or may be, divided
between them and the allocation between the States of the respective shares of such proceeds;
• The principles which should govern the grants-in-aid of the revenues of the States out of the Consolidated Fund of
India;

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• The measures needed to augment the Consolidated Fund of a State to supplement the resources of the Panchayats in
the State on the basis of the recommendations made by the Finance Commission of the State;
• The measures needed to augment the Consolidated Fund of a State to supplement the resources of the
Municipalities in the State on the basis of the recommendations made by the Finance Commission of the State;
• Any other matter referred to the Commission by the President in the interests of sound finance.
• The Commission determines its procedure and has such powers in the performance of its functions as Parliament may
by law confer on them.

8.3 Recommendations of FC
The recommendations are presented to the President in the FC report and the President causes the same to be tabled in the
Parliament. They are not binding on the Government but are conventionally accepted by the Government.

8.3.1 The recommendations of the Finance Commission are implemented as under:-


• Those to be implemented by an order of the President: The recommendations relating to distribution of Union
Taxes and Duties and Grants-in-aid fall in this category.
• Those to be implemented by executive orders: The recommendations in respect of sharing of Profit, Debt Relief,
Mode of Central Assistance, etc. are implemented by executive orders.

8.4 Finance Commission and Fiscal Federalism


Finance Commission has a crucial role in the following areas:
• Cooperative financial relations between the centre and states
• Level the inequality among the states- bridge horizontal imbalances by giving more to the backward states as a part of
the mandate to create equity
• Bridge the vertical imbalances between the centre and the states by recommending adequate devolution to the states
• Promote state fiscal autonomy and efficiency
• Various reforms, on being referred by the President, for infrastructure and good governance

8.5 Article 275: Statutory Grants


After the devolution of the taxes and duties from the divisible pool, if some states still face revenue deficits, Article 275
empowers the Parliament to make grants to the states which are in need of financial assistance. These are not given to
every state and also, different sums may be fixed for different states. These sums are charged on the Consolidated Fund
of India every year. These statutory grants under Article 275 are given to the states on the recommendation of the
Finance Commission

8. 6 Tenth FC and Alternative Scheme of Devolution:


The Constitution (Eightieth Amendment) Act, 2000, which seeks to provide an alternative scheme for sharing taxes
between the Union and States, is based on the recommendations of the Tenth FC. Constitution was amended to give the
recommendations a legal effect. Under this, amendments have been made in Article 270 to essentially make all Union taxes
and duties shareable with States unlike earlier when the Union had some taxes and duties exclusively to it. Now, only
surcharges go to the Union exclusively.

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8.6.1 The advantages of this system are:


• States will be able to share the buoyancy of Central taxes
• The Central Government can pursue tax reforms and expect states to cooperate
• Economic Reforms in general will have wider consensus as the country takes steps towards a common market
• Creates conditions for Cooperative federalism in other spheres

8.7 Thirteenth FC (under Vijay Kelkar) Recommendations:


8.7.1 Sharing of Union tax revenues:
• The share of states in net proceeds of shareable central taxes shall be 32 per cent in each of the financial years from
2010-11 to 2014-15
• The share of each state in the proceeds of all shareable central taxes in each of the financial years from 2010-11 to
2014-15 shall be as specified:
i. Finances of Union and States:
a. Actual share in the tax revenue of the Centre which is devolved to states: The Eleventh and Twelfth Commissions had
recommended that the share of states be fixed at 29.5% and 30.5% respectively, of central taxes. However, the actual
shares devolved to states have been lower than recommended by previous finance commissions.
Recommendation: The Ministry of Finance should ensure that the accounts reflect all collections so that there are no
inconsistencies in the amounts released to states

b. Losses in the power sector: Subsidy for the power sector is the largest component of state government subsidies. The
power sector in most states is beset with high losses, and inefficient infrastructure, resulting in huge losses.
Recommendation: Losses in the power sector are expected to be a major drag on the finances of State Governments,
and therefore, the problems confronting this sector need to be addressed in a time-bound manner

c. Reduction of centrally sponsored schemes: Initiatives should be taken to reduce the number of Centrally Sponsored
Schemes and to restore the predominance of fund-transfers based on Planning Commission recommendations

8.7.2 Goods and Services Tax (GST):


The Commission has recommended the adoption of the GST and formulated a model GST. The main features of the model
GST are:
• The central portion of the GST would include (a) central excise duties, (b) service tax, (c) additional customs duties,
(d) all surcharges and cesses.
• The state GST would include (a) VAT, (b) central sales tax, (c) cesses and surcharges, and others such as luxury tax,
lottery tax, stamp duties, etc.
• There would be special provisions for certain goods such as petroleum, and exemptions would be allowed only on the
basis of a common list applicable to all states and the centre.
• GST should be implemented by all states and the centre at the same time.
• To provide incentives to states to agree to the model GST, the Commission has recommended the implementation of a
Grand Bargain. The Grand Bargain envisages a grant of a total of Rs. 50,000 crore to be provided to all states. This
amount would be distributed among states subject to the model GST framework being adopted by all states. This grant
would be used to compensate states for revenue losses on account of implementing GST. This amount should not be
distributed if states cannot reach a consensus on implementing GST.

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• The Empowered Committee of State Finance Ministers (EC) should be given statutory status. The compensation
should be disbursed in quarterly instalments on the basis of recommendations by a three-member Compensation
Committee. The Compensation Committee should comprise of the Secretary, Department of Revenue of the central
government, Secretary to the EC, and an eminent person with experience in public finance

8.7.3 Union Finances


The central government has recently decided that proceeds from disinvestment shall be used fully as capital expenditure
for social sector programmes. This policy needs to be liberalised and proceeds should also be used for augmenting
critical infrastructure and environment related projects.

8.7.4 State Finances


• The practice of diverting plan assistance to meet non-plan needs of special category states should be discontinued.
• For PSUs:
All accounts and backlogs of PSU accounts should be cleared by states.
States need to draw a roadmap for closure of nonworking PSUs by March 2011. Divestment and privatisation of
PSUs should be considered and actively pursued.
• Power Sector:
Reduction of Transmission and Distribution (T&D) losses should be attempted.
Unbundling needs to be carried out on priority basis and open access to transmission strengthened.
Proper systems should be put in place to avoid delays in completion of hydro projects.
Regulatory institutions should be strengthened through capacity building, consumer education and tariff reforms.
• Regarding reforms in the area of pensions, a switch to the New Pension Scheme needs to be completed at the earliest.

8.7.5 Revised roadmap for fiscal consolidation:


i. Central government
The revenue deficit of the Centre needs to be progressively reduced and eliminated, followed by emergence of a
revenue surplus by 2014-15.
A target of 68 percent of GDP for the combined debt of the centre and states should be achieved by 2014-15.
The Medium Term Fiscal Plan should be reformed and made a statement of commitment rather than a statement of
intent.
The government should list all public sector enterprises that yield a lower rate of return on assets than a norm
which should be decided by an expert committee.
An independent review mechanism should be setup by the Centre to evaluate its fiscal reform process.

ii. State governments:


States should be able to get back to the path of fiscal consolidation after the disruption caused in 2008-09 and
2009-10. States with zero revenue deficit or revenue surplus in 2007-08 should eliminate revenue deficit by 2011-
12. Other states should do so by 2014-15.
General category states with zero revenue deficit in 2007-08 should achieve a fiscal deficit of 3 percent of GDP by
2011-12. Other states should do so by 2013-14.
States should amend/enact Fiscal Responsibility and Budget Management Acts to build on the fiscal reform path
worked out.

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State-specific grants recommended for a state should be released upon compliance. Borrowing limits for states to
be worked out by Finance Ministry using the fiscal reform path, thus acting as an enforcement mechanism for
fiscal correction by states.

8.8 Fourteenth FC:


The Fourteenth Finance Commission has been set up under the Chairmanship of Dr. Y.V.Reddy [Former Governor,
Reserve Bank of India]. The Finance Commission is required to give its report by 31st October, 2014. Its recommendations
will cover the five year period commencing from 1st April, 2015. Its terms of reference include:
• review the state of the finances, deficit and debt levels of the Union and the States, keeping in view, the fiscal
consolidation roadmap recommended by the Thirteenth Finance Commission, and suggest measures for maintaining a
stable and sustainable fiscal environment consistent with equitable growth
• the level of subsidies that are required, having regard to the need for sustainable and inclusive growth, and equitable
sharing of subsidies between the Central Government and State Governments
• the need for making the public sector enterprises competitive and market oriented; listing and disinvestment; and
relinquishing of non-priority enterprises
• the need for insulating the pricing of public utility services like drinking water, irrigation, power and public transport
from policy fluctuations through statutory provisions;
• the need to balance management of ecology, environment and climate change consistent with sustainable economic
development; and
• the impact of the proposed Goods and Services Tax on the finances of Centre and States and the mechanism for
compensation in case of any revenue loss

8.9 Planning Commission vs. Finance Commission


In India, resources can be transferred from the centre to states in many ways. The Finance Commission and the Planning
Commission are the two institutions responsible for centre-state financial relations. There has been serious debate in the
country regarding the role of the Finance Commission vis-a-vis the Planning Commission. Finance Commission is a
Constitutional body whereas the Planning Commission is a non-statutory institution. Over a period of time, the working of
both the institutions led to friction among them due to lack of clear-cut guidelines demarcating their areas of work. The
relative roles of the Planning Commission and Finance Commission have come to be demarcated in the terms of reference
of the Finance Commission. Scrutiny of plan expenditure and transfer of capital to the states have been left to the Planning
Commission.

• The Finance Commission assesses the non-plan requirements of the State Governments and recommends a share
in the net yield from the Central and Grants-in-aid (presently 32.5%). The divisible sum of Central taxes is
distributed inter se among the states based on independent criteria. In addition, the Finance Commission
recommends the principles governing non-plan grants and loans to states. Examples of grants would include funds
for disaster relief, maintenance of roads and other state-specific requests.
• Among states, the distribution of tax revenue and grants is determined through a formula accounting for
population (25%), area (10%), fiscal capacity (47.5%) and fiscal discipline (17.5%). Unlike the Planning
Commission, the Finance Commission does not distinguish between special and non-special category states in its
allocation.

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• The most significant centre-state transfer is the distribution of central tax revenues among states. The Finance
Commission decides the actual distribution and the current Finance Commission have set aside 32.5% of central
tax revenue for states. In 2011-12, this amounted to Rs 2.5 lakh crore (57% of total transfers), making it the
largest transfer from the centre to states.
• The Planning Commission allocates funds to states through central assistance for state plans. Central assistance
can be broadly split into three components: Normal Central Assistance (NCA), Additional Central Assistance
(ACA) and Special Central Assistance.
• NCA, the main assistance for state plans, is split to favour special category states: the 11 states get 30% of the
total assistance while the other states share the remaining 70%. The nature of the assistance also varies for special
category states; NCA is split into 90% grants and 10% loans for special category states, while the ratio between
grants and loans is 30:70 for other states.
• The Planning Commission also allocates funds for ACA (assistance for externally aided projects and other
specific project) and funds for Centrally Sponsored Schemes (CSS). State-wise allocation of both ACA and CSS
funds are prescribed by the centre.
• For allocation among special category states, there are no explicit criteria for distribution and funds are allocated
on the basis of the state’s plan size and previous plan expenditures. Allocation between non special category states
is determined by the Gadgil Mukherjee formula which gives weight to population (60%), per capita income
(25%), fiscal performance (7.5%) and special problems (7.5%).
• As a proportion of total centre-state transfers NCA typically accounts for a relatively small portion (around 5% of
total transfers in 2011-12). However, Planning Commission allocations can be important for states, especially for
the functioning of certain schemes.

8.10 Finance Commission and Local Bodies:


• Local governments, notably panchayati raj institutions (PRIs), once a neglected appendage of rural development
departments, acquired “a habitation and a name” in the Indian federal polity after the 73rd and 74th
Constitutional Amendments in 1993. It is significant that Article 280 of the Constitution that established the union
finance commission (UFC) was altered as part of the two amendments, mandating the UFC to recommend
measures needed to augment the consolidated fund of a state to supplement the resources of panchayats and
municipalities in the state “on the basis of the recommendations made by the finance commission of the State”,
thereby affirming the organic link in Indian fiscal federalism.
• The principle of subsidiarity implies that matters are best handled by the least centralized competent authority.
Following this, these institutions need to be adequately empowered–both functionally and financially—to enable
them to fulfill the role envisaged for them in the Constitution. The State Finance Commissions (SFCs), which
buttress the functioning of local bodies, also need to be strengthened so as to make their functioning more
predictable and the process of implementing their recommendations more transparent.
• All the UFCs since the two amendments have been required through their terms of reference to make
recommendations on the above. The 10th Finance Commission, although appointed before these amendments,
became a fait accompli, and on its own recommended some ad hoc grants to local govern¬ments. The 13th FC
has made some significant departures from the past and made recommendations that could help to strengthen the
process of democratic decentralization in the country if they are fully implemented.

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Special Category States


• The concept of a special category state was first introduced in 1969 when the 5th Finance Commission sought to
provide certain disadvantaged states with preferential treatment in the form of central assistance and tax breaks.
• Initially three states Assam, Nagaland and Jammu & Kashmir were granted special status but since then eight
more have been included (Arunachal Pradesh, Himachal Pradesh, Manipur, Meghalaya, Mizoram, Sikkim,
Tripura and Uttarakhand).
• The rationale for special status is that certain states, because of inherent features, have a low resource base and
cannot mobilize resources for development. Some of the features required for special status are: (i) hilly and
difficult terrain; (ii) low population density or sizeable share of tribal population; (iii) strategic location along
borders with neighbouring countries; (iv) economic and infrastructural backwardness; and (v) non-viable nature of
state finances. The decision to grant special category status lies with the National Development Council.
• Special category states also receive specific assistance addressing features like hill areas, tribal sub-plans and
border areas. Beyond additional plan resources, special category states can enjoy concessions in excise and
customs duties, income tax rates and corporate tax rates as determined by the government.

13th FC on Local Bodies


• Performance Grant: The local grant recommended by the 13th FC has two components, a basic component and a
performance-based component. The basic grant is equivalent to 1.5% of the previous year’s divisible tax revenue. All
states will have access to this grant for all the five years (2010-15). The performance grant allocated to each state is
subject to them fulfilling a nine-point conditionality package. This should help promote results-based accountability.

a. Role of SFC : One major contribution is the template prepared by 13th FC with the help of an expert committee to
help future SFCs in preparing their reports. Although no SFC with a mind of its own will mechanically follow the
template, this is a big step towards streamlining SFC reports in the future.

b. Amend Article 280: The 13th FC has recommended to amend Article 280(3)(bb) and (c) of the Constitution so that the
words “on the basis of the recommendations of the finance commission of the State” are changed to “after taking into
consideration the recommendations of the finance commission of the State”. This recommendation, already approved
by several expert bodies fully appreciates the spirit of the clause that envisages an organic link in Indian fiscal
federalism.

c. Parallel Agencies and bodies: The 13th FC rightly points out that parallel agencies and bodies are “emasculating
local governments both financially and operationally”. Having constitutionally assigned a certain functional domain to
local governments, which include “planning for economic development and social justice” and preparing a draft
district development plan, it is for the union and state governments to help this process of decentralised planning and
governance with funds, functionaries and technical support.

8.11 Summary of Recommendations:


• Local bodies should be transferred 2.28% of the divisible pool of taxes after converting this share to grant-in-aid under
Article 275.

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• Article 280 (3) (bb) & (c) of the Constitution should be amended to make the recommendations of the State Finance
Commissions less binding on state governments.
• Article 243(I) of the Constitution should be amended to empower states governments to constitute and direct state
Finance Commissions to give their report before the National Finance Commission finalises its report.
• State governments should strengthen their local audit departments through capacity building.
• Bodies similar to the SFC should be set up in states which are not covered by Part IX of the Constitution (Panchayats).
• Local Bodies should be associated with city planning functions wherever other development authorities are mandated
for this function.
• State governments will be eligible for the general performance grant and the special areas performance grant only if
they comply with the prescribed stipulations.

8.12 Some Shortcomings


• A large chunk of the performance grant, estimated to be Rs 29,826 crore, remaining unutilised by 2015 is a distinct
possibility. If state governments do not take necessary legal and administrative action, everything will remain in cold
storage.
• The 13th FC has given only a low weightage of 25% to population against a weightage of 47.5% to fiscal capacity
distance and 17.5% to fiscal discipline, making a total weight of 65% for fiscally relevant criteria.
• The 13th FC has dispensed with the tax or revenue effort criterion with regard to local grants on the plea that credible
data are not available. It had data for six years and it could have obtained better outcomes by using the tax or revenue
effort criterion. The 13th FC criteria may be unfair as it is biased towards highly populated states.
• The 13th FC Report says “the quality of SFC reports continues to be patchy”, but it is silent on where and how they
continue to be so. Actually the 13th FC is only reiterating the sweeping, general comments against SFCs made by the
11th and 12th FC.
• The criteria chosen for inter se distribution of local grants leave many things to be desired and so is its silence on
SFCs. The third tier has to be made an integral component of India’s federal public finance and UFCs of the future
cannot afford to shirk that responsibility any more.

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transmitted in any form or by any means, electronic, mechanical, photocopying, recording or
otherwise, without prior permission of Vision IAS

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VISIONIAS ™
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PRESSURE GROUPS AND FORMAL/INFORMAL ASSOCIATIONS AND THEIR


ROLE IN THE POLITY
Revised Value Addition Material

Copyright © by Vision IAS


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transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise,
without prior permission of Vision IAS

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What is a Pressure Group


A pressure group is an organized group of people that aims to influence public opinion or
policies/actions of government. The pressure group universe includes churches and charities,
businesses and trade associations, trade unions and professional associations, think tanks of
various complexions, and so forth. Although some pressure groups were set up for the specific
purpose of influencing government, many pressure groups exist for other purposes and only
engage in politics as a secondary or associated activity. Pressure groups are organizations that
seek to exert influence on government from outside. They do not therefore put candidates up
for election. In that sense, they are part of civil society. These groups use a number of
methods to achieve their aims including lobbying, research campaigns, media campaigns, policy
briefs and polls.

Pressure groups can therefore act as a channel of communication between the people and
government.

Pressure groups are defined by the following key features:

• They seek to exert influence from outside, rather than to win or exercise government
power.
• Pressure groups do not make policy decisions, but rather try to influence those who do
(the policy-makers). In that sense, they are ‘external’ to government.
• They typically have a narrow issue focus. In some cases, they may focus on a single
issue (for instance opposing a planned road development).
• Their members are united by either a shared belief in a particular cause or a common
set of interests. People with different ideological and party preferences may thus work
happily together as members of the same pressure group.
• Based on certain issues: Each pressure group organises itself keeping in view certain
interests and thus tries to adopt the structure of power in the political systems. In every
government and political party there are clashing interest groups. These groups try to
dominate the political structure and to see that groups whose interests clash with
theirs are suppressed. Thus, each political party and system is pressurised by certain
interest groups which may be similar or reactionary to each other.
• Use of modern as well as traditional means: They try to follow modern means of
exerting pressure, without fully giving up the traditional or old ways of operation. They
adopt techniques like financing of political parties, sponsoring their close candidates at
the time of elections and keeping the bureaucracy also satisfied. Their traditional
means include exploitation of caste, creed and religious feelings to promote their
interests.

Pressure groups and Political parties


Pressure groups and political parties greatly resemble each other. Both of them are channels
through which public can communicate with the government. Prima facie, both of them carry
out representation, facilitate political participation and contribute to the policy process.
However, in reality, groups and parties are very different from each other.

Conventionally, political parties are the bodies which are regarded as providing the way through
which people’s interests are represented in the political system. They also function as a means

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of political communication, since individuals can express their own views to politicians by
becoming members of political parties and can represent their party’s viewpoint to others in
the community.

On the other hand, pressure groups can be seen as providing an additional form of
representation within the political system and an additional channel of political communication.
Some of the differences between Political parties and the pressure groups have been
mentioned below:

Political Party Pressure Group

• Main aim is to attain political power in • Main aim is to influence decision of


government those in political power.
• Directly the control and conduct of • Indirect control over the conduct of
the government. the government
• It can combine heterogeneous interest • It has people with homogenous
to secure majority in the election. interest.

There are several reasons why political parties are often confused with the pressure groups.
Firstly, many small political parties resemble pressure groups in that they have a narrow issue
focus. For example, the British National Party (BNP) is primarily concerned with issues of race
and immigration. The Green Party, despite developing wide-ranging manifestos, places greatest
emphasis on environmental issues such as pollution, economic sustainability and climate
change. Secondly, some pressure groups use elections as a tactical weapon. Any group that
puts candidates up for election is technically a party, not a pressure group. But some pressure
groups use elections as a means of gaining publicity and attracting media attention, with little
or no expectation of winning the election, still less of winning government power.

The relationship between the pressure groups and political parties is also an interesting one.
A pressure group with a close relationship to a political party may work to its advantage. But
this can be harmful at times especially when the opposing party comes to power, the pressure
group’s influence is bound to decrease on policy. National Students Union of India (NSUI)
provides future leadership to the Congress while the Akhil Bharatiya Vidyarthi Parishad (ABVP)
does so for the Bharatiya Janata Party. While some pressure groups are linked to particular
political parties, there are many which have no linkage to any political party.

Types of pressure groups:


There are various ways to classify pressure groups on the basis of their structure and
organization. One of the way has been given below.

i. Interest Groups and Cause Groups


ii. Insider and outsider groups

i. Interest and Cause Groups

The interest/cause classification is based on the purpose of the group in question. It therefore
reflects the nature of the group’s goals, the kinds of people who belong to it, and their
motivation for joining. Interest groups (sometimes called ‘sectional’, ‘protective’ or ‘functional’

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
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groups) are groups that represent a particular section of society: workers, employers,
consumers, an ethnic or religious group, and so on. Interest groups have the following features:

• They are concerned to protect or advance the interests of their members


• Membership is limited to people in a particular occupation, career or economic position
• Members are motivated by material self-interest

Trade unions, business corporations, trade associations and professional bodies are the prime
examples of this type of group. They are called ‘sectional’ groups because they represent a
particular section of the population. Some of the examples of interest groups are FICCI, CII,
AITUC etc.

Cause groups (sometimes called ‘promotional’, ‘attitude’ or ‘issue’ groups) are groups that are
based on shared attitudes or values, rather than the common interests of its members. The
causes they seek to advance are many and various. They range from charity activities, poverty
reduction, education and the environment, to human rights, transparency in governance etc.

Cause groups have the following features:

• They seek to advance particular ideals or principles


• Membership is open to all
• Members are motivated by moral or altruistic concerns (the betterment of others)

Mazdoor Kisan Shakti Sangathan can be cited as a prime example of a cause group as it seeks to
promote transparency in governance by creating pressure for the introduction of right to
information to citizens. Other examples could be PETA, India against Corruption.

ii. Insiders and Outsiders

The insider/outsider distinction is based on a group’s relationship to government. It therefore


affects both the strategies adopted by a group and its status i.e. whether or not it is considered
‘legitimate’ or ‘established’. Insider groups are groups that are consulted on a regular basis by
government. They operate ‘inside’ the decision-making process. They may also sit on
government policy committees and agencies and have links to parliamentary select
committees. Given all of the above insider pressure groups have a better chance creating an
impact on how the policy shapes up as they are consulted at various stages of policy
formulation. Some of the examples of insider groups are National Advisory Council, CII.

Outsider groups on the other hands are the ones that are not so closely involved with the
decision makers and who find it harder to get their voices heard in the higher echelons of policy
making. They are kept, or choose to remain, at arm’s length from government. They therefore
try to exert influence indirectly via the mass media or through public opinion campaigns. One of
the examples of an outsider group is the association for democratic reforms or ADR which has
been pushing for reforms in the way representatives are elected by the citizens of India.

But at times many groups employ both insider and outsider tactics. This certainly applies in the
case of high-profile insider groups, which recognize that the ability to mount public-opinion and
media campaigns strengthens their hands when it comes to bargaining with government.

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Role/Functions of Pressure Groups


Pressure groups carry out a range of functions. These include:

Representation
Political participation
Education
Policy formulation
Policy implementation

Representation

Pressure groups provide a mouthpiece for groups and interests that are not adequately
represented through the electoral process or by political parties. This occurs, in part, because
groups are concerned with the specific rather than the general. Whereas parties attempt to
broaden their appeal, trying to catch (potentially) all voters, pressure groups can articulate the
views or interests of particular groups and focus on specific causes. Some have even argued
that pressure groups provide an alternative to the formal representative process through what
has been called functional representation.

However, questions have also been raised about the capacity of groups to carry out
representation:

• Groups have a low level of internal democracy, creating the possibility that they
express the views of their leaders and not their members.
• The influence of groups on government does not always reflect their membership size
or their popular support.

Political Participation

Pressure groups have become an increasingly important agent of political participation. Of UK


citizens, 40–50 per cent belong to at least one voluntary association, and a large minority (20
per cent) belong to two or more. Moreover, a range of pressure groups, mainly outsider groups,
seek to exert influence precisely by mobilizing popular support through activities such as
petitions, marches, demonstrations and other forms of political protest. Such forms of political
participation have been particularly attractive to young people.

Education

Much of what the public knows about politics it finds out through pressure groups of one kind
or another. Many pressure groups, indeed, operate largely through their ability to communicate
with the public and raise political consciousness. Groups therefore often devote significant
resources to carrying out research, maintaining websites, commenting on government policy
and using high-profile academics, scientists and even celebrities to get their views across. An
emphasis is therefore placed on cultivating expert authority.

Policy Formulation

Although pressure groups, by definition, are not policy-makers, this does not prevent many
pressure groups from participating in the policy-making process. In particular, pressure groups

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are a vital source of information and advice to governments. Many groups are therefore
regularly consulted in the process of policy formulation, with government policy increasingly
being developed through policy networks. An example of such group is Observor Research
Foundation, which works on policy issues primarily related to Foreign affairs.

Policy Implementation

The role of some pressure groups extends beyond trying to shape the content of public policy
to playing a role in putting policy into practice. Not only do such links further blur the
distinction between groups and government, but they also give the groups in question clear
leverage when it comes to influencing the content of policy. However, questions have also been
raised about the role of groups in implementing policy: Some have criticized such groups for
being over-close to government, and therefore for endangering their independence. Others
have argued that policy implementation gives groups unfair political leverage in influencing
policy decisions.

How Pressure Groups exert Influence


Pressure groups are confronted by a wide range of ‘points of access’. Their choice of targets and
methods, however, depends on two factors. First, how effective is a particular strategy likely to
be? Second, given the group’s aims and resources, which strategies are available?

Pressure groups can exert influence in a variety of ways. These include:

Ministers and civil servants


Parliament
Political parties
Public opinion
Direct action

Ministers and Civil Servants

Ministers and civil servants work at the heart of the ‘core executive’, the network of bodies
headed by the Prime Minister and Cabinet, which develop and make government policy. This is
where power lies. Many groups therefore aspire to get in touch with senior civil servants and
ministers to get some sort of influence over the policies while they are being implemented.

Although such influence may involve formal and informal meetings with ministers, routine
behind-the scenes meetings with civil servants and membership of policy committees may be
the most important way of exerting influence.

Parliament

Groups that cannot gain access to the executive may look to exert influence through
Parliament. In other cases, groups may use parliamentary lobbying to supplement contacts with
ministers and civil servants. Although less can be achieved by influencing Parliament than by
influencing the executive, changes can nevertheless be made to the details of legislation or the
profile of a political issue. This can happen through influence on, for instance, private members’
bills, parliamentary questions (written and oral) and select committee enquiries.

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Political Parties

The most obvious way in which groups influence parties is through funding and donations.

Public Opinion

These strategies are adopted by outsider groups, although high-profile insider groups may also
engage in public-opinion campaigning. The purpose of such strategies is to influence
government indirectly by pushing issues up the political agenda and demonstrating both the
strength of commitment and the level of public support for a particular cause. The hope is that
government will pay attention for fear of suffering electoral consequences. Association for
Democratic Reforms has helped in shaping public opinion to some extent by putting up details
of political representatives of various political parties from each constituency on
www.myneta.info.

Direct Action

Direct action as a political strategy overlaps with some forms of public-opinion campaigning.
However, whereas most political protests take place within the constitutional and legal
framework, being based on established rights of freedom of speech, assembly and movement,
direct action aims to cause disruption or inconvenience. Strikes, blockades, boycotts and sit-ins
are all examples of direct action. Direct action may be violent or non-violent. A non-violent
example of direct action is the protests organized at Ramleela Maidan by India against
Corruption. People’s Movement Against Nuclear Energy protested against the setting up of
Koodankulam nuclear power plant.

Pressure Groups and Lobbying


People often confuse pressure groups with lobbying but both of them are not one and the
same thing. Lobbying takes place when a few members of the pressure groups loiter in the
lobbies of legislatures with a view to securing an opportunity to interact with legislators and to
influence the decision of legislators. Difference cannot be drawn between lobbying and
pressure groups even though lobbyists are representatives of particular interest groups.
Lobbying is a communication process used for persuasion, it cannot be treated as an
organization. Lobbying is different from pressure groups in a sense that pressure groups are
organized groups and lobbying is just one of the functions performed by them.

Global Experience with Lobbying

Many countries see lobbying as an integral part of democratic functioning that allows
individuals and groups to legitimately influence decisions that affect them. No country in the
world, including India, has banned lobbying. In fact, a few countries even regulate the activity,
prominent among these are USA, Canada, Australia, Germany and Taiwan. These countries treat
lobbying as a legitimate right of citizens. Regulations serve as a tool to enhance transparency in
the policymaking process rather than restricting access to policymakers. In fact, that is one of
the key reasons why the UK regulates the lobbied rather than lobbying. The effectiveness of the
law largely depends on how it defines lobbying and lobbyists. In USA lobbying is regulated
under the Lobbying Disclosure Act, 1995. This Act requires lobbyists to register and report
lobbying fees above a certain amount. It also requires companies to report all the lobbying

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expenditure along with the list of issues, lobbyists involved and the public officials and offices
contacted.

Lobbying in India

In India, where there is no law regulating the process, lobbying had traditionally been a tool for
industry bodies and other pressure groups to engage with the government ahead of the
national budget. For decades, organisations such as the Federation of Indian Chambers of
Commerce and Industry and the Confederation of Indian Industry, among others, have worked
hard on behalf of their members to influence key ministries and policies. In recent years, the
need for continuous engagement has increased and so has the sophistication.
Lobbying is arguably one of the most controversial activities in modern democracies. Lobbyists
provide governments with valuable policy-related information and expertise but if the activity
is not transparent, public interest may be put at risk in favour of specific interests. It is easy to
equate lobbying, which is an attempt to influence policy through legal and ethical means, with
corruption in India because a large chunk of the population believes that almost every dealing
with the government requires bribes to be paid to officials. Lobbying is a dirty word in India,
one reason being that lobbying activities were repeatedly identified in the context of
corruption cases. For example, in 2010 , leaked audio transcripts of conversations of an
influential Indian lobbyist, Nira Radia, revealed suspicious dealings between the government
and several business groups , reinforcing public perceptions about lobbying.
In reality, lobbying is not corruption; at least not the western model that is increasingly gaining
traction in India, as an open economy pulls in new rules of engagement from developed
economies. Given that most foreign companies have to follow strict anti-corruption laws in
their own countries, few are keen to come under the lens of their regulators, lose face and pay
fines. The Indian government itself spends millions of dollars every year to influence the U.S.
government and other interest groups there. Ranbaxy paid $90,000 to Patton Boggs to
preserve access to affordable generics. Wipro, like many Indian software firms, lobbied in the
U.S for favourable visa policies. Not only private companies but even Indian government has
been paying a fee every year since 2005 to a US firm to lobby for the Indo-US civilian nuclear
deal. As reported by the Daily Mail in November 2012, Washington-based Barbour Griffith &
Rogers (BGR), hired by the Indian embassy, also used to seek media interviews for Prime
Minister Manmohan Singh and get Congressional resolutions passed in his support ahead of
a US visit.
While lobbying is not a new phenomenon in India, it is largely unregulated. There are no laws
that defined the scope of lobbying, who could undertake it, or the extent of disclosure
necessary. Companies are not mandated to disclose their activities and lobbyists are neither
authorized nor encouraged to reveal the names of clients or public officials they have
contacted. The distinction between lobbying and bribery still remains unclear.

A private member’s Bill to regulate lobbying was recently introduced in the Lok Sabha by
Kalikesh Narayan Singh Deo, which defined the term as “an act of communication with and
payment to a public servant with the aim of influencing” legislation or securing a government
contract. The Bill required lobbyists to register with an authority and declare certain
information. It is not lobbying that is the problem, but the lack of transparency, lack of
comprehensive regulations and lack of mechanisms to monitor the activities of the powerful
that is at the root of the problem. Right to Information Act (RTI) is a good step in this direction.

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Controversy regarding Walmart Lobbying

In 2012, as part of a routine disclosure under U.S. law, Wal-Mart revealed it had spent $25
million since 2008 on lobbying to "enhance market access for investment in India." This
disclosure, which came weeks after the Indian government made a controversial decision to
permit FDI in the country's multi-brand retail sector, created uproar in India. Groups
protesting against FDI in multi-brand retail used Walmart’s disclosure to advocate their case.
The US retailer's lobbying had drawn sharp criticism from the opposition parties, forcing
the Indian government to order an inquiry by a former chief justice of the Punjab and
Haryana high Court Mukul Mudgal but the report of the panel remained inconclusive due to
alleged non-cooperation by Wal-Mart.

But until comprehensive levels of transparency are achieved, legalizing lobbying would mean no
good. Also, regulations need to evolve and documented in an iterative manner before
embarking upon such a move. India needs to determine a regulatory model that suits its socio-
political needs. Furthermore, it should tread a fine line while drafting the disclosure
requirements. Too high disclosure requirements could drive lobbyists underground while too
low penalties may not act as sufficient deterrent for law-breakers.

Views in favour of Lobbying

Proponents of lobbying feel that it is inherent in any democracy, how else should one try and
convince a policy maker of a particular position. Industry chambers such as FICCI and
ASSOCHAM feel that business groups should be entitled to voice their concerns related to a
particular policy matter with the government if they feel their interests may be jeopardised.
They advocate that making lobbying and advocacy legal would lead to a clean way of
approaching the policymakers and lawmakers if they have any legitimate and genuine interests.

Views against Lobbying

Critics argue that corporates or people with mighty socioeconomic power, by themselves or
through their industry bodies, corrupt the laws to serve a self-serving agenda by bending or
deflecting them away from general fairness to majority of the population. It would also be
against the right to equality guaranteed to citizens of the country, as businessmen with
extensive money power can indulge in lobbying and get things done. While common man has
to wait for hours or days to meet his MP/MLA. Thus, those with (financial) resources will win
and those without cash will lose.

Difference between advocacy and lobbying

When non-profit organizations advocate on their own behalf, they seek to positively affect
majority of the society, whereas lobbying refers specifically to advocacy efforts that attempt
to influence policy or legislation of a country by interested groups, irrespective of its best
outcome to the society.

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Are pressure groups becoming more powerful?


Not all debates about pressure-group power focus on the power of individual groups. Others
address the overall power of groups, and whether or not they have generally become more
powerful. Commentators increasingly argue, for instance, that pressure groups have become
more influential in recent years, perhaps even more influential than political parties.

The rise of pressure-group power

Those who argue that pressure groups have become more powerful usually draw attention to
one of three developments:

1. The growth of cause groups. Looked at simply in terms of political participation, groups
certainly appear to be becoming more important. This is best demonstrated by the
growth of cause groups in particular. Some of the reasons cited for increase in the
number of pressure groups are:
i. Increased leisure time, both in terms of the shorter working week and more early
retirement, has increased the number of people with time to devote to such
activities
ii. Higher educational standards have increased the numbers of people with the
organisational skills to contribute to pressure groups.
iii. Changes in gender roles have removed many of the barriers to participation by
women in pressure group activity
iv. Membership of political parties has declined. It has been argued that this reflects
the failure of the political parties adequately to reflect the needs of different groups
of people in society, and that cause groups offer a more promising route for bringing
about political change.
2. The widening of access points through devolution
3. Globalization. Globalization has strengthened pressure groups in a number of ways. In
particular, there is general agreement that business groups have become more
powerful in a global age. This is because they are able more easily to relocate
production and investment, so exerting greater leverage on national governments. Such
trends have strengthened pressures on governments to, for instance, cut business taxes
and reduce corporate regulation. Another feature of globalization has been the
emergence of NGOs, such as the World Development Movement and the World Social
Forum, as major actors on the global stage. Some 2,400 NGOs, for example, took part in
the Earth Summit in Rio de Janeiro in 1992.

The decline of pressure groups

However, not everyone believes that pressure groups have become more important. Some even
talk in terms of the decline in pressure-group power in recent years. Such arguments are usually
based on one of two developments:

1. The end of corporatism. For some, the high point of pressure-group influence came in
the 1970s (Especially in the case of developed countries). This was a period of so-called
tripartite government or corporatism. Economic policy was therefore developed
through a process of routine consultation and group bargaining. However, corporatism
was dismantled in the 1980s and it has never been re-established.

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'Corporatism' refers to the close relationship between the government and economic
interest groups (trade unions and employers' organisations) in decision making on
economic matters.

2. A decline in meaningful and active participation. An alternative explanation of the


decline of pressure groups challenges the idea that recent years have witnessed an
upsurge in group activity. This suggests that while group membership may have
increased, these members have become increasingly passive.

Pressure Groups and Democracy

How do pressure groups promote democracy?

Pressure groups promote democracy in a number of ways. They:

1. Supplement electoral democracy


2. Widen political participation
3. Promote education
4. Ensure competition and debate

Supplementing electoral democracy

Pluralists often highlight the advantages of group representation over representation through
elections and political parties. Pressure groups may either supplement electoral democracy
(making up for its defects and limitations) or they may have replaced political parties as the
main way in which people express their views and interests:

Pressure groups keep government in touch with public opinion between elections.
One of the weaknesses of elections is that they only take place every few years. By
contrast, pressure groups force the government to engage in an ongoing dialogue with
the people, in which the interests or views of the various sections of society cannot be
ignored. IAC’s anti-corruption movement was one such example where the pressure
groups made the government aware of rising sentiment in general public against
corruption in public life. Mazdoor Kisan Shakti Sangathan led the people’s movement
which got the government to bring about the law on ‘Right to Information. ’
Pressure groups give a political voice to minority groups and articulate concerns that
are overlooked by political parties. Elections, at best, determine the general direction
of government policy, with parties being anxious to develop policies that appeal to the
mass of voters. Pressure groups are therefore often more effective in articulating
concerns about issues such as the environment, civil liberties, global poverty, violence
against women and the plight of the elderly. Women’s organizations such as SEWA,
NCW have campaigned for women-friendly laws such as the Protection of Women from
Domestic Violence Act, 2005. In the North-Eastern State of Manipur, many groups
including ‘Just Peace’,Apunba Lup (students’ organization) and Meira Paibis (women’s
groups) are trying to influence the government to listen to people’s genuine grievances.
Together, these groups are associated with Irom Sharmila, a civil rights activist known
as ‘the Iron Lady of Manipur’ who has been on a hunger strike since November 2000.

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Participation

The level of political participation is an important indicator of the health of democracy.


Democracy, at heart, means government by the people. If this is the case, declining electoral
turnout and steadily falling party membership highlights a major ‘democratic deficit’ in politics.
This, however, is very effectively combated by the growth in the number and size of pressure
groups. Pressure groups have become increasingly effective agents of political participation.
Not only has single-issue politics proved to be popular but the grass roots activism and
decentralized organization of many campaigning groups have proved to be attractive to many
young people and those who may be disillusioned with conventional politics.

Education

Pressure groups promote political debate, discussion and argument. In so doing, they create a
better-informed and more educated electorate. This, in turn, helps to improve the quality of
public policy.

Benefits of competition

Pressure groups help to promote democracy by widening the distribution of political power.
They do this, in part, because groups compete against one another. This ensures that no group
or interest can remain dominant permanently.

How do pressure groups threaten democracy?

Some political scientists and politicians have taken the view that pressure groups are non-
democratic, or even anti-democratic, in the sense that they intervene in the political process
based on electoral accountability. Some of them have been listed below:

1. Increase political inequality


2. Exercise non-legitimate power
3. Exert ‘behind the scenes’ influence
4. Lead to the tyranny of the minority

Political Inequality

A central argument against the pluralist image of group politics is that, far from dispersing
power more widely and empowering ordinary citizens, pressure groups tend to empower the
already powerful. They therefore increase, rather than reduce, political inequality. Pluralists
argue that political inequality is broadly democratic, in that the most successful groups tend to
be ones with large membership, and which enjoy wide and possibly intense public support. This
is very difficult to sustain. In practice, the most powerful pressure groups tend to be the ones
that possess money, expertise, institutional leverage and privileged links to government.

Non-legitimate Power

Critics have questioned whether pressure groups exercise rightful or legitimate power in any
circumstances. This is because, unlike conventional politicians, pressure-group leaders have not
been elected. Pressure groups are therefore not publicly accountable, meaning that the

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influence they exert is not democratically legitimate. This problem is compounded by the fact
that very few pressure groups operate on the basis of internal democracy. Leaders are very
rarely elected by their members, and when they are (as in the case of trade unions) this is often
on the basis of very low turnouts. Indeed, there has been a growing trend for pressure groups
to be dominated by a small number of senior professionals. Some pressure-group leaders may,
in fact, be little more than self-appointed political spokespeople.

‘Behind the scenes’ influence

Regardless of which groups are most powerful, pressure-group influence is exerted in a way
that is not subject to scrutiny and public accountability. Pressure groups usually exert influence
‘behind closed doors’. This particularly applies in the case of insider groups, whose
representatives stalk the ‘corridors of power’ unseen by the public and away from media
scrutiny. No one knows (apart from occasional leaks) who said what to whom, or who
influenced whom, and how. This is unaccountable power. Not only does this contrast sharply
with the workings of representative bodies such as Parliament, but it also diminishes
Parliament and undermines parliamentary democracy. Insider links between groups and the
executive bypass Parliament, rendering elected MPs impotent as policy is increasingly made
through deals between government and influential groups that the Parliament does not get to
discuss.

Tyranny of the minority

Pressure groups, by their very nature, represent minorities rather than majorities. For pluralists,
of course, this is one of their strengths. Pressure groups help to prevent a ‘tyranny of the
majority’ that is, perhaps, one of the inevitable features of electoral democracy. However,
pressure groups may create the opposite problem. Minority views or ‘special’ interests may
prevail at the expense of the interests of the majority or the larger public.

Pressure Groups in India

Nature of pressure groups in India


The different types of pressure groups found in India are business groups, trade unions, peasant
groups, student groups, teachers' association, caste and religious associations, women's
associations, etc.

Business Groups

The Business Group is the most important and organised pressure group in India. They are also
most effective. They are independent of the political parties that exist and they have enough
resources with which they can safeguard their interests. Business associations have existed in
India even before Independence. The important business groups include the Confederation of
Indian Industry (CII), Federation of Indian Chambers of Commerce and lndustry (FICCI) and
Associated Chamber of Commerce. They exert varied kinds of pressures, they try to influence
planning, licensing bodies and economic ministries. Some businesspersons are always there in
different legislatures at the Central as well as State level. Every Ministry of the Government of
India has some kind of consultative committee and business groups are represented there.
During pre-budget meetings the Finance Ministry interacts with the groups, to secure suitable

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inputs which helps in budget formulation.

Trade Unions

The Indian Trade union movement has rapidly developed. The trade unions were present prior
to Independence. Under communist influence, the All India Trade Union Congress (AITUC) was
established in 1920s. The emergence of the communist movement also played an important
role in the growth of trade unions in India. In 1948, the Indian National Trade Union Congress
(INTUC) was established.

Trade Unions in India are closely affiliated with the political parties; many national political
parties have got their own federations of trade unions. In fact, no amount of independence
from political parties exists in trade unions. They seem to have been able to exert significant
pressure at the policy formulation level and their strength is well recognised by political parties
and government. The trade unions when required can be very vocal and militant in their actions
to meet their demands. They work through the weapon of strike and have been able to achieve
monetary gains in terms of wage increase, bonus, change in wage structure, etc. These types of
pressure groups have been able to encourage class consciousness and class solidarity among
the workers. We have witnessed over the past few years the trade unions resorting to
demonstrations, during the disinvestment by the government in public sector undertakings
over the past few years. lnspite of certain institutional limitations, such as, ideological
differences, internal splits, external pressures, lack of international backing, the trade unions
exert significant pressure at various levels of policy formulation.

Peasant Organisations

The rise of peasants groups in India has been mainly due to abolition of Zamindari System,
implementation of Panchayati Raj, land reform measures, Green Revolution Movement. They
gained power since 1960s. In 1936, the All India Kisan Sabha was established and after 1942 the
Communist Party of India acquired control over it.

Different parties have got their own peasant organisations. Like the trade unions, there is no
peasant organisation, which may be independent of party control, though at the State level,
their organisations are non-political, independent of the political parties and homogenous. The
agriculturists are mainly organised more in regional or local class unions than on all-India basis.
Even though there are some important All India Kisan Associations like All India Kisan Congress,
All India Kisan Kamgar Sammelan, Akhil Bharatiya Kisan Sangh, peasant groups have been
mainly organised on territorial basis.Their demands relate to procurement prices of agricultural
products, fertiliser subsidy, tenancy rights, electricity charges, etc. The Bharatiya Kisan Party
(BKP) in Western U.P. is considered the most significant pressure group. The interplay of
language, caste factor, weak financial positions, etc. have been greatly responsible for non-
emergence of national level pressure groups.

Student Organisations

The student organisations in India have also acted as pressure groups both prior to
Independence and after Independence. The All Bengal Students Association was formed in
1928. The All India Students Federation (AISF) was established in 1936. After Independence the
political parties continue to be affiliated with student organisations. The All India Students
Congress and later on the National Students Union of India (NSUI) are affiliated to the Congress

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Party. The All India Students Federation and Students Federation of India (SFI) are controlled by
Communist Party of India. The Radical Students Union, Democratic Students Union, Akhil
Bharatiya Vidyarthi Parishad (ABVP) etc. are all affiliated to different political parties. They try to
pressurise governmental policy on various crucial issues, their activities are not just confined to
educational issues. Like the students organisations we also have teachers' associations.

Community Associations

There are various community associations in India. These community groups are organised on
the basis of caste, class and religion. Some examples of caste organisations are Scheduled Caste
Federation, Backward Caste Federation, etc. Amongst other organisations there are some like
Vishwa Hindu Parishad, Northern and Southern India Christian Conference, etc. which represent
interests that are supposed to safeguard their respective religions.

Civil Society Organizations

India has a very large number of Civil Society Organizations (CSOs), that is, organizations
established by citizens of the country, to pursue certain interests. Many of these organizations
act as pressure groups on the government, to promote implementation of policies in their areas
of concerns. These organizations are run by ordinary persons who feel strongly committed to
certain issues. Many ordinary persons come together informally or formally to share their
feelings about different issues and prevailing social injustice. People take up issues of gender
discrimination, child labour, street children and so on, and contribute through individual and
collective action. Such organizations are able to mobilize public opinion because these issues
are relevant to many people in society. Some of the Civil Society Organizations include Mazdoor
Kisan Shakti Sangathan (MKSS, Rajasthan), People’s Union for Civil Liberties (PUCL), National
Alliance of People’s Movements (NAPM), National Alliance of Women’s Organizations (NAWO),
Medico Friends Circle (MFC), and many others. Such organizations put pressure on the
government for changing policies on many important issues such as corruption, human rights,
livelihood of different people, environmental protection, women empowerment, educational
and health issues. All these organizations involve a large number of people who struggle to
bring about changes in State policies. Many of the organizations and groups believe in following
non-violent methods.

Methods of operation of pressure groups in India

The pressure groups adopt different methods to realise their goals. These methods even
include cordial rapport with the political party in power, to resorting to agitational methods.
The pressure groups finance the political parties during the election time and sometimes even
during the non-election times. They control the parties through this funding mechanism. There
have been several debates on election finances but no discussion resulted in regulating or
controlling the flow of finances. Once the parties receive financial support, they cannot oppose
these groups and their interests. On the other hand, they have to promote their interests. It is
believed that several members of the national and state legislative bodies are on the rolls of the
top industrial groups. The pressure groups also maintain close rapport with the State apparatus,
viz., the bureaucratic machinery. The organised pressure groups maintain a wavelength with the
key bureaucrats. The role of rampant corruption needs no mention. The liaison officers are
appointed to take care of the bureaucrats, particularly when they are stubborn. The lobbyists,
middlemen, etc. have acquired enough of skills to manage them. This has also given rise to

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favouritism, corruption and other maladies in bureaucracy. While one cannot find anything
seriously wrong with the pressure groups, it is the methods of operation which have become
controversial. Although all the pressure groups use identical methods, there are some groups
which are far more effective than the others.

The capacity of a pressure group is determined by:

a) Leadership
b) Organisational abilities
c) Mass media
d) Economic power base
e) Mobilisation techniques

Leadership

This is one of the essential components of pressure groups. For it is the leadership which has to
protect the interests of the group. It has to be so projected that in public image it is viewed as a
universal interest. The leadership should also regularly communicate to the political parties,
policy-making agencies and the public. The support of all these three forces is essential. The
leadership should be able to establish credibility and be able to carry public opinion. The
leadership should be, therefore, capable of communicating the viewpoint of their group orally,
in writing and through dialogue. In short the success of leadership lies in universalising the
particular interest.

Organisational Abilities

There is also a need for an organisational network. In a country like India with its size and
magnitude, it becomes essential that there are units of the organisation throughout the
country. These organisations are needed for two reasons: firstly to associate the various facets
of the interest groups and consolidate them and secondly, in a highly diversified society,
communication should take place at multiple points so that rapport with different agencies at
different levels is maintained. The size and organisational strength can always play a significant
role in terms of the response of political system to the demands that the pressure group puts
forward.

Mass Media

In India, the mass media is slowly gaining importance. In countries like United States, it has
come to dominate the socio-political process to such a point that can make the things unmake.
In United States it is completely in private sector. In India, the newspapers are by and large
owned by the major industrial houses. Now the regional newspapers are also becoming
influential. The print as well as the Television in present times through their skills of
communication create powerful public images and through continuous debate and propaganda
influence the public opinion. The political parties and policy-making agencies are sometimes
kept on tenterhooks by the media. In fact during the post-Independent India one issue on
which government had to retreat is the issue of freedom of press. Whenever the bills were
introduced either in the state legislature or union parliament, they had to be withdrawn.
Enough public pressure could be built on this issue. For this is a major weapon in the hands of
the industrial houses or private sector to influence the policy-making process.

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Economic Power Base

The economic power of the interest groups is a crucial factor. The influence a pressure group
commands is proportionate to its economic strength. From financing the elections and party
funds to carrying propaganda, the economic power of the group plays an important role. In
India, the industrial and trading houses have been far more influential and powerful than the
farmers associations, inspite of farmers being spread all over the country. It is clear that without
adequate economic resources the pressure groups cannot exert proper pressure.

Mobilization Techniques

Effectiveness of the pressure groups also depends on their capacity to mobilize the people. The
interest groups not only create public opinion but sometimes draw the general masses into
agitational and protest politics. If they want to set an industry in a particular area, they create
the necessary climate and make the people of the area demand for the industry. If they want
infrastructure facilities they pressurise the government through its network at first and through
a public demand and an agitation, later, if necessary. This is how a major irrigation dam can also
be demanded and realised. In a society where the majority is semi-literate and semiconscious,
private interests can always be converted into public interests.

Limitations of Pressure Groups


• In India, organised groups largely influence the administrative process rather than the
formulation of policy. This is dangerous as a gap is created between policy formulation
and implementation.
• Many a time factors of caste and religion eclipse the socioeconomic interests.
• Many of the groups have a very short life because of the lack of resources.
• In a country like India the tendency to politicise every issue, whether it has social,
economic, cultural import, restricts the scope, working, and effectiveness of pressure
groups. Instead of the pressure groups exerting influence on political process, they
become tools and implements to subserve political interests.

Comparison of Indian and Western Pressure Groups


India and most countries of the West are democracies with either Presidential or Parliamentary
form of government. India, a parliamentary democracy, differs from countries of the West in
terms of development. Therefore, there are some differences in the role of pressure groups.

Firstly, the American pressure groups are regarded as the fourth organ of the government but
the Indian pressure groups are not yet able to play such significant role in politics.

Secondly, in India and Great Britain the cabinet and civil service are the main targets of
pressure groups for lobbying purposes rather than the Parliament. However, the targets of
American pressure groups are the Congress and its committees rather than the President for
lobbying purposes.

Thirdly, Indian pressure groups based on caste, religion, region, etc. are more powerful than
the modern groups like business organisations.

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Fourthly, a significant feature of American pressure groups is that in the USA pressure groups
take interest in foreign policy issues while in India pressure groups do not seem to have interest
in foreign policy matters. Comparatively, the Indian pressure groups are concerned more with
domestic policy issues and problems, and less with foreign policy matters.

However, in general, despite the differences, democratic politics presupposes the crucial role of
pressure groups for serving the interests of different sections of society.

Conclusion:

Pressure groups are now considered as an indispensable and helpful element of the democratic
process. The society has become highly complex and individuals cannot pursue their interests
on their own. They need the support of other fellow beings in order to gain greater bargaining
power. This gives rise to pressure groups based on common interests. For a long time these
groups remained unnoticed. Initially they were considered as harmful for the democratic
process, but now their role in the political process has become very important. Democratic
politics has to be politics through consultation, through negotiation and some amount of
bargaining is also involved. Thus, it is very essential for the government to consult these
organised groups at the time of policy formulation and implementation.

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REPRESENTATION OF THE PEOPLE ACT, MODEL CODE OF CONDUCT AND


ELECTION RELATED JUDGEMENTS
Revised Value Addition Material

Copyright © by Vision IAS


All rights are reserved. No part of this document may be reproduced, stored in a retrieval system or
transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise,
without prior permission of Vision IAS

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Salient features of Representation of the People Act

Q. What is Representation of the People Act, 1951 of India?


The Representation of People Act, 1951(RPA) is an act of Parliament of India, which provides for
the following:

1. Conduct of elections of the Houses of Parliament and to the House or Houses of


the Legislature of each State
2. Details about the structure of administrative machinery for the conduct of elections
3. Qualifications and disqualifications for membership of those Houses
4. Corrupt practices and other offences at or in connection with such elections and the
decision of doubts and disputes arising out of or in connection with such elections.

The Act was enacted by the provisional Parliament under Article 327 of Indian Constitution,
before the first general election. Art 327 states that subject to the provisions of our
Constitution, the Parliament is empowered to make provisions by law, with respect to all
matters relating to, or in connection with, elections to either House of Parliament or to the
house or houses of the state legislature including preparation of electoral rolls, the delimitation
of constituencies and all other necessary matters.

Representation of People Act 1951 has undergone several amendments since it was enacted
and currently it has 13 parts from Part I to Part XI with additional parts of IV A and V A. It had
originally 171 sections, but at present there are 192 sections as several new sections have been
inserted, while few sections were also repealed by the Parliament in the past.

Q. How is RPA, 1951 different from the provisions related to elections in


Constitution of India?
Part XV of Indian Constitution is Elections, which includes Articles 324 to 329. This part of the
Constitution provides for Election Commission (Art.324), universal suffrage (Art.325) and adult
suffrage (Art.326). Article 327 enables Parliament to enact provisions for elections and Article
328 provides that states can enact provisions for house or houses of the state legislature, if the
Centre has not provided for the same. Under Article 329, courts are barred from questioning
the Delimitation Act brought by the Parliament and it also mentions that disputes related to
elections can be called in question only by an election petition in a manner provided by and to
the authority decided by the appropriate legislature.

Accordingly, the Parliament under Art. 327 enacted certain provisions, among others, namely:

1. The Representation of People Act 1950, which provides for allocation of seats and
delimitation of constituencies of the Parliament and state legislature, officers related to
conduct of elections, preparation of electoral rolls and manner of filling seats in the
Council of States allotted to Union Territories.
2. The Representation of People Act, 1951, which provides for the conduct of elections of
the Houses of Parliament and to the House or Houses of the Legislature of each State,
the qualifications and disqualifications for membership of those Houses, the corrupt

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practices and other offences at or in connection with such elections and the decision of
doubts and disputes arising out of or in connection with such elections.
3. Delimitation Commission Act of 1952, which provides for the readjustment of seats,
delimitation and reservation of territorial constituencies and other related matters.
4. The Presidential and Vice-Presidential Election Act 1952, which provides for the
conduct of Presidential and Vice- Presidential election and mechanism for the
settlement of any dispute arising out of such elections.

Q. What are the qualifications for Members of Parliament (MPs) and Members
of State Legislature (MLAs) mentioned in RPA, 1951?
Chapter-I and Chapter-II of Part II of RPA, 1951 provides for qualifications for Members of
Parliament (MPs) and Members of State Legislature (MLAs), which can be discussed under
following heads:

Qualifications for Membership of Parliament

1. Qualification for membership of the Council of States (section 3 of RPA, 1951)—A


person has to be an elector for a parliamentary constituency in India to be qualified to
be chosen as a representative of any State or UT in the Council of States. Thus, it is not
necessary for a person to be an elector in that particular state or UT where he is
contesting to be elected as a representative rather he can be an elector anywhere in
India.
Section 3 of RPA in its original form required the condition of elector ‘in that state or
territory’, but this requirement was dispensed by Representation of People
(Amendment) Act, 2003 and it was substituted by elector ‘in India’. In 2006, the
Supreme Court upheld the validity of this change in ‘Kuldip Nayar case’.

2. Qualifications for membership of the House of the People (section 4 of RPA, 1951)—
(a) In order to contest a seat reserved for the Scheduled Castes/Scheduled Tribe (other
than those in the autonomous districts of Assam) in any State or Union Territory, he
must be a member of any of the Scheduled Castes/Tribe, whether of that State or
Union Territory or of any other State or Union Territory (excluding the tribal areas of
Assam), and must be elector for any Parliamentary Constituency. However a member of
Schedule Caste or Schedule Tribe can also contest a seat not reserved for them.
(b) In order to contest a seat reserved for the Scheduled Tribes in the autonomous
districts of Assam, he must be a member of any of those Scheduled Tribes and must be
an elector for the Parliamentary constituency in which such seat is reserved or for any
other Parliamentary constituency comprising any such autonomous district;
The protective mechanism as in case of Assam mentioned above applies to
Lakshadweep and Sikkim.
(c) In order to contest for any other seat, he must be an elector for any Parliamentary
constituency.

Qualifications for membership of a State Legislature

1. Qualifications for membership of a Legislative Assembly (Section 5 of RPA, 1951) –


(a) In order to contest a seat reserved for the Scheduled Castes or for the Scheduled
Tribes of that State or Union Territory, he must be a member of any of those castes or

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of those tribes, as the case may be, and must be an elector for any Assembly
constituency in that State or Union Territory;
(b) In order to contest a seat reserved for an autonomous district of Assam, he must be
a member of a Scheduled Tribe of any autonomous district and must be an elector for
the Assembly constituency in which such seat or any other seat is reserved for that
district; and
(c) In order to contest any other seat, he must be an elector for any Assembly
constituency in that State or Union Territory.
(d) In order to be qualified to be chosen to fill any seat allocated to the Tuensang
district in the Legislative Assembly of Nagaland for the period referred to in clause (2)
of article 371A, he must be a member of the regional council referred to in that article.
2. Section 5A mentions some special provisions regarding Qualifications for membership
of Legislative Assembly of Sikkim.
3. Qualifications for membership of a Legislative Council—
(a) In order to be qualified to contest a seat of Legislative Council of a State or Union
Territory to be filled by election, he must be an elector for any Assembly constituency in
that State.
(b)In order to be qualified to be chosen for a seat in the Legislative Council of a State or
Union Territory to be filled by nomination by the Governor he must be an ordinarily
resident in the State or Union Territory.

Q. What are the provisions for disqualification for Membership of Parliament


and State Legislatures mentioned in RPA, 1951?

RPA, 1951in chapter III of part II provides for 8 different grounds for disqualification for
Membership of Parliament and State legislatures:

1. Section 8(1) provides for disqualification on conviction for certain offences —


A person convicted of an offence punishable under the following crimes will be
disqualified:
a. IPC Crimes: section 153A (offence of promoting enmity between different
groups on ground of religion, race, place of birth, residence, language, etc., and
doing acts prejudicial to maintenance of harmony) or section 171E (offence of
bribery) or section 171F (offence of undue influence or personation at an
election) or sub section (1) or sub-section (2) of section 376 or section 376A or
section 376B or section 376C or section 376D (offences relating to rape) or
section 498A (offence of cruelty towards a woman by husband or relative of a
husband) or sub-section (2) or sub-section (3) of section 505 (offence of making
statement creating or promoting enmity, hatred or ill-will between classes or
offence relating to such statement in any place of worship or in any assembly
engaged in the performance of religious worship or religious ceremonies) of the
Indian Penal Code;
b. Protection of Civil Rights Act 1955,which provides for punishment for the
preaching and practice of "untouchability", and for the enforcement of any
disability arising there from;
c. Section 11 (offence of importing or exporting prohibited goods) of the Customs
Act, 1962;

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d. Sections 10 to 12 (offence of being a member of an association declared


unlawful, offence relating to dealing with funds of an unlawful association or
offence relating to contravention of an order made in respect of a notified
place) of the Unlawful Activities (Prevention) Act, 1967;
e. The Foreign Exchange (Regulation) Act, 1973;
f. The Narcotic Drugs and Psychotropic Substances Act, 1985;
g. Section 3 (offence of committing terrorist acts) or section 4 (offence of
committing disruptive activities) of the Terrorist and Disruptive Activities
(Prevention) Act, 1987;
h. Section 7 (offence of contravention of the provisions of sections 3 to 6) of the
Religious Institutions (Prevention of Misuse) Act, 1988;
i. Offences under RPA: Section 125 (offence of promoting enmity between
classes in connection with the election) or section 135 (offence of removal of
ballot papers from polling stations) or section 135A (offence of booth
capturing) of clause (a) of sub-section (2) of section 136 (offence of
fraudulently defacing or fraudulently destroying any nomination paper) of RPA,
1951;
j. Section 6 (offence of conversion of a place of worship) of the Places of Worship
(Special Provisions) Act, 1991;
k. Section 2 (offence of insulting the Indian National Flag or the Constitution of
India) or section 3 (offence of preventing singing of National Anthem) of the
Prevention of Insults to National Honour Act, 1971;
l. The Commission of Sati (Prevention) Act, 1987;
m. The Prevention of Corruption Act, 1988;
n. The Prevention of Terrorism Act, 2002 ,
The period of disqualification will be six years from the date of such conviction, if
sentenced to only fine and six years since release, in case of an imprisonment.
2. Under Section 8(2): A person convicted for the contravention of any law regarding
prevention of hoarding or profiteering, adulteration of food or drugs or Dowry
Prohibition Act, 1961 and sentenced to imprisonment for not less than 6 months.
3. Section 8(3) provides that a person convicted of any offence (other than any offence
mentioned in section 8(1) or section 8(2)) and sentenced to imprisonment for not less
than two years will be disqualified from the date of such conviction and will continue
to be disqualified for a further period of six years since his release.
4. Section 8A provides for disqualification on ground of corrupt practices—
A person guilty of certain corrupt practices specified in section 123 of RPA, 1951 stands
disqualified and such disqualification is subjected to the condition the charges are
established through an election petition before the high court and presented to the
President as a High Court Order. Further, the President will decide upon the
disqualification and the duration of such disqualification after obtaining an opinion
from the Election Commission.
5. Section 9: A person who having held an office under the Government of India or under
the Government of any State in the past and has been dismissed for corruption or for
disloyalty to the State will be disqualified for a period of five years from the date of
such dismissal.
6. Section 9A provides for disqualification for Government contracts, etc. —
A person shall be disqualified if there subsists a contract entered into by him in the
course of his trade or business with the appropriate Government for the supply of
goods to, or for the execution of any works undertaken by that Government.

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7. Section 10 provides for disqualification for office under Government company: A


person shall be disqualified if, and for so long as, he is a managing agent, manager or
secretary of any company or corporation (other than a cooperative society) in the
capital of which the appropriate Government has not less than twenty-five per cent
share.
8. Section 10A: disqualification for failure to lodge account of election expenses.

However it is mentioned in section 11 of RPA, 1951 that election commission may, for the
reason to be recorded, remove any of the above disqualification except under section 8A or
reduce the period of any such disqualification.

Q. Are there any provisions in RPA 1951related to disqualifications for voting?


If yes, what are the grounds for the same?
Section 11A provides for disqualification arising out of a conviction and corrupt practices. It
mentions that if any person is convicted of an offence punishable under Section 171E (offence
of bribery) or Section 171F (offence of undue influence or personation at an election) of the
Indian Penal Code; or under Section 125 (Promoting enmity between classes in connection with
election) or section 135 (removal of ballot paper from polling station) or Section 136(2)(a)
(found guilty of some electoral offences, while being an officer in connection with the election)
of RPA1951, he will be disqualified for voting at any election for a period of six years from the
date of conviction or from the date on which the order takes effect. Further, it provides that a
person disqualified by a decision of the President under 8A (through election petition for
corrupt practice) for any period will be disqualified for the same period for voting at any
election.

However, Section 11B provides that election commission may, for reason to be recorded,
remove any disqualification except under section 8A.

Q. What is the process of notification of general elections?

Election to the House of People: For general election to the House of the people, the President,
by one or more notifications published in the Gazette of India on such date or dates, as may be
recommended by the Election Commission, calls upon all Parliamentary constituencies to elect
members. No such notification can be issued at any time earlier than six months prior to the
date on which the duration of that House would expire, except in the case of dissolution of the
existing House of People.

Election to the Council of States: In case of biennial election to the Council of State for the
purpose of filling the seats of members of the Council of States retiring on the expiration of
their term of office the President, by one or more notifications published in the Gazette of India
on such date or dates as may be recommended by the Election Commission, calls upon the
elected members of the Legislative Assembly or, as the case may be, the members of the
electoral college, of each State concerned to elect members. No such notification can be issued
more than three months prior to the date on which the term of office of the retiring members
is due to expire.

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Similarly for the elections to state legislature, Governor plays the role mentioned for the
President in case of House of People under exactly same conditions.

Q. Briefly describe the administrative machinery for the conduct of elections.


Part IV provide for delegation of functions of Election Commission i.e. the functions of the
Election Commission under the Constitution, the Representation of the People Act, 1950, and
Representation of the People Act, 1951 Act or under the rules made there under may be
performed also by a Deputy Election Commissioner or by the Secretary to the Election
Commission on the basis of directions as may be given by the Election Commission in this
behalf.

Chief Electoral Officer: The Election Commission of India nominates or designates an Officer of
the Government of the State/Union Territory as the Chief Electoral Officer in consultation with
that State Government/Union Territory Administration. Chief Electoral Officer of a State/
Union Territory is authorized to supervise the election work in the State/Union Territory subject
to the overall superintendence, direction and control of the Election Commission.

District Election Officer: The EC nominates an Officer of the State Government as the District
Election Officer in consultation with the State Government. The district election officer is
authorized to coordinate and supervise all work in the district or in the area within his
jurisdiction in connection with the conduct of all elections to Parliament and the Legislature of
the State subject to the superintendence, direction and control of the chief electoral officer.
With the previous approval of the Election Commission, DEO provides a sufficient number of
polling stations for every constituency the whole or greater part of which lies within his
jurisdiction, and publishes a list showing the polling stations so provided and the polling areas
or groups of voters for which they have respectively been provided.

Observer: The Election Commission may nominate an Observer who shall be an officer of
Government to watch the conduct of election or elections in a constituency or a group of
constituencies. Earlier, the appointment of Observers was made under the plenary powers of
the Commission. But with the amendments made to the Representation of the People Act,
1951 in 1996, these are now statutory appointments. They report directly to the Commission.

The Observer has the power to direct the returning officer for the constituency or for any of the
constituencies for which he has been nominated, to stop the counting of votes at any time
before the declaration of the result or not to declare the result if in his opinion booth
capturing has taken place. In case of stopping the counting of votes or non-declaration of result,
a report shall be sent by the Observer to the EC, which issue appropriate directions.

Returning Officer: The Election Commission of India nominates or designates an officer of the
Government or a local authority as the Returning Officer for each of the assembly and
parliamentary constituencies in consultation with the State Government/Union Territory
Administration. Same person can be appointed as the returning officer for more than one
constituency. In addition, the Election Commission of India may appoint one or more Assistant
Returning Officers for each of the assembly and parliamentary constituencies to assist the
Returning Officer in the performance of his functions in connection with the conduct of
elections. Every such person must be an officer of Government or of a local authority.

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Every assistant returning officer, subject to the control of the returning officer, is competent to
perform all or any of the functions of the returning officer except functions which relate the
scrutiny of nominations unless the returning officer is unavoidably prevented from performing
the said function. While Returning officer may always include an assistant returning officer in
performing any function which he is authorized to perform him.

It is the general duty of the returning officer at any election to do all such acts and things as
may be necessary for effectually conducting the election in the manner provided by RPA,
1951and rules or orders made there under.

Presiding Officer: The district election officer appoints a presiding officer for each polling
station. If a polling officer is absent from the polling station, the presiding officer may appoint
any person who is present at the polling station other than a person who has been employed
by or on behalf of, or has been otherwise working for, a candidate in or about the election, to
be the polling officer during the absence of the former officer, and inform the district election
officer accordingly. Same person can be the presiding officer for more than one polling station
in the same premises. It is the general duty of the presiding officer at a polling station to keep
order thereat and to see that the poll is fairly taken.

Polling Officer: A polling officer performs all or any of the functions of a presiding officer based
upon his direction. If the presiding officer is absent from the polling station due to illness or
other unavoidable cause, his functions shall be performed by such polling officer as has been
previously authorized by the district election Officer to perform such functions during any such
absence. It is the duty of the polling officers at a polling station to assist the presiding officer for
such station in the performance of his functions.

The returning officer, assistant returning officer, presiding officer, polling officer, and any other
officer appointed so and any police officer designated for the time being by the State
Government, for the conduct of any election shall be deemed to be on deputation to the
Election Commission during the election period and such officers shall be subject to the control,
superintendence and discipline of the Election Commission.

Q. What is procedure of registration of political parties with election


commission? What are the advantages that accrue to the candidates of
recognized political parties according to RPA, 1951?
Any association or body of individual citizens of India calling itself a political party should make
an application to the Election Commission for its registration as a political party. Every such
application, duly signed by the Chief Executive Officer of the association or body (Secretary or
any other designation) must be presented to the Secretary of the Election Commission. It must
contain the following particulars, namely:

i. the name of the association or body;


ii. the State in which its head office is situated;
iii. the address to which letters and other communications meant for it should be sent;
iv. the names of its president, secretary, treasurer and other office-bearers;
v. the numerical strength of its members, and if there are categories of its members, the
numerical strength in each category;
vi. whether it has any local units; if so, at what levels;

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vii. whether it is represented by any member or members in either House of Parliament or


of any State Legislature; if so, the number of such member or members.

The application must be accompanied by a copy of the memorandum or rules and regulations
of the association or body and such memorandum or rules and regulations must contain a
specific provision that the association or body shall bear true faith and allegiance to the
Constitution of India as by law established, and to the principles of socialism, secularism and
democracy, and would uphold the sovereignty, unity and integrity of India.

After considering all the particulars as aforesaid in its possession and any other necessary and
relevant factors and after giving the representatives of the association or body reasonable
opportunity of being heard, the Commission decides either to register the association or body
as a political party, or not so to register it; and the Commission communicates its decision to
the association or body. The decision of the Commission is final.

Every political party may accept any amount of contribution voluntarily offered to it by any
person or company other than a Government company, but no political party can accept any
contribution from any foreign source.

The treasurer or any other person authorized by the political party must prepare a report in
each financial year listing the contribution in excess of twenty thousand rupees received by
such political party from any person or company (Other than Government) in that financial year.
This report must be submitted to the Election Commission before the due date for furnishing a
return of its income of that financial year. If the political party fails to submit a report then it
shall not be entitled to any tax relief.

A recognized political party shall either be a National party or a State party. A political party
shall be treated as a recognized National party, if, and only if:

1) If it secures six per cent of valid votes polled in any four or more states at a general
election to the Lok Sabha or to the legislative assembly; and, in addition, it wins four
seats in the Lok Sabha from any state or states; or
2) If it wins two per cent of seats in the Lok Sabha at a general election; and these
candidates are elected from three states; or
3) If it is recognised as a state party in four states.

At present there are 6 national parties in the country namely BJP, BSP, CPI, CPM, INC and NCP.

A political party, other than a National party, shall be treated as a recognized State party in a
State or States, if, and only if:

1) If it secures six per cent of the valid votes polled in the state at a general election to the
legislative assembly of the state concerned; and, in addition, it wins 2 seats in the state
assembly; or
2) If it secures six per cent of the valid votes polled in the state at a general election to the
Lok Sabha from the state concerned; and, in addition, it wins 1 seat in the Lok Sabha
from the state concerned; or
3) If it wins three per cent of seats in the legislative assembly at a general election to the
legislative assembly of the state concerned or 3 seats in the assembly, whichever is
more; or

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4) If it wins 1 seat in the Lok Sabha for every 25 seats or any fraction thereof allotted to
the state at a general election to the Lok Sabha from the state concerned; or
5) If it secures eight per cent of the total valid votes polled in the state at a General
Election to the Lok Sabha from the state or to the legislative assembly of the state. This
condition was added in 2011.

The status of national or state party is contingent on the performance of a political party’s
performance the respective elections. Thus the number of National or State parties vary
depending on the assembly or General elections.

The candidates of recognized parties are entitled for free supply of certain materials like such
number of copies of electoral rolls, as finally published under the Representation of the
People Act, 1950 and such other material as may be prescribed. The Central Government in
consultation with the Election Commission can decide items to be supplied to the recognised
political parties.

Other exclusive benefits enjoyed by recognized parties are:

1. Free airtime on Doordarshan and All in Radio for election campaign.


2. A recognized party needs not to have to get his nomination paper subscribed by at least
10 voters in his constituency.
3. The name of the candidates nominated by the recognized party are organized in
alphabetical order and printed on the top of Ballot paper followed by candidates
nominated by registered party and independent candidates.
4. If a candidate nominated by a recognized party passes away before the commencement
of the polling then the election shall be adjourned and the political party concerned will
be given one week time to re-nominate a candidate and there after the election
process will be completed.
5. Recognized political parties are entitled to the allotment of symbols given for its
exclusive use.
6. The proposed amendments to the Representation of People act, 1951 for the
introduction of state funding of election provides for extending financial assistance only
to the recognized party.

Q. Briefly describe the process of election.

When the term of the legislature is over, or the legislature has been dissolved and new
elections have been called, the Election Commission puts into effect the machinery for holding
an election. In case of Lok Sabha elections have to be concluded before the limit of 6 months
that is stated by the Constitution as maximum possible duration between the last session of
dissolved Lok Sabha and the recalling of new House.

Schedule of elections is usually announced by the Election Commission in a major press


conference a few weeks ago before the formal process starts. The model code of conduct
immediately comes into effect after such an announcement. Formal process of an election
starts with calling electorates to elect members of concerned legislature. As soon as
notifications are issued, candidates can starts filling their nomination in the constituencies from
where they wish to contest. These are scrutinized by returning officer of the concerned
constituency, after last date for filling the nomination is over(that is about a week). Validly

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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nominated candidates can withdraw from the contest within two days from the date of scrutiny.
About two weeks, before actual poll date, is given to contesting candidates for political
campaign. For national election polling is held on a number of days, this is because of the vast
magnitude of operations involved and massive size of electorates. A separate date for counting
is fixed and result is declared for every constituency by the concerned returning officer. The
complete list of the members elected is compiled by the commission and it issues an
appropriate notification for due constitution of house. This marks the completion of election
process.

It is necessary for a candidate to make and subscribe an oath or affirmation before an officer
authorized by the election commission (Returning Officer or Asst. Returning officer). The
candidate, in person, is required to make the oath or affirmation immediately after presenting
his nomination paper and in any case not later than the day previous to the date of scrutiny.. In
the case of a candidate confined in a prison or under preventive detention, the superintendent
of the prison or the commandant of the detention camp in which he is so confined or is under
such detention is authorized to administer the oath and in the case of candidate confined to a
bed in a hospital or elsewhere owing to illness or any other cause, the medical superintendent
in charge of the hospital or the medical practitioner attending on him is similarly authorized. If
the candidate is outside India, the Indian Ambassador of High Commissioner or diplomatic
consular authorized by him can also administer oath/affirmation.

Election Campaign

The campaign is the period when the political parties put forward their candidate and argument
with which they hope to persuade people to vote for their candidates and parties. Candidates
are given a week to put forward their nomination. These are scrutinized by the Returning
Officers and if not found in order can be rejected after a summary hearing. The official
campaign lasts at least two weeks from the drawing up of the list of nominated candidate and
officially ends 48 hours before polling closes.

During the election campaign, political parties and contesting candidates are expected to abide
by the model code of conduct evolved by the election commission on the basis of a consensus
among political parties. The model code lays down broad guidelines as to how the political
parties and candidates should conduct themselves during the election campaign. It is intended
to maintain the election campaign on healthy lines avoid clashes or conflict between political
parties and their supporters and to ensure peace and order during the campaign period and
thereafter until the results are declared. The model code also prescribes guidelines for the
ruling party either at the centre or in the state so that a level field is maintained and ensures
that ruling party does not use its official position for election campaign.

Once an election has been called, parties issue manifesto detailing the programmes they wish
to implement if elected to government, the strength of their leaders and weaknesses of
opposite party and their leaders.

Voting procedure

Voting is by secret ballot. Polling stations are usually set up at public institutions such as schools
and community halls. To enable as many electors as possible to vote the officials of election
commission try to ensure that there is a polling station within two kilometer of every voter, and

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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that no polling station should have to deal with more than 1500 voters. Each polling station is
open for at least 8 hours on the day of the election.

Electronic Voting Machine

An EVM is a simple electronic device used to record votes in place of ballot papers. EC took a
decision to use only EVMs in 2004 Lok Sabha elections. SC has passed a judgement to equip all
EVMs with VVPAT (Voter Verifiable Paper Audit Trail).It has following advantages over
traditional voting mechanism:
1) It eliminates the possibility of invalid/doubtful vote which in many cases are the root
causes of controversies and election petitions.
2) It makes the process of counting of votes much faster than the conventional system.
3) It is eco-friendly as it reduces the use of paper.

Q. What are the provisions related to the declaration of assets and liabilities by
elected candidate in RPA, 1951?

Section 75A of RPA, 1951 states that every elected candidate for either houses of Parliament
shall furnish information regarding relating to the movable and immovable property owned by
him, his spouse or his children; the liabilities to any public financial institution or to the Central
Government or State Government within ninety days from the date of subscribing an oath for
taking a seat in Parliament.

The information shall be furnished in such form and in such manner as may be prescribed in the
rules made by the Chairman of the Council of States or the Speaker of the House of the People,
as the case may be. Any willful contravention of such rules by an elected candidate for a House
of Parliament is dealt with in the same manner as a breach of privilege of the Council of States
or the House of the People, as the case may be.

Q. What are the provisions related to the election expenses by the candidate in
RPA, 1951?
According to the section 77 of RPA, 1951, every candidate contesting in election to the House of
the People or to the Legislative Assembly of a State, shall, either by himself or by his election
agent, keep a separate and correct account of all expenditure in connection with the election
incurred or authorized by him or by his election agent.

Currently the limits on expenditure by candidates are as follows:


i. Lok Sabha elections: maximum of 70 lakhs; for north eastern and hilly states - 54 lakhs
rupees.
ii. State assembly election: maximum of 28 lakhs; for north eastern and hill states - 20
lakhs rupees.

Every contesting candidate at an election shall, within thirty days from the date of election of
the elected candidate or, if there are more than one elected candidate at the election and the
dates of their election are different, the later of those two dates, lodge with the district
election officer an account of his election expenses which shall be a true copy of the account
kept by him or by his election agent.

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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Q. What are the provisions for settlement of disputes regarding elections


mentioned in RPA, 1951?
No election shall be called in question except by an election petition presented to the High
Court having jurisdiction of the state involved. Such jurisdiction of High court shall be exercised
ordinarily by a single Judge of the High Court and the Chief Justice shall, from time to time,
assign one or more Judges for that purpose.

An election petition calling in question any election may be presented to the High Court by any
candidate at such election or any elector within forty-five days from, but not earlier than the
date of election of the elected candidate, or if there are more than one elected candidate at the
election and the dates of their election are different, the later of those two dates.

An election petition may be presented on one or more of the following grounds:

a. that on the date of his election a returned candidate was not qualified, or was
disqualified, to be chosen to fill the seat under the Constitution or this Act or the
Government of Union Territories Act, 1963; or
b. that any corrupt practice has been committed by a returned candidate or his election
agent or by any other person with the consent of a returned candidate or his election
agent; or
c. that any nomination has been improperly rejected; or
d. that the result of the election, in so far as it concerns an elected candidate, has been
materially affected—
i. by the improper acceptance or any nomination, or
ii. by any corrupt practice committed in the interests of the elected candidate by
an agent other than his election agent, or
iii. by the improper reception, refusal or rejection of any vote or the reception of
any vote which is void, or
iv. by any non—compliance with the provisions of the Constitution or of RPA, 1951
or of any rules or orders made under RPA, 1951,

An election petition:

a. must contain a concise statement of the material facts on which the petitioner relies;
b. must set forth full particulars of any corrupt practice that the petitioner alleges,
including as full a statement as possible of the names of the parties alleged to have
committed such corrupt practice and the date and place of the commission of each
such practice.

Every election petition shall be tried as expeditiously as possible and endeavour shall be made
to conclude the trial within six months from the date on which the election petition is
presented to the High Court for trial. If the High Court upholds the election petition on the one
or more of the above grounds it declares the election of the selected candidate to be void.

At the conclusion of the trial of an election petition the High Court makes an order—

a. dismissing the election petition; or


b. declaring the election of all or any of the elected candidates to be void; or

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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c. declaring the election, of all or any of the returned candidates to be void and the
petitioner or any other candidate to have been duly elected

It is to be noted that according to section 170 of RPA, 1951 no civil court has jurisdiction to
question the legality of any action taken or of any decision given by the returning officer or by
any other person appointed under this act in connection with an election.

Q. What are the corrupt practices mentioned in RPA, 1951?

Section 123 defines the corrupt practices like bribery, undue influence, inciting religious
sentiments, booth capturing etc.

1. Bribery: Any form of gratification (including gift, reward or an offer) to the electors for voting
or refraining from voting and to the candidates for withdrawing or not withdrawing nomination
is considered as a corrupt practice under RPA. Under RPA, the person accepting such
gratifications is also considered guilty of indulging in corrupt practices. The term "gratification"
implies monetary gratifications as well as all forms of entertainment and all forms of
employment for reward.

2. Undue influence includes any direct or indirect interference with the free exercise of any
electoral right by the candidate or his election agent. But a declaration of public policy, or a
promise of public action, or the mere exercise of a legal right without intent to interfere with an
electoral right, shall not be deemed to be interference.

3.Appeal to vote or refrain from voting for any person on the ground of his religion, race,
caste, community or language or the use of, or appeal to religious symbols or the use of, or
appeal to, national symbols, such as the national flag or the national emblem, for the
furtherance of the prospects of the election of that candidate or for prejudicially affecting the
election of any candidate:

4. The promotion of feelings of enmity or hatred between different classes of the citizens of
India on grounds of religion, race, caste, community, or language

5. The propagation of the practice or the commission of sati or its glorification

6. The publication of any false statement of fact in relation to the personal character or
conduct of any candidate

7. The hiring or procuring of any vehicle or vessel or the use of such vehicle or vessel for the
free conveyance of any elector (other than the candidate himself, the members of his family or
his agent) to or from any polling station.

*Vehicle hired by electors for themselves by sharing costs is not considered corrupt practice if
the vehicle/vessel in not propelled by mechanical power. Use of any public transport by any
elector at his own cost for the purpose of going to or coming from any such polling station or
place fixed for the poll is not considered to be a corrupt practice.

8. The incurring or authorizing of expenditure in contravention of ‘Account of election expenses


and maximum limit’ prescribed by RPA, 1951 under section 77.

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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9. The obtaining or procuring or abetting any assistance (other than the giving of vote) for the
furtherance of the prospects of that candidate's election, from any person in the service of the
Government and belonging to any of the following classes, namely gazetted officers; stipendiary
judges and magistrates; members of the armed forces of the Union; members of the police
forces; excise officers; revenue officers etc.

10. Booth capturing by a candidate or his agent or other person.

Q. What are the Electoral Offences Mentioned in RPA, 1951?


Chapter III of Part VII of RPA, 1951 provides for the following electoral offences:

• Sec 125: Promoting Enmity between classes in connection with election


Promoting enmity on grounds of religion, race, caste, community ,language,
feelings is punishable
Imprisonment upto 3 years /fine/both
• Sec 125A: Penalty for filing false affidavit, concealing information, cases pending etc.
Imprisonment upto 6 moths/fine/both
• Sec 126: Prohibition of public meetings during period of 48 hours ending with hour
fixed for conclusion of poll
Imprisonment upto 2 years/fine/both
• Sec 126A: Restriction on publication and dissemination of result of exit polls, etc.
For the date & time specified by the EC by a general order
Imprisonment upto 2 years /fine/both
• Sec 126B: Offences by companies
Offence under sub section (2) Section 126A
Every person responsible for the conduct of business of the company shall be
deemed guilty unless proven
• Sec 127: Disturbances at election meetings
Public meeting of a political character
If Police Officer suspects any person, he can be arrested without warrant
Imprisonment upto 6 months /fine upto 2000 rupees
• Sec 127A: Restrictions on the printing of pamphlets, posters, etc.
Election pamphlet/poster which does not bear the name & addresses of the
printer /publisher shall not be printed
Declaration as to the identity of the publisher is to be sent to the printer signed
by publisher and attested by 2 persons personally known to him
Copy of the declaration and the document should be sent by the printer to the
CEO/District Magistrate as per location
Imprisonment upto 6 months /fine up to Rs. 2000/ both
• Sec 128: Maintenance of secrecy of voting
Officer/clerk/agent/person performing duty in connection to Election shall not
communicate to any person any information calculated to violate such secrecy
Imprisonment upto three months or fine or both.
• Sec 129: Officers, etc. at elections not to act for candidates or to influence voting
No act for the furtherance of the prospects of the election of a candidate
should be done
Imprisonment upto 6 months /fine/both
• Sec 130: Prohibition of canvassing in or near polling stations

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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No canvassing on the date/dates on which the poll is taken


Fine upto 250 rupees
• Sec 131: Penalty for disorderly conduct (Ex use of loudspeakers etc)in or near polling
stations
Imprisonment upto 3 months /fine/both & Police Officer has the right to arrest
and take necessary actions
• Sec 132: Penalty for misconduct at the polling station
Imprisonment upto 3 months /fine /both
• Sec 132A: Penalty for failure to observe procedure for voting
Elector refusing to observe procedure for voting the ballot paper shall be liable
for cancellation
• Sec 133: Penalty for illegal hiring or procuring of conveyance at the elections
Imprisonment upto 3 months & fine
• Sec 134: Breaches of official duty in connection with elections
Fine upto 500 Rupees
Applicable to DEO, RO, ARO, PrO, Polling Officers & any other person appointed
to perform duty in connection with receipt of nomination of withdrawal of
candidatures /recording/counting of votes
• Sec 134A: Penalty for government servants for acting as election agent, polling agent
or counting agent
Imprisonment upto 3 months/fine/both
• Sec 134B: Prohibition of going armed to or near a polling station
Except RO, Presiding Officer/Police Officer /person appointed to maintain
peace & order at the polling station
Imprisonment upto 2 years/fine /both
• Sec 135: Removal of ballot papers from polling station to be an offence
Unauthorizedly takes ballot paper outside the polling station
Imprisonment upto 1 year/fine upto 500 rupees/both
• Sec 135A: Offence of booth capturing
Imprisonment upto 3 years & fine ,if committed by a person in service of
Government term is upto 5 years & fine
Booth capturing: seizure/taking possession of polling station/place of counting
of votes /threatening any elector
• Sec 135B: Grant of paid holiday to employees on the day of poll
Every person entitled to vote at an election to be granted a day of poll without
deduction of wages
• Sec 135C: Liquor not to be sold, given or distributed on polling day
Within a polling area during 48 hours ending with the conclusion of the poll
• Sec 136: Other offences and penalties thereof [Sub sections to (1)-(4)]
Guilty of electoral offence :tampering with ballot box or ballot paper
/nomination paper fraudulently
Imprisonment upto 6 months or 2 years /fine /both

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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Code of Conduct

Q. Explain the concept of model code of conduct along with its evolution. Also
Describe the effects of applying the model code of conduct as well as its
enforcement.
Free and fair elections form the bedrock of democracy. This envisages a level playing field for
the contestants and an equal opportunity for all parties for presenting their policies and
programmes to voters. In this context the Model Code of Conduct(MCC) gains relevance. The
need of MCC is felt for the following reasons:

i. to provide a level playing field for all political parties, keep the campaign fair and
healthy, avoid clashes and conflicts between parties, and ensure peace and order.
ii. to ensure that the ruling party, either at the Centre or in the states, does not
misuse its official position to gain an unfair advantage in an election.

The MCC is a set of norms for conduct and behavior on the part of the Parties and candidates,
in particular. The uniqueness of the MCC is the fact that this was a document that originated
and evolved with the consensus of the political parties. The origin of the MCC dates back to
1960 when the MCC started as a small set of Dos and Don’ts for the Assembly election in Kerala
in 1960. The Code covered conducting of election meetings/processions, speeches, slogans,
posters and placards. In 1962 Lok Sabha General Elections, the Commission circulated this code
to all the recognized political parties and the State Governments were requested to secure the
acceptance of the Code by the Parties. The Model Code of Conduct was consolidated and
issued in the current form in 1991.

Evolution of the MCC and its implementation since 1967

• In 1968, the Election Commission held meetings with political parties at State level and
circulated the Code of Conduct to observe minimum standard of behavior to ensure
free and fair elections.
• In 1971-72, during General Election to the House of the People/State Legislative
Assemblies the Commission circulated the Code again.
• At the time of general elections to some State Assemblies in 1974, the Commission
issued the code of conduct to the political parties in those States.
• The Commission also suggested constituting committees at district level headed by the
District Collector and comprising representatives of political parties as members for
considering cases of violation of the code and ensuring its compliance by all parties and
candidates.
• For the 1977 Lok Sabha general election, the Code was again circulated to the political
parties.
• In 1979, Election Commission, in consultation with the political parties further
amplified the code, adding a new Section placing restrictions on the “Party in power”
so as to prevent cases of abuse of position of power to get undue advantage over other
parties and candidates.
• In 1991, the code was consolidated and re-issued in its present form.

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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Effects of Application of MCC

i. The present code contains guidelines for general conduct of political parties and
candidates (no attack on private life, no appeal to communal feelings, discipline and
decorum in meetings, processions, guidelines for party in power – official machinery
and facilities not to be used for electioneering, prohibition against Ministers and other
authorities in announcing grants, new schemes etc).
ii. Ministers and those holding public offices are not allowed to combine official visits with
electioneering tours.
iii. Issue of advertisements at the cost of public exchequer is prohibited.
iv. Grants, new schemes / projects cannot be announced. Even the schemes that may have
been announced before the MCC came into force, but that has not actually taken off in
terms of implementation on field are also required to be put on hold.
v. It is through such restrictions that the advantage of being in power is blunted and the
contestants get the opportunity to fight on more or less equal terms.

Enforcement

MCC has got the judicial recognition of the highest court of land. The dispute over the date
when the Model Code of Conduct should come into force, the issuance of the press release by
EC announcing the poll dates or the date of actual notification in this regard was resolved in
the Union of India V/s Harbans Sigh Jalal.

The apex court gave the ruling that the Code of Conduct would come into force the moment
the Commission issues the press release, which precedes the notification by a good two weeks.
This ruling lay at rest the controversy related to the dates of enforcement of MCC. Thus the
MCC remains in force from the date of announcement of elections till the completion of
elections.

Q. Is MCC a hindrance in developmental activities?


One often gets to hear the complaint that the MCC is coming in the way of developmental
activities. However, even during the short period when MCC is in operation, the ongoing
development activities are not stopped and are allowed to proceed unhindered, and only the
new projects, etc. which have not taken off on the ground that have to be deferred till the
completion of elections. If there is any work that cannot wait for any reason (relief work on
account of any calamity, etc), the matter can be referred to the Commission for clearance.

Q. Comment on the legal status of conduct. In what way can the MCC be made
more effective?
The Model Code of Conduct does not a have a statutory backing and it is more a consensus
driven code arrived at after consultation with all political parties to ensure free and fair
elections and to see that the ruling party does not misuse its dominant position.

The Parliamentary Standing Committee on Law and Justice recommended in its 2013 report
that statutory status be accorded to the MCC. The committee held that most of the stipulations
of the MCC are already contained in various laws and are therefore enforceable like the
violation of secrecy of voting, causing enmity among communities, the prohibition of public

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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meetings 48 hours prior to the conclusion of polls, besides other offences, are covered by the
Representation of People Act, 1951. Besides, impersonation at voting, offering inducements to
voters, or accepting gratification to do something they never intended, amount to bribery
under the Indian Penal Code.

On the basis of the above, the Standing Committee contends that the MCC as a whole could not
be construed merely as voluntary in its application. Furthermore, since most of its provisions
are enforceable, the remaining stipulations in the MCC should also be accorded statutory
backing.

Another reason for the above recommendation by the Standing Committee is the absence of an
immediate appeal mechanism against the decision of the returning officer to cancel the
nomination of a candidate. In this case, the decision can only be challenged in the High Court
after the announcements of election results.

The logic against Legal status to MCC:

1. The decision making power will go to the Judiciary and thus the swiftness, expedition
and promptness in dealing with the cases of violation of MCC will be gone.
2. If the model code of conduct is converted into a law, this would mean that a complaint
would lie to the police/Magistrate. The procedures involved in judicial proceedings
being what they are, a decision on such complaints would most likely come only long
after the election is completed.
3. The legal codification of these norms would be a potential nightmare, exposing the
entire electoral process to needless litigation. The broad objectives of MCC are best
achieved by oversight of an impartial election watchdog.

Supreme Court Judgements on Electoral Reforms

Q. The Supreme Court has taken a lead over the Parliament as far a selectoral
reforms are concerned. Discuss in light of recent judicial pronouncements.
The following Supreme Court judgments were directed towards bringing electoral reforms:

1. Persons in Custody to be debarred from contesting elections


As per the 2004 judgment of the Patna High Court in Jan Chaukidari v Union of India — upheld
by the Supreme Court on 10 July, 2013— all those in lawful police or judicial custody, other than
those held in preventive detention, will forfeit their right to stand for election. The judges relied
on the Representation of the People Act (RPA), which says that one of the qualifications for
membership of Parliament or State legislature is that the contestant must be an ‘elector’. Since
Section 62(5) of the Act prevents those in lawful custody from voting, the reasoning goes, those
in such custody are not qualified for membership of legislative bodies.

Reasoning Against the judgement:

For a person to be qualified for the membership of legislature, Representation of People Act,
1951 states that one has to be an ‘elector’ as defined in Section 2(e). Section 2(e) defines an

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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elector as “a person whose name is entered in the electoral roll of that constituency and who is
not subject to any of the disqualifications mentioned in section 16 of the RP Act, 1950.”

As the law mentions Section 16 of RPA, 1950 as the basis of disqualification from being an
elector, the SC relied on Section 62(5) which does not define ‘elector’ and only debars a person
in jail from voting, not from contesting an election. Thus Section 62(5) distinguishes between an
‘elector’ and ‘voter’.

The Supreme Court’s judgement effectively amends the law passed by the Parliament.

2. MPs, MLAs to be disqualified on date of criminal conviction


In Lily Thomas v. Union of India, the Supreme Court declared Section 8 (4) of the
Representation of the People Act, 1951, (RPA) which allowed legislators a three-month window
to appeal against their conviction — effectively delaying their disqualification until such appeals
were exhausted — as unconstitutional.

Section 8 of the Representation of People Act, 1951 deals with disqualification on conviction
for certain offences: A person convicted of any offence and sentenced to imprisonment for
varying terms under Sections 8 (1) (2) and (3) shall be disqualified from the date of conviction
and shall continue to be disqualified for a further period of six years since his release. But
Section 8 (4) of the RP Act gives protection to MPs and MLAs as they can continue in office
even after conviction if an appeal is filed within three months.

The Bench found it unconstitutional that convicted persons could be disqualified from
contesting elections but could continue to be Members of Parliament and State Legislatures
once elected.

Reasoning Against the Judgment:

The constitution enlists the disqualification criteria in Article 102(1) includes office of profit,
unsound mind undischarged insolvency and citizenship. This article also empowers the
Parliament to make law specifying any other criterion for disqualification. In accordance with
the constitutional mandate, the Parliament enacted the RPA 1951, mentioning the
disqualification criteria in Section 8.

The Supreme Court has given two reasons for its verdict: First, it held Section 8(4) to be in
violation of Article 102, and its corresponding provision for the States, Article 191, of the
Constitution. A careful reading of the article 102 clearly empowers the Parliament to define the
criterion for disqualification by enacting a law and none of the five clauses of Article 102(1) are
attracted to invalidate Section 8(4).

Second, the Supreme Court has held that Parliament had no legislative competence to enact
Section 8(4). This reasoning, too, is difficult to accept because Entry 72 to List 1 of the 7th
Schedule in the Constitution specifically allows Parliament to legislate on elections to
Parliament or the State legislatures. It is well-settled that legislative entries in the Constitution
are to be widely construed, and in any case Parliament has residual power to legislate under
Entry 97 to List 1.

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Student Notes:

3. Voter’s right to cast negative vote


With a view to bringing about purity in elections, the Supreme Court on Friday held that a voter
could exercise the option of negative voting and reject all candidates as unworthy of being
elected. The voter could press the ‘None of the above’ (NOTA) button in the electronic voting
machine. The court directed the Election Commission to provide the NOTA button in the EVM.

The NOTA option would indeed compel political parties to nominate sound candidates. The
bench noted that giving right to a voter not to vote for any candidate while protecting his right
of secrecy is extremely important in a democracy. Such an option gives the voter the right to
express his disapproval of the kind of candidates being put up by the parties. Gradually, there
will be a systemic change and the parties will be forced to accept the will of the people and
field candidates who are known for their integrity.

The right to cast a negative vote will foster the purity of the electoral process and also fulfill one
of its objectives, namely, wide participation of people. Not allowing a person to cast a negative
vote would defeat the very freedom of expression and the right to liberty.

The Bench held that Election Conduct Rules 41(2) and (3) and 49-O of the Rules were ultra vires
Section 128 of the Representation of the People Act and Article 19(1)(a) of the Constitution to
the extent they violate secrecy of voting.

4. The VVPAT Ruling


Supreme Court (SC), in the case of Subramanian Swamy vs Election Commission of India (ECI),
has held that VVPAT (Vote Verifiable Paper Audit Trial) is “indispensable for free and fair
elections”. In accordance to that, the Supreme Court has directed the ECI to equip Electronic
Voting Machines (EVMs) with VVPAT systems to “ensure accuracy of the VVPAT system”. The
Court directed the government to provide the key financial assistance to the ECI to cause VVPAT
systems to be deployed along with EVMs. Reiterating the stand of the Delhi High Court in
an earlier judgment, the Apex Court maintained that costs and finances cannot and should not
be a deterrent to the conduct of free and fair elections. This ruling is obviously a victory for
accountable voting in India, but it leaves a few questions unanswered. While this was an
exclusive prerogative of the Executive to decide the manner in which fair and efficient elections
can be held, but in this case the court not only decided the mechanism but also asked the
government to allocate funds.

5. Ruling on election manifesto


On a petition filed by an advocate S Subramaniam Balaji, challenging the state's decision to
distribute freebies, the Supreme Court said that freebies promised by political parties in their
election manifestos shake the roots of free and fair polls, the, and directed the Election
Commission to frame guidelines for regulating contents of manifestos.

It was stated in the petition that the freebies amounts to bribery under Section 123(1). The
Supreme Court rejected the contention that the promises made by a political party are violative
of Section 123(1) of the RPA. The provisions of the RPA place no fetter on the power of political
parties to make promises in the election manifesto, the court held.

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Student Notes:

Secondly, the court held that the concept of state largesse is essentially linked to the Directive
Principles of State Policy. Whether the state should frame a scheme, which directly gives
benefits to improve the living standards or indirectly does so by increasing the means of
livelihood, is for the state to decide and the role of the court is very limited in this regard. It
held that judicial interference was permissible when the action of the government was
unconstitutional and not when such action was not wise or when the extent of expenditure was
not for the good of the state.

The court, however, agreed with the appellant that distribution of freebies of any kind
undoubtedly influenced all people. “Freebies shake the root of free and fair elections to a large
degree,” it said.

Considering that there was no enactment that directly governed the contents of the election
manifesto, the court directed the E.C. to frame guidelines for the same in consultation with all
the recognised political parties. The court also suggested the enactment of a separate law for
governing political parties.

6. Stay on caste-based rallies in UP

The Allahabad high court stayed caste-based rallies in Uttar Pradesh , a move that will block off
a key avenue that the major political parties use to expand their support base, especially before
elections.

The Lucknow bench of the high court sent a notice staying caste-based rallies to four major
political parties, the Union and the state governments, and the Election Commission. The four
parties are the Congress, the Bharatiya Janata Party (BJP), the Samajwadi Party (SP) and the
Bahujan Samaj Party (BSP).

Holding political rallies by certain groups to address issues specific to them and seeking to win
their electoral support is a common practice in the country, most prominently in Uttar Pradesh,
where two of the major parties have specific caste bases. The petitioner said there had been a
spurt of such rallies in the state, damaging social unity and harmony, and that they were against
the spirit of the Constitution.

There is no legal bar to a caste rally, as long as no law is violated. In fact, Article 19(1)(b) of the
Constitution gives citizens a Fundamental right to assemble peacefully. A political party can call
a meeting of a caste, for example, of Dalits to discuss the problems facing that community, and
there is no law barring such a meeting.

The aforementioned decisions of the Supreme Court and the Allahabad High Court may be
perceived as making or amending the law, a function that is in the domain of the legislature.

7. Ruling on nomination Papers

The Supreme Court on 13th Sep, 2013 ruled that returning officer can reject nomination papers
of a candidate for non-disclosure and suppression of information, including that of assets and
their criminal background. The apex court said that voters have fundamental right to know
about their candidates and leaving columns blank in the nomination paper amounts to violation
of their right.

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Student Notes:

The court passed the judgment on a PIL filed in 2008 by NGO Resurgence India, a civil rights
group, which detected a trend among candidates of leaving blank the columns demanding
critical information about them.

The Election Commission had supported the NGO's plea that no column should be allowed to
be left blank which tantamount to concealing information and not filing complete affidavit. It
had also taken a stand that the returning officer should be empowered to reject the nomination
papers of a candidate who provides incomplete information by leaving some columns blank in
the affidavit.

Copyright © by Vision IAS


All rights are reserved. No part of this document may be reproduced, stored in a retrieval
system or transmitted in any form or by any means, electronic, mechanical, photocopying,
recording or otherwise, without prior permission of Vision IAS

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G.S. PAPER II – CONSTITUTION & POLITY

THE REPRESENTATION OF THE PEOPLE ACT, 1951

Copyright © by Vision IAS


All rights are reserved. No part of this document may be reproduced, stored in a retrieval system or
transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise,
without prior permission of Vision IAS

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THE REPRESENTATION OF THE PEOPLE ACT, 1951

1. INTRODCUTION
The founding fathers of India opted for a Parliamentary democracy as the appropriate model for a large
and diverse country like ours. Conducted once in a five year, general election of India is an attempt in the
direction.

THE REPRESENTATION OF THE PEOPLE ACT, 1951 is a model Act which provides the legislative
framework for:
• The conduct of elections to the Parliament and state assemblies.
• The qualifications and disqualifications for membership.
• The code of conduct against illegal practices
Election Commission (EC), a constitutional body, is assigned to take the mammoth exercise of conducting
general elections under the act. The code of conduct is developed by the commission for carrying the
elections in fair manner. However, the elections are marred with several issues, a few of which are as
identified:

1.1 Criminalization of Politics


The criminalisation of our political system is a major challenge to parliamentary democracy.
National Commission to Review the Working of the Constitution (NCRWC) has identified problems
related to the criminalisation of politics in many areas e.g. role of Mafia in elections, black money
generation for political funding, fraudulent voting, booth capturing, intimidation of voters, engineered
mistakes in counting votes, incongruities in delimitation of the constituencies etc.
Besides, Vohra Committee has also identified the politician-criminal nexus, a menace to the Indian
political system. The committee highlights that: “The nexus between the criminal gangs, police,
bureaucracy and politicians has come out clearly in various parts of the country” and that “some political
leaders become the leaders of these gangs/armed senas and over the years get themselves elected to local
bodies, State assemblies, and national parliament.”
A number of remedies have been proposed by the various committees on the criminalization of politics in
the country.

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1.1.1 Disclosure of candidate’s identity


EC prescribes that candidates are required to furnish records related to their identity. The commission
restricts the candidates to participate in the elections if they are accused of any offence punishable with
imprisonment for two years or more; there are pending cases in the court; sentenced to imprisonment for
one year or more. There have been incidents of providing malafide information to the candidates.
Recommendations are made for more stringent punishment in such cases. Apart from that, the candidates
have to submit the declaration of assets and sources of income.

1.1.2 Eligibility of candidates


Candidates should have completed a period of six years from the date of conviction. Candidate convicted
for a crime for which the minimum imprisonment is two years shall also be disqualified from the date of
conviction and will continue to be disqualified for six additional years after his release. EC has proposed
that the minimum offence punishable by imprisonment of 5 years or more should be set as criteria for
disqualification. The Commission has further proposed that any person convicted for any heinous crime
such as murder, rape, smuggling, dacoity, etc., should be permanently barred from contesting elections at
any level.

1.1.3 Negative or Neutral Voting


Currently there is no provision for voters to express their dislike for the candidates who are deemed to be
unfit. Voters are left with no alternatives than to vote. This may be a compromise on the choice of right
candidates for the political offices. Both EC and Law Commission of India recommend that a negative or
neutral voting option be created.

1.2 Financing of the Elections


NCRWC investigated that the campaign expenditure by candidates is in the range of about twenty to thirty
times the legal limits. Such an amount for election funding has negative social impacts. This also leads to
corruption and further criminalization of the political system. A number of remedies have been
recommended to limit the excess funding.

1.2.1 Limits on campaign expenditure


It is recommended that the existing ceiling on election expenses for the various legislative bodies should be
suitably raised to a reasonable level e.g. the ceiling is currently Ra 25 lakhs for a Lok Sabha seat and Rs 10

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lakh for an Assembly seat. The funding limits are revised by EC over a period of time. It is also
recommended that the govt. should establish a national corpus for elections funding.

1.2.2 Disclosure audit of assets and liabilities of candidates


As per the mandate of the EC, candidates for electoral office must submit an affidavit disclosing his assets
and liabilities. The commission investigated that there have been many cases where the candidates are
alleged to have given grossly undervalued information. To handle such cases, it was recommended by the
EC that there should be more stringent punishment for concealing or providing wrong information on the
form.

1.2.3 Cost of campaigning


Similar to the excess election funding, the excess cost of funding is also a cause of negative social impact.
Indrajit Gupta Committee report, and NCRWC found that many of the tools used for campaigning – such
as wall writings, rallies on public property, using loudspeakers for campaigning – are not only costly, but
are also a public nuisance. It was suggested that a suitable law should be enacted providing penalties or
reasonable restrictions against damaging or desecrating public or private property by candidates, political
parties, or the agents, through painting of slogans or erecting cut-outs and hoarding or putting up banners
and buntings, wall writings, hoisting of flags .

1.2.4 State Funding of Elections


A major concern associated with the high cost of elections is that it prevents parties and candidates with
modest financial resources from being competitive in elections. If candidates need to raise funds, then their
policy decisions after being elected as policy makers may be somewhat biased in favour of groups that fund
them. The Indrajit Gupta Committee suggested the state funding of elections on the ground of public
interest. Popularity among the electorate and funding only to recognised political parties on short-term
basis were the other key suggestions of the committee. The appropriate regulatory framework was strongly
recommended to deal with political parties for state funding.

1.3 Management of Elections


With more than 714 million, 50 lakh personnel and almost 1 million (10 lakh) polling booths, elections in
India are a mammoth exercise. Successful administration of the electoral process requires more than
millions of security personnel to promote a peaceful and incident-free voting experience. All this poses
following challenges:
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1.3.1 Irregularities in polling


Rigging of elections have become common facets of our electoral system. NCRWC identified the cases of
large-scale registration of bogus voters, or large-scale deletion of names of “unfriendly” voters.” The
Goswami Committee on Electoral Reforms stated that irregularities in electoral rolls are exacerbated by
purposeful tampering done by election officials who are bought by vested interests. Elections rolls are
prepared by both EC and State ECs. The duplication of essentially the same task between two different
agencies is also an unnecessarily costly affair. The EC recommended that each voter would be provided
with a unique bar-coded ID number, assigned for life to avoid confusion over electoral rolls and the cost
associated. The Goswami Committee also recommended that Post Offices should be the agencies for
preparation and maintenance of electoral rolls.

1.3.2 Use of muscle power and intimidation


Rigging of elections is possible not just through tampering of booths, ballots, and electoral roles, but also
out of sheer ‘muscle power’ and intimidation of voters. The Goswami Committee recommended that the
EC should be empowered to take strong action on the report of returning officers, election observers, or civil
society in regards to booth capture or the intimidation of voters. NCRWC recommended that EC should
make use of electronic surveillance equipment as a deterrent to booth capture or intimidation of voters.

1.3.3 Proliferation of candidates


There is a proliferation of candidates in Indian elections. According to the EC, “too many candidates in the
election fray puts unnecessary and avoidable stress on the management of elections and increases
expenditure on account of security, maintenance of law and order, and requires extra number of balloting
units of voting machines, etc”. To check the proliferation of non-serious candidates, increase in the
security deposit of candidates was recommended. Also, the power to prescribe deposit amounts prior to
each election be given to EC. Increasing number of independent candidates is another issue; it was
recommended that the independent candidates should be debarred from contesting as an independent for the
same office for six years if they lose and should be permanently debarred if they lose three times
consecutively.

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1.4 Measures for Election Commission


• EC has recommended a number of improvements in electoral law to allow it to continue functioning
in an effective and independent manner. Article 324 of the Constitution provides that the Chief
Election Commissioner shall not be removed from his office except in like manner and on like
grounds as a Judge of the Supreme Court. The Article does not provide similar protection to the
Election Commissioners and it only says that they cannot be removed from office except on the
recommendation of the Chief Election Commissioner. Safeguard in the matter of removability of
Election Commissioners from office as is provided to the Chief Election Commissioner is
recommended.

• The Election Commission also recommends that the Secretariat of the Election Commission,
consisting of officers and staff at various levels is also insulated from the interference of the
Executive in the matter of their appointments, promotions, etc. All such functions are exclusively
vested in the Election Commission on the lines of the Secretariats of the Lok Sabha, and Rajya
Sabha, Registries of the Supreme Court and High Courts etc.

• The third recommendation of the Election Commission is that its budget be treated as “Charged” on
the Consolidated Fund of India.

1.5 Restrictions on Government sponsored advertisements


Central and various State Governments are able to advertise for the purpose of influencing elections,
justifying it by providing information to the public. The expenditure on such advertisements is likely
incurred from the public exchequer. EC feels this practice allows the misuse of public funds and provides
the ruling party an undue advantage over other parties and candidates. The Commission proposes that where
election is due, advertisements of achievements of the governments should be prohibited for a period of six
months prior to the date of expiry of the term of the House. However, advertisements on poverty
alleviation and health related schemes could be exempted from the purview of such a ban.

1.6 Restriction on the number of seats


A person can contest a general election or a group of bye-elections or biennial elections from a maximum of
two constituencies. There have been several cases where a person contests election from two
constituencies, and wins from both. In such a situation he vacates the seat in one of the two constituencies.

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The consequence is that a bye-election would be required from one constituency which apart from involving
avoidable labour and expenditure on the conduct of that bye-election. The commission recommends that a
person cannot contest from more than one constituency at a time.

1.7 Restrictions on opinion polls


Previous committees on electoral law have debated the possibility of whether opinion polls are misused to
manipulate voters on the eve of elections. EC had suggested that there should be provision in the law of
putting restrictions on publishing the results of opinion polls and exit polls for a specified period during the
election process.

1.8 Prohibition of Campaign during the Last 48 Hours


The act prohibits electioneering activities by way of public meetings, public performance, processions,
advertisements through cinematograph, television or similar apparatus during the period of 48 hours before
the time fixed for conclusion of poll. Political advertisements in TV and Radio are prohibited during these
48 hours. Since this section does not refer to print media, the political parties and candidates issue
advertisements in newspapers during this period including on the day of poll. The commission recommends
that house to house visits by candidates/supporters should be specifically prohibited during the said 48 hour
period.

1.9 Ban on transfer of officers likely to serve elections


It is the opinion of the EC that transfers, often made on grounds other than administrative exigencies,
disrupt the arrangements then underway for conducting smooth and peaceful elections. The EC is of the
view that no transfer shall be made, without the concurrence of the Commission. In the case of a general
election, the ban may come into operation for the period of six months prior to the date of expiry of the
term of the House.

1.10 False declaration in connection with elections to be an offence


The Act contains a provision providing for punishment with imprisonment up to one year for making a false
declaration in connection with preparation/revision of electoral roll. But, there is no such provision in
relation to conduct of elections. During the course of an election, EC has observed several cases of such
false declarations before the election authorities such as by candidates, representatives of political parties
etc. EC recommends that there should be a provision for penal action against those making any false
declarations in connection with an election.
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1.11 Punishment for electoral offences


Such offences are non-cognizable offences, with punishment provision of one year’s imprisonment, or fine,
or both. Publishing a false statement in connection with an election with intent to affect the result of the
election is only punishable with a fine. Incurring or authorizing expenditure for promoting the election
prospects of a candidate is an offence. EC
feels that considering the gravity of the offences in the context of free and fair elections, the punishments
under all the four sections should be enhanced.

1.12 Retirement in the Rajya Sabha/Legislative Councils


EC reiterated the earlier proposal for amending the law so as to ensure retirement of 1/3rd of the members in
the Rajya Sabha and State legislative councils after every two years.

1.13 Misuse of religion for electoral gain by political parties


The Liberhan Ayodhya Commission of Inquiry recommended that complaints of misuse of religion for
electoral gain should be speedily investigated into by the EC. EC earlier proposed the provision to question
acts of misuse of religion by political parties before a High Court. The Goswami Committee recommended
that EC be given power to make investigation and prosecute any person who has committed an electoral
offence

1.14 Counting of votes


Currently votes are tallied by individual EVMs at individual polling stations. This exposes the trend of
voting in a particular voting station, making the electorate of that area vulnerable to backlash by candidates
or elected officials in retribution. EC recommends an amendment the use of ‘totalizer’ for counting of votes
cast at more than one polling station where EVMs are used, so that the trend of voting in individual polling
station areas does not get divulged.

1.15 Re-examination of the provision of Teachers’ and Graduates’ Constituencies


One-twelfth of the seats in the Legislative Councils are to be filled up by graduates and another one-twelfth
by teachers. There is an ambiguity in the law that a teacher teaching in the lower primary section in a
secondary school is eligible to vote, whereas middle school not. EC is of the view that all teachers of
specified institutions irrespective of the level of the school would be eligible to be electors.

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1.16 Victimization of officers drafted for election duties


EC utilizes the services of a large number of government officers for election duties, who perform important
statutory functions in connection with preparation of electoral rolls and conduct of elections. EC has
observed many of these officers are later subjected to humiliation and even vindictive disciplinary action by
the government. It is recommended that in the case of such government officers, concurrence should be
made compulsory before initiating any disciplinary/legal proceedings by the government.

1.17 Disqualification for failure to lodge election expenses


Election Commission may disqualify a candidate for three years for failure to lodge the account of election
expenses as per the requirement of the law. The period of disqualification may end by the time of the next
general election to that House. Therefore, no effective purpose is served by the disqualification. (except that
the person cannot contest in the odd bye-election that may be held during the 3 year period). There is a need
that the period of disqualification be increased to 5 years, so that the disqualified person does not become a
candidate at the next general election to the House concerned.

2. Regulating the political parties


2.1 Proliferation of political parties
It is stated as a major concern by many previous committees. NCRWC analyzed that it is a desirable
objective to promote the progressive polarisation of political ideologies and to reduce less serious political
activity. A large number of non-serious parties create excessive load on the electoral system. The
Commission also states that part of the problem is that there is no specific provision to de-register a party.
It is proposed by EC that: authorizing the Election Commission to issue necessary orders regulating
registration and de-registration of political parties. High cost of elections provides a logic for corruption in
the public arena. This affects not only candidates, but parties as well.

2.2 Auditing the Finances of Political Parties


NCRWC recommended that audited political party accounts like the accounts of a public limited company
should be published yearly with full disclosures under predetermined account heads. If statement of
accounts filed is false in any particular, the Election Commission shall levy penalty upon the political party.

2.3 Adjucating the Election Disputes


The act provides that the High Court shall make an endeavour to dispose of an election petition within six
months from its presentation and also as far as practicably possible conduct proceedings of an election
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petition on a day to day basis. In practice, however, cases involving election petitions are rarely resolved in
a timely manner. NCRWC recommended that special election benches designated for election petitions only
should be formed in the High Court. Special Election Tribunals should be constituted at the regional level
under to ensure speedy disposal of election petitions and disputes within a stipulated period of six months.

2.4 Review of Anti defection Law


Second Administrative Reforms Commission noted that defection has long been a malaise of Indian
political life. It represents manipulation of the political system for furthering private interests, and has been
a potent source of political corruption.” The Anti-Defection provisions of the Constitution, enacted in 1985,
fixed a certain number above which group defections were permitted. NCRWC noted that although
individual defections became rare after this, group defection were “permitted, promoted and amply
rewarded.” The 91st Amendment to the Constitution, 2003, changed this by making it mandatory for
defectors to resign their positions regardless of whether they defected as an individual or as part of a group.
Currently the issue of disqualification of members of Parliament or a State Legislature is decided by
the Speaker or Chairman of the concerned House. But, NCRWC analysed that speakers have tended to
act in a partisan manner and without a proper appreciation. To handle this, NCRWC recommended that
the power to decide on questions as to disqualification on ground of defection should vest in the Election
Commission instead of in the Chairman or Speaker of the House concerned.

3. Key Features of the Representation of the People (Second Amendment) Bill,


2008:
The Bill was introduced in the Rajya Sabha on October 24, 2008 and was referred to the Standing
Committee on Personnel, Public Grievances, Law and Justice.

3.1 Exit Polls


The Bill authorizes the Election Commission to notify a period during which the conduct of exit polls and
publicity of the results are prohibited. For general elections, the period may begin when polls open and end
half an hour after the polls close. During bye-elections, the ban extends from the start of polls until half an
hour after the closing of all polls. Any one who contravenes this provision shall be punished with
imprisonment of up to two years, a fine, or both.

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3.2 Appeals Process


Currently, appeals regarding inclusion or correction of names on the electoral rolls may be submitted to the
chief electoral officer of the state. The Bill designates district magistrates or additional district magistrates
as the appellate body. Further appeals lie with the state chief electoral officer.

3.3 Corrupt Practices & Disqualification


The 1951 act prohibits a candidate from seeking assistance from specified categories of government
employees such as gazetted officers, judges, etc to further his candidacy. The Bill adds an additional
category of those persons employed in a local authority, university, government company, or institution,
who are appointed by the EC in connection with the conduct of elections.

3.4 Election Procedures


The Bill increases the security deposit for candidates to Rs 25,000 from Rs 10,000 in Parliamentary
elections and to Rs 10,000 from Rs 5,000 in state Assembly or Council elections. Candidates for SC and ST
seats have to deposit half these amounts.

3.5 Mizoram
Assembly constituencies were redrawn in 2008 based on the orders of the Delimitation Commission. The
Commission reduced the seats reserved for Scheduled Tribes (STs) in Mizoram from 39 to 38 out of a total
of 40 seats. This Bill reverses the number of reserved seats for STs back to 39.

Other highlights of the Bill


1. The Bill seeks to amend the Representation of the People Act, 1950 and the Representation of the
People Act, 1951.
2. Candidates are prohibited from seeking assistance from government employees to further their
candidacy. The Bill extends this restriction to other persons who are engaged in the conduct of
elections.
3. If the High Court finds a person guilty of corrupt practices, its order is sent to the President for a
decision on disqualification. The Bill requires this communication to be sent within three months.

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G.S. PAPER II – CONSTITUTION & POLITY


POWERS, FUCNTIONS & RESPONSIBILITIES OF VARIOUS
CONSTITUTIONAL BODIES

CONTENT

1. Election Commission of India

2. CAG: The Comptroller and Auditor General of India

3. Union Public Service Commission

4. National Commission for SCs and STs

5. Special Officer for Linguistic Minorities

6. Attorney General

7. Solicitor General of India

8. Finance Commission

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1. ECI- The Election Commission of India

The Constitution of India has vested in the Election Commission (EC) of India the superintendence, direction and control
of the entire process for conduct of elections to Parliament and Legislature of every State and to the offices of President
and Vice-President of India.

Originally, the commission had only a Chief Election Commissioner. It currently consists of Chief Election Commissioner
and two Election Commissioners. For the first time two additional Commissioners were appointed on 16th October 1989
but they had a very short tenure till 1st January 1990. Later, on 1st October 1993 two additional Election Commissioners
were appointed. The concept of multi-member Commission has been in operation since then, with decision making power
by majority vote.

1.1 Constitutional Provisions:

• Art. 324: broadly speaks of the functions of EC and its composition.


• Art. 325: there shall be one general electoral roll for every territorial constituency for election to either House of
parliament and State legislature. It establishes equality among citizens by affirming that no person shall be
ineligible for inclusion in the electoral roll on the grounds of religion, race, caste or sex.
• Art. 326: lays down adult suffrage as the basis of elections to the Lok Sabha and to the Legislative Assemblies of
States.
• Art. 327: confers on Parliament the power to make provisions with respect to elections to federal and state
legislatures
• Art. 328: confers on State Legislature the power to make laws with respect to elections to such legislature
• Art. 329: bars interference by courts in electoral matters. Notwithstanding anything said in the constitution i.e.
validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies
shall not be called in question in any court

No election to either House of Parliament or either House of the Legislature of a State shall be called in question
except by an election petition. Any elector or candidate can file an election petition on grounds of malpractice during
the election. In respect of elections to the Parliament and State Legislatures they can only be filed before the High
Court and in respect of elections for the offices of President and Vice-President, such petitions can only be filed before
the Supreme Court.

1.2 Composition and Conditions of Service:

1. EC shall consist of the chief election commissioner and such number of other election commissioners, if any, as the
president may from time to time fix (presently CEC + 2 ECs)
2. The appointment of the chief election commissioner and other election commissioners shall be made by the president
3. The president may also appoint after consultation with the election commission such regional commissioners as he
may consider necessary to assist the election commission

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4. The conditions of service and tenure of office of the election commissioners and the regional commissioners shall be
determined by the president
5. When any election commissioner is appointed, the chief election commissioner acts as the Chairman of the Election
Commission
6. The chief election commissioner and the two election commissioners draw salaries and allowances at par with those of
the Judges of the Supreme Court of India
7. The chief election commissioner or an election commissioner holds office for a term of 6 years from the date on which
he assumes his office or till he attains the age of 65 years, whichever is earlier
8. Election commissioner or a regional commissioner shall not be removed from office except on the recommendation
of the chief election commissioner

Q: Are the commissioners and the CEC equal?


In S.S. Dhanoa vs Union of India (1991), the SC held: “The chief election commissioner does not appear to be primus inter
pares, i.e. first among equals, but he is intended to be placed in a distinctly higher position”
In T.N. Seshan vs Union of India (1995), the SC held that the CEC and ECs are equal. CEC is given the power of
recommending the removal of ECs with the intention of shielding them and not to use it against them. CEC cannot use it
suo moto as he is an equal to them

The Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Act, 1991, as amended,
provides that in case of difference of opinion on any matter, such matter shall be decided by the opinion of the majority.
Thus the CEC cannot over-ride any decision of the commission by himself. As Chairman of the Election Commission he
presides over the meetings, conducts the business of the day and ensures smooth transaction of business of the commission.

1.3 Independence of the Election Commission:


Article 324 of the Constitution has made the following provisions to safeguard and ensure the independent and impartial
functioning of the election commission:
1. The CEC is provided with the security of tenure. He holds office for a term of 6 years from the date he assumes office
or till he attains the age of 65 years, whichever is earlier
2. Art. 324(5) says that the CEC cannot be removed from his office except in like manner and on like grounds as a Judge
of the Supreme Court i.e. he can be removed by the president on the basis of a resolution passed to that effect by
both the Houses of Parliament with special majority, either on the ground of proved misbehaviour or incapacity
3. Any other election commissioner or a regional commissioner cannot be removed from office except on the
recommendation of the CEC
4. The service conditions of the CEC cannot be varied to his disadvantage after his appointment
Some flaws:
1. The constitution has not prescribed the qualifications (legal, educational, administrative or judicial) of the members of
the Election Commission
2. The constitution has not debarred the retiring election commissioners from any further appointment by the government
3. The administrative expenditure of the EC or the salaries, allowances and pensions of the CEC and ECs are not
charged on the Consolidated Fund of India
1.4 Powers and Functions of the Election Commission:

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1.4.1 Administrative Functions:


1. Art. 324(1) vests in the Commission the powers of superintendence, direction and control of the elections to the offices
of the President and Vice-President, both Houses of the Parliament and both Houses of the State Legislature.
2. ECI appoints the following-
• Chief Electoral Officer- ECI in consultation with State Government/Union Territory Administration nominates or
designates an Officer of the said State/UT as the Chief Electoral Officer to supervise the election work in the
State/UT
• District Election Officer- ECI in consultation with the State Government/ Union Territory Administration
designates an officer of the said State/UT as the District Election Officer to supervise the election work of a
district
• Returning Officer- ECI in consultation with State Government/Union Territory Administration nominates or
designates an officer of the Government or a local authority as the Returning Officer for each assembly and
parliamentary constituency. Returning Officer is responsible for the conduct of elections in the parliamentary or
assembly constituency and may be assisted by one or more Assistant Returning Officers (again appointed by ECI)
in the performance of his functions
• Electoral Registration Officer- ECI appoints the officer of State or local government as Electoral Registration
Officer for the preparation of Electoral rolls for a parliamentary/ assembly constituency
3. To prepare and periodically revise electoral rolls and to register all eligible voters
4. To supervise the machinery of elections throughout the country to ensure free and fair elections
5. To notify the dates and schedules of elections and to scrutinise nomination papers
6. To register political parties for the purpose of elections and grant them the status of national or state parties on the
basis of their poll performance
7. To grant recognition to political parties and allot election symbols to them
8. To act as a court for settling disputed relating to granting of recognition to political parties and allotment of election
symbols to them
9. To enforce the Model Code of Electoral Conduct that is mutually agreed upon by the political parties
10. To prepare a roster for publicity of the policies of the political parties on radio and TV in times of elections
11. To enforce limits on expenditure on elections
12. It has the power to postpone or order re-polls or countermand elections in the event of rigging, booth capturing,
violence and other irregularities

1.4.2 Advisory Functions:


1. To advise the President and the Governor on matters relating to the disqualifications of the members of parliament
and members of the state legislature respectively. The opinion of the Commission as given to the President ot the
Governor is binding.
2. Cases of persons found guilty of corrupt practices at elections which are dealt with by SC and High Courts are also
referred to the Commission for its opinion on the question as to whether such a person is to be disqualified and, if so,
for what period
3. To advise the president whether elections can be held in a state under President’s rule in order to extend the period of
emergency after 1 year
1.4.3 Quasi-Judicial Jurisdiction:

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1. The commission has the power to disqualify a candidate who has not lodged an account of his election expenses
within the time and in the manner prescribed by law. The commission also has the power to remove/reduce the period
such disqualifications ad any other disqualification under the law
2. It has quasi-judicial jurisdiction in the case of settlement of disputes between the splinter groups of a recognised party

1.5 Electoral Reforms:

1.5.1 Model Code of Conduct


• EC first issued a Model Code of Conduct for political parties at the time of the fifth general elections, held in 1971.
• Since then, the Code has been revised from time to time and lays down guidelines as to how political parties and
candidates should conduct themselves during elections.
• A provision was made under the Code that from the time the elections are announced by the Commission, Ministers
and other authorities cannot announce any financial grant, make promises of construction of roads, carry out any
appointments in government and public undertakings which may have the effect of influencing the voters in favour of
the ruling party.
• Despite the acceptance of the Code of Conduct by political parties, cases of its violation have been on the rise. It is a
general complaint that the party in power at the time of elections misuses the official machinery to further the electoral
prospects of its candidates.
• The misuse of official machinery takes different forms, such as issue of advertisements at the cost of public exchequer,
misuse of official mass media during election period for partisan coverage of political news and publicity regarding
their achievements, misuse of government transport including aircraft/helicopter, vehicles.

1.5.2 Disclosure of Antecedents by Candidates


• In June 2002, the EC on the direction of the Supreme Court, issued an order under Article 324 that each candidate
must submit an affidavit regarding the information of his/her criminal antecedents; assets (both movable and
immovable) of self and those of spouses and dependents as well; and qualifications at the time of filing his/her
nomination papers for election to the Lok Sabha, the Rajya Sabha and the State Legislative Assemblies.
• But political parties believed that the EC and the judiciary were overstepping their powers. At the all-party meeting,
held on July 8, 2002, representatives of 21 political parties decided that the EC’s order should not be allowed to be
implemented. The Supreme Court again came out as a guardian of the citizen’s right to information. The Supreme
Court made it clear that failing to furnish the relevant affidavit shall be considered as a violation of the Supreme
Court’s order and as such the nomination papers shall be liable to be rejected by the Returning Officer. Furnishing of
wrong or incomplete information shall result in the rejection of nomination papers, apart from inviting penal
consequences under the Indian Penal Code. The 2004 General Elections were conducted under these rules.
• The above order is an effective step to make democracy healthy and unpolluted. Citizens have every right to know
about the persons whom they prefer as their representatives. The EC has directed all Returning Officers to display the
copies of nomination papers and affidavits filed by candidates to the general public and representatives of print and
electronic media, free of cost.

1.5.3 Registration of Political Parties

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The party system is an essential feature of parliamentary democracy. However, there is no direct reference of political
parties in the Constitution of India. The statutory law relating to registration of political parties was enacted in 1989 which
was quite liberal. As a result, a large number of non-serious parties mushroomed and got registered with the Commission.
Many of them did not contest elections at all after their registration. It led to confusion among electors as to whom to vote.
To eliminate the mushrooming of parties, the EC had to take some rigorous steps:
• The Commission now registers a party which has at least 100 registered electors as its members and is also
charging a nominal processing fee of Rs 10,000 to cover the administration expenses which it will have to incur
on correspondence with the parties after their registration.
• In order to ensure that the registered political parties practice democracy in their internal functioning, the
Commission requires them to hold their organizational elections regularly in accordance with their constitutions.
The measures taken by the EC to streamline the registration of political parties have shown effective results.

1.5.4 Checking Criminalisation of Politics


The EC has expressed its serious concern over the entry of anti-social and criminal persons into the electoral arena. It has
set down norms and made recommendations to the government to curb the menace of criminalization of politics.
• The Commission has urged all political parties to reach a consensus that no person with a criminal background
will be given the party ticket.
• The candidates to an election are also obliged to submit an affidavit in a prescribed form declaring their criminal
records, including convictions, charges pending and cases initiated against them. The information so furnished by
the candidates is disseminated to the public, and to the print and electronic media.

1.5.5 Limits on Poll Expenses


• To get rid of the growing influence and vulgar show of money during elections, the EC has fixed legal limits on the
amount of money which a candidate can spend during the election campaign.
• These limits are revised from time to time. The EC, by appointing expenditure observers keeps an eye on the
individual accounts of election expenditure made by a candidate during election campaign. The contestants are also
required to give details of expenditure within 30 days of the declaration of the election results.
• Apart from this, the EC is also in favor of holding the Lok Sabha and the Assembly elections simultaneously, and to
reduce the campaign period from 21 to 14 days. This, they feel, will lead to trim down the election expenditure.

1.5.6 Use of Scientific and Technological Advancements

i. EVMs:
EC has been trying to bring improvements in election procedures by taking advantage of scientific and technological
advancements. The introduction of ‘electronic voting machines’ (EVMs) is one of the steps in that direction by
reducing malpractices and also improving the efficiency of the voting process. On an experimental basis, the EVMs
were first tried in the State of Kerala during the 1982 Legislative Assembly Elections. In June 1999 Assembly
elections, Goa became the first State to successfully use EVMs in all its Assembly constituencies. In the 2004 Lok
Sabha elections, the machines were used all over the country.
It is a major initiative taken by the EC to make the electoral process simple, quick and trouble-free. It has saved
money, solved several logistical issues and also contributed to the conservation of environment through saving of
paper. Another major advantage of these machines is that the counting of votes becomes more fast and accurate.
ii. IT:
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EC has not lagged behind in making use of Information Technology for efficient electoral management and
administration. It launched a website of its own in 1998. This is now a good source to have accurate information about
elections, election laws, manuals and handbooks published by the Commission.

iii. Computerization of Electoral Rolls:


With a view to prevent impersonation of electors at the time of voting and to eliminate bogus and fictitious entries into
electoral rolls, EC took a bold step in 1998 to take a nationwide programme for the ‘computerisation’ of electoral rolls.
The printed electoral rolls as well as CDs containing these rolls are available to the general public for sale national and
State parties are provided these free of cost after every revision of electoral rolls. The entire country’s electoral rolls
are available on its website. Karnataka became the first State to prepare electoral rolls with the photographs of voters
in the 2008 elections.

iv EPICs:
In an attempt to improve the accuracy of the electoral rolls and prevent electoral fraud, the Election Commission in
August 1993 ordered the issuance of electors’ photo identity cards (EPICs) for all voters. During the 2004 Assembly
elections, it was mandatory for people possessing EPICs to furnish it at the time of voting. The distribution of EPICs,
on the part of Election Commission, was a major step to reduce electoral malpractices. Only genuine voters were listed
in the rolls with the issuance of voter identity cards.

1.5.7 De-criminalization of politics


• For preventing persons with criminal background from becoming legislators, the Commission has made a proposal for
disqualifying (from contesting election) a person against whom charges have been framed by a Court for an offence
punishable by imprisonment of 5 years or more.
• There is a provision of disqualification once a person is convicted and sentenced to imprisonment of two years or
more. The Commission’s proposal is for disqualification even prior to conviction, provided the court has framed
charges.
• As a precaution against foisting false cases on the eve of election, it has been suggested that only those cases in which
charges are framed six months prior to an election should be taken into account for that election.

1.5.8 Political parties reforms


• The political parties should be legally required to get their accounts audited annually. The audited accounts should
be put in public domain.
• There should be transparency in the fund raising and expenditure of political parties. Income tax exemption for
donations should be given only for those political parties which contest election and win seats in the Parliament/State
Legislature.
1.5.9 Misuse of religion for electoral gain
• The Commission has proposed that the provision in that Bill should be considered for avoiding misuse of religion by
political parties.

1.5.10 Amendment of law to make `paid news’ an electoral offence


• The Commission has been proposed amendment in the Representation of People Act(RoPA) , 1951, to provide therein
that publishing and abetting the publishing of `paid news’ for furthering the prospect of election of any candidate or

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for prejudicially affecting the prospect of election of any candidate be made an electoral offence with punishment of a
minimum of two years imprisonment.

1.5.11 Negative/neutral voting


• In the ballot paper and on the ballot unit, after the particulars relating to the last candidate, there should be provisions
for a column `none of the above’ to enable a voter to reject all candidates if he so desires.

1.5.12 Ban on transfer of election officers on the eve of election


• In the case of general election, there should be a ban against transferring any election related officer without the
concurrence of the Commission for a period of six months prior to the expiry of the term of the House.

1.5.13 Punishment for false affidavit by candidates


RoPA, 1951 provides that furnishing false information in the affidavit filed by the candidate is an offence punishable by
imprisonment up to six months or with fine. There is no clear provision for follow-up action in the event of candidates
filing false affidavits.
• EC has recommended that RoPA, 1951 should be amended to provide that any complaint regarding false statement in
the affidavit filed by the candidates in connection with the nomination paper shall be filed before the Returning Officer
(RO) concerned within a period of 30 days from the date of declaration of the election and that it shall be the
responsibility of the RO to take proper follow-up action. Alternatively, complaint can lie directly to the Magistrate
Court.

Summing Up
Over the years, EC has conducted a number of laudable electoral reforms to strengthen democracy and enhance the fairness
of elections. These reforms are quite adequate and admirable. Undoubtedly, the election machinery, under the aegis of the
EC, deserves credit for conducting elections in a free and fair manner.
However, our system is still plagued by many vices. To win votes, political parties resort to foul methods and corrupt
practices. Such maladies encourage the anti-social elements to enter the electoral fray. The problem is not lack of laws, but
lack of their strict implementation. In order to stamp out these unfair tendencies, there is a need to strengthen the hands of
the EC and to give it more legal and institutional powers. The EC must be entrusted with powers to punish the errant
politicians who transgress and violate the electoral laws.

2. CAG: The Comptroller and Auditor General of India


The Constitution of India provides for an independent office of the Comptroller and Auditor General of India (CAG). He is
the head of the Indian Audit and Accounts Department. He is the guardian of the public purse and controls the entire
financial system of the country at both the levels- the centre and state. His duty is to uphold the Constitution of India and
the laws of Parliament in the field of financial administration.

CAG helps the parliament/state legislatures hold their respective governments accountable. He is one of the bulwarks of
the democratic system of government in India; the others being the SC, the ECI and the UPSC. It is for these reasons Dr. B
R Ambedkar said that the CAG shall be the most important Officer under the Constitution of India and his duties are far
more important than the duties of even the judiciary.

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2.1 A Brief History


The role of the CAG evolved in British India with Lord Canning initiating a major administrative drive before the Mutiny
of 1857. In May 1858, for the first time, a separate department was set up with an Accountant General, who was
responsible for accounting and auditing the financial transactions under the East India Company. After Mutiny, the British
Crown took over and passed the Government of India Act 1858. This laid the foundation stone of Imperial Audit. Sir
Edward Drummond took charge in 1860 as the first Auditor General and the term 'Comptroller and Auditor General of
India' was first used in 1884. Under the Montford Reforms of 1919, the Auditor General became independent of the
government. The Government of India Act 1935 strengthened the position of the Auditor General by providing for
Provincial Auditors General in a federal set-up.

Why Comptroller?
In the 15th century, the word Controller developed the alternate spelling Comptroller as a result of an association between
the first part of the word, cont, and an unrelated word count and its variant, compt. Many people pronounce comptroller
like controller but both are acceptable. But the word Comptroller has a different meaning-someone who maintains and
audits business. Comptrollers are controllers but controllers are not comptrollers.

Comparison with UK:


In India the institution of CAG only audits the accounts after the expenditure is committed. It does not have control over
the withdrawal of moneys as in UK where the name Comptroller is justified since no money can be drawn from the
public exchequer without the approval of the CAG

2.2 Constitutional provisions


• Art. 148: broadly speaks of the CAG, his appointment, oath and conditions of service
• Art. 149: broadly speaks of the Duties and Powers of the CAG
• Art. 150: The accounts of the Union and of the States shall be kept in such form as the President may, on the advice of
the CAG, prescribe.
• Art. 151: Audit Reports:- The reports of the Comptroller and Auditor-General of India relating to the accounts of the
Union shall be submitted to the president, who shall cause them to be laid before each House of Parliament.

The reports of the Comptroller and Auditor-General of India relating to the accounts of a State shall be submitted to the
Governor of the State, who shall cause them to be laid before the Legislature of the State.

2.3 Independence of the Institution of CAG


For effective functioning of this important institution of the CAG it is paramount to ensure independence. There are several
provisions enshrined in the Constitution to safeguard CAG’s independence:
1. He is appointed by the President by a warrant under his hand and seal and his oath of office requires him to uphold
the Constitution of India and the laws made there-under
2. He is provided with a security of tenure and can be removed by the President only in accordance with the procedure
mentioned in the Constitution (same as a judge of SC)
3. He is not eligible for further office, either under the Government of India or of any state, after he ceases to hold his
office

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4. His salary and other service conditions though determined by the Parliament cannot be varied to his disadvantage
after appointment
5. His administrative powers and the conditions of service of persons serving in the Indian Audit and Accounts
Department shall be prescribed by the President only after consulting him.
6. The administrative expenses of the office of CAG, including all salaries, allowances and pensions of persons serving in
that office are charged upon the Consolidated Fund of India and are not subject to the vote of Parliament.

2.4 Duties and Powers of the CAG


2.4.1 Sources of the Audit Mandate of CAG
• Constitution- The existence and mandate of the Comptroller and Auditor General of India emanates from Articles 148
to 151 of the Constitution. Article 149 stipulates the Duties and Powers of the Comptroller and Auditor General
• Statute- DPC Act, 1971 (Duties, Powers and Conditions of Service Act) lays down the general principles of
Government accounting and the broad principles in regard to audit of receipts and expenditure
• Regulations- Regulations on Audit and accounts as framed and notified in the official Gazette .
• Scope of audit: Within the audit mandate, the Comptroller and Auditor General is the sole authority to decide the
scope and extent of audit to be conducted by him or on his behalf

2.4.2 Duties
• He audits the accounts related to all expenditure from the Consolidated Fund of India, Consolidated Fund of
each state and UT having a legislative assembly
• He audits all expenditure from the Contingency Fund of India and the Public Account of India as well as the
Contingency Fund and Public Account of each state
• He audits all trading, manufacturing, profit and loss accounts, balance sheets and other subsidiary accounts kept
by any department of the Central Government and the state governments.
• He audits the receipts and expenditure of all bodies and authorities substantially financed from the Central or State
revenues; government companies; other corporations and bodies, when so required by related laws

2.4.3 Functions
• He audits all transactions of the Central and state governments related to debt, sinking funds, deposits,
advances, suspense accounts and remittance business
• He audits the accounts of any other authority when requested by the President or Governor e.g. Local bodies
• He advises the President with regard to prescription of the form in which the accounts of the Centre and states
shall be kept
• He submits his audit reports relating to the accounts of the Centre to the President, who shall, in turn, place them
before both the houses of Parliament
• He submits his audit reports relating to the accounts of a State to the Governor, who shall, in turn, place them
before the state legislature
• He ascertains and certifies the net proceeds of any tax or duty and his certificate is final on the matter
• He acts as a guide, friend and philosopher of the Public Accounts Committee of the Parliament
• He compiles and maintains the accounts of state governments. In 1976, he was relieved of his responsibilities with
regard to the compilation and maintenance of accounts of the Central government due to separation of accounts
from audit

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• He submits 3 audit reports to the President- audit report on appropriation accounts, audit report on finance
accounts and audit report on public undertakings

2.4.4 There are the following limitations on the powers of CAG:


• Its report is post-facto i.e. after the expenditure is incurred and has only prospective value in improving systems
and procedures
• Secret service expenditure is outside the purview of the CAG and he cannot call for particulars of expenditure
incurred by the executive agencies, but has to accept a certificate from the competent administrative authority
that the expenditure has been so incurred
• Since the legislation, the government has increased its participation with the private sector through the PPT
(public-private-transfer) and BOT (build-own-transfer) model. However the rules have not undergone a significant
change and CAG does not have the power to audit PPP (Public Private Partnership) investments.
• There is no provision for auditing of funds that are given to an NGO and elected local bodies. Today when NGOs
have become a conduit for a multitude of government schemes.
• CAG presently does not have the full authority to audit the PRIs and ULBs. In most states, the Examiners
functioning under the Finance Department audit the accounts of local bodies.
• DRDAs (District Rural Development Authority) today are managing large sums of money for rural
development yet they also are outside the purview of CAG audits

In light of the above limitations and changes in the Indian polity such as increasing role of civil society and NGOs,
liberalisation of the economy, PPP mode of investments the DPC Act, 1971 must be reviewed to bring in greater
accountability and transparency in every sphere that touches public life. CAG’s work should go beyond the question of
whether government funds are being spent appropriately to ask whether programs and policies are meeting their objectives
and the needs of society

2.5 Types of Audit performed by CAG

i. Regulatory Audit: It is an audit to ascertain whether the moneys spent were authorised for the purpose for which they
were spent and also that the expenditure incurred was in conformity with the laws, rules and regulations

ii. Supplementary Audit: CAG takes up supplementary audits in PSUs, even after the commercial audits are done by the
auditors appointed by the CAG, for detection of leakages.

iii. Propriety Audit: It focuses on whether the expenditure made is in public interest or not i.e. it moves beyond mere
scrutiny of expenditure to question its wisdom and economy in order to identify cases of improper expenditure and waste
of public money

iv. Efficiency Audit: Efficiency audit as the name suggests answers the question whether the money invested yields
optimum results. The main purpose of the efficiency audit is to ensure that the investment is prioritized and channelled into
its most profitable utilization

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v. Performance Audit: Performance audit answers whether the government programmes such as NREGA have achieved
the desired objectives at the lowest cost and given the intended benefits. It generally does not get into the merits-demerits
of a particular policy/scheme rather looks into the effectiveness with which the scheme is implemented and any
deficiencies thereof

vi. Environmental Audit: This is a relatively new area of concern for the CAG keeping in mind the challenges facing
India with respect to conservation and management of the environment. More than 100 audits on environmental issues like
bio-diversity, pollution of rivers, waste management have been conducted by the CAG to identify critical issues and
suggest possible solutions by involving all stakeholders

2.6 Recent Issues

i. Mode of Appointment
• The present selection process for the CAG is entirely internal to the Government machinery; no one outside
has any knowledge of what criteria are applied, how names are shortlisted and how a final selection is made.
Thus presently there is a lack of clarity on the criterion, the definition of field of choice, the procedures for
the selection of this high constitutional functionary. In most of the other countries there is no scope for the
head of the Supreme Audit Institution to be chosen at the discretion of the Government. It is desirable that
India adopts the international practice of appointing head of Supreme Audit Institution to be independent of
the discriminatory power of the Executive.
• Another related issue is that of the appointment of IAS officers as the CAG. In the last 48 years since 1966
only one IAAS officer has been chosen while all other postings went to senior civil servants. From the
viewpoint of IAAS this looks like the systematic exclusion of that service and the virtual absorption of the
post of CAG in the IAS cadre. This perception has had a demoralising effect on the IAAS cadre. Whether
that feeling is right or wrong, it exists; and it is bound to have some effect on the commitment, zeal and
courage with which the audit function is performed. The answer to it is not to exclude the IAS, nor to reserve
the post exclusively for the IAAS, but to ensure that the appointment processes are such as to leave no room
at all for a sense of unfairness or suspicions of impropriety; and that the selected person, from wherever he or
she be drawn, is of such unquestionable suitability as to command respect both within and outside the audit
department. The field of choice should certainly be wide, and should include the IAAS, other central accounts
services (civil accounts, railway accounts and defence accounts), the IAS, and a limited number of accounts,
finance and management experts from outside the government.
• ICAI (Institute of Chartered Accountants in India) Code of Ethics states that an auditor’s independence has
two aspects- independence in fact and independence in appearance. The appointment of former secretaries as
CAG may compromise the independence of this institution because of apparent/perceived conflict of
interest.

Recent Example:
There are 2 PILs have been filed in the SC against the appointment of former defence secretary Shashi Kant
Sharma as the new CAG. Before being appointed the CAG, Mr. Sharma had served in key positions in the defence
ministry that involved decision making powers over purchases including the Augusta Westland Chopper deal and the

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Tatra trucks deal. His appointment is thus being questioned in the context of conflict of interest and also that it goes
against the code of ethics of auditors.

2.7 Recommended Mode of Appointment


There is a need to frame a transparent selection procedure based on definite criteria and constitute a broad-based non-
partisan selection committee, which after calling for applications and nominations would recommend the most suitable
person for appointment as CAG. There needs to be an institutionalised process of selection for the post of CAG, a
selection committee as seen in the appointment of CVC (involving PM, Leader of Opposition and Home Minister) and
the Chairman of the NHRC may be considered. The above steps could go a long way in ensuring that an outstandingly
able person of great independence and integrity is selected to this high constitutional office.

2.8 Should the CAG go into policy decision?

• In the recent past CAG’s reports on 2G, Coal blocks allocation, Delhi Airport PPP have made the Government
very uncomfortable with the audit findings. In order to defend its position, some members of the ruling party
have raised questions about CAG’s jurisdiction and observed that he has exceeded his mandate. What is the
veracity of such criticism? The CAG’s role should be viewed in the context of our constitutional scheme u-
nder which the executive is accountable to Parliament. CAG is an essential instrument for enforcing the
accountability mechanism as the CAG’s reports on government’s stewardship of public finance are required
to be placed in Parliament and state legislatures under Article 151 of the Constitution. To enable him to
discharge this responsibility, without fear or favour, he has been given an independent status under Article
148 analogous to that of a Supreme Court judge.
• The word ‘audit’ has not been defined in either the Constitution or in the CAG Act, 1971. We have so far
been going by 150 years of history, tradition, existing provisions and international practice. The CAG has not
formulated his own policy in the above reports and has only gone by policy prescriptions recommended
internally at various levels within the government. It is within the mandate of CAG to comment on a policy in
cases wherein-

• The financial implications of a policy were not gone into at all before the decision was made
• The assessment of financial implications was quite clearly wrong
• The numbers were correct but the reasoning behind the decision was questionable

Further, the CAG is bound by the oath of office to uphold the Constitution of India and thus is bound to comment
on policy matters that seem unconstitutional. If the government were to formulate a scheme or policy that
selectively confers benefits from public funds on an individual or a group to the exclusion of others, it is the CAG’s
duty to point this out. Thus the CAG was well within his mandate to comment on the above policy decisions.

Another criticism has been of the Notional and Presumptive loss figures as claimed in the reports. There is a genuine
dilemma here. If the reports were to make a bland statement that an alternative procedure would have yielded more
revenue to the government or would have meant less discretionary patronage, it would give no indication of the
financial dimensions of the decision or the importance of the matter. Putting a number on it brings this home. On the
other hand, when a number is mentioned, the discussion tends to focus on it and not on the issues involved. There is no

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easy way out of this dilemma. All that one can say is that the ‘notional’ number should e carefully estimated, making
the assumptions and methodology clear. This is what the CAG has done. He has not claimed that his figures are
definitive. The assumptions can be questioned, the methodology can be questioned, the resulting number can be
debated; what cannot be questioned is the procedural or substantive lapse to which the figure points.

3. Union Public Service Commission


UPSC is an independent constitutional body and is the central recruiting agency in India authorized to conduct
examinations for appointment to the various civil services of the Union. Articles 315 to 323 in Part XIV of the
Constitution contains elaborate provisions regarding the composition, appointment and removal of members along with
the independence, powers and functions of the UPSC.

3.1 A Brief History


Indianization of the superior Civil Services became one of the major demands of the political movement compelling the
British Indian Government to consider setting up of a Public Service Commission for recruitment to its services in the
territory. The first Public Service Commission was set up on October 1st, 1926. However, its limited advisory functions
failed to satisfy the people’s aspirations and the continued stress on this aspect by the leaders of our freedom movement
resulted in the setting up of the Federal Public Service Commission under the Government of India Act 1935. Under this
Act, for the first time, provision was also made for the formation of Public Service Commissions at the provincial level.

The Constituent Assembly, after independence, saw the need for giving a secure and autonomous status to Public Service
Commissions both at Federal and Provincial levels for ensuring unbiased recruitment to Civil Services as also for
protection of service interests.

With the promulgation of the new Constitution for independent India on 26th January, 1950, the Federal Public Service
Commission was accorded a constitutional status as an autonomous entity and given the title – Union Public Service
Commission (UPSC).

3.2 Composition
UPSC has been established under Article 315 of the Constitution of India. The Commission consists of a Chairman and ten
Members appointed by the President of India. The Constitution, without specifying the strength of the commission has left
the matter to the discretion of the President.

Further, no qualifications are prescribed for the Commission’s membership except that one-half of the members should be
such persons who have held office for at least 10 years either under the Government of India or under the
government of a state.

The Constitution has authorized the President to determine the conditions of service of the Chairman and other Members of
the Commission. Accordingly, the terms and conditions of service of Chairman and Members of the Commission are
governed by the Union Public Service Commission (Members) Regulations, 1969.

The Commission is serviced by a Secretariat headed by a Secretary. The expenses of the Union or a State Public Service
Commission, including any salaries, allowances and pensions payable to or in respect of the members or staff of the

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Commission, shall be charged on the Consolidated Fund of India or, as the case may be, the Consolidated Fund of the
State.

The Chairman and Members of the Commission hold office for a term of 6 years or until they attain the age of 65 years,
whichever is earlier. However, they can relinquish their offices at any time by addressing their resignations to the
President. The President can appoint one of the members of the UPSC as an acting chairman in the following
circumstances when the office of the chairman falls vacant or when the chairman is unable to perform his functions due to
absence or some other reason

3.2.1 Removal of Chairman or a member


The President can remove the chairman or any other member of UPSC from the office under the following circumstances:
a) If he is adjudged an insolvent
b) If he engages, during the term of his office, in any paid employment outside the duties of his office
c) If he is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body
The President can also remove the chairman or any other member of the commission for misbehaviour. However, in this
case, the President has to refer the matter to the SC for an enquiry. If the SC after the enquiry upholds the cause of removal
and advises so, the President can remove the chairman or the member. The advice so tendered by the SC is binding on
the President. Here the term ‘misbehaviour’ refers to- interest in any contract or agreement made by the Government of
India or the government of a state or participation in any way in the profit of such contract or agreement or in any other
benefit

3.3 Independence of UPSC


The Constitution has made the following provisions to safeguard and ensure the independent and impartial functioning of
the UPSC:
1. The chairman or a member of the UPSC can be removed from office by the President only in the manner and on the
grounds mentioned in the Constitution. Thus, they enjoy security of tenure.
2. The conditions of service of the chairman or a member, though determined by the President, cannot be varied to his
disadvantage after his appointment.
3. The entire expenses including the salaries, allowances and pensions of the Chairman and members of the UPSC are
charged on the Consolidated Fund of India and are not subject to the vote of Parliament.
4. The chairman of the UPSC on ceasing to hold office is not eligible for further employment in the Government of
India or any state
5. A member of the UPSC is eligible for appointment as the Chairman of UPSC or a State Public Service Commission
but not for any other employment in the Government of India or any state
6. The chairman or a member of UPSC is not eligible for reappointment to that office for a second term

3.4 Functions of UPSC


The Union Public Service Commission has been entrusted with the following duties and role under the Constitution:
1. Recruitment to services & posts under the Union through conduct of competitive examinations;
2. Recruitment to services & posts under the Central Government by selection through interviews;
3. Advising on the suitability of officers for appointment on promotion as well as transfer-on-deputation;
4. Advising the government on all matters relating to methods of recruitment to various services and posts;

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5. Disciplinary cases relating to different civil services; and


6. Miscellaneous matters relating to grant of extra ordinary pensions, reimbursement of legal expenses etc.
3.5 Recruitment Rules and Disciplinary Matters
In accordance with Article 320 of the Constitution, Recruitment Rules of all Group ‘A’ and Group ‘B" posts in various
Ministries/Departments of Government of India are required to be framed in Consultation with the Commission.
Consultation with the Commission is also necessary for framing/amending Recruitment Rules for certain categories of
posts under the Employees State Insurance Corporation, The Delhi Municipal Corporation, The New Delhi Municipal
Council, Employees Provident Fund Organisation etc. under the relevant Acts made by Parliament in pursuance of the
provisions of Article 321.
Under Article 320(3) of the Constitution the Commission are required to be consulted on the quantum of penalties in
disciplinary cases affecting a person serving under the Government of India in a civil capacity.

3.6 UPSC and CVC


Since the emergence of CVC, the role of UPSC in disciplinary matters has been affected. Both are consulted by the
government while taking disciplinary action against a civil servant. Here, UPSC being an independent body has an edge
over CVC which got statutory status in 2003. Recently, in order to ensure speedy finalisation of disciplinary matters and to
avoid possibilities of difference of opinion between UPSC and CVC, it has been decided as a policy to prescribe only one
consultation- either with CVC or UPSC. However, in disciplinary cases wherein UPSC is not required to be consulted, the
consultation with CVC would continue to be made.

3.7 Extension of Functions to Local Bodies


Article 321 also empowers the Parliament to extend the functions of the Public Service Commission to any local authority
or other body corporate constituted by Law or by any public institutions.

3.8 Binding nature of the advice of the Commission


A convention (not mandated by the Constitution) has been established by the Government of India, that in the following
classes of the cases referred to the Commission, the recommendations made by them shall be accepted, save in exceptional
circumstances.
a. Quasi-judicial cases.
b. Selection for appointments of candidates.
c. Appointment of a candidate on a higher initial pay than that of a minimum pay of the posts.
d. Claims of expenditure incurred by the Government servants in defending legal proceedings instituted against him
in respect of acts done or purporting to be done in the execution of his duty.

3.9 Exemptions:
In order to exempt some posts which for reasons of National Security or some other reasons may not be required to be
referred to the Commission for their advice, the Union Public Service Commission (Exemption from Consultations)
Regulations were issued on September 1, 1958, under Article 320(3)(a) and (b) of the Constitution. These Regulations are
amended or revised as and when the need arises. The following matters are kept outside the purview of UPSC:
a) While making reservations of appointments or posts in favour of any backward class of citizens
b) While taking into consideration the claims of scheduled castes and scheduled tribes in making appointments to
services and posts
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c) With regard to the selections for chairmanship or membership of commissions or tribunals, posts of the highest
diplomatic nature and a bulk of group C and group D services
d) With regard to the selection for temporary appointments for not more than a year

The President can exclude posts, services and matters from the purview of the UPSC. The President can also, in respect to
the all-India services and Central services and posts may make regulations specifying the matters in which it shall not be
necessary for UPSC to be consulted. All such regulations shall be laid before the Parliament which can amend or repeal
them.

3.10 Mechanisation - Project Sampera


The Commission have recently undertaken a project called "SAMPERA" (Screening and Mechanised Processing of
Examination and Recruitment Applications). A simplified single sheet common application form for all the examinations
has been devised which will be scanned by using OMR/ICR technology. The implementation of this project will mainly
help in high speed scanning of data from forms eliminating manual entry. Other benefits will be accurate and faster
generation of Admit Cards, Attendance lists with photo replica and signature facsimile of each candidate, and Error-free
list of doubtful cases. The main aim of this project is to cope with the increasing volume of applications through
innovations and mechanised handling so as to reduce the processing time and send communications faster to minimised
errors. The cases of impersonation/malpractices will also be eliminated and wasteful expenditure will be reduced.

3.11 Suggestions for rejuvenating UPSC


1. To serve as a Think-tank on personnel issues: It should go beyond the recruitment role to answer evolving issues
relating to civil services and their role in a rapidly changing society.
2. Association of Research Institutes and Universities in the functioning of UPSC: Services are often out of touch with
new developments in technology and knowledge. UPSC should liaison with such institutions to conduct regular
specially designed courses for administration
3. Need of Decentralisation on the pattern of US: The increase in work of the commission has been manifold, it
currently handles more than 14 lakh applications and scrutinises and advises in regard to 650 Recruitment Rules of
different services/posts. There is a need of decentralization to effectively align with this increase in workload
4. Keep in sync with changing times: UPSC so far has worked with remarkable competence, impartiality and integrity.
However a new world based on openness, accountability and delivery has emerged. UPSC needs to be in sync with
these changes

4. National Commission for Scheduled Castes and Scheduled Tribes


The National Commission for SCs is a constitutional body in the sense that it is directly established by Article 338.
Originally, Article 338 of the Constitution provided for the appointment of a Special Officer for SCs and STs to investigate
all matters relating to the constitutional safeguards for the SCs and STs and to report to the President on their working. He
was designated as the Commissioner for SCs and STs and assigned the said duty.

4.1 Chronology of major changes


• 1978: Govt. set up a non-statutory, multi-member commission for SCs and STs through an executive resolution,
the Office of the Commissioner for SCs and STs also continued to exist.
• 1987: Govt. modified the functions of the commission and renamed it as National Commission for SCs and STs.
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• 1990: 65th Constitutional Amendment provides for the establishment of a high-level multi-member National
Commission for SCs and STs in place of the single Special Officer for SCs and STs.
• 2003: 89th Constitutional Amendment bifurcated the combined National Commission for SCs and STs into 2
separate bodies, namely the National Commission for SCs (under Article 338) and the National Commission for
STs (under Article 338A)

4.2 National Commission for SCs:


It came into existence in 2004 and consists of a chairperson, a vice-chairperson and three other members. They are
appointed by the President by a warrant under his hand seal and their conditions of service and tenure of office are also
determined by the President

4.2.1 Functions and Duties of the Commission:


1. To investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under this
Constitution or under any other law and to evaluate the working of such safeguards.
2. To inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes.
3. To participate and advise on the planning process of socio-economic development of the Scheduled Castes and to
evaluate the progress of their development under the Union and any State;
4. To present to the President, annually and at such other times as the commission may deem fit, reports upon the
working of those safeguards;
5. To make in such reports recommendations as to the measures that should be taken by the Union or any State for the
effective implementation of those safeguards and other measures for the protection, welfare and socio-economic
development of the Scheduled Castes; and
6. To discharge such other functions in relation to the protection, welfare and development and advancement of the
Scheduled Castes as the President may specify.
7. The Commission, while investigating any matter, has all the powers of a civil court trying a suit and in particular in
respect of the following matters.
• Summoning and enforcing the attendance of any person from any part of India and examining him on oath;
• Requiring the discovery and production of any documents;
• Receiving evidence on affidavits;
• Requisitioning any public record or copy thereof from any court or office;
• Issuing commissions for the examination of witnesses and documents;
• Any other matter which the President may by rule, determine;

8. The Union and every State Government shall consult the Commission on all major policy matters affecting
Scheduled Castes

4.2.2 Report of the Commission


The commission presents an annual report to the president. It can also submit a report as and when it thinks necessary. The
President places all such reports before the Parliament, along with a memorandum explaining the action taken on the
recommendations made by the Commission. The memorandum should also contain the reasons for the non-acceptance of
any such recommendations. The President also forwards any report of the Commission pertaining to a state government to
the state governor. The governor then places it before the state legislature.

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4.3 National Commission for STs


The National Commission for Scheduled Tribes (NCST) was established by amending Article 338 and inserting a new
Article 338A in the Constitution through the Constitution (89th Amendment) Act, 2003. It consists of a chairperson, a
vice-chairperson and three other members. They are appointed by the President by a warrant under his hand seal and their
conditions of service and tenure of office are also determined by the President

4.3.1 Functions and Duties of the Commission


1. To investigate & monitor matters relating to safeguards provided for STs under the Constitution or under other
laws or under Govt. Order, to evaluate the working of such Safeguards.
2. To inquire into specific complaints relating to Rights & Safeguards of STs;
3. To participate and advise in the Planning Process relating to Socio-economic development of STs, and to
Evaluate the progress of their development under the Union and any State;
4. To submit report to the President annually and at such other times as the Commission may deem fit, upon/
working of safeguards, measures required for effective implementation of Programmers/ Schemes relating to
Welfare and Socio-economic development of STs;
5. To discharge such other functions in relation to STs as the President may specify;
6. The Commission would also discharge the following other functions in relation to the protection, welfare and
development & advancement of the Scheduled Tribes
7. Union and every State Govt. to consult the Commission on all major Policy matters affecting Scheduled Tribes
8. For Investigation and Inquiry, the Commission is vested with powers of a civil court having authority to:
• Summon and enforce attendance of any person and examine on oath;
• Discovery & production of any documents;
• Receive evidence on affidavits;
• Requisition any public record or copy thereof from any court or office;
• Issue Commissions for examination of witnesses and documents; and
• Any matter which President, by rule, may determine.

4.3.2 Report of the Commission


The commission presents an annual report to the president. It can also submit a report as and when it thinks necessary. The
President places all such reports before the Parliament, along with a memorandum explaining the action taken on the
recommendations made by the Commission. The memorandum should also contain the reasons for the non-acceptance of
any such recommendations. The President also forwards any report of the Commission pertaining to a state government to
the state governor. The governor then places it before the state legislature.

4.4 Constitutional Safeguards for SCs & STs


4.4.1 Educational & Cultural Safeguards
• Art. 15(4):- Special provisions for advancement of other backward classes (which includes SCs and STs);
• Art. 29:- Protection of Interests of Minorities (which includes SCs and STs);
• Art. 46:- The State shall promote, with special care, the educational and economic interests of the weaker
sections of the people, and in particular, of the Scheduled Castes, and the Scheduled Tribes, and shall protect them
from social injustice and all forms of exploitation

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• Art. 350:- Right to conserve distinct Language, Script or Culture & instruction in Mother Tongue.

4.4.2 Social Safeguards

• Art. 23:- Prohibition of traffic in human beings and beggar and other similar form of forced labour;
• Art. 24:- Forbidding Child Labour.

4.4.3 Economic Safeguards


• Art.244:- Provisions of Fifth Schedule shall apply to the administration & control of the Scheduled Areas and
Scheduled Tribes in any State other than the states of Assam, Meghalaya, Mizoram and Tripura which are
covered under Sixth Schedule.
• Art. 275:- Grants in-Aid to specified States (STs&SAs) covered under Fifth and Sixth Schedules of the
Constitution.

4.4.4 Political Safeguards


• Art.164(1):- Provides for Tribal Affairs Ministers in Bihar, MP and Orissa;
• Art. 330:- Reservation of seats for SCs and STs in Lok Sabha;
• Art. 337- Reservation of seats for SCs and STs in State Legislatures;
• Art. 334:- 10 years period for reservation (Amended several times to extend the period.);
• Art. 243:- Reservation of seats in Panchayats.
• Art. 371:- Special provisions in respect of NE States and Sikkim

4.4.5 Service Safeguards


Under Art.16(4),16(4A),164(B) Art.335, and Art. 320(40)

5. Special Officer for Linguistic Minorities:


Originally, the Constitution of India did not make any provision with respect to the Special Officer for Linguistic
Minorities. Later, the States Reorganization Commission, 1953 made a recommendation in this regard. Accordingly, the 7th
Constitutional Amendment Act of 1956 inserted a new article 350-B in Part XVII of the Constitution. The article contains
the following provisions:
• There should be a Special Officer for Linguistic Minorities. He is to be appointed by the President of India
• It would be the duty of the Special Officer to investigate all matters relating to the safeguards provided for
linguistic minorities provided under the Constitution. He would report to the President upon those matters at such
intervals as the President may direct. The President should place all such reports before each House of Parliament
and send to the governments of the states concerned

The Constitution does not specify the qualifications, tenure, salaries and allowances, service conditions and procedure for
removal of the Special Officer for linguistic minorities. In pursuance of the provision of Article 350-B, the office of the
Special Officer for Linguistic Minorities was created in 1957. He is designated as the Commissioner for Linguistic
Minorities.

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The Commissioner has his headquarters at Allahabad and there are three regional offices at Belgaum, Chennai and
Kolkata which are each headed by an Assistant Commissioner. At the centre, the commissioner falls under the Ministry of
Minority Affairs. Hence he submits the annual reports or other reports to the President through the Union Minority Affairs
Minister.

6. Attorney General of India


The Constitution (Article 76) has provided for the office of the Attorney General for India. He is the highest law officer in
the country and is responsible for giving advice to the Government of India upon such legal matters and to perform such
other duties of legal character as may be referred or assigned to him by the President.

6.1 Appointment and Term


• The Attorney General is appointed by the President. He must be person who is qualified to be appointed a judge
of the Supreme Court i.e. he must be a citizen of India and he must have been a judge of a high court for five
years or an advocate of a high court for ten years or an eminent jurist in the opinion of the President.
• The term of Office of the AG is not fixed by the Constitution and it is also silent on the procedure and grounds
for his removal. He holds office during the pleasure of the President and may be removed by him at any time. He
may also quit his office by submitting his resignation to the president. Conventionally, he resigns when the
government resigns or is replaced, as he is appointed on its advice.
• The remuneration of the AG is not fixed by the Constitution and is determined by the President. It must be noted
that the AG is not a full-time counsel for the Government. He does not fall in the category of government servants
and is not debarred from private legal practice.

6.2 Duties and Functions:


As the Chief Law Officer of the Government of India, the duties of the AG include the following:
1. To give advice to the Government of India upon such legal matters which are referred to him by the president
2. To perform such other duties of a legal character that are assigned to him by the president
3. To discharge the functions conferred on him by the Constitution or any other law

6.2.1 The president has assigned the following duties to the AG:
1. To appear on behalf of the GoI in all cases in the Supreme Court in which the GoI is concerned
2. To represent the GoI in any reference made by the president to the Supreme Court under Article 143 of the
Constitution
3. To appear in any high court in any case in which the GoI is concerned

6.3 Rights and Limitations:


The AG has the right of audience in all courts in the territory of India. Further, he has the right to speak and participate in
the proceedings of both the Houses of Parliament or their joint sitting or any committee of the Parliament of which he
may be named a member, but without the right to vote. He enjoys all the privileges and immunities that are available to a
member of Parliament.

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6.4 Limitations
The AG does not have any executive authority as these functions are performed by the Law Minister of India; further,
following limitations are placed on the AG in order to avoid any complication and conflict of duty:
1. He should not advise or hold a brief against the Government of India
2. He should not advise or hold a brief in cases in which he is called upon to advise or appear for the GoI
3. He should not defend accused persons in criminal prosecutions without the permission of the GoI
4. He should not accept appointment as a director in any company or corporation without the permission of GoI

7. Solicitor General of India:


In addition to the AG, there are other law officers of the GoI- the solicitor general of India and additional solicitors general
of India. These law officers are subordinate to the AG and assist him in the fulfilment of his official responsibilities. Unlike
the AG, SG does not tender legal advice to the GoI and his functions are confined to appearing in courts on behalf of the
GoI. It is not a constitutional post as Article 76 has no mention of the solicitor general or the additional solicitors general.

8. Finance Commission
The Finance Commission is constituted by the President as a quasi-judicial body under article 280 of the Constitution,
mainly to give its recommendations on distribution of tax revenues between the Union and the States and amongst the
States themselves. Two distinctive features of the Commission’s work involve redressing the vertical imbalances between
the taxation powers and expenditure responsibilities of the centre and the States respectively and equalization of all public
services across the States.

8.1 Composition
• The Finance Commission is constituted by the President every fifth year or at such earlier time as he considers
necessary. It consists of a chairman and four other members. They hold office for such period as specified by the
president in his order and are eligible for reappointment.
• The Constitution authorises the Parliament to determine the qualifications of members of the commission and the
manner in which they should be selected. Accordingly, the Parliament has specified the qualifications of the
chairman and other members of the commission. The Chairman should be a person having experience in public
affairs; and the four other members should be selected from amongst the following:
1. A judge of high court or one qualified to be appointed as one
2. A person who has specialised knowledge of finance and accounts of the government
3. A person who has wide experience in financial matters and in administration
4. A person who has special knowledge of economics.

8.2 Functions
It is the duty of the Commission to make recommendations to the President as to:
• The distribution between the Union and the States of the net proceeds of taxes which are to be, or may be, divided
between them and the allocation between the States of the respective shares of such proceeds;
• The principles which should govern the grants-in-aid of the revenues of the States out of the Consolidated Fund of
India;

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• The measures needed to augment the Consolidated Fund of a State to supplement the resources of the Panchayats in
the State on the basis of the recommendations made by the Finance Commission of the State;
• The measures needed to augment the Consolidated Fund of a State to supplement the resources of the
Municipalities in the State on the basis of the recommendations made by the Finance Commission of the State;
• Any other matter referred to the Commission by the President in the interests of sound finance.
• The Commission determines its procedure and has such powers in the performance of its functions as Parliament may
by law confer on them.

8.3 Recommendations of FC
The recommendations are presented to the President in the FC report and the President causes the same to be tabled in the
Parliament. They are not binding on the Government but are conventionally accepted by the Government.

8.3.1 The recommendations of the Finance Commission are implemented as under:-


• Those to be implemented by an order of the President: The recommendations relating to distribution of Union
Taxes and Duties and Grants-in-aid fall in this category.
• Those to be implemented by executive orders: The recommendations in respect of sharing of Profit, Debt Relief,
Mode of Central Assistance, etc. are implemented by executive orders.

8.4 Finance Commission and Fiscal Federalism


Finance Commission has a crucial role in the following areas:
• Cooperative financial relations between the centre and states
• Level the inequality among the states- bridge horizontal imbalances by giving more to the backward states as a part of
the mandate to create equity
• Bridge the vertical imbalances between the centre and the states by recommending adequate devolution to the states
• Promote state fiscal autonomy and efficiency
• Various reforms, on being referred by the President, for infrastructure and good governance

8.5 Article 275: Statutory Grants


After the devolution of the taxes and duties from the divisible pool, if some states still face revenue deficits, Article 275
empowers the Parliament to make grants to the states which are in need of financial assistance. These are not given to
every state and also, different sums may be fixed for different states. These sums are charged on the Consolidated Fund
of India every year. These statutory grants under Article 275 are given to the states on the recommendation of the
Finance Commission

8. 6 Tenth FC and Alternative Scheme of Devolution:


The Constitution (Eightieth Amendment) Act, 2000, which seeks to provide an alternative scheme for sharing taxes
between the Union and States, is based on the recommendations of the Tenth FC. Constitution was amended to give the
recommendations a legal effect. Under this, amendments have been made in Article 270 to essentially make all Union taxes
and duties shareable with States unlike earlier when the Union had some taxes and duties exclusively to it. Now, only
surcharges go to the Union exclusively.

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8.6.1 The advantages of this system are:


• States will be able to share the buoyancy of Central taxes
• The Central Government can pursue tax reforms and expect states to cooperate
• Economic Reforms in general will have wider consensus as the country takes steps towards a common market
• Creates conditions for Cooperative federalism in other spheres

8.7 Thirteenth FC (under Vijay Kelkar) Recommendations:


8.7.1 Sharing of Union tax revenues:
• The share of states in net proceeds of shareable central taxes shall be 32 per cent in each of the financial years from
2010-11 to 2014-15
• The share of each state in the proceeds of all shareable central taxes in each of the financial years from 2010-11 to
2014-15 shall be as specified:
i. Finances of Union and States:
a. Actual share in the tax revenue of the Centre which is devolved to states: The Eleventh and Twelfth Commissions had
recommended that the share of states be fixed at 29.5% and 30.5% respectively, of central taxes. However, the actual
shares devolved to states have been lower than recommended by previous finance commissions.
Recommendation: The Ministry of Finance should ensure that the accounts reflect all collections so that there are no
inconsistencies in the amounts released to states

b. Losses in the power sector: Subsidy for the power sector is the largest component of state government subsidies. The
power sector in most states is beset with high losses, and inefficient infrastructure, resulting in huge losses.
Recommendation: Losses in the power sector are expected to be a major drag on the finances of State Governments,
and therefore, the problems confronting this sector need to be addressed in a time-bound manner

c. Reduction of centrally sponsored schemes: Initiatives should be taken to reduce the number of Centrally Sponsored
Schemes and to restore the predominance of fund-transfers based on Planning Commission recommendations

8.7.2 Goods and Services Tax (GST):


The Commission has recommended the adoption of the GST and formulated a model GST. The main features of the model
GST are:
• The central portion of the GST would include (a) central excise duties, (b) service tax, (c) additional customs duties,
(d) all surcharges and cesses.
• The state GST would include (a) VAT, (b) central sales tax, (c) cesses and surcharges, and others such as luxury tax,
lottery tax, stamp duties, etc.
• There would be special provisions for certain goods such as petroleum, and exemptions would be allowed only on the
basis of a common list applicable to all states and the centre.
• GST should be implemented by all states and the centre at the same time.
• To provide incentives to states to agree to the model GST, the Commission has recommended the implementation of a
Grand Bargain. The Grand Bargain envisages a grant of a total of Rs. 50,000 crore to be provided to all states. This
amount would be distributed among states subject to the model GST framework being adopted by all states. This grant
would be used to compensate states for revenue losses on account of implementing GST. This amount should not be
distributed if states cannot reach a consensus on implementing GST.

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• The Empowered Committee of State Finance Ministers (EC) should be given statutory status. The compensation
should be disbursed in quarterly instalments on the basis of recommendations by a three-member Compensation
Committee. The Compensation Committee should comprise of the Secretary, Department of Revenue of the central
government, Secretary to the EC, and an eminent person with experience in public finance

8.7.3 Union Finances


The central government has recently decided that proceeds from disinvestment shall be used fully as capital expenditure
for social sector programmes. This policy needs to be liberalised and proceeds should also be used for augmenting
critical infrastructure and environment related projects.

8.7.4 State Finances


• The practice of diverting plan assistance to meet non-plan needs of special category states should be discontinued.
• For PSUs:
All accounts and backlogs of PSU accounts should be cleared by states.
States need to draw a roadmap for closure of nonworking PSUs by March 2011. Divestment and privatisation of
PSUs should be considered and actively pursued.
• Power Sector:
Reduction of Transmission and Distribution (T&D) losses should be attempted.
Unbundling needs to be carried out on priority basis and open access to transmission strengthened.
Proper systems should be put in place to avoid delays in completion of hydro projects.
Regulatory institutions should be strengthened through capacity building, consumer education and tariff reforms.
• Regarding reforms in the area of pensions, a switch to the New Pension Scheme needs to be completed at the earliest.

8.7.5 Revised roadmap for fiscal consolidation:


i. Central government
The revenue deficit of the Centre needs to be progressively reduced and eliminated, followed by emergence of a
revenue surplus by 2014-15.
A target of 68 percent of GDP for the combined debt of the centre and states should be achieved by 2014-15.
The Medium Term Fiscal Plan should be reformed and made a statement of commitment rather than a statement of
intent.
The government should list all public sector enterprises that yield a lower rate of return on assets than a norm
which should be decided by an expert committee.
An independent review mechanism should be setup by the Centre to evaluate its fiscal reform process.

ii. State governments:


States should be able to get back to the path of fiscal consolidation after the disruption caused in 2008-09 and
2009-10. States with zero revenue deficit or revenue surplus in 2007-08 should eliminate revenue deficit by 2011-
12. Other states should do so by 2014-15.
General category states with zero revenue deficit in 2007-08 should achieve a fiscal deficit of 3 percent of GDP by
2011-12. Other states should do so by 2013-14.
States should amend/enact Fiscal Responsibility and Budget Management Acts to build on the fiscal reform path
worked out.

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State-specific grants recommended for a state should be released upon compliance. Borrowing limits for states to
be worked out by Finance Ministry using the fiscal reform path, thus acting as an enforcement mechanism for
fiscal correction by states.

8.8 Fourteenth FC:


The Fourteenth Finance Commission has been set up under the Chairmanship of Dr. Y.V.Reddy [Former Governor,
Reserve Bank of India]. The Finance Commission is required to give its report by 31st October, 2014. Its recommendations
will cover the five year period commencing from 1st April, 2015. Its terms of reference include:
• review the state of the finances, deficit and debt levels of the Union and the States, keeping in view, the fiscal
consolidation roadmap recommended by the Thirteenth Finance Commission, and suggest measures for maintaining a
stable and sustainable fiscal environment consistent with equitable growth
• the level of subsidies that are required, having regard to the need for sustainable and inclusive growth, and equitable
sharing of subsidies between the Central Government and State Governments
• the need for making the public sector enterprises competitive and market oriented; listing and disinvestment; and
relinquishing of non-priority enterprises
• the need for insulating the pricing of public utility services like drinking water, irrigation, power and public transport
from policy fluctuations through statutory provisions;
• the need to balance management of ecology, environment and climate change consistent with sustainable economic
development; and
• the impact of the proposed Goods and Services Tax on the finances of Centre and States and the mechanism for
compensation in case of any revenue loss

8.9 Planning Commission vs. Finance Commission


In India, resources can be transferred from the centre to states in many ways. The Finance Commission and the Planning
Commission are the two institutions responsible for centre-state financial relations. There has been serious debate in the
country regarding the role of the Finance Commission vis-a-vis the Planning Commission. Finance Commission is a
Constitutional body whereas the Planning Commission is a non-statutory institution. Over a period of time, the working of
both the institutions led to friction among them due to lack of clear-cut guidelines demarcating their areas of work. The
relative roles of the Planning Commission and Finance Commission have come to be demarcated in the terms of reference
of the Finance Commission. Scrutiny of plan expenditure and transfer of capital to the states have been left to the Planning
Commission.

• The Finance Commission assesses the non-plan requirements of the State Governments and recommends a share
in the net yield from the Central and Grants-in-aid (presently 32.5%). The divisible sum of Central taxes is
distributed inter se among the states based on independent criteria. In addition, the Finance Commission
recommends the principles governing non-plan grants and loans to states. Examples of grants would include funds
for disaster relief, maintenance of roads and other state-specific requests.
• Among states, the distribution of tax revenue and grants is determined through a formula accounting for
population (25%), area (10%), fiscal capacity (47.5%) and fiscal discipline (17.5%). Unlike the Planning
Commission, the Finance Commission does not distinguish between special and non-special category states in its
allocation.

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• The most significant centre-state transfer is the distribution of central tax revenues among states. The Finance
Commission decides the actual distribution and the current Finance Commission have set aside 32.5% of central
tax revenue for states. In 2011-12, this amounted to Rs 2.5 lakh crore (57% of total transfers), making it the
largest transfer from the centre to states.
• The Planning Commission allocates funds to states through central assistance for state plans. Central assistance
can be broadly split into three components: Normal Central Assistance (NCA), Additional Central Assistance
(ACA) and Special Central Assistance.
• NCA, the main assistance for state plans, is split to favour special category states: the 11 states get 30% of the
total assistance while the other states share the remaining 70%. The nature of the assistance also varies for special
category states; NCA is split into 90% grants and 10% loans for special category states, while the ratio between
grants and loans is 30:70 for other states.
• The Planning Commission also allocates funds for ACA (assistance for externally aided projects and other
specific project) and funds for Centrally Sponsored Schemes (CSS). State-wise allocation of both ACA and CSS
funds are prescribed by the centre.
• For allocation among special category states, there are no explicit criteria for distribution and funds are allocated
on the basis of the state’s plan size and previous plan expenditures. Allocation between non special category states
is determined by the Gadgil Mukherjee formula which gives weight to population (60%), per capita income
(25%), fiscal performance (7.5%) and special problems (7.5%).
• As a proportion of total centre-state transfers NCA typically accounts for a relatively small portion (around 5% of
total transfers in 2011-12). However, Planning Commission allocations can be important for states, especially for
the functioning of certain schemes.

8.10 Finance Commission and Local Bodies:


• Local governments, notably panchayati raj institutions (PRIs), once a neglected appendage of rural development
departments, acquired “a habitation and a name” in the Indian federal polity after the 73rd and 74th
Constitutional Amendments in 1993. It is significant that Article 280 of the Constitution that established the union
finance commission (UFC) was altered as part of the two amendments, mandating the UFC to recommend
measures needed to augment the consolidated fund of a state to supplement the resources of panchayats and
municipalities in the state “on the basis of the recommendations made by the finance commission of the State”,
thereby affirming the organic link in Indian fiscal federalism.
• The principle of subsidiarity implies that matters are best handled by the least centralized competent authority.
Following this, these institutions need to be adequately empowered–both functionally and financially—to enable
them to fulfill the role envisaged for them in the Constitution. The State Finance Commissions (SFCs), which
buttress the functioning of local bodies, also need to be strengthened so as to make their functioning more
predictable and the process of implementing their recommendations more transparent.
• All the UFCs since the two amendments have been required through their terms of reference to make
recommendations on the above. The 10th Finance Commission, although appointed before these amendments,
became a fait accompli, and on its own recommended some ad hoc grants to local govern¬ments. The 13th FC
has made some significant departures from the past and made recommendations that could help to strengthen the
process of democratic decentralization in the country if they are fully implemented.

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Special Category States


• The concept of a special category state was first introduced in 1969 when the 5th Finance Commission sought to
provide certain disadvantaged states with preferential treatment in the form of central assistance and tax breaks.
• Initially three states Assam, Nagaland and Jammu & Kashmir were granted special status but since then eight
more have been included (Arunachal Pradesh, Himachal Pradesh, Manipur, Meghalaya, Mizoram, Sikkim,
Tripura and Uttarakhand).
• The rationale for special status is that certain states, because of inherent features, have a low resource base and
cannot mobilize resources for development. Some of the features required for special status are: (i) hilly and
difficult terrain; (ii) low population density or sizeable share of tribal population; (iii) strategic location along
borders with neighbouring countries; (iv) economic and infrastructural backwardness; and (v) non-viable nature of
state finances. The decision to grant special category status lies with the National Development Council.
• Special category states also receive specific assistance addressing features like hill areas, tribal sub-plans and
border areas. Beyond additional plan resources, special category states can enjoy concessions in excise and
customs duties, income tax rates and corporate tax rates as determined by the government.

13th FC on Local Bodies


• Performance Grant: The local grant recommended by the 13th FC has two components, a basic component and a
performance-based component. The basic grant is equivalent to 1.5% of the previous year’s divisible tax revenue. All
states will have access to this grant for all the five years (2010-15). The performance grant allocated to each state is
subject to them fulfilling a nine-point conditionality package. This should help promote results-based accountability.

a. Role of SFC : One major contribution is the template prepared by 13th FC with the help of an expert committee to
help future SFCs in preparing their reports. Although no SFC with a mind of its own will mechanically follow the
template, this is a big step towards streamlining SFC reports in the future.

b. Amend Article 280: The 13th FC has recommended to amend Article 280(3)(bb) and (c) of the Constitution so that the
words “on the basis of the recommendations of the finance commission of the State” are changed to “after taking into
consideration the recommendations of the finance commission of the State”. This recommendation, already approved
by several expert bodies fully appreciates the spirit of the clause that envisages an organic link in Indian fiscal
federalism.

c. Parallel Agencies and bodies: The 13th FC rightly points out that parallel agencies and bodies are “emasculating
local governments both financially and operationally”. Having constitutionally assigned a certain functional domain to
local governments, which include “planning for economic development and social justice” and preparing a draft
district development plan, it is for the union and state governments to help this process of decentralised planning and
governance with funds, functionaries and technical support.

8.11 Summary of Recommendations:


• Local bodies should be transferred 2.28% of the divisible pool of taxes after converting this share to grant-in-aid under
Article 275.

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• Article 280 (3) (bb) & (c) of the Constitution should be amended to make the recommendations of the State Finance
Commissions less binding on state governments.
• Article 243(I) of the Constitution should be amended to empower states governments to constitute and direct state
Finance Commissions to give their report before the National Finance Commission finalises its report.
• State governments should strengthen their local audit departments through capacity building.
• Bodies similar to the SFC should be set up in states which are not covered by Part IX of the Constitution (Panchayats).
• Local Bodies should be associated with city planning functions wherever other development authorities are mandated
for this function.
• State governments will be eligible for the general performance grant and the special areas performance grant only if
they comply with the prescribed stipulations.

8.12 Some Shortcomings


• A large chunk of the performance grant, estimated to be Rs 29,826 crore, remaining unutilised by 2015 is a distinct
possibility. If state governments do not take necessary legal and administrative action, everything will remain in cold
storage.
• The 13th FC has given only a low weightage of 25% to population against a weightage of 47.5% to fiscal capacity
distance and 17.5% to fiscal discipline, making a total weight of 65% for fiscally relevant criteria.
• The 13th FC has dispensed with the tax or revenue effort criterion with regard to local grants on the plea that credible
data are not available. It had data for six years and it could have obtained better outcomes by using the tax or revenue
effort criterion. The 13th FC criteria may be unfair as it is biased towards highly populated states.
• The 13th FC Report says “the quality of SFC reports continues to be patchy”, but it is silent on where and how they
continue to be so. Actually the 13th FC is only reiterating the sweeping, general comments against SFCs made by the
11th and 12th FC.
• The criteria chosen for inter se distribution of local grants leave many things to be desired and so is its silence on
SFCs. The third tier has to be made an integral component of India’s federal public finance and UFCs of the future
cannot afford to shirk that responsibility any more.

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VISIONIAS ™
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QUASI-JUDICIAL BODIES
Revised Value Addition Material

Content:
Quasi-Judicial Bodies in India
Emergence of Quasi-Judicial Bodies in India
Quasi-judicial Action vs Administrative Action
Examples of Quasi Judicial Bodies
Tribunals
Evolution of Tribunals
Judicial Review of Cases Handled by Tribunals
Categories of Tribunals in India
National Consumer Disputes Redressal Commission
Lok Adalats
Origin of Lok Adalats
Permanent Lok Adalats
Jurisdiction of Lok Adalats
Powers of Lok Adalats
Advantages of Lok Adalats
National Human Rights Commission
Composition
Functions
Appointment
Removal of a Member of the Commission
Working of NHRC
Strength of NHRC
Weaknesses of the Commission
Central Vigilance Commission
Composition
Removal
Functions
Working of CVC
Central Bureau of Investigation
Composition of CBI
Organization of CBI
Functions of CBI
CBI as ‘Caged Parrot’ and steps to make it free

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Central Information Commission


Composition and Appointment
Tenure and Removal
Powers and Functions of Information Commissions
Planning Commission
Functions
Composition
Internal Organization
Programme Evaluation Organization

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transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise,
without prior permission of Vision IAS

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Student Notes:

Quasi-Judicial Bodies in India


A quasi-judicial body is an organization or individual on which powers resembling a court of law
have been conferred. Such a body can adjudicate and decide upon a situation and impose
penalty upon the guilty or regulate the conduct of an individual or entity.

A quasi-judicial body has also been defined as “an organ of government, other than a court or
legislature, which affects the rights of private parties through adjudication or rule-making.

Thus, a quasi-judicial body is one, which exercises a discretion that is essentially judicial in
character, but is not a tribunal within the judicial branch of the government and is not a court
exercising judicial power in the constitutional sense.

Emergence of Quasi-Judicial Bodies in India


• As the welfare state has grown up in size and functions, more and more litigations are
pending in the judiciary, making it over-burdened. It requires having an alternative
justice system.
• Ordinary judiciary has become dilatory and costly.
• With scientific and economic development, laws have become more complex,
demanding more technical knowledge about specific sectors.
• The conventional judiciary is suffering from procedural rigidity, which delays the
justice.
• Further, a bulk of decisions, which affect a private individual come not from courts, but
from administrative agencies exercising ad judicatory powers.

Quasi-judicial Action vs. Administrative Action


Though the distinction between quasi-judicial and administrative action has become blurred,
yet it does not mean that there is no distinction between the two.

In A.K. Kraipak vs. Union of India, the Court was of the view that in order to determine whether
the action of the administrative authority is quasi-judicial or administrative, one has to see the
nature of power conferred, to whom power is given, the framework within which power is
conferred and the consequences.

Thus broadly speaking, acts, which are required to be done on the subjective satisfaction of the
administrative authority, are called ‘administrative’ acts, while acts, which are required to be
done on objective satisfaction of the administrative authority, can be termed as quasi-judicial
acts.

Administrative decisions, which are founded on pre-determined standards, are called objective
decisions whereas decisions which involve a choice, as there is no fixed standard to be applied
are so called subjective decisions. The former is quasi-judicial decision, while the latter is
administrative decision. In case of administrative decision there is no legal obligation, upon the
person charged with the duty of reaching the decision, to consider and weigh submissions and
arguments or to collate any evidence. The grounds upon which he acts, and the means which
he takes to inform himself before acting are left entirely to his discretion.

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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Student Notes:

However, the Supreme Court observed, “It is well settled that the old distinction between a
judicial act and administrative act has withered away and we have been liberated from the
pestilent incantation of administrative action.”

Examples of Quasi Judicial Bodies


• National and State Human Rights Commissions
• Lok Adalats
• Central and State Information Commissions
• Central Vigilance Commission
• Consumer Disputes Redressal Commission
• Central Administrative Tribunals
• Competition Commission Of India
• Appellate Tribunal For Electricity
• Railway Claims Tribunal
• Income Tax Appellate Tribunal
• Intellectual Property Appellate Tribunal
• Central Excise And Service Tax Appellate Tribunal
• State Sales Tax Appellate Tribunal

Note: The above list is not exhaustive.

Tribunals
There are a large number of laws, which charge the Executive with adjudicatory functions, and
the authorities so charged are, in the strict scene, administrative tribunals. Administrative
tribunals are agencies created by specific enactments. Administrative adjudication is a term
synonymously used with administrative decision-making.

The decision-making or adjudicatory function is exercised in a variety of ways. However, the


most popular mode of adjudication is through tribunals.

The main characteristics of Administrative Tribunals are as follows:

• Administrative Tribunal is a creation of a statute.


• An Administrative Tribunal is vested in the judicial power of the State and thereby
performs quasi-judicial functions as distinguished from pure administrative functions.
• Administrative Tribunal is bound to act judicially and follow the principles of natural
justice.
• It is required to act openly, fairly and impartially.
• An administrative Tribunal is not bound by the strict rules of procedure and evidence
prescribed by the civil procedure court.

Criticisms of Tribunals are as follows:

• The tribunal consists of members and heads that may not possess any background of
law.
• Tribunals do not rely on uniform precedence and hence may lead to arbitrary and
inconsistent decisions.

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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Student Notes:

Evolution of Tribunals
The growth of Administrative Tribunals, both in developed and developing countries, has been
a significant phenomenon of the twentieth century. In India also, innumerable Tribunals have
been set up from time to time, both at the center and the states, covering various areas of
activities like trade, industry, banking, taxation etc. The question of establishment of
Administrative Tribunals to provide speedy and inexpensive relief to the government
employees, relating to grievances on recruitment and other conditions of service, had been
under the consideration of Government of India for a long time. Due to their heavy
preoccupation, long pending and backlog of cases, costs involved and time factors, Judicial
Courts could not offer the much-needed remedy to government servants, in their disputes with
the government. A need arose to set up an institution, which would help in dispensing prompt
relief to harassed employees, who perceive a sense of injustice and lack of fair play in dealing
with their service grievances. This would motivate the employees better and raise their morale,
which in turn would increase their productivity.

The First ARC and a Committee under J.C. Shah recommended the establishment of an
independent tribunal to exclusively deal with service matters. The same was validated by the
Supreme Court in 1980.

The Constitution (through 42ndAmendment Act, Article 323-A) empowered the Parliament to
provide for adjudication or trial by Administrative Tribunals of disputes and complaints with
respect to recruitment and constitution of service of persons appointed to public service and
posts in connection with the affairs of the union or of any state or local or other authority
within the territory of India or under the control of the government or any corporation, owned
or controlled by the government.

In pursuance of the provisions of Article 323-A of the Constitution, the Administrative Tribunals
Bill was introduced in Lok Sabha on 29thJanuary 1985 and received the assent of the President
of India on 27th February 1985.

Judicial Review of Cases Handled by Tribunals

In S. P. Sampath Kumar case, the Supreme Court directed the carrying out of certain measures
with a view to ensuring the functioning of the Administrative Tribunals along constitutionally
sound principles. In an amendment the jurisdiction of the Supreme Court under article 32 was
restored. Constitutional validity of the Act was finally upheld in S. P. Sampath Kumar case
subject to certain amendments relating to the form and content of the Administrative Tribunals.
The suggested amendments were carried out by another amending Act. Thus the
Administrative Tribunals became an effective and real substitute for the High Courts.

However, in 1997, a seven-Judge Bench of the Supreme Court in L. Chandra Kumar held that
clause 2 (d) of article 323A and clause 3(d) of article 323B, to the extent they empower
Parliament to exclude the jurisdiction of the High Courts and the Supreme Court under articles
226/227 and 32 of the Constitution, are unconstitutional. The Court held that the jurisdiction
conferred upon the High Courts under articles 226/227 and upon the Supreme Court under
article 32 of the Constitution is part of the inviolable basic structure of our Constitution.

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
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All decisions of the Administrative Tribunals are subject to scrutiny before a Division Bench of
the High Court within whose jurisdiction the concerned Tribunal falls. As a result, orders of the
Administrative Tribunals are being routinely appealed against in High Courts, whereas this was
not the position prior to the L. Chandra Kumar’s case. On 18th March 2006, the Administrative
Tribunals (Amendment) Bill, 2006 was introduced in Rajya Sabha to amend the Act by
incorporating therein, inter alia, provisions empowering the Central Government to abolish
Administrative Tribunals, and for appeal to High Court to bring the Act in line with L. Chandra
Kumar. The Department-related Parliamentary Standing Committee on Personnel, Public
Grievances, Law and Justice in its 17th Report said that the appeal to High Court is unnecessary,
and if a statutory appeal is to be provided it should lie to the Supreme Court only. The Law
Commission also took up the topic suo-moto and agreed with the opinion put forward by the
Parliamentary Standing Committee.

Categories of Tribunals in India


There are four categories of tribunals in India:
1. Administrative bodies exercising quasi-judicial functions, whether as part and parcel of
the Department or otherwise.
2. Administrative adjudicatory bodies, which are outside the control of the Department
involved in the dispute and hence decide disputes like a judge free from judicial bias
Example: The Income Tax Appellate Tribunal is under the Ministry of Law and not under
Ministry of Finance.
3. Tribunals under Article 136 in which the authority exercises inherent judicial powers of
the State. Because the functions of the body are considered important over the control,
composition and procedure, even Departmental bodies can be classified as Tribunals.
4. Tribunals constituted under Article 323A and 323B having constitutional origin and
enjoying the powers and status of a High Court.

National Consumer Disputes Redressal Commission


The Consumer Protection Act was passed in 1986 to protect the interests of the consumers.
The objective of this law is to provide a simple, fast and inexpensive mechanism to the citizens
to redress their grievances in specified cases. By spelling out the rights and remedies of the
consumers in a market so far dominated by organized manufacturers and traders of goods and
providers of various types of services, the Act makes the dictum, caveat emptor (‘buyer
beware’) a thing of the past.

The Act envisages a three-tier quasi-judicial machinery at the National, State and District
levels:
i. National Consumer Disputes Redressal Commission - known as “National Commission”;
ii. State Consumer Disputes Redressal Commission known as “State Commission”; and
iii. District Consumer Disputes Redressal Forum - known as “District Forum”.

The Act also provides for establishment of Consumer Protection Councils at the Union, State
and District levels, whose main objectives are to promote and protect the rights of consumers.

Each District Forum is headed by a person who is, has been or is eligible to be appointed as a
District Judge and each State Commission is headed by a person who is or has been a Judge of a
High Court.

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
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The provisions of this Act cover ‘goods’ as well as ‘services’. The goods are those, which are
manufactured or produced and sold to consumers through wholesalers and retailers. The
services are in the nature of transport, telephone, electricity, housing, banking, insurance,
medical treatment, etc.

A written complaint can be filed before the District Consumer Forum for pecuniary value of up
to Rs. twenty lakh, State Commission for value upto Rs. one crore and the National Commission
for value above Rs. one crore, in respect of defects in goods or deficiency in service. The service
can be of any description and the illustrations given above are only indicative. However, no
complaint can be filed for alleged deficiency in any service that is rendered free of charge or
under a contract of personal service.

The remedy under the Consumer Protection Act is an alternative in addition to that already
available to the aggrieved persons/consumers by way of civil suit. In the
complaint/appeal/petition submitted under the Act, a consumer is not required to pay any
court fee, but only a nominal fee.

Consumer Fora proceedings are summary in nature. The endeavor is made to grant relief to the
aggrieved consumer as quickly as possible, keeping in mind the provisions of the Act which lay
down time schedule for disposal of cases.

If a consumer is not satisfied by the decision of a District Forum, he can appeal to the State
Commission. Against the order of the State Commission, a consumer can come to the National
Commission.

In order to help achieve the objects of the Consumer Protection Act, the National Commission
has also been conferred with the power of administrative control over all the State
Commissions by calling for periodical returns regarding the institution, disposal and pendency
of cases.

The National Commission is empowered to issue instructions regarding:

• Adoption of uniform procedure in the hearing of the matters,


• Prior service of copies of documents produced by one party to the opposite parties,
• Speedy grant of copies of documents, and
• Generally over-seeing the functioning of the State Commissions and the District Forums
to ensure that the objects and purposes of the Act are best served, without interfering
with their quasi-judicial freedom.

Lok Adalats
The concept of Lok Adalat (People’s Court) is an innovative Indian contribution to the world
jurisprudence. The introduction of Lok Adalats added a new chapter to the justice dispensation
system of this country and succeeded in providing a supplementary forum to the victims for
satisfactory settlement of their disputes. This system is based on Gandhian principles. It is one
of the components of ADR (Alternative Dispute Resolution) systems. In ancient times, the
disputes were referred to “Panchayats”, which were established at village level. Panchayats
resolved the disputes through arbitration. It has proved to be a very effective alternative to
litigation. This concept of settlement of disputes through mediation, negotiation or arbitration

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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is conceptualized and institutionalized in the philosophy of Lok Adalat. It involves people who
are directly or indirectly affected by dispute resolution.

Origin of Lok Adalats


The concept of Lok Adalats was pushed back into oblivion in last few centuries before
independence and particularly during the British regime. Now, this concept has, once again,
been rejuvenated. It has become very popular and familiar amongst litigants. This is the system,
which has deep roots in Indian legal history and its close allegiance to the culture and
perception of justice in Indian ethos. Experience has shown that it is one of the very efficient
and important ADR mechanisms and most suited to the Indian environment, culture and
societal interests. Camps of Lok Adalats were started initially in Gujarat in March 1982 and now
it has been extended throughout the Country.

The evolution of this movement was a part of the strategy to relieve heavy burden on the
Courts with pending cases and to give relief to the litigants. The first Lok Adalat was held on
March 14, 1982 at Junagarh in Gujarat. Maharashtra commenced the Lok Nyayalaya in 1984.

The advent of Legal Services Authorities Act, 1987 gave a statutory status to Lok Adalats,
pursuant to the constitutional mandate in Article 39-A of the Constitution of India. It contains
various provisions for settlement of disputes through Lok Adalat. This Act mandates
constitution of legal services authorities to provide free and competent legal services to the
weaker sections of the society and to ensure that opportunities for securing justice are not
denied to any citizen by reason of economic or other disabilities. It also mandates organization
of Lok Adalats to secure that the operation of the legal system promotes justice on the basis of
equal opportunity. When statutory recognition had been given to Lok Adalat, it was specifically
provided that the award passed by the Lok Adalat formulating the terms of compromise will
have the force of decree of a court, which can be executed as a civil court decree. The evolution
of movement called Lok Adalat was a part of the strategy to relieve heavy burden on the Courts
with pending cases and to give relief to the litigants who were in a queue to get justice. It
contains various provisions for settlement of disputes through Lok Adalat.

The parties are not allowed to be represented by the lawyers and encouraged to interact with
judge who helps in arriving at amicable settlement. No fee is paid by the parties. Strict rule of
Civil Procedural Court and evidence is not applied. Decision is by informal sitting and binding on
the parties and no appeal lies against the order of the Lok Adalat.

Permanent Lok Adalats

In 2002, the Parliament brought about certain amendments to the Legal Services Authorities
Act, 1987 to institutionalize the Lok Adalats by making them a permanent body to settle the
disputes related to public utility services. The Central or State Authorities may, by notification,
establish Permanent Lok Adalats at any Permanent Lok Adalats, for determining issues in
connection to Public Utility Services.

Public Services include:

• Transport service
• Postal, telegraph or telephone services

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
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• Supply of power, light and water to public


• System of public conservancy or sanitation
• Insurance services and such other services as notified by the Central or State
Governments

Permanent Lok Adalats have the same powers that are vested in the Lok Adalats.

Jurisdiction of Lok Adalats

A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement
between the parties to a dispute in respect of:

i. any case pending before; or


ii. any matter which is falling within the jurisdiction of, and is not brought before, any
court for which the Lok Adalat is organised.

The Lok Adalat can compromise and settle even criminal cases, which are compoundable under
the relevant laws.

Lok Adalats have competence to deal with a number of cases like:

• Compoundable civil, revenue and criminal cases


• Motor accident compensation claims cases
• Partition Claims
• Damages Cases
• Matrimonial and family disputes
• Mutation of lands case
• Land Pattas cases
• Bonded Labor cases
• Land acquisition disputes
• Bank’s unpaid loan cases
• Arrears of retirement benefits cases
• Family Court cases
• Cases, which are not sub-judice

Powers of Lok Adalats


1. The Lok Adalat shall have the powers of a civil court under the Code of Civil Procedure,
1908, while trying a suit, in respect of the following matters:
• Power to summon and enforce the attendance of any witness and to examine
him/her on oath.
• Power to enforce the discovery and production of any document.
• Power to receive evidence on affidavits,
• Power for requisitioning of any public record or document or copy thereof or
from any court.
• Such other matters as may be prescribed.
2. Every Lok Adalat shall have the power to specify its own procedure for the
determination of any dispute coming before it.

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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3. All proceedings before a Lok Adalat shall be deemed to be judicial proceedings within
the meaning of Sections 193, 219 and 228 of IPC.
4. Every Lok Adalat shall be deemed to be a Civil Court for the purpose of Sec 195 and
Chapter XXVI of Cr.P.C.

Advantages of Lok Adalats


• Speedy Justice
• Economical
• Unburdening of Courts and thus reducing the backlog of cases
• Maintenance of Cordial Relations (since main thrust is on compromise and not
punishment)

National Human Rights Commission


In keeping with spirit of human rights movement all over the world, National Human Rights
Commission (NHRC) came into existence in India through an Ordinance promulgated on 28th
September 1993 by the President of India. However, soon the ordinance was replaced by a
statute called Protection of Human Rights Act, 1993 (which came into force in 1994). This Act
provides for setting up NHRC at Centre as well as one Commission each at State level.

National Human Rights Commission is designed to protect human rights, defined as “rights
relating to life, liberty, equality and dignity of individual guaranteed by Constitution or
embodied in International Covenant and which are enforceable by Courts in India”.

Composition
• NHRC consists of a Chairperson and four members, all of them being full-time
members. The Chairperson should be a retired Chief Justice of India and members
should be serving or retired judges of the Supreme Court, a serving or retired Chief
Justice of a High Court and two persons having knowledge or practical experience with
respect to human rights.
• Apart from these full-time members, the Commission also has four ex-officio members,
the Chairpersons of National Commission for Minorities, National Commission for SCs &
STs and National Commission for Women.
• Multi-membership is intended to reinforce independence and impartiality of the
Commission.
• The Chairperson and members hold office for a term of five years or until they attain
the age of 70 years, whichever is earlier. After their tenure, the Chairperson and
members are not eligible for further employment under the Central or a State
government.

Functions
• Proactively or reactively inquire into violations of human rights or negligence in the
prevention of such violation by a public servant
• By leave of the court, to intervene in court proceeding relating to human rights

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
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• Visit any jail or other institution under the control of the State Government, where
persons are detained or lodged for purposes of treatment, reformation or protection,
for study of the living conditions of the inmates and make recommendations
• Review the Constitutional or legal safeguards in force for the protection of human
rights and recommend measures for their effective implementation
• Review the factors, including acts of terrorism that inhibit the enjoyment of human
rights and recommend appropriate remedial measures
• Study treaties and other international instruments on human rights and make
recommendations for their effective implementation
• Undertake and promote research in the field of human rights
• Engage in human rights education among various sections of society and promote
awareness of the safeguards available for the protection of these rights through
publications, the media, seminars and other available means
• Encourage the efforts of NGOs and institutions working in the field of human rights
• Such other function as it may consider it necessary for the protection of human rights.

Appointment
The Chairperson and members of the NHRC are appointed by the President of India, on the
recommendation of a Committee consisting of:

• The Prime Minister (Chairperson)


• The Home Minister
• The Leader of Opposition in the Lok Sabha
• The Leader of Opposition in the Rajya Sabha
• The Speaker of the Lok Sabha
• The Deputy Chairman of the Rajya Sabha

Removal of a Member of the Commission


Section 5 of the Protection of Human Rights Act describes the procedures and ground for the
removal of the any member of the Commission. . The President may remove the Chairperson or
any other Member if he:

• Is adjudged an insolvent; or
• Engages during his term of office in any paid employment outside the duties of his
office; or
• Is unfit to continue in office by reason of infirmity of mind or body; or
• Is of unsound mind and stands so declared by a competent court; or
• Is convicted and sentenced to imprisonment for an offence, which in the opinion of the
President involves moral turpitude.

Additionally, the Chairperson or any other Member of the Commission shall only be removed
from his office by order of the President on the ground of proved misbehavior or incapacity.
However, in these cases, the President has to refer the matter to the Supreme Court for an
inquiry. If the Supreme Court, after the inquiry, upholds the cause of removal and advises so,
then the President can remove the Chairman or a member.

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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Working of NHRC
The Commission has all powers of a Civil Court. It has its own investigating staff for investigation
into complaints of Human Rights violations. It is open to it to utilize services of any officer or
investigation agency of the Central Government or any State Government. The Commission
while inquiring into complaints of violations of human rights may call for information or report
from the Central Government or any State Government, or any other authority or organization
subordinate thereto within such time as may be specified by it.

The Commission is not empowered to inquire into any matter after the expiry of one year from
the date on which the act constituting violation of human rights is alleged to have been
committed. In other words, it can look into a matter within one year of its occurrence.

The Commission may take any of following steps upon completion of an enquiry:

• Where enquiry discloses the Commission of violation of Human Rights or negligence in


prevention of violation of Human Rights by a public servant, it may recommend to the
concerned Government or authority initiation of proceedings for prosecution or such
other function.
• It may recommend to the concerned government or authority to make payment of
compensation or damages to the victim.
• Approach SC or HC concerned for such directions, orders, or writs as the court may
deem necessary.
• Recommend to the concerned Government or authority for grant of such immediate
interim relief to victim or members of his family.

Strength of NHRC
1. The selection procedure of the members of NHRC is the main factor of its strength. The
composition of the Selection Committee is such that it involves members of ruling as
well as opposition party and both the Houses of Parliament. Also, the composition of
NHRC is such that it involves Legislative, Executive, Judiciary, academicians and NGOs.
This gives the Commission a broad vision to deal with the issues of Human Rights.
2. Financial autonomy, though limited, has provided NHRC independence of Central
Government. The Commission is free to make its own budget and spend it according to
its own planning. The draft of the proposed budget is placed before both the Houses of
Parliament and after the approval of the budget, the Government, without making any
amendment, has to provide finances to the Commission.
3. The Commission has the power to conduct suo-moto inquiry into the complaints of
Human Rights violations.
4. Easy accessibility to the Commission has made it one of the most popular organizations.
Anyone can approach NHRC through telephone, letter, application, mobile phone and
the Internet. All the documents, reports, newsletters, speeches, etc. of the Commission
are also available on this website. The status of the complaint too can be known
through its website. The popularity and trust on NHRC is quite evident from the fact
that while it had registered only 496 complaints in 1993-94, in 2004-05 the total
number of cases were 74,4019.
5. NHRC has advised the government a number of times on the issues of Human Rights.
Be it the cases of custodial deaths or suicide by the farmers or health issues or POTA,

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
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child marriage, trafficking of women and children etc., the government has been taking
suggestions from NHRC.
6. NHRC, in a true democratic fashion, has worked immensely to create awareness among
public on Human Rights issues through seminars, workshops, lectures, literature, NGOs’
participation, universities’ collaborations, etc.
7. The Commission has extended its sphere from time to time. Support for right to
information, health care issues, disables’ rights, HIV/AIDS patients’ rights etc. are some
of the issues where NHRC has worked successfully.

Weaknesses of the Commission


1. In the process of selection of the members of the Commission, the Chairman is not
consulted.
2. Because of certain weakness in the Act, at times the Commission feels the need for the
amendments. But the Commission has constraints in doing so.
3. Another major weakness of the Commission is that it does not have powers to
investigate armed forces, BSF or any other paramilitary forces.
4. Finally, NHRC is only an investigative and recommendatory body. It does not have
power of prosecution.
5. It is dependent on the Government for manpower and money. The Central Government
shall pay to the Commission by way of grants such sums of money as it may consider fit.

Central Vigilance Commission


The CVC was established in 1964 by an executive resolution upon the recommendation of
Santhanam Committee on Prevention of Corruption (1962-64). In 2003, the Parliament enacted
a law conferring statutory status on the CVC.

In 2004, the Government of India authorized the CVC as the “Designated Agency” to receive
written complaints for disclosure on any allegation of corruption or misuse of office and
recommend appropriate action. The CVC is conceived to be the apex vigilance institution, free
of control from any executive authority, monitoring all vigilance activity under the Central
Government and advising various authorities in Central Government organizations in planning,
executing, reviewing and reforming their vigilance work.

Composition
The CVC is composed of a Chairperson (Central Vigilance Commissioner) and not more than two
members. The President appoints them upon the recommendation of a committee comprising
of:

• The Prime Minister as its head


• Union Minister of Home Affairs
• Leader of Opposition in Lok Sabha

They hold office for a term of four years or until they attain the age of sixty-five years,
whichever is earlier. They are not eligible for further employment under the Central or a State
Government upon expiry of their term.

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
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The appointment of P.J. Thomas as CVC in 2011 was quashed by the Supreme Court since he
was an accused in Kerala Palmolein case under Prevention of Corruption Act.

Removal
The President can remove any member from office under the following circumstances:

1. If he is adjudged insolvent; or
2. If he has been convicted of an offence which (in the opinion of the Central
Government) involves a moral turpitude; or
3. If he engages, during his term of office, in any paid employment outside the duties of
his office; or
4. If he is (in the opinion of the President), unfit to continue in office by reason of infirmity
of mind or body; or
5. If he has acquired such financial or other interest as is likely to affect prejudicially his
official functions.

In addition, the President can remove any member on the grounds of proved misbehavior or
incapacity. However, in this case, the President has to refer the matter to the Supreme Court for
an enquiry. If, after the enquiry, the Supreme Court upholds the cause of removal and advises
so, the President can remove him. He is deemed to be guilty of misbehavior if:

• He is concerned or interested in any contract or agreement made by the Central


Government, or
• He participates in any way in the profit of such contract or agreement or in any benefit
or emolument arising there from, otherwise than as a member and in common with
the other members of an incorporated company.

Functions

With respect to CBI:

• To exercise superintendence over the functioning of the Delhi Special Police


Establishment (DSPE) (i.e. CBI)with respect to investigation under the Prevention of
Corruption Act, 1988; or offence under CrPC for certain categories of public servants
and to give directions to the DSPE for purpose of discharging this responsibility;
• To give directions and to review the progress of investigations conducted by the DSPE
into offences alleged to have been committed under the Prevention of Corruption Act;
• As a fallout of the Vineet Narain case, the Supreme Court of India ruled that the
Director of the CBI (and Director of Enforcement) should be appointed on the
recommendations of a Committee headed by the Central Vigilance Commissioner, the
Home Secretary and the Secretary in the Department of Personnel as members. The
Committee should also take the opinion of the incumbent Director CBI before
forwarding their recommendations to the Appointments Committee of the Cabinet.
• The Committee concerned with the appointment of the Director of CBI is also
empowered to recommend, after consultation with the Director (CBI), appointment of
officers to the posts of the level of SP and above in DSPE.

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• The Committee concerned with the appointment of the Director of Enforcement is also
empowered to recommend, after consultation with the Director of Enforcement,
appointment of officers to the posts of the level of Deputy Director and above in the
Directorate of Enforcement.

With respect to Vigilance:

• To undertake an inquiry or cause an inquiry or investigation to be made into any


transaction in which a public servant working in any organization, to which the
executive control of the Government of India extends, is suspected or alleged to have
acted for an improper purpose or in a corrupt manner;
• To tender independent and impartial advice to the disciplinary and other authorities in
disciplinary cases, involving vigilance angle at different stages i.e. investigation, inquiry,
appeal, review etc.
• To exercise a general check and supervision over vigilance and anti-corruption work in
Ministries or Departments of the Government of India and other organizations to which
the executive power of the Union extends; and
• To undertake or cause an inquiry into complaints received under the Public Interest
Disclosure and Protection of Informer and recommend appropriate action.
• Respond to Central Government on mandatory consultation with the Commission
before making any rules or regulations governing the vigilance or disciplinary matters
relating to the persons appointed to the public services and posts in connection with
the affairs of the Union or to members of the All India Services
• The Central Government is required to consult the CVC in making rules and regulations
governing the vigilance and disciplinary matters relating to the members of Central
Services and All India Services.

Working of CVC
The CVC conducts its proceedings at New Delhi. It has the powers of a Civil Court and is
empowered to regulate its own procedure. It may call for information or report from the
Central Government or its authorities so as to enable it to exercise general supervision over the
vigilance and anti-corruption work.

The CVC, after receiving the report of the inquiry undertaken by an agency, advises the Central
Government or its authorities upon further course of action. The Central Government or its
authorities shall consider such advise and take appropriate action. If it does not agree with the
advise of the CVC, it shall communicate the reasons for the same to the CVC.

Annual report of performance of CVC has to be presented to the President. The President
places this report before each House of the Parliament.

All Ministries/Departments in the Union Government have a Chief Vigilance Officer (CVO) who
heads the Vigilance Division of the organization concerned, assisting and advising the Secretary
or Head of Office in all matters pertaining to vigilance. He also provides a link between his
organization and the Central Vigilance Commission on the one hand and his organization and
the Central Bureau of Investigation on the other.

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Central Bureau of Investigation


The CBI owes its origin to the Delhi Special Police Establishment, established in 1941, to enquire
into cases of corruption in the procurement during the Second World War. Later, based on the
recommendations of the Santhanam Committee on Prevention of Corruption, CBI was
established by a resolution of the Ministry of Home Affairs. Later, it was transferred to the
Ministry of Personnel and now it enjoys the status of an attached office.

The CBI is not a statutory body. It derives its powers from the Delhi Special Police Establishment
Act, 1946.The CBI is the main investigating agency of the Central Government. It plays an
important role in the prevention of corruption and maintaining integrity in administration. It
works under the overall superintendence of Central Vigilance Commission in matters related to
the Prevention of Corruption Act, 1988.

Composition of CBI
The CBI is headed by a Director. He is assisted by a Special Director or an Additional Director.
Additionally, it has a number of joint directors, deputy inspector generals, superintendents of
police and all other usual ranks of police personnel.

The Director of CBI as Inspector-General of Police, Delhi Special Police Establishment, is


responsible for the administration of the organization. With the enactment of CVC Act, 2003,
the superintendence of Delhi Special Police Establishment vests with the Central Government
save investigations of offences under the Prevention of Corruption Act, 1988, in which, the
superintendence vests with the Central Vigilance Commission.

The Director of CBI has been provided security of two-year tenure in office by the CVC Act, 2003
(Vineet Narain Case). The CVC Act also provides the mechanism for the selection of the Director
of CBI and other officers of the rank of SP and above in the CBI. The Director of the CBI is
appointed by the Central Government on the recommendation of a committee consisting of the
Central Vigilance Commissioner as Chairperson, the Vigilance Commissioners, the Secretary to
the Government of India in-charge of the Ministry of Home Affairs and the Secretary
(Coordination and Public Grievances) in the Cabinet Secretariat.

Organization of CBI

At present (2013), the CBI has the following divisions:

1. Anti-Corruption Division
2. Economic Offences Division
3. Special Crimes Division
4. Policy and International Police Cooperation Division
5. Administration Division
6. Directorate of Prosecution
7. Central Forensic Science Laboratory

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Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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Functions of CBI
The functions of CBI are:

i. Investigating cases of corruption, bribery and misconduct of Central government


employees
ii. Investigating cases relating to infringement of fiscal and economic laws, that is, breach
of laws concerning export and import control, customs and central excise, income tax,
foreign exchange regulations and so on. However, such cases are taken up either in
consultation with or at the request of the department concerned.
iii. Investigating serious crimes, having national and international ramifications, committed
by organized gangs of professional criminals.
iv. Coordinating the activities of the anti-corruption agencies and the various state police
forces.
v. Taking up, on the request of a state government, any case of public importance for
investigation.
vi. Maintaining crime statistics and disseminating criminal information.

The CBI is a multidisciplinary investigation agency of the Government of India and undertakes
investigation of corruption-related cases, economic offences and cases of conventional crime. It
normally confines its activities in the anti-corruption field to offences committed by the
employees of the Central Government and Union Territories and their public sector
undertakings. It takes up investigation of conventional crimes like murder, kidnapping, rape etc.,
on reference from the state governments or when directed by the Supreme Court/High Courts.
The CBI acts as the “National Central Bureau” of Interpol in India. The Interpol Wing of the CBI
coordinates requests for investigation-related activities originating from Indian law
enforcement agencies and the member countries of the Interpol.

CBI as ‘Caged Parrot’ and steps to make it free


The SC raised questions on the CBI's independence while hearing the coalgate scam case, called
it a "caged parrot speaking in its master's voice". The SC had then asked the Centre to make the
CBI impartial and said it needs to be ensured that the CBI functions free of all external
pressures.

In response to this, the Centre filed an affidavit stating following measures it will adopt to
ensure the autonomy of the CBI:

i. CBI director will be appointed by a collegium comprising of the Prime Minister,


Chief Justice of India and Leader of the Opposition. The CBI director cannot be
appointed or removed without the consent of this collegium.
ii. The CBI director can be removed on the grounds of misbehavior only by an order
from the President after an inquiry.
iii. There will be an accountability commission headed by three retired Supreme Court
or High Court judges. The committee will look into cases of grievances against the
CBI.
iv. The affidavit said that CVC will have the power of superintendence and
administration over the CBI for all cases to be probed under the Prevention of
Corruption Act but such power would vest in the Centre for rest of the cases.

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v. A Bill would be introduced in Parliament to ensure financial autonomy to the


agency.
vi. Sanction for probe: Centre shall take a decision on a request to sanction for probe
against officers of the level of Jt. Secretary and above within a period of three
months and give reasons if sanction is denied.

Central Information Commission


The CIC was established by the Central Government in 2005 in accordance with the provisions
of Right to Information Act (2005).

Composition and Appointment

The Commission consists of a Chief Information Commissioner and not more than ten
Information Commissioners. They are appointed by the President upon the recommendation of
a committee comprising:

• The Prime Minister as Chairperson


• The Leader of Opposition in the Lok Sabha
• A Union Cabinet Minister nominated by the Prime Minister

They should be people of eminence in public life with wide knowledge and experience in law,
science and technology, social service, management, journalism, mass media or administration
and governance. They should not be a Member of Parliament or Member of the Legislature of
any State or Union Territory. They should not hold any other office of profit or connected with
any political party or carrying any business or pursuing any profession.

Tenure and Removal

The members of CIC hold office for a term of five years or until they attain the age of sixty-five
years, whichever is earlier. They are not eligible for reappointment. The Information
Commissioner is eligible for appointment as Chief Information Commissioner but cannot hold
office for more than a total of five years including his term as Information Commissioner.

The President can remove any member from office under the following circumstances:

1. If he is adjudged insolvent; or
2. If he has been convicted of an offence which (in the opinion of the Central
Government) involves a moral turpitude; or
3. If he engages, during his term of office, in any paid employment outside the duties of
his office; or
4. If he is (in the opinion of the President), unfit to continue in office by reason of infirmity
of mind or body; or
5. If he has acquired such financial or other interest as is likely to affect prejudicially his
official functions.

In addition, the President can remove any member on the grounds of proved misbehavior or
incapacity. However, in this case, the President has to refer the matter to the Supreme Court for
an enquiry. If, after the enquiry, Supreme Court upholds the cause of removal and advises so,

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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the President can remove him. He is deemed to be guilty of misbehavior if:

• He is concerned or interested in any contract or agreement made by the Central


Government, or
• He participates in any way in the profit of such contract or agreement or in any benefit
or emolument arising there from otherwise than as a member and in common with the
other members of an incorporated company.

Powers and Functions of Information Commissions


1. The Central Information Commission/State Information Commission has a duty to
receive complaints from any person:
• Who has not been able to submit an information request because a PIO has not
been appointed
• Who has been refused information that was requested;
• Who has received no response to his/her information request within the
specified time limits
• Who thinks the fees charged are unreasonable
• Who thinks information given is incomplete or false or misleading
• Any other matter relating to obtaining information under this law
2. Power to order inquiry if there are reasonable grounds (suo moto power)
3. The Commission has the powers of Civil Court
4. All records covered by this law (including those covered by exemptions) must be given
to CIC/SIC during inquiry for examination
5. Power to secure compliance of its decisions from the public authority includes:
• Providing access to information in a particular form
• Directing the public authority to appoint a PIO/APIO where none exists
• Publishing information or categories of information
• Making necessary changes to the practices relating to management,
maintenance and destruction of records
• Enhancing training provision for officials on RTI
• Seeking an annual report from the public authority on compliance with this law
• Requiring it to compensate for any loss or other detriment suffered by the
applicant
• Imposing penalties under this law
• Rejecting the application
6. The CIC submits annual report to the Central Government, which tables it in both the
Houses of Parliament. The SIC will submit the annual report to State Government,
which places it before the State Legislature (both Houses wherever applicable).
7. When a public authority does not confirm to provisions of RTI Act, the Commission may
recommend (to the authority) steps, which ought to be taken for promoting such
conformity.

The State Information Commission performs similar functions with respect to offices, financial
institutions, public sector undertakings, etc. which fall under the concerned State Government.

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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Planning Commission
The Planning Commission was established in March 1950 by an executive resolution of the
Government of India, (i.e. Union Cabinet) on the recommendation of the Advisory Planning
Board constituted in 1946, under the chairmanship of K C Neogi. Thus, the Planning
Commission is neither a constitutional body nor a statutory body. In other words, it is a non-
constitutional or extra-constitutional body (i.e. not created by the Constitution) and a non-
statutory body (not created by an act of Parliament). In India, it is the supreme organ of
planning for social and economic development.

Functions
The functions of the Planning Commission include the following:

i. To make an assessment of material, capital and human resources of the country


and investigate the possibilities of augmenting them.
ii. To formulate a plan for the most effective and balanced utilisation of the country’s
resources.
iii. To determine priorities and to define stages in which the plan should be carried
out.
iv. To indicate the factors that retard economic development.
v. To determine the nature of the machinery required for successful implementation
of the plan in each stage.
vi. To appraise, from time to time, the progress achieved in execution of the plan and
to recommend necessary adjustments.
vii. To make appropriate recommendations for facilitating the discharge of its duties, or
on a matter referred to it for advice by Central or state governments.

The Allocation of Business Rules have assigned the following matters (in addition to the above)
to the Planning Commission:

i. Public co-operation in National Development


ii. Specific programmes for area development notified from time to time
iii. Perspective Planning
iv. Institute of Applied Manpower Research
v. Unique Identification Authority of India (UIDAI)
vi. All matters relating to National Rainfed Area Authority (NRAA)

Earlier, the National Informatics Centre was also under the Planning Commission. Later, it was
brought under the Ministry of Information Technology. The Unique Identification Authority of
India (UIDAI) has been constituted in January, 2009 as an attached office under aegis of the
Planning Commission. With the transfer of National Rainfed Area Authority (NRAA) from
Ministry of Agriculture to the Planning Commission, all matters relating to the NRAA will
henceforth be looked after by the Planning Commission. It should be noted that the Planning
Commission is only a staff agency—an advisory body and has no executive responsibility. It is
not responsible for taking and implementing decisions. This responsibility rests with the Central
and State governments.

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
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Composition
The following points can be noted in context of the composition (membership) of the Planning
Commission:

i. The Prime Minister of India has been the chairman of the Commission. He presides
over the meetings of the Commission.
ii. The Commission has a Deputy Chairman. He is the de facto executive head (i.e.,
full-time functional head) of the Commission. He is responsible for the formulation
and submission of the draft Five-Year Plan to the Central Cabinet. He is appointed
by the Central Cabinet for a fixed tenure and enjoys the rank of a Cabinet Minister.
Though he is not a member of Cabinet, he is invited to attend all its meeting
(without a right to vote).
iii. Some Central Ministers are appointed as part-time members of the Commission. In
any case, the Finance Minister and planning minister are the ex-officio (by virtue of)
members of the Commission.
iv. The Commission has four to seven full-time expert members. They enjoy the rank
of a Minister of State.
v. The Commission has a Member-Secretary. He is usually a senior member of IAS.

The state governments are not represented in the Commission in any way. Thus, the Planning
Commission is wholly a centre-constituted body.

Internal Organization

The Planning Commission has the following three organs:

1. Technical Divisions
2. Housekeeping Branches
3. Programme Advisors

Technical Divisions: The technical divisions are the major functional units of Planning
Commission. They are mainly concerned with plan formulation, plan monitoring and plan
evaluation. These fall under two broad categories, that is, general divisions (concerned with
aspects of the entire economy) and subject divisions (concerned with specified fields of
development).

Housekeeping Branches: The Planning Commission has the following housekeeping branches:

1. General administration branch.


2. Establishment branch.
3. Vigilance branch.
4. Accounts branch.
5. Personal training branch.

Programme Evaluation Organization


The Programme Evaluation Organization (PEO) was established in 1952 as an independent unit
of the Planning Commission. However, it functions under the general guidance and direction of

Rajinder Nagar: 1/8-B, 2nd Floor, Apsara Arcade, Near Gate 6, Karol Bagh Metro, Delhi
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the Planning Commission. The PEO is headed by a Director/Chief who is assisted by Joint
Directors, Deputy Directors, Assistant Directors and other staff. The PEO has seven regional
offices at Chennai, Hyderabad, Mumbai, Lucknow, Chandigarh, Jaipur and Kolkata. Each regional
evaluation office of PEO is headed by a Deputy Director. The PEO undertakes an assessment of
the implementation of development programmes and plans as contained in Five-Year Plans to
provide, from time to time, feedback to the Planning Commission and executive agencies. It
also provides technical advice to state evaluation organizations.

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Mukherjee Nagar: 103, 1st Floor, B/1-2, Ansal Building, Behind UCO Bank, Delhi-9
09650617807, 09968029039, 09717162595
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