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GS Paper: GS2-01.Indian Constitution-Historical underpinnings & evolution; Features, amendments, significant provisions, basic structure of Constitution

  • Fundamental Duties

    The Supreme Court has allowed the Centre’s request for two months’ time to file a reply to a petition seeking the enforcement of fundamental duties of citizens, including patriotism and unity of nation, through “comprehensive, and well-defined laws”.

    Why in news?

    • The need to enforce fundamental duties arises due to new illegal trend of protest by protesters in the garb of freedom of speech and expression.
    • Vandalism, blocking of road and rail routes in order to compel the government to meet their demands is a sheer violation of the FDs which are generally not enforceable.

    What are Fundamental Duties?

    • The fundamental duties of citizens were added to the constitution by the 42nd Amendment in 1976, upon the recommendations of the Swaran Singh Committee.
    • It basically imply the moral obligations of all citizens of a country and today, there are 11 fundamental duties in India, which are written in Part IV-A of the Constitution, to promote patriotism and strengthen the unity of India.
    • The FDs obligate all citizens to respect the national symbols of India, including the constitution, to cherish its heritage, preserve its composite culture and assist in its defence.
    • They also obligate all Indians to promote the spirit of common brotherhood, protect the environment and public property, develop scientific temper, abjure violence, and strive towards excellence in all spheres of life.

    Judicial interpretation of FDs

    • The Supreme Court has held that FDs are not enforceable in any Court of Law.
    • It ruled that these fundamental duties can also help the court to decide the constitutionality of a law passed by the legislature.
    • There is a reference to such duties in international instruments such as the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, and Article 51A brings the Indian constitution into conformity with these treaties.

    Total FDs

    • Originally ten in number, the fundamental duties were increased to eleven by the 86th Amendment in 2002.

    The 10 fundamental duties are as follows:

    1. To oblige with the Indian Constitution and respect the National Anthem and Flag
    2. To cherish and follow the noble ideas that inspired the national struggle for freedom
    3. To protect the integrity, sovereignty, and unity of India
    4. To defend the country and perform national services if and when the country requires
    5. To promote the spirit of harmony and brotherhood amongst all the people of India and renounce any practices that are derogatory to women
    6. To cherish and preserve the rich national heritage of our composite culture
    7. To protect and improve the natural environment including lakes, wildlife, rivers, forests, etc.
    8. To develop scientific temper, humanism, and spirit of inquiry
    9. To safeguard all public property
    10. To strive towards excellence in all genres of individual and collective activities

    The 11th fundamental duty which was added to this list is:

    1. To provide opportunities for education to children between 6-14 years of age, and duty as parents to ensure that such opportunities are being awarded to their child. (86th Amendment, 2002)

     

    Try this PYQ:

    Which of the following is/are among the Fundamental Duties of citizens laid down in the Indian Constitution?

    1. To preserve the rich heritage of our composite culture
    2. To protect the weaker sections from social injustice
    3. To develop the scientific temper and spirit of inquiry
    4. To strive towards excellence in all spheres of individual and collective activity.

    Select the correct answer using the codes given below:

    (a) 1 and 2 only

    (b) Only 2

    (c) 1, 3 and 4 only

    (d) 1, 2, 3 and 4

     

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  • In news: Pardoning Power of the President

    The Supreme Court has held that the Centre was “bound to advise” the President to remit the life sentence of gangster Abu Salem in the 1993 Mumbai blasts case on his completion of 25 years of his jail term.

    What did the SC say?

    • On the appellant completing 25 years of his sentence, the Central government is bound to advise the President for the exercise of his powers under Article 72 of the Constitution.
    • The Centre could itself consider remission on the completion of 25 years’ sentence in terms of Sections 432 and 433 of the Code of Criminal Procedure.

    What is Pardon?

    • A pardon is a government/executive decision to allow a person to be absolved of guilt for an alleged crime or other legal offense as if the act never occurred.

    Why need Pardon?

    • Pardons can be granted when individuals are deemed to have demonstrated that they have “paid their debt to society”, or are otherwise considered to be deserving of them.
    • Pardons are sometimes offered to persons who were either wrongfully convicted or who claim that they were wrongfully convicted.
    • Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone that is seen as wrongly convicted.

    What is the Article 72?

    • Article 72 says that the president shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offense.
    • There are five different types of pardoning:
    1. Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
    2. Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
    3. Reprieve: means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
    4. Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
    5. Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty year rigorous imprisonment to ten years.

    Cases as specified by art. 72

    In all cases where the punishment or sentence:

    • is by a court-martial
    • is for an offence against any law relating to a matter to which the executive power of the Union extends
    • is a sentence of death

    Nature of the Pardoning Power

    • The pardoning power of the president is not absolute. It is governed by the advice of the Council of Ministers.
    • This has not been discussed by the constitution but is the practical truth.
    • Further, the constitution does not provide for any mechanism to question the legality of decisions of presidents or governors exercising mercy jurisdiction.
    • But the SC in Epuru Sudhakar Case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.
    • The court has earlier held that court has retained the power of judicial review even on a matter which has been vested by the Constitution solely in the Executive.

    Some traditions

    • It is important to note that India has a unitary legal system and there is no separate body of state law.
    • All crimes are crimes against the Union of India.
    • Therefore, a convention has developed that the governor’s powers are exercised for only minor offenses.
    • While requests for pardons and reprieves for major offenses and offenses committed in the UTs are deferred to the President.

    Try this PYQ:

    Who/Which of the following is the custodian of the Constitution of India?

    (a) The President of India

    (b) The Prime Minister of India

    (c) The Lok Sabha Secretariat

    (d) The Supreme Court of India

     

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  • KHADC to invite talks on Instrument of Accession

    The Khasi Hills Autonomous District Council (KHADC) in Meghalaya has called for a meeting of traditional heads to revisit the Instrument of Accession that made the Khasi domain a part of the Indian Union.

    About KHADC

    • KHADC is an autonomous district council in the state of Meghalaya in India.
    • It is one of the three autonomous district councils within Meghalaya, and one of twenty-five autonomous regions of India.
    • Meghalaya is divided into three regions dominated by as many matrilineal communities — the Khasis, Garos and Jaintias.
    • The Khasi hills straddle 25 Himas or States that formed the Federation of Khasi States.

    Why in news?

    • Some members of the KHADC agreed that the Instrument of Accession and Annexed Agreement signed with the Dominion of India between December 15, 1947 and March 19, 1948, should be studied.
    • The treaty was signed by Governor General of India, Chakravarti Rajagopalachari, on August 17, 1948.

    What is Instrument of Accession?

    • It was a legal document first introduced by the Government of India Act, 1935.
    • It was used in 1947 to enable each of the rulers of the princely states under British paramountcy to join one of the new dominions of India or Pakistan created by the Partition.
    • The instruments of accession executed by the rulers, provided for the accession of states to the Dominion of India (or Pakistan) on three subjects, namely, defence, external affairs and communications.

    Back2Basics: Autonomous District Council (ADC)

    • The Sixth Schedule of the Indian Constitution allows for the formation of autonomous administrative divisions which have been given autonomy within their respective states.
    • Most of these ADC are located in North East India with the exception of two in Ladakh and one in West Bengal.
    • Presently, 10 Autonomous Councils in Assam, Meghalaya, Mizoram and Tripura are formed by virtue of the Sixth Schedule with the rest being formed as a result of other legislations.

    Powers and competencies

    (1) Executive and legislative powers

    Under the provisions of the Sixth Schedule, ADCs can make laws, rules and regulations in the following areas:

    • Land management
    • Forest management
    • Water resources
    • Agriculture and cultivation
    • Formation of village councils
    • Public health
    • Sanitation
    • Village and town level policing
    • Appointment of traditional chiefs and headmen
    • Inheritance of property
    • Marriage and divorce
    • Social customs
    • Money lending and trading
    • Mining and minerals

    (2) Judicial powers

    • ADCs have powers to form courts.
    • They can hear cases where both parties are members of Scheduled Tribes (STs) and the maximum sentence is less than 5 years in prison.

    (3) Taxation and revenue

    • Autonomous district councils have powers to levy taxes, fees and tolls on: building and land, animals, vehicles, boats, entry of goods into the area, roads, ferries, bridges, employment and income and general taxes for the maintenance of schools and roads.

     

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  • Explained: Sub-categorizing OBCs

    The Centre has extended the tenure of The Commission to Examine Sub-categorisation of Other Backward Classes (OBCs) headed by Justice G Rohini, former Chief Justice of Delhi High Court.

    Why in news?

    • The Commission, constituted nearly five years ago, has got 10 extensions so far.
    • It now has a deadline until January 31 next year to submit its report.

    Who are the OBCs?

    • Other Backward Class is a collective term used to classify castes which are educationally or socially disadvantaged.
    • It is one of several official classifications of the population of India, along with General Class, Scheduled Castes and Scheduled Tribes (SCs and STs).
    • The OBCs were found to comprise 55% of the country’s population by the Mandal Commission report of 1980, and were determined to be 41% in 2006.

    What is the Sub-Categorization of OBCs?

    • The idea is to create sub-categories within the larger group of OBCs for the purpose of reservation.
    • OBCs are granted 27% reservation in jobs and education under the central government.
    • This has been a legal debate for other reservation categories too.
    • In September last year, a Constitution Bench of the Supreme Court reopened the debate on sub-categorization of SCs and STs for reservations.

    Establishment of Rohini Commission

    • Only a few affluent communities among the over 2,600 included in the Central List of OBCs have secured a major part of the reservation.
    • Sub-categories within OBCs would ensure “equitable distribution” of representation among all OBC communities.
    • It was to examine this that the Rohini Commission was constituted on October 2, 2017.

    What is the Commission’s brief?

    It was originally set up with three terms of reference:

    1. To examine the extent of inequitable distribution of benefits of reservation among the castes or communities included in the broad category of OBCs
    2. To work out for a scientific approach for sub-categorization within such OBCs
    3. To take up the exercise of identifying the respective castes or communities or sub-castes or synonyms in the Central List of OBCs
    4. To study the various entries in the Central List of OBCs and recommend correction of any repetitions, ambiguities, inconsistencies and errors of spelling or transcription.

    When was it meant to submit its report?

    • At the time it was set up, the Commission was given 12 weeks to submit its report, but has since been given 10 extensions.
    • There is a lot of work to be done.
    • The NCBC until December 2020, over Rs 1.92 crore had been spent on the Commission including salary, consultant fees and other expenses.

    What progress has it made so far?

    • The Commission is ready with the draft report on sub-categorization.
    • Among the challenges it has faced, one has been the absence of data for the population of various communities to compare with their representation in jobs and admissions.
    • The Commission proposed for a all-India survey to estimate caste-wise population of OBCs.
    • Since then the government has been silent on this, whereas groups of OBCs have been demanding enumeration of OBCs in the Census.

    What have its findings been so far?

    • In 2018, the Commission analysed the data of 1.3 lakh central jobs given under OBC quota over the preceding five years.
    • It examined OBC admissions to central higher education institutions, including universities, IITs, NITs, IIMs and AIIMS, over the preceding three years.

    The findings were:

    1. 97% of all jobs and educational seats have gone to just 25% of all sub-castes classified as OBCs;
    2. 95% of these jobs and seats have gone to just 10 OBC communities;
    3. 983 OBC communities — 37% of the total — have zero representation in jobs and educational institutions;
    4. 994 OBC sub-castes have a total representation of only 2.68% in recruitment and admissions.

    Conclusion

    • Thus it is visible that a small chunk of communities is enjoying almost the entire OBC reservation.
    • Hence it is a cause of worry and needs due cognizance at a larger level.

     

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  • Nominated Members in Rajya Sabha

    Olympic sprinter PT Usha and music composer Ilaiyaraaja among others have been nominated to the Rajya Sabha in the category of eminent persons nominated by the President.

    Nominated Members in RS

    • Twelve members are nominated to the RS by the President of India for six-year term.
    • This is for their contributions towards arts, literature, sciences, and social services.
    • This right has been bestowed upon the President according to the Fourth Schedule under Articles 4(1) and 80(2) of the Constitution of India.

    Normal composition

    • The present strength is 245 members of whom 233 are representatives of the states and UTs and 12 are nominated by the President.
    • The Rajya Sabha is not subject to dissolution; one-third of its members retire every second year.

    Constitutional provisions for nominated members

    • 80(1)(a) of Constitution of India makes provision for the nomination of 12 members to the Rajya Sabha by the President of India in accordance with provisions of Arts.80(3).
    • 80(3) says that the persons to be nominated as members must be possessing special knowledge or practical experience in respect of such matters as the following namely: Literature, science, art and social service.

    Powers and privileges of such members

    • A nominated member enjoys all the powers and privileges and immunities available to an elected Member of Parliament.
    • They take part in the proceedings of the House as any other member.
    • Nominated members are however not entitled to vote in an election of the President of India.
    • They however have rights to vote in the vice presidential election.
    • As per Article 99 of the Constitution, a nominated member is allowed six months’ time should he join a political party.

    Try this PYQ:

    Consider the following statements:

    1. The Chairman and the Deputy Chairman of the Rajya Sabha are not the members of that House.
    2. While the nominated members of the two Houses of the Parliament have no voting right in the presidential election, they have the right to vote in the election of the Vice President.

    Which of the statements given above is/are correct?

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2

     

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    Also read:

    [Sansad TV] Perspective – Rajya Sabha: The Upper House

     

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  • How is Vice-President of India elected?

    The Election Commission has announced that the election to the post of the Vice-President (VP) will be held on August 6, as M. Venkaiah Naidu’s term was coming to an end on August 10.

    About Vice President of India

    • The VP is the deputy to the head of state of the Republic of India, the President of India.
    • His/her office is the second-highest constitutional office after the president and ranks second in the order of precedence and first in the line of succession to the presidency.
    • The vice president is also a member of the Parliament as the ex officio Chairman of the Rajya Sabha.

    Qualifications

    • As in the case of the president, to be qualified to be elected as vice president, a person must:
    1. Be a citizen of India
    2. Be at least 35 years of age
    3. Not hold any office of profit
    • Unlike in the case of the president, where a person must be qualified for election as a member of the Lok Sabha, the vice president must be qualified for election as a member of the Rajya Sabha.
    • This difference is because the vice president is to act as the ex officio Chairman of the Rajya Sabha.

    Roles and responsibilities

    • When a bill is introduced in the Rajya Sabha, the vice president decides whether it is a money bill or not.
    • If he is of the opinion that a bill introduced in the Rajya Sabha is a money bill, he shall refer it to the Speaker of the Lok Sabha.
    • The vice president also acts as the chancellor of the central universities of India.

    Election procedure

    • Article 66 of the Constitution of India states the manner of election of the vice president.
    • The vice president is elected indirectly by members of an electoral college consisting of the members of both Houses of Parliament and NOT the members of state legislative assembly.
    • The election is held as per the system of proportional representation using single transferable votes.
    • The voting is conducted by Election Commission of India via secret ballot.
    • The Electoral College for the poll will comprise 233 Rajya Sabha members, 12 nominated Rajya Sabha members and 543 Lok Sabha members.
    • The Lok Sabha Secretary-General would be appointed the Returning Officer.
    • Political parties CANNOT issue any whip to their MPs in the matter of voting in the Vice-Presidential election.

    Removal

    • The Constitution states that the vice president can be removed by a resolution of the Rajya Sabha passed by an Effective majority (majority of all the then members) and agreed by the Lok Sabha with a simple majority( Article 67(b)).
    • But no such resolution may be moved unless at least 14 days’ notice in advance has been given.
    • Notably, the Constitution does not list grounds for removal.
    • No Vice President has ever faced removal or the deputy chairman in the Rajya Sabha cannot be challenged in any court of law per Article 122.

     

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  • What is SC’s ‘Kihoto Hollohan’ Judgment?

    As the political battle in Maharashtra moves to the Supreme Court, the role and powers of the Deputy Speaker are in focus.

    In the context of the crisis, references have been made to the landmark judgment in ‘Kihoto Hollohan vs Zachillhu And Others’ (1992).

    What is the ‘Kihoto Hollohan’ case?

    • A constitutional challenge to the Tenth Schedule was mounted, which was settled by the apex court in ‘Kihoto Hollohan’.
    • The principal question before the Supreme Court in the case was whether the powerful role given to the Speaker violated the doctrine of basic structure.
    • In this judgment, the Supreme Court upheld the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs.
    • The Supreme Court laid down the doctrine of basic principle in its landmark judgment in ‘Kesavananda Bharati vs State Of Kerala’ (1973).

    What does the Tenth Schedule of the Constitution say?

    • The Tenth Schedule was inserted in the Constitution by the Constitution (Fifty-Second Amendment) Act, 1985.
    • It provides for the disqualification of Members of Parliament and state legislatures who defect.
    • It describes the Speaker’s sweeping discretionary powers to make decisions on case of defection.

    What did the Supreme Court rule in ‘Kihoto Hollohan’?

    • The petitioners in ‘Kihoto Hollohan’ argued whether it was fair that the Speaker should have such broad powers, given that there is always a reasonable likelihood of bias.
    • The majority judgment authored by Justices M N Venkatachaliah and K Jayachandra Reddy answered this question in the affirmative. It read-
    1. The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House.
    2. They are expected to and do take far reaching decisions in the Parliamentary democracy.
    3. Vestiture of power to adjudicate questions under the Tenth Schedule in them should not be considered exceptionable.
    4. The provisions were “salutory and intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections.”

    What was the dissenting opinion?

    • Justices Lalit Mohan Sharma and J S Verma dissented and took a different view.
    • The tenure of the Speaker, who is the authority in the Tenth Schedule to decide this dispute, is dependent on the continuous support of the majority in the House.
    • Therefore, he does not satisfy the requirement of such an independent adjudicatory authority.
    • They advocated for an independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House,
    • This is envisaged as an attribute of the democratic system which is a basic feature of our Constitution.

    What about the role of the Deputy Speaker?

    • Article 93 of the Constitution mentions the positions of the Speaker and Deputy Speaker of the House of the People (Lok Sabha), and Article 178 contains the corresponding position for Speaker and Deputy Speaker of the Legislative Assembly of a state.
    • Maharashtra has been without a Speaker since February 2021, and Deputy has been carrying out the responsibilities of the position.
    • Article 95(1) says: “While the office of Speaker is vacant, the duties of the office shall be performed by the Deputy Speaker”.
    • In general, the Deputy Speaker has the same powers as the Speaker when presiding over a sitting of the House.
    • All references to the Speaker in the Rules are deemed to be references to the Deputy Speaker when he presides.

     

    Try this PYQ:

    Q.Which one of the following Schedules of the Constitution of India contains provisions regarding anti-defection?

    (a) Second Schedule

    (b) Fifth Schedule

    (c) Eighth Schedule

    (d) Tenth Schedule

     

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  • Anti-defection Law

    The unfolding political crisis in Maharashtra has thrown the spotlight on the anti-defection law, and the roles of the Deputy Speaker and the Governor.

    What is the news?

    • Some legislators have aligned themselves with the party’s rebel leader and are camping in Guwahati.
    • The party has warned its MLAs that their absence from the meeting would lead to the presumption they wanted to leave the political party.
    • And this would therefore lead to action against them under the anti-defection law.

    What is the Anti-Defection Law?

    • The anti-defection law provides for the disqualification of MLAs who, after being elected on the ticket of a political party, “voluntarily give up their party membership”.
    • The Supreme Court has interpreted the term broadly and ruled an MLA’s conduct can indicate whether they have left their party.
    • The law is also applicable to independent MLAs.
    • But the anti-defection law does not apply if the number of MLAs who leave a political party constitute two-thirds of the party’s strength in the legislature.
    • These MLAs can merge with another party or become a separate group in the legislature.

    How does the two-thirds rule work in the current situation in Maharashtra?

    • Reports indicate that 30 MLAs are with rebel leader.
    • Taking this number at face value means it does not reach the two-thirds (37) mark of the 55 MLAs the party has in the Maharashtra Assembly.
    • Therefore, the protection under the anti-defection law would not be available to the rebel group.

    What adds more to this high-stage political drama?

    • It is the Assembly Speaker who decides whether an MLA has left a party or a group that constitutes two-thirds of a party.
    • The position of the Speaker of the Maharashtra Assembly is, however, currently vacant.
    • Article 180(1) of the Constitution states that the Deputy Speaker performs the Speaker’s duties when the office is vacant.
    • Since then, the Deputy Speaker has been acting as the Speaker.

    How would a decision be taken whether the anti-defection law applies in this case?

    Under the current circumstances, two ways would lead to adjudication under the law.

    (1) Approaching the acting Speaker to file defection petition

    • First, any MLA of the Assembly can petition that certain MLAs have defected from their political party.
    • Such a petition has to be accompanied by documentary evidence.
    • The Deputy Speaker would then forward the petition to the MLAs against whom their colleagues are making the charge of defection.
    • The MLAs would have seven days or such time that the Deputy Speaker decides is sufficient to enable them to put across their side of the story.

    (2) Proving of two-third majority

    • Rebel leader and MLAs supporting too can write to the Deputy Speaker with evidence claiming that they represent two-thirds of the strength and claim protection under the anti-defection law.
    • In either case, Speakers will decide the matter after hearing all parties, which could take time.

    How much time does it usually take? Why delay occurs?

    • In recent years, one of the fastest decisions in a defection proceeding was delivered by Rajya Sabha Chairman Venkaiah Naidu.
    • However in state legislatures, defection petitions have taken much longer.
    • For example, in 2020, the Supreme Court used its extraordinary power to remove a Manipur minister from his position.
    • But whether the Speaker decides quickly or takes time, the Speaker is usually challenged in court, which further delays the decision.
    • Both Venkaiah Naidu and the Supreme Court have recommended that Speakers decide on defection cases in three months.

    What is the Governor’s role?

    (1) Declaration of Presidents Rule (NA)

    • The Governor has a crucial role when there is political instability in a state.
    • Before 1994, Governors were quick to dismiss a state government, charging that it did not have a majority in the state legislature and recommending the imposition of the President’s rule in the state.
    • But the Supreme Court ended this practice with its judgment in the S R Bommai case in 1994.

     (2) Holding Assembly

    • In this landmark case, the court ruled that the place for deciding whether a government has lost its majority was in the legislature.
    • Hence, Maharashtra Governor can ask Chief Minister to convene the Assembly and prove his majority on the floor of the House.

     (3) Governors Discretion

    • The CM can recommend to the Governor to dissolve the legislature before the end of its five-year term and call for elections under Article 174(2)(b).
    • Here, the Governor’s discretion comes into play.
    • The Governor may choose not to dissolve the legislature.
    • This is when if he or she believes that the recommendation is coming from a council of ministers who do not enjoy the confidence of the state legislature.

    Note: In 2020, the Supreme Court, in Shivraj Singh Chouhan & Ors versus Speaker, MP Legislative Assembly & Ors, upheld the powers of the Speaker to call for a floor test if there is a prima facie view that the government has lost its majority.

    (4) Floor test

    • Under Article 175(2), the Governor can summon the House and call for a floor test to prove whether the government has the numbers.
    • In a detailed judgment, the Court also explained the scope of the power of the Governor and the law revolving around floor tests.
    • When the House is in session, it is the Speaker who can call for a floor test.
    • But when the Assembly is not in session, the Governor’s residuary powers under Article 163 allow him to call for a floor test.

    Conclusion

    • The spectacle of rival political parties whisking away their MLAs to safe destinations does little credit to the state of our democratic politics.
    • It is an unfortunate reflection on the confidence which political parties hold in their own constituents and a reflection of what happens in the real world of politics.
    • Political bargaining, or horse-trading, as we noticed, is now an oft repeated usage in legal precedents.

     

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  • New norms for Sentence Remission

    The Union Home Ministry issued a set of guidelines to the States and the Union Territories on the grant of special remission to prisoners to commemorate the 75th year of Independence.

    What is the news?

    • The decision comes as part of the Azadi Ka Amrit Mahotsav celebrations.
    • The special remission would be granted to a certain category of prisoners, and they would be released in three phases.

    What is Remission?

    • The suspension is the stay or postponement of the execution of the sentence.
    • In remission, the duration of the sentence is reduced, without changing the nature of the sentence.
    • In remission, the nature of the sentence is remained untouched, while the duration is reduced i.e. the rest of the sentence need not be undergone.
    • The effect of the remission is that the prisoner is given a certain date on which he shall be released and the eyes of the law he would be a free man.
    • However, in case of breach of any of the condition of remission, it will be cancelled and the offender has to serve the entire term for which he was originally sentenced.

    Constitutional provisions for Remission

    • ‘Prisons’ is a State subject under the State List of the Seventh Schedule of the Constitution.
    • Indian laws provide pardoning power sourcing from statuary and constitutional authorities.
    • By virtue of Article 72 and 161 of the Constitution of India, the President and Governor can grant pardon, to suspend, remit or commute a sentences passed by the courts.

    What are the new norms?

    The prisoners who would qualify for premature release under the scheme are:

    • Women and transgender convicts of ages 50 and above
    • Male convicts of 60 and above who have completed 50% of their total sentence period without counting the period of general remission earned
    • Physically challenged or disabled convicts with 70% disability and more who have completed 50% of their total sentence period
    • Terminally ill convicts
    • Convicted prisoners who have completed two-thirds (66%) of their total sentence
    • Poor or indigent prisoners who have completed their sentence but are still in jail due to non-payment of fine imposed on them by waiving off the fine
    • Persons who committed an offence at a young age (18-21) and with no other criminal involvement or case against them and who have completed 50% of their sentence period would also be eligible for the remission

    Exceptions to these norms

    Following persons would not be eligible for the grant of special remission:

    • Persons convicted with death sentence or where death sentence has been commuted to life imprisonment or persons convicted for an offence for which punishment of death has been specified as one of the punishments
    • Persons convicted with sentence of life imprisonment
    • Convicts involved in terrorist activities or persons convicted under the Terrorist and Disruptive (Prevention) Act, 1985, Prevention of Terrorist Act, 2002, Unlawful Activities (Prevention) Act, 1967, Explosives Act, 1908, National Security Act, 1982, Official Secrets Act, 1923, and Anti-Hijacking Act, 2016

    Back2Basics: Pardoning powers in India

    • Under the Constitution of India (Article 72), the President of India can grant a pardon or reduce the sentence of a convicted person, particularly in cases involving capital punishment.
    • A similar and parallel power vests in the governors of each state under Article 161.
    1. President
    1. Article 72 says that the president shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.
    2. The pardoning powers of the Indian President are elucidated in Art 72 of the Indian Constitution. There are five different types of pardoning which are mandated by law.
    • Pardon: means completely absolving the person of the crime and letting him go free. The pardoned criminal will be like a normal citizen.
    • Commutation: means changing the type of punishment given to the guilty into a less harsh one, for example, a death penalty commuted to a life sentence.
    • Reprieve: means a delay allowed in the execution of a sentence, usually a death sentence, for a guilty person to allow him some time to apply for Presidential Pardon or some other legal remedy to prove his innocence or successful rehabilitation.
    • Respite: means reducing the quantum or degree of the punishment to a criminal in view of some special circumstances, like pregnancy, mental condition etc.
    • Remission: means changing the quantum of the punishment without changing its nature, for example reducing twenty-year rigorous imprisonment to ten years.

    Cases as specified by art. 72

    • in all cases where the punishment or sentence is by a court-martial;
    • in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
    • in all cases where the sentence is a sentence of death.
    1. Governor
    • Similarly, as per article 161: Governor of a State has the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law.
    • It must be relating to a matter to which the executive power of the state extends.
    • Please note that President can grant pardon to a person awarded death sentence. But a governor of a state does not enjoy this power.

    Nature of the Pardoning Power

    • The question is whether this power to grant pardon is absolute or this power of pardon shall be exercised by the President on the advice of Council of Ministers.
    • The pardoning power of the president is not absolute. It is governed by the advice of the Council of Ministers.
    • This has not been discussed by the constitution but is the practical truth.
    • Further, the constitution does not provide for any mechanism to question the legality of decisions of President or governors exercising mercy jurisdiction.
    • But the SC in Epuru Sudhakar case has given a small window for judicial review of the pardon powers of President and governors for the purpose of ruling out any arbitrariness.
    • The court has earlier held that court has retained the power of judicial review even on a matter which has been vested by the Constitution solely in the Executive.

     

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  • Back in news: Article 142 of the Constitution

    The Supreme Court has crafted a victory for a disabled student by using its special powers under Article 142 to declare the successful completion of her Master of Designs course from the Indian Institute of Technology (IIT).

    What is Article 142?

    Article 142 titled ‘Enforcement of decrees and orders of the Supreme Court and orders as to discovery, etc.’ has two clauses:

    [1] Article 142(1)

    • The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
    • Any decree so passed or order so made shall be enforceable throughout the territory of India.
    • It may be in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

    [2] Article 142(2)

    • The Supreme Court shall have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

    Important instances when Article 142 was invoked

    • Bhopal Gas tragedy case: The SC awarded a compensation of $470 million to the victims and held that “prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142.”
    • Babri Masjid demolition case: The Supreme Court ordered framing of a scheme by the Centre for formation of trust to construct Ram Mandir at the Masjid demolition site in Ayodhya.
    • Liquor sale ban case: The Supreme Court banned liquor shops within a distance of 500 metres from National as well as State highways in order to prevent drunken driving.
    • Ex-PM Assassin case: In the case of Perarivalan, the Supreme Court invoked Article 142(1) under which it was empowered to pass any order necessary to do complete justice in any matter pending before it.

    Try this PYQ from CSP 2019:

    Q.With reference to the Constitution of India, prohibitions or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on the constitutional powers under Article 142. It could mean which one of the following?

     

    (a) The decisions taken by the Election Commission of India while discharging its duties cannot be challenged in any court of law.

    (b) The Supreme Court of India is not constrained in the exercise of its powers by laws made by the Parliament.

    (c) In the event of grave financial crisis in the country, the President of India can declare Financial Emergency without the counsel from the Cabinet.

    (d) State Legislatures cannot make laws on certain matters without the concurrence of Union Legislature.

     

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