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

British Prime Minister will face a no-confidence vote that could oust him from power.

What is No-Confidence Vote?

• If the government has to demonstrate its strength on the floor of the House, it can have a motion of confidence.
• However, the opposition parties (or any member) can move a motion expressing want of confidence (no confidence) in the Council of Ministers.
• The procedure is laid down under Rule 198 of the rules of procedure and conduct of the business of the Lok Sabha.
• A no-confidence motion need not set out any grounds on which it is based.
• Even when grounds are mentioned in the notice and read out in the House, they do not form part of the no-confidence motion.

Its procedure

• A no-confidence motion can be moved by any member of the House.
• It can be moved only in the Lok Sabha and not Rajya Sabha.
• Rule 198 of the Rules of Procedure and conduct of Lok Sabha specifies the procedure for moving a no-confidence motion.
• The member has to give written notice of the motion before 10 am which will be read out by the Speaker in the House.
• A minimum of 50 members have to accept the motion and accordingly, the Speaker will announce the date for discussion for the motion.
• The allotted date has to be within 10 days from the day the motion is accepted. Otherwise, the motion fails and the member who moved the motion will be informed about it.
• If the government is not able to prove its majority in the House, then the government of the day has to resign.

How is the voting done?

These are the modes by which voting can be conducted:

1. Voice vote: In a voice vote, the legislators respond orally.
2. Division vote: In case of a division vote, voting is done using electronic gadgets, slips or in a ballot box.
3. Ballot vote: The ballot box is usually a secret vote – just like how people vote during state or parliamentary elections.

What happens if there is a tie?

• Following the vote, the person who has the majority will be allowed to form the government.
• In case there is a tie, the speaker can cast his vote.

Try this PYQ:

Q.Consider the following statements regarding a No-Confidence Motion in India:

1. There is no mention of a No-Confidence Motion in the Constitution of India.
2. A Motion of No-Confidence can be introduced in the Lok Sabha only.

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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Back2Basics:  What is a Trust-Vote?

• A confidence motion or a trust vote is a procedure for the government to prove its majority in the House.
• A trust vote can take place by way of a motion of confidence which is moved by the government or brought by the opposition.
• It is a motion normally proposed by the Prime Minister to test the majority in the Lok Sabha.
• Such an exercise normally takes place when a new government is set to be formed.
• Any party will first have to prove its majority on the floor of the House before taking over.
• A trust vote can also be brought about if a government resigns and another party stakes a claim to form the government.

 

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The Supreme Court suspended pending criminal trials and court proceedings under Section 124A (sedition) of the Indian Penal Code, while allowing the Union of India to reconsider the British-era law.

What did the SC say?

• All pending trials, appeals and proceedings with respect to the charge framed under Section 124A of the IPC be kept in temporary suspension.
• The court also restrained centre and states from registering FIRs, continuing investigations or take coercive measures under Section 124A.

What is the Sedition Law?

• Section 124A of the Indian Penal Code lays down the punishment for sedition. The IPC was enacted in 1860, under the British Raj.
• The then British government in India feared that religious preachers on the Indian subcontinent would wage a war against the government.
• Particularly after the successful suppression of the Wahabi/Waliullah Movement by the British, the need was felt for such law.
• Throughout the Raj, this section was used to suppress activists in favor of national independence, including Tilak and Mahatma Gandhi, both of whom were found guilty and imprisoned.

Do you know?

Queen-Empress v. Bal Gangadhar Tilak (1897) was the first case in which Section 124A was defined and applied. Again in 1908, when Tilak was tried under same section, then young barrister and a staunch protagonist Mohammed Ali Jinnah defended Tilak.

What is Sedition?

• The Section 124A defines sedition as:

An offence committed when “any person by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India”.

• Disaffection includes disloyalty and all feelings of enmity.
• However, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offense.
• Sedition is a non-bailable offense.
• Punishment under Section 124A ranges from imprisonment up to three years to a life term with/without a fine.

Sedition as a cognizable offense

• Sedition was made a cognizable offense for the first time in history in India during the tenure of Prime Minister Indira Gandhi in 1973, that is, arrest without a warrant was now permissible.
• In 1962 the Supreme Court of India interpreted the section to apply only if there is, say, “incitement to violence” or “overthrowing a democratically elected government through violent means”.

Is it constitutionally valid?

• Violative of FRs: Two high courts had found it unconstitutional after Independence, as it violated the freedom of speech and expression.
• Reasonable restrictions: The Constitution was amended to include ‘public order’ as one of the ‘reasonable restrictions’ on which free speech could be abridged by law.
• Kedar Nath Case: Thereafter, the Supreme Court, in Kedar Nath Singh v. State of Bihar (1962) upheld its validity.
• Limited use: At the same time, it limited its application to acts that involve “intention or tendency to create disorder” or incitement to violence.
• Strong criticism doesn’t amount to sedition: Thus, even strongly worded remarks, as long as they do not excite disloyalty and enmity, or incite violence, are not an offence under this section.

Why the controversy now?

• Frequent use: In recent times, the resort to this section is seen as disturbingly frequent.
• Curbing dissent: Activists, cartoonists and intellectuals have been arrested under this section, drawing criticism from liberals that it is being used to suppress dissent and silence critics.
• Misuse for propaganda: Authorities and the police who invoke this section defend the measure as a necessary step to prevent public disorder and anti-national activities.
• Irrelevance: Many of them have also been detained under the National Security Act and UAPA.

What is being debated about it?

• Demand for its scrapping: Liberals and rights activists have been demanding the scrapping of Section 124A.
• Provision is outdated: It is argued that the provision is “overbroad”, i.e., it defines the offence in wide terms threatening the liberty of citizens.
• Various calls for its reconsideration: The Law Commission has also called for a reconsideration of the section.
• Tyranny of the law: It has pointed that Britain abolished it more than a decade ago and raised the question of whether a provision introduced by the British to put down the freedom struggle should continue to be law in India.
• Doctrine of severability: Some argue that a presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or bodies.

Need for such law

• There are some tendencies exist even today who wish to overthrow the state apparatus and constitutional scheme of India.
• It falls on the judiciary to protect Articles 19 and Article 21 of the Constitution.
• Undue exercise of free speech has led to overture of ordinary dissent into an anti-national insurrection or uprising.
• There are areas in the country that face hostile activities and insurgencies created by rebel groups, like the Maoists.
• There must be restrictions on expressing unnecessary contempt or ridiculing of the Government beyond certain limits.

Way forward

• India is the largest democracy in the world and the right to free speech and expression is an essential ingredient of democracy.
• The sedition law should not be abolished as some measures are needed to check communal violence & insurgency activities like Naxals.
• The definition of sedition should be narrowed down, to include only the issues pertaining to the territorial integrity of India as well as the sovereignty of the country.
• Section 124A should not be misused as a tool to curb free speech.

 

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This newscard is an excerpt from the original article published in the TH.

Reservation in Promotion

• The jurisprudence of reservation relies on the symbiotic coexistence of constitutionally guaranteed equality of opportunity in public employment under Article 16 (1) of the Constitution of India.
• The classifications were various clauses of the same article, especially Article 16(4) and Article 16 (4 A).
• It specifically aimed to provide reservation in promotion to Scheduled Castes and Scheduled Tribes, respectively.
• These articles vested a discretion on the government to consider providing reservations for the socially and educationally backward sections of the society.

Reservation not a fundamental Right

• It is a settled law, time and again reiterated by the Supreme Court, that there is no fundamental right to reservation or promotion under Article 16(4) or Article 16(4 A) of the Constitution.
• Rather they are enabling provisions for providing reservation, if the circumstances so warrant (Mukesh Kumar and Another vs State of Uttarakhand & Ors. 2020).
• However, these pronouncements no way understate the constitutional directive under Article 46.
• Article 46 mandates that the state shall promote with special care the educational and economic interests of the weaker sections of the people and in particular SCs and STs.
• However such provisions resulted in the ever-evolving jurisprudence of affirmative action in public employment.

Major events

(1) Mandal storm

• Reservation in employment which was otherwise confined to SC and STs got extended to new section called the Other Backward Classes (OBCs).
• This was the basis of the recommendations of the Second Backward Class Commission as constituted, headed by B.P. Mandal.
• The Mandal Commission (1980) provided for 27% reservation to OBC in central services and public sector undertakings.
• This was over and above the existing 22.5% reservation for SCs and STs, was sought to be implemented by the V.P. Singh Government in 1990.
• The same was assailed in the Supreme Court resulting in the historic Indra Sawhney Judgment.

(2) Indra Sawhney Judgment (1992)

• In the judgment, a nine-judge bench presided by CJI MH Kania upheld the constitutionality of the 27% reservation.
• But it put a ceiling of 50% unless exceptional circumstances warranting the breach, so that the constitutionally guaranteed right to equality under Article 14 would remain secured.
• While Article 16(1) is a fundamental right, Article 16(4) is an enabling provision and not an exception.
• Further, the Court directed the exclusion of creamy layer by way of horizontal division of every other backward class into creamy layer and non-creamy layer.

(3) The Constitution (Seventy-seventh Amendment) Act, 1995

• In Indra Sawhney Case, the Supreme Court had held that Article 16(4) of the Constitution of India does not authorise reservation in the matter of promotions.
• However, the judgment was not to affect the promotions already made and hence only prospective in operation, it was ruled.
• By the Constitution (Seventy-seventh Amendment) Act, 1995, which, Article 16(4-A), was inserted.
• It aimed to provide the State for making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State.
• This was to be in favour of the SCs and the STs which, in the opinion of the State, are not adequately represented in the services under the State.
• Later, two more amendments were brought, one to ensure consequential seniority and another to secure carry forward of unfilled vacancies of a year.

(4) M. Nagaraj (2006) Case

• A five-judge bench of Supreme Court declared the 1995 amendment as not vocative of basic structure of the Constitution.
• It laid down ceratin conditions which included the collection of quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment.
• The bench held that the creamy layer among SCs and STs is to be excluded from reservation.

(5) Jarnail Singh vs Lachhmi Narain Gupta (2018)

• It was authored by Justice Rohinton Nariman and indicates a critical turn in the jurisprudence of reservation.
• In this case, a constitution bench of Supreme Court was called on to examine wisdom of the 2006 judgment.
• This task was to examine the constitutionally recognised socio-economic backwardness of the SCs and STs which may not require any further substantiation.
• It was also contended that the requirement to identify creamy lawyer among SC and STs fell foul of Indra Sawhney decision.
• The constitution bench invalidated the requirement to collect quantifiable data in relation to SCs and STs.
• It upheld the principle of applicability of creamy lawyer in relation to SCs and STs.

(6) The Constitution (103rd Amendment) Act, 2019

• The 10% reservation for Economically Weaker Sections (EWS) other SCs, STs and backward classes for government jobs and admission in educational institutions.
• This is currently under challenge before the Supreme Court which has referred the same to a constitution bench.
• This was a critical milestone to specifically include economic backwardness without social backwardness as is traditionally seen.

(7) Dr. Jaishri Laxmanrao Patil vs Chief Minister (2021)

• Despite the Indra Sawhney ruling, there have been attempts on the part of many States to breach the rule by way of expanding the reservation coverage.
• The Maharashtra Socially and Educationally Backward Classes Act 2018, (Maratha reservation law) came under challenge before the Supreme Court.
• This case was referred to a bench of five judges to question whether the 1992 judgment needs a relook.
• Interestingly, the Supreme Court affirmed the Indra Sawhney decision, and struck down Section 4(1)(a) and Section 4(1)(b) of the Act which provided 12% reservation for Marathas in educational institutions and 13% reservation in public employment respectively.
• This judgment gave out a strong message that some State governments blatantly disregard the stipulated ceiling on electoral gains rather than any exceptional circumstances.

 

 

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Veterans of the Indian Armed Forces have urged PM against exempting defense services from purview of RTI (Right to Information) Act, 2005.

Why in news?

• Last year, late CDS Rawat had urged the government making a pitch for defence services to be exempted from the RTI Act.
• He had stated that none of the Central Armed Police Forces (CAPF) are under its purview and defence services, being even more sensitive, should be fully exempted too.

What is RTI?

• RTI is an act of the parliament which sets out the rules and procedures regarding citizens’ right to information.
• It replaced the former Freedom of Information Act, 2002.
• Under the provisions of RTI Act, any citizen of India may request information from a “public authority” (a body of Government or “instrumentality of State”) which is required to reply expeditiously or within 30.
• In case of the matter involving a petitioner’s life and liberty, the information has to be provided within 48 hours.
• The Act also requires every public authority to computerize their records for wide dissemination and to proactively publish certain categories of information so that the citizens need minimum recourse to request for information formally.

Constitutional status of RTI

• Since RTI, is implicit in the Right to Freedom of Speech and Expression under Article 19 of the Indian Constitution, it is an implied FR.
• These are backed by the right to constitutional remedies that is, the right to approach the supreme court and high court under Article 32 and 226 respectively in case of infringement of any of FRs.

Benefits of RTI

• Greater accessibility of information: A person can seek information from any public authority in the form of copies, floppy disks, sample material etc under RTI.
• Efficient governance: RTI Act helps us in knowing the efficiency of the government’s functioning.
• Citizen’s participation: Information under RTI can be sought easily by requesting the public officer and assistant public officer in any public authority.
• Government obligation: Obtaining information from any public authority is obligatory for them.
• Maintenance of public record: Under RTI Act, it is the duty of public authorities to maintain records for easy access and to publish within 120 days the name of the particular officers who should give the information and in regard to the framing of the rules, regulations etc.
• Empowerment of Citizens: Every citizen has been empowered to be informed about anything that affects their life directly or indirectly.

Why do Veterans want RTI?

• The RTI has remained a powerful tool with the veterans and serving community to obtain information and documents concerning their service and pensioner issues.
• RTI Act has ensured maximum transparency in official establishments dealing with such cases.
• Even innocuous documents such as medical board proceedings concerning disabled soldiers and old service records of veterans are only made available through the RTI Act.
• Requesting that defence services are not be placed in Schedule 2 of the RTI Act, 2005, the lobby said that adequate protection is already available in Sections 8 and 9 of the Act.
• Armed forces can hold back information related to operational and security-related issues.

Necessity for RTI in armed forces

• Any such move will be a blow to transparency and will lead to an exponential increase in litigation and grievances.
• And any irregularities in defence procurements would also go under the carpet, besides massive discrepancies in promotions.
• Already they are so opaque and have faced so many strictures by the courts.
• Denying such a right of a powerful public-oriented tool to military personnel, veterans, military widows and their families would place them at a sharp disadvantage compared to citizens.
• This would also result in litigation blast with affected persons approaching judicial forums for minor issues.

 

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The value of the vote of an MP in the presidential polls to be held in July is likely to go down to 700 from 708 due to the absence of a Legislative Assembly in Jammu and Kashmir.

Do you know?

The value of an MP’s vote has been 708 since the 1997 presidential election.

What is the news?

• Before it was bifurcated into the UTs of Ladakh and Jammu & Kashmir in August 2019, the erstwhile State of J&K had 83 Assembly seats.
• According to the Jammu and Kashmir Reorganisation Act, the Union Territory of J&K will have an Assembly, while Ladakh will be governed directly by the Centre.

The President of India

• The President of India is recognised as the first citizen of the country and the head of the state.
• The elected President of India is a part of the Union Executive along with several other members of the parliament including the Prime Minister, Attorney-General of India and the Vice – president.

Electing the President

• The provisions of the election of the President are laid down in Article 54 of the Constitution of India.
• The Presidential and Vice-Presidential Election Act 1952 led to the establishment of this Constitutional provision.

Qualifications to become the President of India

The qualification of be the President of India are given below:

• He/ She must be an Indian citizen
• A person must have completed the age of 35.
• A person must be qualified for election as a member of the House of the People.
• Must not hold a government (central or state) office of profit
• A person is eligible for election as President if he/she is holding the office of President or Vice-President.

Actual course of election

• The President of India is elected indirectly by an Electoral College following the system of proportional representation utilizing a single transferable vote system and secret ballots.
• MPs and MLAs vote based on parity and uniformity values.

Electoral College composition-

(1) Legislative Assemblies of the States:

• According to the provision of Article 333, every state’s Legislative Assembly must consist of not less than 60 members but not more than 500 members.

(2) Council of States:

• 12 members are nominated by the President of India based on skills or knowledge in literature, arts, science, and social service to act as the members of the Council of States.
• In total, 238 represent act as representatives from both the States and Union Territories.

(2) House of the People:

• The composition of the House of People consists of 530 members (no exceeding) from the state territorial constituencies.
• They are elected through direct election.
• The President further elects 20 more members (no exceeding) from the Union Territories.

Uniformity in the scale of representation of states

To maintain the proportionality between the values of the votes, the following formula is used:

Value of vote of an MLA= total no. of the population of the particular state/ number of elected MLAs of that state divided by 1000.

Single vote system

• During the presidential election, one voter can cast only one vote.
• While the MLAs vote may vary state to state, the MPs vote always remain constant.

MPs and MLAs vote balance

• The number of the total value of the MPs votes must equal the total value of the MLAs to maintain the State and the Union balance.

Quotas:

• The candidate reaching the winning quota or exceeding it is the winner.
• The formula sued is ‘Winning quota total number of poll/ no.of seats + 1’.

Voters’ preference:

• During the presidential election, the voter casts his vote in favor of his first preferred candidate.
• However, in case the first preference candidate does not touch the winning quota, the vote automatically goes to the second preference.
• The first preferred candidate with the lowest vote is eliminated and the votes in his/her favor are transferred to the remaining candidates.

Why need Proportional representation?

• The President of India is elected through proportional representation using the means of the single transferable vote (Article 55(3)).
• It allows the independent candidates and minority parties to have the chance of representation.
• It allows the practice of coalition with many voters under one government.
• This system ensures that candidates who are elected don’t represent the majority of the electorate’s opinion.

Why is President indirectly elected?

If Presidents were to be elected directly, it would become very complicated.

• It would, in fact, be a disaster because the public doesn’t have the absolute clarity of how the president-ship runs or if the candidate fits the profile of a president.
• Another reason why the direct election system isn’t favorable is that the candidate running for the president’s profile will have to campaign around the country with the aid of a political party.
• And, this will result in a massive political instability.
• Moreover, it would be difficult and impossible for the government to hand out election machinery (given the vast population of India).
• This will cost the government financially, and may end up affecting the economy as well.
• The indirect election system is a respectable system for the First Man of India (rightly deserving).
• The system/method of indirect electing of the president also allows the states to maintain neutrality and minimize hostility.

 

The Supreme Court has referred to a Constitution Bench the battle between the Centre and the Delhi government for control over bureaucrats in the Capital.

What is a Constitution Bench?

• The constitution bench is the name given to the benches of the Supreme Court of India.
• The Chief Justice of India has the power to constitute a Constitution Bench and refer cases to it.

Constitution benches are set up when the following circumstances exist:

1. Interpretation of the Constitution: Article 145(3) provides for the constitution of at least five judges of the court which sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution of India.
2. President of India seeking SC’s opinion: When President has sought the Supreme Court’s opinion on a question of fact or law under Article 143 of the Constitution. Article 143 of the Constitution provides for Advisory jurisdiction to the SC. As per the provision, the President has the power to address questions to the apex Court, which he deems important for public welfare.
3. Conflicting Judgments: When two or more three-judge benches of the Supreme Court have delivered conflicting judgments on the same point of law, necessitating a definite understanding and interpretation of the law by a larger bench.

• The Constitution benches are set up on ad hoc basis as and when the above-mentioned conditions exist.
• Constitution benches have decided many of India’s best-known and most important Supreme Court cases, such as:

1. K. Gopalan v. State of Madras (Preventive detention)
2. Kesavananda Bharati v. State of Kerala (Basic structure doctrine) and
3. Ashoka Kumar Thakur v. Union of India (OBC reservations) etc.

Why in news now?

• A 2018 Constitution bench decision interpreting Article 239AA had not dealt with an aspect having a bearing on the dispute over services, CJI agreed.
• The proceedings have their genesis in the Delhi HC judgment of August 4, 2017, whereby it held that for the purposes of administration, the L-G was not bound by the aid and advice of the Council of Ministers in every matter.
• On appeal, the SC on February 15, 2017, referred the matter to decide on the interpretation of Article 239AA.

What is the 2018 Judgment all about?

• By a majority decision in July, 2018, the Constitution bench upheld the respective powers of the state Assembly and the Parliament.
• It said that while the CoM must communicate all decisions to the L-G, this does not mean that the L-G’s concurrence is required.
• In case of a difference of opinion, the L-G can refer it to the President for a decision.
• The L-G has no independent decision-making power but has to either act on the ‘aid and advice’ of the CoM or is bound to implement the decision of the President on a reference being made.
• The bench, which limited itself to the interpretation of Article 239AA, left individual issues to be decided by regular benches.

When power tussle began

• Subsequently in 2019, a two-judge bench of the SC dealt with some individual issues arising from the power tussle between the Centre and the NCT government.
• It ruled that the Anti-Corruption Branch of the Delhi government cannot investigate corruption cases against central government officials.
• The power to appoint commissions under the Commission of Inquiry Act, 1952, would be vested with the Centre and not the Delhi government, the judgment said.

Issue over control of administrative services

• The judges, however, differed on who should have control over administrative services.
• This was challenged again in the SC where the Centre contended that the two judges could not take a decision on the question.
• The 2018 Constitution bench judgment had not interpreted the expression “insofar as any such matter as applicable to Union Territories” appearing in Article 239AA.
• The Centre has urged SC CJI Ramana to refer the matter to a five-judge Constitution bench so that the question of law can be settled before the dispute over who has control over services can be looked into.

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Back2Basics: Article 239AA

• Article 239AA granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through the 69th Constitutional Amendment.
• It provided a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers.
• That’s when Delhi was named as the National Capital Region (NCT) of Delhi.
• As per this article – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters.
• For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have the power to make laws for NCT of Delhi.

 

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