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

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

Why in news?

• The contemporary discourse on federalism in India is moving on a discursive across multiple dimensions, be it economic, political and cultural,
• It is argued that India is at an inflection point vis-a-vis Centre-State relations owing to increasing asymmetry.

What is Federalism?

• Federalism is a system of government in which the power is divided between a central authority and various constituent units of the country.
• This vertical division of power among different levels of governments is referred to as federalism.
• Federalism is one of the major forms of power-sharing in modem democracies.

Indian case: Federal, quasi-federal or hybrid?

• India consciously adopted a version of federalism that made the Union government and State governments interdependent on each other (latter more vis-a-vis the former).

The federal features of the Constitution of India are:

• Written Constitution: Features of the Indian Constitution is not only a written document but also the longest constitution in the world. Originally, it included a Preamble, 395 articles (22 parts), and 8 schedules.
• Dual Polity: The constitution establishes a dual polity that includes the union at the periphery. Each is endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution.
• Bicameralism: The constitution provides for a bicameral legislature in which an upper house (Rajya Sabha) and a lower house (Lok Sabha). Rajya Sabha represents the states of the Indian Union, whereas The Lok Sabha represents the people of India as a whole.
• Division of Powers: The Constitution divided the powers between the Center and the states in terms of the Union List, State List, and Concurrent List in the Seventh Schedule.
• Supremacy of the Constitution: The Constitution is the supreme law of the country. The laws made by the Center and the states should be in conformity with Provision. Otherwise, they may be declared invalid by the Supreme or High Court through its power of judicial review.
• Rigid Constitution: The division of powers established by the Constitution as well as supremacy of the constitution can be maintained only if the method of its amendment is rigid. It is necessary for both houses to agree to amend the constitution.
• Independent judiciary: The constitution establishes an independent judiciary headed by the Supreme Court for two purposes: one, to protect the supremacy of the constitution, and two, to settle the disputes between the Centre and states or between the states.

Besides the above federal features, the Indian constitution also possesses the following unitary features:

• Strong Centre: The division of powers is in favour of the centre and unequal from a federal point of view. Firstly, the Union list contains more subjects than the state list, secondly, the more important subjects have been included in the union list and the Centre has overriding authority over the concurrent list.
• Single constitution: The constitution of India embodies not only the constitution of the Centre but also those of the states. Both the Centre and the States must operate within this single frame.
• Destructible nature of states: Unlike in other federations, the states in India have no right to territorial integrity. The parliament can change the area, boundaries, or name of any state.
• Emergency provisions: The emergency provisions are contained in Part XVIII of the Constitution of India, from Articles 352 to 360. In the emergency provisions, the central government becomes all-powerful and the states go into total control of the Centre.
• Single citizenship: Single citizenship means one person is the citizenship of the whole country. The constitution deals with citizenship from Articles 5 and 11 under Part 2.
• All India services: In India, there are all India services (IAS, IPS and IFS) which are common to both the Centre and the states. These services violate the principle of federalism under the constitution.
• Appointment of governor: The governor is appointed by the president. He also acts as an agent of the Centre. Through him, the Centre exercises control over the states.
• Integrated election machinery: The election commission conducts elections for central and state legislatures. But the Election commission is constituted by the president and the states have no say in this matter.
• Equality (= Equity) of representation: The states are given representation in the upper house on the basis of population. Hence, the membership varies from 1 to 31.
• Integrated Judiciary: The term Integrated Judiciary refers to the fact that rulings made by higher courts bind lower courts. The Supreme Court of India incorporates all lower courts, from the Gram Panchayat to the High Courts. The Supreme Court is at the very top.
• Union veto over State Bills:  The governor has the authority to hold certain sorts of laws passed by the state legislature for presidential consideration. The President has the authority to refuse to sign such bills not only in the first instance but also in the second.

Reasons for a centralised federal structure

There are at following reasons that informed India’s choice of a centralised federal structure.

1. Partition of India and the concomitant concerns: The 1946 Objectives Resolution introduced by Nehru in the Assembly were inclined towards a decentralised federal structure wherein States would wield residuary powers.
2. Reconstitution of social relations in a highly hierarchical and discriminatory society: The centralised structure would unsettle prevalent trends of social dominance, help fight poverty better and therefore yield liberating outcomes.
3. Building of a welfare state: In a decentralised federal setup, redistributive policies could be structurally thwarted by organised (small and dominant) groups. Instead, a centralised federal set-up can prevent such issues and further a universal rights-based system.
4. Alleviation of inter-regional economic inequality: Provincial interventions seemed to exacerbate inequalities. India’s membership in the International Labour Organization, the Nehru Report (1928), and the Bombay Plan (1944) pushed for a centralised system to foster socio-economic rights and safeguards for the working and entrepreneurial classes.
5. Linguistic reorganization: It would not have been possible if India followed a rigid or conventional federal system. In other words, the current form of federalism in the Indian context is largely a function of the intent of the government of the day and the objectives it seeks to achieve.

• From the above, it is clear that India has deviated from the traditional federal systems like the USA   and incorporated a large number of unitary features, tilting the balance of power in favor of the Centre.
• Hence K C Wheare described the constitution of India as “quasi-federal”.

Conclusion

• The majoritarian tendencies sometimes are subverting the unique and indigenised set-up into an asymmetrical one.
• Inter alia, delayed disbursal of resources and tax proceeds, bias towards electorally unfavourable States, evasion of accountability, imposition of language, weakening institutions, proliferation of political ideologies all signal towards the diminishing of India’s plurality or regionalisation of the nation.
• While it would be safe to argue that our federal set-up is a conscious choice, its furthering or undoing, will depend on the collective will of the citizenry and the representatives they vote to power.

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The Election Commission (EC) has sent a notice to Jharkhand CM over an office-of-profit charge against him for allotment of a mining lease in his name last year.

Why in news?

• Under Section 9A of the Representation of the People Act, 1951, the CM could face disqualification for entering into a government contract.
• The Constitution of India does not define the Office of Profit. It has only mentioned it under Article 102 (1) and Article 191 (1).

What is ‘Office of Profit’?

• MPs and MLAs, as members of the legislature, hold the government accountable for its work.
• The essence of disqualification is if legislators hold an ‘office of profit’ under the government, they might be susceptible to government influence, and may not discharge their constitutional mandate fairly.
• The intent is that there should be no conflict between the duties and interests of an elected member.
• Hence, the office of profit law simply seeks to enforce a basic feature of the Constitution- the principle of separation of power between the legislature and the executive.

What governs the term?

• At present, the Parliament (Prevention of Disqualification) Act, 1959, bars an MP, MLA or an MLC from holding any office of profit under the central or state government unless it is exempted.
• However, it does not clearly define what constitutes an office of profit.
• Legislators can face disqualification for holding such positions, which bring them financial or other benefits.
• Under the provisions of Article 102 (1) and Article 191 (1) of the Constitution, an MP or an MLA (or an MLC) is barred from holding any office of profit under the Central or State government.

An undefined term

• The officials of the law ministry are of the view that defining an office of profit could lead to the filing of a number of cases with the Election Commission and the courts.
• Also, once the definition is changed, one will also have to amend various provisions in the Constitution including Article 102 (1) (a) and Article 109 (1) (a) that deal with the office of profit.
• It will have an overarching effect on all the other sections of the Constitution.

Factors constituting an ‘office of profit’

• The 1959 law does not clearly define what constitutes an office of profit but the definition has evolved over the years with interpretations made in various court judgments.
• An office of profit has been interpreted to be a position that brings to the office-holder some financial gain, or advantage, or benefit. The amount of such profit is immaterial.
• In 1964, the Supreme Court ruled that the test for determining whether a person holds an office of profit is the test of appointment.

What is the ‘test of appointment’?

Several factors are considered in this determination including factors such as:

1. whether the government is the appointing authority,
2. whether the government has the power to terminate the appointment,
3. whether the government determines the remuneration,
4. what is the source of remuneration, and
5. the power that comes with the position.

The Supreme Court has upheld the right of an individual against forcible vaccination and the government’s COVID-19 vaccination policy to protect communitarian health.

What is the news?

• Vaccine hesitancy has been on rise these days.
• The SC has found certain vaccine mandates imposed by the State governments and Union Territory administrations disproportionate.
• They tend to deny access to basic welfare measures and freedom of movement to unvaccinated individuals.

Right not to get vaccinated

• The bench upheld the right to bodily integrity and personal autonomy of an individual in the light of vaccines and other public health measures.
• Bodily integrity is protected under Article 21 (right to life) of the Constitution and no individual can be forced to be vaccinated.
• The court struck a balance between individual right to bodily integrity and refuse treatment with the government’s concern for public health.

Subject to scrutiny

• When the issue is extended to “communitarian health”, the government was indeed “entitled to regulate issues”.
• But its right to regulate by imposing limits to individual rights was open to judicial scrutiny.

What is Vaccine Hesitancy?

• The reluctance of people to receive safe and recommended available vaccines is known as ‘vaccine hesitancy’.
• This was already a growing concern before the COVID-19 pandemic.
• A framework developed from research done in high-income countries, called ‘the 5C model of the drivers of vaccine hesitancy’, provides five main individual person–level determinants for vaccine hesitancy:

1. Confidence
2. Complacency
3. Convenience (or constraints)
4. Risk calculation
5. Collective responsibility

Questions raised by vaccine hesitancy

1. To end the pandemic, wherein no one is safe until everyone is safe, how relevant and strong are the arguments on freedom of choice?
2. How is the fight against this global crisis impacted when prominent personalities assert on making a choice contrary to global good?
3. Amid the raging pandemic and the persistent threat of future waves, how can vaccine scepticism and hesitancy be addressed worldwide?

Why is it a cause of concern?

• Re-surging of covid cases: Amid the ongoing Omicron surge, there have been reports pointing to the unvaccinated population driving the current surge in COVID-19 cases in Europe and US.
• Risk of future waves and danger mutations: Large scale vaccine hesitancy could drag the pandemic longer by ensuring sustained continuance of the COVID-19 diseases and emergence of newer and deadlier variants.

Various causes for vaccine hesitancy

• Scepticism: There are many reasons for vaccine scepticism. Vaccine hesitancy is complex and context specific varying across time, place and vaccines.
• Fake news: The conspiracy theories on social media have brought negative publicity for vaccination. These seem to have created propaganda against the vaccines.
• Malfunctions: The sensational highlighting of vaccine fatalities event by the media is driving vaccine hesitancy to some extent.
• Myths and beliefs: In some places radical religious factors have driven vaccine hesitancy resulting in myth against vaccines. This is also a leading factor of prevalence of Polio in Pakistan and Afghanistan.
• Policy fluctuations: The frequent flip-flops by governments on the vaccination issue have resulted in a low trust among the general populace regarding vaccination.
• Public trust: Vaccine hesitancy is also influenced by factors such as complacency, convenience and confidence.

Way forward

With no “one-size-fits-all” solution to vaccine hesitancy, contextualised and curated approaches are crucial.

• Dispelling misinformation: There is the need to dispel all misinformation – unscientific, incorrect and unsubstantiated.
• Counselling: WHO has put forth the BeSD (behavioural and social drivers) vaccination model, which emphasises “motivation” as the vanguard of human psychology during a vaccination drive.
• Standard safeguards: The fact that vaccines meet the necessary safety standards set by the various organizations needs to be highlighted.
• Vaccine equality: There is the need to ensure access of affordable, quality and timely vaccines to all.
• Highlighting success: Countries must highlight the success observed due to the vaccination programmes, wherein despite rapid rise in cases the hospitalization and death rates remain within controllable limits.

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