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

The Tamil Nadu government has decided to shun the usage of the term ‘Central government’ in its official communications and replace it with ‘Union government’. This is a major step towards regaining the consciousness of our Constitution.

India the union

• Seventy-one years since we adopted the Constitution, it is time we regained the original intent of our founding fathers beautifully etched in the parchment as Article 1: “India, that is Bharat, shall be a Union of States”.
• The Constituent Assembly did not use the term ‘Centre’ or ‘Central government’ in all of its 395 Articles in 22 Parts and eight Schedules in the original Constitution.
• What we have are the ‘Union’ and the ‘States’ with the executive powers of the Union wielded by the President acting on the aid and advice of the Council of Ministers headed by the Prime Minister.

Where is Central Govt defined?

• Even though we have no reference to the ‘Central government’ in the Constitution, the General Clauses Act, 1897 gives a definition for it.
• The ‘Central government’ for all practical purposes is the President after the commencement of the Constitution.
• Therefore, the real question is whether such definition for ‘Central government’ is constitutional as the Constitution itself does not approve of centralising power.

Intent of Constituent Assembly

• On December 13, 1946, Pt Nehru introduced the aims and objects of the Assembly by resolving that India shall be a Union of territories willing to join the “Independent Sovereign Republic”.
• The emphasis was on the consolidation and confluence of various provinces and territories to form a strong united country.
• Many members of the Constituent Assembly were of the opinion that the principles of the British Cabinet Mission Plan (1946) be adopted, which contemplated a Central government with very limited powers whereas the provinces had substantial autonomy.
• The Partition and the violence of 1947 in Kashmir forced the Constituent Assembly to revise its approach and it resolved in favour of a strong Centre.
• The possibility of the secession of States from the Union weighed on the minds of the drafters of the Constitution and ensured that the Indian Union is “indestructible”.

Preventing the secession

• In the Constituent Assembly, B.R Ambedkar, the Chairman of the Drafting Committee, observed that the word ‘Union’ was advisedly used in order to negative the right of secession of States.
• Ambedkar justified the usage of ‘Union of States’ saying that the Drafting Committee wanted to make it clear that though India was to be a federation, it was not the result of an agreement.
• Therefore, no State has the right to secede from it. “The federation is a Union because it is indestructible,” Ambedkar said.

Then criticism of the ‘Union’

• The usage of ‘Union of States’ by Ambedkar was not approved by all and faced criticisms from Maulana Hasrat Mohani.
• He argued that Ambedkar was changing the very nature of the Constitution.
• Mohani made a fiery speech in the Assembly on September 18, 1949 where he contended that the usage of the words ‘Union of States’ would obscure the word ‘Republic’.
• Mohani went to the extent of saying that Ambedkar wanted the ‘Union’ to be “something like the Union proposed by Prince Bismarck in Germany, and after him adopted by Kaiser William and after him by Adolf Hitler”.

Dr. Ambedkar’s clarification

• Ambedkar clarified that the Union is not a league of States, united in a loose relationship; nor are the States the agencies of the Union, deriving powers from it.
• Both the Union and the States are created by the Constitution, both derive their respective authority from the Constitution.
• The one is not subordinate to the other in its own field… the authority of one is coordinate with that of the other.

Features of Indian Union

• The sharing of powers between the Union and the States is not restricted to the executive organ of the government.
• The judiciary is designed in the Constitution to ensure that the Supreme Court, the tallest court in the country, has no superintendence over the High Courts.
• Though the Supreme Court has appellate jurisdiction — not only over High Courts but also over other courts and tribunals — they are not declared to be subordinate to it.
• In fact, the High Courts have wider powers to issue prerogative writs despite having the power of superintendence over the district and subordinate courts.
• Parliament and Assemblies identify their boundaries and are circumspect to not cross their boundaries when it comes to the subject matter on which laws are made.
• However, the Union Parliament will prevail if there is a conflict.

Answer this PYQ:

Q.Consider the following statements:

1. The Executive Power of the Union of India is vested in the Prime Minister.
2. The Prime Minister is the ex-offi cio Chairman of the Civil Services Board.

Which of the given statements is/are correct?

(a) 1 only

(b) 2 only

(c) Both 1 and 2

(d) Neither 1 nor 2

A wordplay indeed

• The members of the Constituent Assembly were very cautious of not using the word ‘Centre’ or ‘Central government’ in the Constitution as they intended to keep away the tendency of centralizing of powers in one unit.
• The ‘Union government’ or the ‘Government of India’ has a unifying effect as the message sought to be given is that the government is of all.
• Even though the federal nature of the Constitution is its basic feature and cannot be altered, what remains to be seen is whether the actors wielding power intend to protect the federal feature of our Constitution.
• As Nani Palkhivala famously said, “The only satisfactory and lasting solution of the vexed problem is to be found not in the statute book but in the conscience of men in power”.

Last week, the Tripura High Court, in a significant verdict, discovered an oversight in drafting the 2014 amendments to the Narcotics Drugs and Psychotropic Substances Act, 1985.

What is Section 27A?

• The NDPS had unintentionally rendered a key provision of the Act, Section 27A which provides for punishment of those financing illicit trafficking, inoperable.
• This section has been consistently evoked since a year after the alleged suicide of a notable Bollywood actor after drugs intoxication.

What is the provision?

• The NDPS Act, 1985 is the principal legislation through which the state regulates the operations of narcotic drugs and psychotropic substances.
• It provides a stringent framework for punishing offenses related to illicit traffic in narcotic drugs and psychotropic substances through imprisonments and forfeiture of property.
• Section 27A of the NDPS Act, 1985, prescribes the punishment for financing illicit traffic and harboring offenders.
• The court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”

So why is this provision inoperable?

• The text of the provision says that offences mentioned under Section 2(viiia) sub-clauses i-v are punishable through Section 27A.
• However, Section 2 (viiia) sub-clauses i-v, which is supposed to be the catalog of offences, does not exist after the 2014 amendment.
• So, if Section 27A penalises a blank list or a non-existent provision, it can be argued that it is virtually inoperable.

What was the 2014 amendment?

• In 2014, a key amendment was made to the NDPS Act to allow for better medical access to narcotic drugs.
• Since the regulation under NDPS was very stringent, despite being a leading manufacturer of morphine, an opioid analgesic used as a painkiller, it was difficult to access the drug even for hospitals.

Exceptions for essential drugs

• The 2014 amendment essentially removed state-barriers in transporting, licensing drugs classified as “essential narcotic drugs”, and made it centralized.
• This was done by first introducing a provision in Section 2 that defines essential narcotic drugs, and subsequently in Section 9 allowing the manufacture, possession, transport, import inter-State, export inter-State, sale, purchase, consumption and use of essential narcotic drugs.
• The amendment to add the definition of essential narcotic drugs re-lettered the old Section 2(viii)a that was the catalog of offences as Section 2(viii)b, and under the Section 2(viii)a, defined essential narcotic drugs.
• However, the drafters missed amending the enabling provision in Section 27A to change Section 2(viii)a to Section 2(viii)b.

How was this error noticed?

• In 2016, an accused sought bail before a special judge in West Tripura in Agartala citing this omission in drafting.
• The accused’s plea was that since Section 27A penalized a blank list, he could not be charged under the offence.
• The district judge then referred the case to the Tripura High Court.

What did the HC decide?

• The Law Ministry had argued that the court must overlook the omission and read the legislation as a whole. It also told the court that the provision would be amended to rectify the dissonance.
• The Tripura HC agreed with the government’s view, but said that it may not be the best solution.
• The amendment is yet to take place. However, criminal laws cannot be amended retrospectively.
• Article 20 of the Constitution guarantees protection against double jeopardy.
• So even if the amendment is brought in, the result of the drafting error could lead to more constitutional questions being raised.

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Back2Basics: Article 20 of the Indian Constitution

The Article 20 is one of the pillars of fundamental rights guaranteed by the Constitution of India. It mainly deals with protection of certain rights in case of conviction for offences.

(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) No person accused of any offense shall be compelled to be a witness against himself.

The Supreme Court last month quashed Maharashtra’s review petition challenging its earlier verdict that scrapped a quota for OBCs in the state’s local bodies, triggering a war of words between the ruling and opposition parties.

What is the OBC reservation in local bodies?

• The Maharashtra government set up a 27 percent quota in local bodies for OBCs in 1994.
• The 27 percent reservation was applicable to all urban (Municipal Corporations, Councils and Nagar Panchayat) and rural bodies (Zilla Parishad, Panchayat Samiti and Gram Panchayat) across the state.
• In Maharashtra, the OBCs include the Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category.
• This quota for OBCs increased their representation in rural and urban local bodies.

What is the history of the demand for an OBC census in Maharashtra?

• As per the Mandal Commission report, the last caste-wise census was conducted in 1931 and it was later discontinued.
• Based on the data from the 1931 census, the Mandal commission worked out the OBC population to be 52 per cent and recommended a 27 per cent reservation for OBCs in view of the SC judgment limiting reservation up to 50 per cent.
• There was already a 22.5 per cent reservation for SC and ST categories.
• The Mandal Commission report recommended 27 per cent reservation in government jobs and promotions along with others.
• The report gave momentum to OBC leaders and the community’s demand for a caste-wise census of OBC.

Need for a caste-wise census

• The 2011 census included data about the socio-economic caste census but has not released the data citing the errors in it.
• In 2018, ahead of the Lok Sabha polls the following year, the Centre announced that OBC enumeration will be done in the 2021 census.
• But this promise could not be tested with the onset of the pandemic and the indefinite delay in population enumeration.
• OBC leaders fear the OBC enumeration may never actually happen.

How did the matter reach the SC?

• The quota was exceeding the 50 per cent limit which is contrary to SC 2010 judgment of K Krishna Murthy (Dr.) and Ors. vs. Union of India and others.
• The court granted the status quo and the elections were delayed.
• On March 4 this year, The SC read it down in stating that it may be invoked only upon complying with the triple conditions before notifying the seats reserved for OBC category in the concerned local bodies.
• The triple conditions included setting up “a dedicated Commission to conduct a contemporaneous rigorous empirical inquiry into the nature and implications of the backwardness qua local bodies, within the State”.
• This was to specify the proportion of reservations required to be provisioned local body-wise in light of recommendations of the commission.
• It also stated that such reservation, in any case, shall not exceed the aggregate of 50 per cent of the total seats reserved in favour of SCs, STs and OBCs taken together.
• The apex court observed the reservation for OBCs is only “statutory”, to be provided by the state legislations, unlike the “constitutional” reservation regarding SCs/STs which is linked to the proportion of the population.

What do OBC leaders say now?

• There has been a mixed response from the OBC leaders to the SC verdict, with some welcoming it while others lamenting on losing reservation.
• Some say it will pave the way for conducting the OBC census in the state.
• So far, there was no data about the OBC population and our demand for the OBC census for the last 30 years have fallen on deaf ears.
• With this SC order, the state has to conduct the census now.
• Else, there will be no OBC reservation in the local bodies polls and the ruling parties will have to pay a huge price for it.

What lies ahead?

• The SC judgment is applicable to the elections of all local bodies — rural and urban.
• As per a statement from the CM’s office, the SC verdict is likely to impact around 56,000 seats in all local bodies in the state.
• This includes polls pending due to Covid and the upcoming elections.
• So, the state election commission will consult with the state government whenever the local bodies’ polls are held and will decide on the OBC reservation as per the SC order.

The Rengma Nagas in Assam have written to Union Home Minister demanding an autonomous district council amid a decision by the Central and the State governments to upgrade the Karbi Anglong Autonomous Council (KAAC) into a territorial council.

Karbi Anglong Autonomous Council

• KAAC is an autonomous district council in the state of Assam, India for the development and protection of tribals living in area namely Karbi Anglong and West Karbi Anglong district.
• The council is constituted under the Sixth Schedule of the Constitution of India and administratively functions under the Government of Assam.

Answer this PYQ in the comment box:

Q.The Government enacted the Panchayat Extension to Scheduled Areas (PESA) Act in 1996. Which one of the following is not identified as its objective?

(a) To provide self-governance

(b) To recognize traditional rights

(c) To create autonomous regions in tribal areas

(d) To free tribal people from exploitation

What are such Autonomous Council?

• The Sixth Schedule of the Constitution of India allows for the formation of autonomous administrative divisions which have been given autonomy within their respective states.
• Most of these autonomous district councils are located in North East India but two are in Ladakh, a region administered by India as a union territory.
• 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 legislation.

Powers and competencies

Under the provisions of the Sixth Schedule, autonomous district councils 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

Judicial powers

• Autonomous district councils have powers to form courts to hear cases where both parties are members of Scheduled Tribes and the maximum sentence is less than 5 years in prison.

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.

The Supreme Court has quashed the case of sedition filed against a journalist in Himachal Pradesh for allegedly making remarks against PM and the government’s handling of the migrant crisis during the Covid-19 lockdown last year.

What is the story?

• In a video, the journalist had criticized PM Modi and the Centre for the handling of the migrant crisis last year.
• A sedition case was filed against him under Section 124A of the IPC which penalizes sedition as punishable with either imprisonment ranging from three years to a lifetime, a fine, or both.
• He was charged for spreading misinformation or incorrect information and cause panic in the perception of the general public.

What has the court ruled?

• The case was quashed by SC. It held that his remarks constituted genuine criticism of the government and could not be labeled seditious.
• In doing so, the court also reiterated the principles in the landmark case on sedition — Kedar Nath Singh v Union of India (1962).

What are the Kedar Nath Singh guidelines?

• In the landmark 1962 Kedar Nath Singh case, the Supreme Court upheld the constitutional validity of the sedition law, it attempted to restrict its scope for misuse.
• The court held that unless accompanied by incitement or call for violence, criticism of the government cannot be labeled sedition.

Seven principles in the Kedar Nath Singh ruling specify situations in which the charge of sedition cannot be applied:

1. The expression “ ‘the Government established by law’ has to be distinguished from the persons for the time being engaged in carrying on the administration. ‘Government established by law’ is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted.”
2. The effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of a tendency to public disorder by the use of actual violence or incitement to violence.
3. Comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal.
4. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.
5. The provisions of the Sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence.
6. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order.
7. The court proposed to limit its operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.

What has been the impact of that verdict?

• The significance of the verdict lies in the Supreme Court’s subsequent reiteration of the Kedar Nath Singh principles.
• A fresh constitutional challenge by two journalists against the sedition law pending before the Supreme Court, and the ruling in Dua’s case, make a strong case against keeping the colonial law in the books.

A panel constituted by the Union Home Ministry to suggest reforms to the British-era Indian Penal Code (IPC) is likely to propose a separate Section on “offences relating to speech and expression.”

Panel to define hate speech

• As there is no clear definition of what constitutes a “hate speech” in the IPC, the Committee for Reforms in Criminal Laws is attempting for the first time to define such speech.
• Legally speaking, for criminal Sections to be invoked, any such speech has to lead to violence or disturbance of law and order.

What constitutes Hate Speech?

• Hate speech can be defined as “public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation”.
• The word ‘hate speech’ as is a loaded term and merely criticizing someone is not hate speech.
• There has been much debate over freedom of speech, hate speech and hate speech legislation.

Indian attempts for definition

• The Bureau of Police Research and Development recently published a manual for investigating agencies on cyber harassment cases.
• It has defined hate speech as a language that denigrates, insults threatens or targets an individual based on their identity and other traits (such as sexual orientation or disability or religion etc.).
• Earlier in 2018, the Home Ministry had written to the Law Commission to prepare a distinct law for online “hate speech”.
• A committee was formed in the wake of Section 66A of the IT Act, 2000, which provided punishment for sending offensive messages through communication services.
• In 2019, however, the Ministry decided to overhaul the IPC, framed in 1860 and the Code of Criminal Procedure (CrPC) after seeking suggestions from various stakeholders.

Recommendations of various committees

• The Viswanathan committee proposed inserting Sections 153 C (b) and Section 505 A in the IPC for incitement to commit an offence on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe.
• It proposed punishment by up to two years along with ₹5,000 fine.
• The Bezbaruah Committee was constituted by the Centre in February 2014 in the wake of series of racial attacks on persons belonging to the northeast.
• It proposed amendment to Section 153 C IPC (promoting or attempting to promote acts prejudicial to human dignity), punishable by five years and fine or both and Section 509 A IPC (word, gesture or act intended to insult a member of a particular race), punishable by three years or fine or both.

Tamil Nadu CM has written to the President requesting him to accept the State Government’s to remit the life sentences of all the seven convicts in the Ex-PM’s assassination case.

Story so far

• Tamil Nadu government had recommended to the state Governor for the remission of the rest of the sentence for all convicts and their early release.
• The Governor has then decided that the President was the competent authority to decide on the plea of remission of sentence.

Answer this PYQ in the comment box:

Q.Which of the following are the discretionary powers given to the Governor of a State?

1. Sending a report to the President of India for imposing the President’s rule
2. Appointing the Ministers
3. Reserving certain bills passed by the State Legislature for consideration of the President of India
4. Making the rules to conduct the business of the State Government

Select the correct answer using the code given below:

(a) 1 and 2 only

(b) 1 and 3 only

(c) 2, 3 and 4 only

(d) 1, 2, 3 and 4

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.

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 offense.
2. The pardoning powers of the Indian President are elucidated in Art 72 of the Indian Constitution. There are five different types of pardoning that 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.

[2] 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.

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.