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

  • Governor’s inaction and judicial scrutiny

    The inaction by the Governor of Tamil Nadu on advice to free the convict has raised the possibility of judicial intervention due to undue delay.

    Inaction by Governor on advice

    • The Governor of Tamil Nadu has continued to withhold his decision on an application seeking pardon by one of the seven prisoners convicted in the Rajiv Gandhi assassination case.
    • In September 2018, the Supreme Court (SC) had observed, while hearing a connected writ petition, that the Governor should take a decision
    • The inaction by the Governor now has given rise to constitutional fault lines within the Executive arm of the government.

    Past judgements on pardoning power

    • In Maru Ram v. Union of India (1981)  Supreme Court held that the pardoning power “under Articles 72 and 161 of the Constitution can be exercised by the Central and the State Governments, not by the President or Governor on their own.”
    • The majority judgment had said that the “advice of the appropriate Government binds the Head of the State”.
    • Therefore, a Governor is neither expected, nor is empowered, to test the constitutionality of the order or resolution presented to her.

    Issue of delay in decision of mercy petition

    • Recently, the Supreme Court, had examined the inordinate delay by the President and the Governor — in taking decisions on mercy petitions.
    • The Supreme Court, in the case of Shatrugan Chouhan v. Union of India, laid down the principle of “presumption of dehumanising effect of such delay”.
    • The Supreme Court confirmed that the due process guaranteed under Article 21 was available to each and every prisoner “till his last breath”.

    Judicial scrutiny of the actions of Speakers

    • It was hitherto believed that the powers of the Speaker, holding a constitutional office and exercising powers granted under the Constitution, were beyond the scope of a ‘writ of mandamus’.
    • In the recent case of Keisham Meghachandra Singh v. Hon’ble Speaker (2020), the Supreme Court was asked to examine the Speaker’s inaction with regard to disqualification proceedings.
    • However, the apex court, referering to Rajendra Singh Rana v. Swami Prasad Maurya (2007), had confirmed its view that the “failure on the part of the Speaker to decide the application seeking a disqualification cannot be said to be merely in the realm of procedure”
    • Consequently, breaking years of convention, the SC set the time period of four weeks to decide the disqualification petition.
    • By doing so, the Supreme Court has indicated that it would not be precluded from issuing directions in aid of a constitutional authority “arriving at a prompt decision”.

    Consider the question “The undue delays and inactions by the constitutional functionaries threaten to widen the constitutional faultlines among the Executives. Comment.”

    Conclusion

    Instead of relying on the judicial intervention in the event of delays, it would be better to have a set time limit for arriving at decision by the constitutional judiciary.

  • Contempt of Court and A-G’s consent

    Attorney-General gave his consent for the initiation of criminal contempt proceedings against the stand-up comedian for his tweets following a Supreme Court’s decision to grant interim bail to a news anchor.

    Note important power, functions and limitations of AGI. A bluff can be created with the dicey statements in the prelims.

    Also read:

    [Burning Issue] Free Speech Vs. Contempt of Court

    What is Contempt of Court?

    • According to the Contempt of Courts Act, 1971, contempt of court can either be civil contempt or criminal contempt.
    • Civil contempt means wilful disobedience of any judgment, decree, direction, order, writ or another process of a court, or wilful breach of an undertaking given to a court.
    • Criminal contempt, on the other hand, is attracted by the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which:

    (i) Scandalizes or tends to scandalise, or lowers or tends to lower the authority of, any court; or

    (ii) Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

    (iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner

    • In 2006, the government brought in an amendment, which now provides “truth” as defence provided it is bona fide and in the public interest.

    Why is the A-G’s consent needed to initiate contempt proceedings?

    • In cognizance of criminal contempt, The Contempt of Courts Act, 1971 has a provision under Subsection 1 of Section 15.
    • It reads that- in the case of criminal contempt, (other than contempt in the face of the Supreme Court or a High Court), the related court may take action on its own motion or on a motion made by (a) the Advocate-General, or (b) any other person, with the consent in writing of the Advocate-General.

    Back2Basics: Attorney General of India (AGI)

    • The AGI is the Indian government’s chief legal advisor and is a primary lawyer in the Supreme Court of India.
    • They can be said to be the advocate from the government’s side.
    • They are appointed by the President of India on the advice of Union Cabinet under Article 76(1) of the Constitution and holds office during the pleasure of the President.
    • They must be a person qualified to be appointed as a Judge of the Supreme Court ( i.e. a judge of some high court for five years or an advocate of some high court for ten years or an eminent jurist, in the opinion of the President and must be a citizen of India.).

    Functions and duties

    • The AGI is necessary for advising the Government of India on legal matters referred to them.
    • They also perform other legal duties assigned to them by the President.
    • The AGI has the right of audience in all Courts in India as well as the right to participate in the proceedings of the Parliament, though not to vote.
    • The AGI appears on behalf of Government of India in all cases (including suits, appeals and other proceedings) in the Supreme Court in which GoI is concerned.
    • They also represent the Government of India in any reference made by the President to the Supreme Court under Article 143 of the Constitution.
    • The AG is assisted by a Solicitor General and four Additional Solicitors General.

  • Pondering on the free speech

    The article discusses the issues with blaming the expression of free speech for the violence inflicted by the people opposed to the ideas.

    Context

    • The beheading of a teacher in France has brought to the fore the issue of free speech.
    • It is argued that there is a need to respect people’s religion and not be provocative in the aftermath of the gruesome killing.

    Issues related to free speech

    1) Free-speecher’s burden

    • The fact that a barbaric, crazy man can either get offended or inspired by either of the conflicting ideas cannot be a “free-speecher’s” burden.
    • Should any protest or campaign be mindful of a potential violent twist that may be given to their ideas?
    • Should a causal link between the expression of “offensive ideas” and sufferance of bodies allow violent zealots to hold the right to ransom?

    2) Existence of ideas in person

    • Ideas have no real, independent existence outside of the bodies in which they inhere.
    • Had ideas lived autonomously, independent of the bodies and minds that carry them, ideas would not die.
    • But we don’t. And the reason is that some ideas die or weaken over time.
    • They become anomalous and discredited either because they are disputed scientifically or because they are contested vigorously and passionately till an anachronistic idea is defeated.

    3) Ideas could be good or bad

    • In the conflicting terrain of ideas, lies the kernel of social change.
    • Ideas could be good or bad.
    • How else, except through a conflict of ideas, do women contest patriarchy and push back on received gendered ideas of womanhood?

    Issues with arguing on free-speech outside context

    • First, as academic Ghassan Hage summed up in his Facebook post: Truth also needs to have its ethics.
    • You may be truthful, but unethical.
    • The beheading of French teacher requires us to dwell on not just any killing but the barbarism behind it.
    • To dwell instead on the genealogies and causes of violent behaviour is bad ethics, for it ends up being nothing more than an apologia for violence.
    • Second, it’s bad politics.
    • The right to free speech empowers and enables many marginalised lives.
    • It is a basic right that preconditions the realisation of other rights.
    • So basic that it enables the weak and the oppressed to rise against their oppressors.

    Conclusion

    In any case, free speech is restrained by the state through its many criteria of “reasonableness”. To further circumscribe it by burdening it with plausible violent appropriations, or with historical conditionalities, is to feed the logic of violence against freedom of expression.

  • Right to Protest

    The Supreme Court has found the indefinite “occupation” of a public road by the Shaheen Bagh protestors unacceptable.

    Right to Protest

    • The right to protest is the manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.
    • The Constitution of India provides the right of freedom, given in Article 19 with the view of guaranteeing individual rights that were considered vital by the framers of the constitution.
    • The Right to protest peacefully is enshrined in Article 19(1) (a) guarantees the freedom of speech and expression; Article 19(1) (b) assures citizens the right to assemble peaceably and without arms.
    • Article 19(2) imposes reasonable restrictions on the right to assemble peaceably and without arms.

    What did the Court say?

    • The court said the protest, considered an iconic dissent mounted by mothers, children and senior citizens of Shaheen Bagh against the Citizenship (Amendment) Act, became inconvenient to commuters.
    • The judgment upheld the right to peaceful protest against the law but made it unequivocally clear that public ways and public spaces cannot be occupied, and that too indefinitely.
    • Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone.
    • The present case was not even one of the protests taking place in an undesignated area but was a blockage of a public way which caused grave inconvenience to commuters.

    Reasonable restrictions do exist in practice

    • Fundamental rights do not live in isolation. The right of the protester has to be balanced with the right of the commuter. They have to co-exist in mutual respect.
    • The court held it was entirely the responsibility of the administration to prevent encroachments in public spaces.

  • Narco Test and the Issue of Consent

    Involuntary administration of narco or lie detector tests is an “intrusion” into a person’s “mental privacy,” a Supreme Court judgment of 2010 has held.

    Try this question:

    Q.What are the ethical issues associated with the Lie-detection tests?

    Various Lie detector tests

    (1) Polygraph Test

    • A polygraph test is based on the assumption that physiological responses that are triggered when a person is lying are different from what they would be otherwise.
    • Instruments like cardio-cuffs or sensitive electrodes are attached to the person, and variables such as blood pressure, pulse, respiration, change in sweat gland activity, blood flow, etc., are measured as questions are put to them.
    • A numerical value is assigned to each response to conclude whether the person is telling the truth, is deceiving, or is uncertain.

    (2) Narcoanalysis

    • Narcoanalysis, by contrast, involves the injection of a drug, sodium pentothal, which induces a hypnotic or sedated state.
    • In such a state, the subject’s imagination is neutralized, and they are expected to divulge information that is true.
    • The drug, referred to as “truth serum” in this context, was used in larger doses as anaesthesia during surgery and is said to have been used during World War II for intelligence operations.

    Why these tests are so (in)famous?

    • Investigating agencies seek to employ these tests in the investigation, and are sometimes seen as being a “softer alternative” to torture or “third degree” to extract the truth from suspects.
    • These tests put into consideration the international norms on human rights, the right to a fair trial, and the right against self-incrimination under Article 20(3) of the Constitution.

    Legal status in India

    • In ‘Selvi & Ors vs State of Karnataka & Anr’ (2010), a Supreme Court Bench comprising CJI ruled that no lie detector tests should be administered “except on the basis of the consent of the accused”.
    • Those who volunteer must have access to a lawyer, and have the physical, emotional, and legal implications of the test explained to them by police and the lawyer, the Bench said.
    • It said that the ‘Guidelines for the Administration of Polygraph Test on an Accused’ published by the National Human Rights Commission in 2000, must be strictly followed.
    • The subject’s consent should be recorded before a judicial magistrate, the court said.

    What was the latest Judgement?

    • Involuntary administration of narco or lie detector tests is an “intrusion” into a person’s “mental privacy,” a Supreme Court judgment of 2010 has held.
    • The consequences of such tests on “individuals from weaker sections of society who are unaware of their fundamental rights and unable to afford legal advice” can be devastating.
    • It may involve future abuse, harassment and surveillance, even leakage of the video material to the Press for a “trial by media.”
    • Such tests are an affront to human dignity and liberty and have long-lasting effects.
    • “An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy,” the apex court had held.

    Legal status of its outcome

    • The results of the tests cannot be considered to be “confessions”, because those in a drugged-induced state cannot exercise a choice in answering questions that are put to them.
    • However, any information or material subsequently discovered with the help of such a voluntarily-taken test can be admitted as evidence, the court said.
    • Thus, if an accused reveals the location of a murder weapon in the course of the test, and police later find the weapon at that location, the statement of the accused will not be evidence, but the weapon will be.

  • Should India have one national Language?

    The article discusses the issues with excessive attention given to Hindi and how the neglect of another language could lead to the loss of language and the way of life associated with it as well.

    Debate in Constituent Assembly and issues in the adoption of Hindi

    • The issue of adopting a national language could not be resolved when the Constituent Assembly began drafting India’s Constitution.
    • Members from the Hindi-speaking provinces who moved a number of pro-Hindi amendments and argued for adopting Hindi as the sole national language.
    • Widespread resistance to the imposition of Hindi led to the passage of the Official Languages Act of 1963, which provided for the continued use of English for all official purposes.
    • Hindi became the sole working language of the Union government by 1965 with the State governments free to function in the language of their choice.
    • The constitutional directive for the Union government to encourage the spread of Hindi was retained within Central government entities in non-Hindi-speaking States.

    Issues with the Eighth Schedule

    • According to the 2001 Census, India has 30 languages that are spoken by more than a million people each.
    • The Constitution lists 22 languages and protects them in the eighth schedule.
    • Many languages are kept out of this schedule even if they deserve to be included.
    • This includes Tulu which is spoken by over 1.8 million people and has inscriptions dating back to the 14th and 15th centuries.
    • While Hindi, a much younger Indo-Aryan language, has been gaining prominence since before independence.
    • When a refined language loses its status in literary and daily interactions, the way of life associated with it also vanishes.
    • The Census found that while Hindi is the fastest growing language, the number of speakers of other languages has dropped.

    Way forward

    • While discussing Hindi and its use, let us also focus on the merit of other Indian languages.
    • Instead of focusing on one national language, we should learn a language beyond the mother tongue and get to know a different way of life too.

    Conclusion

    If we don’t protect and promote other well-evolved or endangered and indigenous languages, our future generations may end up never understanding their ‘real’ roots and culture

  • Understanding the significance of Kesavananda Bharati case

    The article revisits the impact and significance of the case for the democracy in India.

    Understanding the Basic Structure doctrine

    • Basic Structure and essential features doctrine was expounded in the Kesavananda Bharati case.
    • In the case, the validity of the 29th amendment which immunised, in the Ninth Schedule Kerala’s takeover of the religious mutt’s property was challenged.
    • Basic structure is the power of judicial review and essential features are what the Court identifies as such in the exercise of that power.
    • Justice Bhagwati remarkably enunciated as an essential feature the “harmony” between fundamental rights and directive principles.
    • The crucial message though is that the apex court has, in the rarest of rare cases, the constituent power to pronounce a constitutional amendment invalid.

    Limits on the powers of Supreme Court

    • The Court is bound by the “golden triangle” of rights created by Articles 14, 19, and 21 of the Constitution.
    • Court must derive the “spirit” of the Constitution by reference to the provisions of the Constitution.
    • Since 1973, the evidence shows the Apex Court has shown utmost democratic responsibility and rectitude in interpreting the doctrine of BSEF.

    Consider the question asked by the UPSC in 2019 “Parliament’s power to amend the Constitution is limited power and it cannot be enlarged into absolute power”. In light of this statement explain whether parliament under article 368 of the constitution can destroy the Basic Structure of the Constitution by expanding its amending power? “

    Conclusion

    The ultimate message of BSEF doctrine is not merely to set limits to the power of the managers of people, but to make little by little the tasks of emancipation less onerous.

  • MPLAD Scheme

    While extending support to the move for salary-cut, most Members of Parliament have demanded that the MPLADS funds, meant for development work in constituencies, be restored immediately.

    Try this PYQ:

    Q.With reference to the Parliament of India, consider the following statements:

    1. A private member’s bill is a bill presented by a Member of Parliament who is not elected but only nominated by the President of India.
    2. Recently, a private member’s bill has been passed in the Parliament of India for the first time in its history.

    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

    What is the MPLAD scheme?

    • The Members of Parliament Local Area Development Scheme (MPLADS) is a programme first launched during the Narasimha Rao Government in 1993.
    • It was aimed towards providing funds for developmental works recommended by individual MPs.

    Funds available

    • The MPs then were entitled to recommend works to the tune of Rs 1 crore annually between 1994-95 and 1997-98, after which the annual entitlement was enhanced to Rs 2 crore.
    • The UPA government in 2011-12 raised the annual entitlement to Rs 5 crore per MP.

    Implementation

    • To implement their plans in an area, MPs have to recommend them to the District Authority of the respective Nodal District.
    • The District Authorities then identify Implementing Agencies which execute the projects.
    • The respective District Authority is supposed to oversee the implementation and has to submit monthly reports, audit reports, and work completion reports to the Nodal District Authority.
    • The MPLADS funds can be merged with other schemes such as MGNREGA and Khelo India.

    Guidelines for MPLADS implementation

    • The document ‘Guidelines on MPLADS’ was published by the Ministry of Statistics and Programme Implementation in June 2016 in this regard.
    • It stated the objective of the scheme to enable MPs to recommend works of developmental nature with emphasis on the creation of durable community assets based on the locally felt needs in their Constituencies.
    • Right from the inception of the Scheme, durable assets of national priorities viz. drinking water, primary education, public health, sanitation and roads, etc. should be created.
    • It recommended MPs to works costing at least 15 per cent of their entitlement for the year for areas inhabited by Scheduled Caste population and 7.5 per cent for areas inhabited by ST population.
    • It lays down a number of development works including construction of railway halt stations, providing financial assistance to recognised bodies, cooperative societies, installing CCTV cameras etc.

  • New Official Languages in J&K

    The Union Cabinet has approved a Bill to introduce Hindi, Kashmiri and Dogri as official languages in Jammu and Kashmir, in addition to Urdu and English. As of now, the official language is Urdu and Kashmiri is recognised as a regional language.

    Try this PYQ:

    Q.Consider the following languages:

    1. Gujarati
    2. Kannada
    3. Telugu

    Which of the above has/have been declared as ‘Classical Language/ Languages’ by the Government?

    (a) 1 and 2 only

    (b) 3 only

    (c) 2 and 3 only

    (d) 1, 2 and 3

    Languages in J&K

    • In the undivided Jammu and Kashmir state, various ethnicities spoke Kashmiri, Pahari, Gojri, Ladakhi, Dogri, Balti and Punjabi as their mother tongues.
    • Urdu and Hindi had become a means for inter-community communication.
    • In 1889, Maharaja Pratap Singh, the third ruler of the Hindu Dogra dynasty, replaced Persian with Urdu as the court language.
    • It was an anomaly that the three languages — Dogri, Hindi and Kashmiri — which are spoken by nearly 70 per cent of the population of Jammu and Kashmir were not approved for use in official business.

    Official languages in India

    • Article 343 of the Indian constitution stated that the official language of the Union is Hindi in Devanagari script instead of the extant English.
    • Later, a constitutional amendment, The Official Languages Act, 1963, allowed for the continuation of English alongside Hindi in the Indian government indefinitely until legislation decides to change it.
    • The form of numerals to be used for the official purposes of the Union is “the international form of Indian numerals”, which are referred to as Arabic numerals in most English-speaking countries.
    • Despite the misconceptions, Hindi is not the national language of India; the Constitution of India does not give any language the status of the national language.
    • The Eighth Schedule of the Indian Constitution lists 22 languages, which have been referred to as scheduled languages and given recognition, status and official encouragement.

    Other classical languages

    • In addition, the Government of India has awarded the distinction of classical language to Kannada, Malayalam, Odia, Sanskrit, Tamil and Telugu.
    • Classical language status is given to languages which have a rich heritage and independent nature.

  • Domicile-based job quota in MP

    The Madhya Pradesh government’s recent decision to reserve all government jobs for “children of the state” raises constitutional questions relating to the fundamental right to equality.

    Try this PYQ:

    One of the implications of equality in society is the absence of- (CSP 2018)

    (a) Privileges

    (b) Restraints

    (c) Competition

    (d) Ideology

    Constitutional provision for Equal Treatment

    • Article 16 of the Constitution guarantees equal treatment under the law in matters of public employment. It prohibits the state from discriminating on grounds of place of birth or residence.
    • Article 16(2) states that “no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State”.
    • The provision is supplemented by the other clauses in the Constitution that guarantee equality.
    • However, Article 16(3) of the Constitution provides an exception by saying that Parliament may make a law “prescribing” a requirement of residence for jobs in a particular state.
    • This power vests solely in the Parliament, not state legislatures.

    Why does the Constitution prohibit reservation based on domicile?

    • When the Constitution came into force, India turned itself into one nation from a geographical unit of individual principalities and the idea of the universality of Indian citizenship took root.
    • India has single citizenship, and it gives citizens the liberty to move around freely in any part of the country.
    • Hence the requirement of a place of birth or residence cannot be qualifications for granting public employment in any state.

    But are reservations not granted on other grounds such as caste?

    • Equality enshrined in the Constitution is not mathematical equality and does not mean all citizens will be treated alike without any distinction.
    • To this effect, the Constitution underlines two distinct aspects which together form the essence of equality law:
    1. Non-discrimination among equals, and
    2. Affirmative action to equalize the unequal

    Supreme Court rulings on quota for locals

    • The Supreme Court has ruled against reservation based on place of birth or residence.
    • In 1984, ruling in Dr Pradeep Jain v Union of India, the issue of legislation for “sons of the soil” was discussed.
    • The court expressed an opinion that such policies would be unconstitutional but did not expressly rule on it as the case was on different aspects of the right to equality.
    • In a subsequent ruling in Sunanda Reddy v State of Andhra Pradesh (1995), the Supreme Court affirmed the observation in 1984 ruling to strike down a state government policy that gave 5% extra weightage to candidates.
    • In 2002, the Supreme Court invalidated appointment of government teachers in Rajasthan in which the state selection board gave preference to “applicants belonging to the district or the rural areas of the district concerned”.
    • In 2019, the Allahabad HC struck down a recruitment notification by the UP PSC which prescribed preference for women who are “original residents” of the UP alone.

    What about securing jobs for locals in the private sector?

    • Such a law will be difficult to implement even if allowed.
    • Private employers do not go on an annual recruitment drive to fill vacancies identified in advance but hire as and when required.
    • The state can recommend a preference to locals but ensuring that it is followed would be difficult.
    • In 2017, Karnataka mulled similar legislation but it was dropped after the state’s Advocate General raised questions on its legality.
    • In 2019, the state government once again issued a notification asking private employers to “prefer” Kannadigas for blue-collar jobs.

    How do some states then have laws that reserve jobs for locals?

    • Exercising the powers it has under Article 16(3), Parliament enacted the Public Employment (Requirement as to Residence) Act.
    • The act aimed at abolishing all existing residence requirements in the states and enacting exceptions only in the case of the special instances of Andhra Pradesh, Manipur, Tripura and Himachal Pradesh.
    • Constitutionally, some states also have special protections under Article 371. AP under Section 371(d) has powers to have “direct recruitment of local cadre” in specified areas.
    • Some states have gone around the mandate of Article 16(2) by using language. States that conduct official business in their regional languages prescribe knowledge of the language as a criterion.
    • This ensures that local citizens are preferred for jobs. For example, states including Maharashtra, West Bengal and Tamil Nadu require a language test.