Search results for: “”

Salient Features of American Constitution

While American Constitution is the shortest (of any major government in the world) and the first written constitution, India’s Constitution is the lengthiest written constitution in the World. American Constitution is a very rigid constitution consisting of only Seven Articles and twenty-seven amendments, so far.

Originally, the India Constitution consisted of 395 Articles in 22 Parts, with 8 Schedules. Now, it consists of 448 Articles in 22 Parts, with 12 Schedules.

The American Constitution was finalized in a convention held on September 17, 1787, which required its ratification by a minimum of nine States, for it to be enforced.

By the end of July 1788, eleven States had ratified it and the Constitution was put into operation on 13th September 1788. The Indian Constitution, on the other hand, was adopted by her Constituent Assembly on 26th November 1949, and came into effect on 26th January 1950.

America has adopted the doctrine of dual ship in respect of its Constitution and citizenship. It has two Constitutions, one, for America as whole and another for each State. American people have two citizenships, one of USA and another of their respective State.

On the other hand, India has one constitution and concept of single citizenship for every citizen of the country.

• Nature of the Constitution

The American Constitution is described as a truly Federal Constitution. It was ratified by 50 Independent States. Further, the Federal Government and States have their own Constitutions and do not interfere in each other’s functions. On the other hand, India has only one Constitution, wherein the Central government interferes with functions of State governments in the form of, inter alia:

1. Appointment of Governors.
2. Governor having the power of reserving the States’ bills for consent of the President.
3. Central government’s power to impose President’s rule in the States.

• Nature of Federalism

While USA is a Dual Federation, India is a Cooperative Federation.

Dual Federation (USA) – both the Centre and state are completely independent. They are complete governments	Cooperative Federation (India) – Interdependence of Centre and state govt. Neither of them is independent of the other. Centre usually has the role of big brother.
Centrifugal federalism	Centripetal federalism
Symmetrical federalism: All states are given equal representation in Senate	Asymmetrical federalism: 1. States have been given representation in Rajya Sabha on the basis of their population. 2. Articles 370, 371 provide special provisions to few states.
USA is a Legislative federation. This means that States have dominance in law making.	India is an Executive federation. This means that states are important at the executive level only.
USA is an indestructible union of indestructible states	India is an indestructible union of destructible states
USA constitution provides a role to states in ratifying the international treaties through the Senate.	There is no such provision for states in the Indian Constitution.

 

Difference between Indian Constitution and American Constitution

The Indian Constitution and the American Constitution differ in several key areas. The American Constitution, adopted in 1787, is much shorter and establishes a presidential system with a clear separation of powers among the executive, legislature, and judiciary. Additionally, the Indian Constitution can be amended more easily, while the American Constitution requires a more complex process for amendments.

Aspect	Indian Constitution	American Constitution
Length	Long and detailed (448 articles)	Short (7 articles)
System of Government	Parliamentary system	Presidential system
Adopted in	1950	1787
Amendment Process	Easier to amend	More complex amendment process
Federal Structure	Federal with unitary elements	Purely federal
Rights & Duties	Includes fundamental rights and duties	Primarily focused on fundamental rights

Form of Government (India vs USA)

USA

1. America has adopted a Presidential form of government, in which the people directly elect the executive President.
2. The President is powerful and not accountable to the House of Congress.
3. The term of the American President is 4 years (fixed term).
4. One can hold the office of the President for only two terms.
5. The President can appoint his own staff, which may be neither from the House of Representative or Senate, in assisting in the administration of the government. The staff is not accountable to the Houses of Congress.

This means that the President is independent in the administration of the government and rather directly responsible to the people of USA.

India

1. India has adopted a Parliamentary form of government.
2. The President of India is the executive head of the Indian government. He is indirectly elected by the legislators of Centre and states, and is not accountable to the Parliament.
3. The President runs the government with the aid and advice of the Prime Minster and the Council of Ministers.
4. Unlike USA, the Indian President holds the office for five years.
5. He can be elected any number of times.

The impeachment of the President by the legislature is the only similarity in both the Constitutions.

• President

The position of the American President combines both the Head of State and the Head of Government into one.

• Qualification

Only a natural born citizen of USA can become the President, and not a person who has acquired the citizenship. Also, he must have attained the age of 35 years and must have stayed in USA for at least 14 years. On the other hand, the Indian President should be a citizen of India, wherein citizenship might be either natural or acquired.

• Election of the President

Presidential election is indirect, through Electoral College.

Electoral College

1. Strength of Electoral College = Total members in House of Representatives + Senate + 3 members from Washington D.C. = 435 + 100 + 3 = 538
2. Winning Candidate requires an absolute majority (50% + 1) of the total members of the Electoral College, i.e. 270.

In the House of Representatives, members from different states are not fixed, while in Senate members from different states are equal and fixed.

Election of Electors

1. The voters vote for the members of the Electoral College
2. System of election is the List System
3. Each state has a responsibility to conduct these elections
4. The party that wins the majority of the votes represents the state in entirety
5. Electors meet in their respective capital and vote for the Presidential candidate

• Functions of the President of USA

Executive Functions

1. Appointments
2. Representing the country
3. Preparation of the Budget

Legislative Functions

1. No presence in legislature
2. The President doesn’t address the legislature
3. He cannot dissolve the legislature
4. He can send messages to the legislature (the system of sending messages exists in USA because there is Separation of Power. So this is the way that the President can interact. The system of sending messages is found in India also, but the logic of the provision is not clear because the President has no discretionary power and he has to act on the advice of the P.M.)

Veto Power

Under the Constitution, the President may respond to a bill passed by the Congress in one of the three ways. He may sign it, veto the bill by returning it to Congress, or do nothing. If he does nothing, the bill becomes a law after the passage of ten days, excluding Sundays. However, if the Congress adjourns sooner than ten days, the bill dies, under the “pocket veto” provision. If the President vetoes a bill, the Congress can still enact it into a law bypassing the measure again with two-thirds majority in both the houses.

• Legislative Proposals

The Constitution also authorizes the President to “recommend to Congress’ consideration such measures as he shall judge necessary and expedient.” Unlike the veto, which is a limited and somewhat negative instrument for stopping legislation, the duty to recommend legislation has over time become the primary mechanism, by which the nation’s political agenda is influenced.

• Indian President

1. In India, the President has the power to send back a bill to the Parliament for reconsideration. But, when the Parliament has reconsidered the bill and then passes it with the required majority, the President has no option but to sign the bill.
2. Practically, the Prime Minster and his Cabinet almost always enjoy a simple majority, except in a coalition government. So, it does not pose a major hurdle for the Prime Minster and his cabinet to get the consent of the President for the bill.

However, a significant departure from the US Presidential Scheme of things is that unlike the US, the Indian Constitution does not prescribe any time limit for signing the bill by President.

Therefore, he can keep the bill without signing it for an indefinite period under the disguise of consideration, which can frustrate the Prime Minster and his cabinet. Obviously, this leads us to the question whether the Indian President’s pocket veto is more powerful than the US President’s pocket veto.

• Date of Retirement and Oath

US

1. A unique feature of the US Constitution is that it has prescribed the date and timing of retirement of the outgoing President as well as members of the Congress.
2. The terms of President and Vice President shall end at noon on the 20th day of January.
3. It means that the new President and Vice President shall take oath of the office on 20th January (or 21^stJanuary, if 20th is a Sunday) at noon of their first year of office.
4. The election of the President and Vice president are held in the month of November and in the same month results are announced.

Thus, Americans are informed much earlier about their new President. Naturally, the question is how this time schedule is maintained. In case of President’s death, resignation, or impeachment, the Vice President shall become the President for the remaining period. In this way, duration of the President is kept intact and the next elected President takes oath on the scheduled date.

India

1. In India, if the President dies or is impeached, or submits resignation, the Vice President becomes the President till fresh elections are held. The newly elected President holds the office for a full term of five years.
2. Hence, unlike the American system the time schedule cannot be maintained, in the case of India.

• Primaries

1. Primaries are elections to select the candidate
2. They are conducted by Political Parties

• Impeachment of the President of USA

1. Reasons: Treason, Bribery, High Crimes of Misdemeanor. No system of impeachment for violation of the Constitution, unlike the Indian Constitution
2. Process: 

• Charges will be leveled against the President in the House of Representatives
• It has to be passed by 2/3rd majority
• Senate will be the investigating house
• In this process, the Chief Justice of the Supreme Court of USA will be the presiding officer
• If convicted, he can be removed only when 2/3rd members of the Senate pass a resolution in this context

Important terms of the American Constitution

1. Filibustering: It’s a privilege of Senators that they can exercise his right to speak for an unlimited period. It’s an ultimate device to stop the passage of a bill. However, now a rule has emerged, by which 2/3rd of the members can bring a motion, which will deny this privilege to the Senators.
2. Senatorial Courtesy:A convention has developed by which the President, before formally sending the names for appointments in higher posts, informs the Senate about the probable candidates to be appointed. The idea in such situations should not arrive, where the Senate does not ratify the President’s proposal.
3. Gerrymandering:It is the process of demarcating the electoral districts that give advantage to the party in power in the state. They create electoral districts in a manner that the supporters of the party get concentrated and the supporters of the opposition party get dispersed, with the objective of electoral gains.
4. Log Rolling:The members of a party may support a bill or viewpoint of the other party. Strict party discipline is not only existing, but also not required.
5. Pork Barrel:It represents the politics in the House o Representatives where local interest dominates and the representatives want to take maximum benefits for their constituencies.

Vice President

 Election of Vice President

The qualification for the President and the Vice President is the same. Since the elections take place simultaneously, the process of elections is also the same.

Earlier Method: The candidate coming first used to be declared as the President and second as the Vice President.

Present Method: Separate elections, but at the same time and in the same manner.

Tenure of a Vice President as a President

A Vice President may become a President because of vacancy in the office of the President. There are two situations:

1. If the Vice President has come to the office when the President has already served the office for more than two years. Then the Vice President can be President for the remaining term and in addition for two more terms he can serve as a President
2. If the Vice President came to the office when the remaining term of the outgoing President was more than two years, then he will be eligible for only one more term

Functions of the Vice President of USA

• Ex-officio chairperson of Senate and has casting vote
• The office of the Indian Vice President is modeled on the US office, with some differences
• The office of Vice President is called as His Superfluous Highness

US Legislature/US Congress

It consists of two houses: House of Representatives and the Senate.

1. House of Representatives

• One of the weakest lower house in the world
• It consists of 435 members
• System of direct elections
• Representation of people may differ in number from different states

      2. Senate

1. Permanent body
2. Strongest upper house in the world
3. It has equal powers in ordinary bills, amendment bills and money bills.
4. Term of a Senator is six years. 1/3rd of the members/Senators retire every two years.

• Committee System in USA

USA has the strongest committee system in the world. It is said that the US Congress works in the Committees.

• Difference from British and Indian System

1. In Britain and India, a bill is introduced in the House and the first reading takes place and then it is referred to the Committee
2. In USA, a bill is introduced and then directly referred to the Committee, before even the first reading

Pigeon Hole: A bill in USA may get killed at the Committee stage itself. This is known as Pigeon Holing the bill.

Duration of Representative bodies at the Centre

US

1. America’s House of Representative and Senate are permanent bodies.
2. The terms of the members of the Representative and Senate come to an end on 3^rd

India

1. In India, during an emergency, the duration of Lok Sabha can be extended by one year, or can be shortened by holding pre-matured elections.
2. The ruling party forms opinion based on their party’s prospects in the next election. It may recommend for the dissolution of Lok Sabha and suggest the President to hold the election at an appropriate time, which may be based on political expediency.

Doctrine of Separation of Power and the System of Checks and Balances

The theory of Separation of Powers started with John Locke and became popular with Montesquieu (18th century philosophers).

Why Separation of Powers/Functions?

1. According to Montesquieu – liberty is not protected, unless there is Separation of Power.
2. Separation of Power with judiciary is a universal feature in all democracies.
3. The Presidential system provides Separation of Power w.r.t. all three organs of the government, whereas in the Parliamentary system there is a fusion of legislative and executive powers.

US

1. The US Constitution strictly adheres to the doctrine of Separation of Power proposed by Locke and Montesquieu. Separation of Power is complete in US.
2. All the three branches of the government have separate functions.
3. The term of Legislature and Executive are fixed and do not depend on each other.
4. None of the member of the Legislature can be a member of the Executive.
5. The Houses of Congress enact the law; the President executes the law; and the Supreme Court interprets the law.
6. The American President has no privilege of law making power. Moreover, he is neither a member of the House of Representative nor that of Senate.
7. By confirming veto power but equally not confirming the law-making power to the President, the Congress controls the Presidents and vice versa. In this way, ‘Checks and Balance’ are maintained.

India

1. Theoretically, we may say that the doctrine of Separation of Power is adopted in our Constitution, but it is only between the Executive and Judiciary.
2. The President is a part of the Union Executive. Yet, it is the Prime Minster and the Council Ministers who are the real executive because the President has to act on the aid and advice of the Council of Ministers.
3. They have dual capacity:
4. One, in capacity of executive; and
5. Two, in the capacity of lawmaker.

The Prime Minster, in his capacity as the leader of the ruling party can enact a law, which his administration executes. Thus, the Prime Minster and his Council Ministers enact the law and the administration executes the same, which is per se, contradictory to the doctrine of Separation of Power.

• Checks and Balances

No organ of the government can be given complete liberty. Hence there have to be checks and balances.

1. How are checks and balances achieved in the US Constitution?

Judiciary checks on other branches of the government, by judicial review of the executive as well as legislative acts.

1. How Congress checks the President or powers of the President?
2. It is necessary to ratify the international agreements and higher appointments
3. Principle of no taxation without representation

• Impeachment of the President

1. How President checks the Congress?
2. By the use of veto powers (Congress can pass a bill against Presidential veto with 2/3rd majority. So the President doesn’t have an absolute veto.
3. Pocket Veto: Two situations arise –

Congress in session for ten days: Bill can be passed even without the assent of the President

Congress in session for less than ten days: Bill will lapse.

1. President and Congress applying checks on Judiciary
2. Appointment of Judges: appointed by the President and ratified by the Senate
3. Removal of Judges: removed through impeachment by the Congress and approved by the President

• Salaries and emoluments controlled by the President

• Fundamental Rights

While US has incorporated the “Bill of Rights”, India has incorporated “Fundamental Rights” in its Constitution. However, the American Constitution has provided additional human rights, which are not to be explicitly found in the Indian Constitution.

1. Freedom of press is explicitly provided under the 1st amendment of the US Constitution, while in India it is implicitly read under the Article 19[1][a], freedom of speech and expression. Petition to the Supreme Court is a fundamental right in India, where as in US it is the government that is petitioned (In case of US, the word “government” has a wider connotation and encompasses not only the executive, but also the higher judiciary).
2. The Americans have a right to keep arms and guns for the protection of their life and property. This was provided under the 2ndamendment.  Therefore, guns and arms are sold like any other commodity in US without legal hassles, whereas in India it is a total contrast, because apart from not being a fundamental right, it is a highly regulated legal right.

5^th amendment to the US Constitution guarantees that an accused will be tried for criminal offence with a system of “Grand Jury”. Grand Jury means that common people are selected by the government randomly, representing the community. They play a part in deciding the guilt of the accused persons. The number of persons selected to be in the grand jury varies from 6 to 12, or even more, if the case is controversial.

On the other hand, in India criminal trials are adjudicated by the Judges only.

Further, in US, no person’s life and liberty shall be deprived without “due process” of law.

1. Due process means that the content and procedure of law must be just, fair, and equitable, which will be decided by the judiciary.
2. Legislative power of depriving a person’s liberty is restricted and scrutinized and evaluated by the judiciary.

In India, a person’s life and liberty shall be deprived according to the “procedure established by law”.

1. The world “procedure established by law” gives wide discretionary power to the legislature to restrict the liberty.
2. Nevertheless, the Supreme Court in Maneka Gandhi case (even though the court did not use the word due process) held that the procedure established by law must be fair, just and equitable.

The Indian Parliament deleted the Right to Property from the list of Fundamental Rights in 1978. Whereas, in US, the right to property is still a fundamental right and no property shall be acquired without just compensation.

A person accused of crime enjoys certain explicit rights under the 6th Amendment to the US Constitution: speedy and public trial, notice of accusation, compulsory process of obtaining witness in his favor and assistance of legal counsel of his choice.

All these rights in India are not expressly mentioned in the Constitution. Nonetheless, these rights are provided by the Supreme Court by broadly interpreting the Right to Life and Liberty under Article 21.

Further, the 8th amendment to the US Constitution says that bail shall not be denied to an accused, the imposed fine should not be excessive and inflicted punishment shall not be cruel. These rights are also made available to Indian people because of well-established precedents pronounced by the Supreme Court under Article 21.

9^th Amendment to the US Constitution is quite important because it says that mere enumeration of certain rights in the Constitution shall not be interpreted to deny the other rights retained by the American people.

In spite of the statutory rights in the Constitution people enjoy other rights, which are given by nature. The American Constitution is highly influenced by Locke’s philosophy of inalienable natural rights of human being.

The Indian Constitution, on the other hand, does not contain any such notable Article. Therefore, Indians enjoy only those rights recognized by the Constitution, which are based on the philosophy of Austin and Bentham’s theory of law.

• Distribution of Legislative Power

India

Seventh Schedule of the Indian Constitution distributes the legislative power between the Central and State governments. The Central and State governments have exclusive power to make laws on 97 and 66 subjects, listed in the Union and State list respectively. On the 47 matters of Concurrent list both the Centre and State can make laws. In case of conflicting laws, law of the Centre would prevail.

97^th subject in the Union list says that any subject, which does not belong to any other list would automatically confer power to the Parliament to make a law regarding that subject. Thus, our constitution makers have created stronger Central and weaker State governments, which depend on the Central government for the financial assistance.

US

It is quite contrary in the case of US, where no elaborative mechanism is provided. Few expressly mentioned subjects are with the federal and rest of the matters with State governments.

Emergency and Suspension of Writs

In India, an emergency can be declared on the ground of War and Armed Rebellion. During such emergency all fundamental rights except the right to life can be suspended. The American Constitution does not use the phrase of emergency but says that in case of Rebellion and Invasion of Public Safety, the writ of Habeas Corpus can be suspended.

Judiciary

There is no qualification mentioned for the appointment of judges of the Supreme Court. In America, the President has the final say in the appointment of Supreme Court Judges. He suggests the names of judges to the Senate and on the advice and consent of the Senate, judges are appointed by the President.

The Judicial Committee of Senate plays a very significant role in evaluating the credentials of the proposed judges of the Supreme Court. They make the investigation of the background of judges, they hold a face-to-face interaction with the judges, the judges are queered and grilled and questions are put.

The whole process happens in public and in a transparent manner. If a citizen of the US has any information about judges’ integrity, he can send that information, with evidence, to the Senate Judicial Committee, which further investigates to ensure that no unworthy candidate is appointed as a Judge to the Supreme Court.

In the appointment of Judges, the people of US also participate and the judiciary of US has no role to play in the appointment of judges. The entire process of appointment of judges is crystal clear.

There is no fixed tenure of the judges. However, if they are retiring at the age of 70 years, they will get salary and perks as a working judge.

In India, on the other hand, the entire process of appointment of judges happens in a darkroom, between the judiciary and executive. The people of India come to know of the judges only after their appointment. Neither the people are informed in advance, nor does the executive make an open inquiry about judges.

The President appoints Judges to the Supreme Court based on a process, in which the Chief justice and four senior judges of the SC play a very dominant and decisive role. The entire process of appointment of judges happens in the backyard and under the carpet without the involvement of the people, which is cited by many as a serious flaw of the Indian legal system. The judges hold the office up to the age of 65 years.

Amendment of the Constitution

There are two ways to amend the US Constitution:

1. Proposed by the Congress and ratified by the States

-Amendment to be passed by 2/3rd majority in both the Houses

-To be ratified by the State Legislatures of at least 3/4th of the States

 2. Proposed by States and ratified by the States

-2/3rd of the States should pass a resolution to this effect

-They will communicate to the Congress. The Congress will call the convention.

-In the convention, it has to be ratified by 3/4th of the States

In case of India, the amendment process is easy and flexible as compared to the US.

In India, it is only the Parliament that can propose an amendment to the Constitution and States do not have any role to play in this matter. While some of the Articles can be amended by a simple majority,

While some of the Articles can be amended by a simple majority, a special majority is required for others, and in some limited Articles, ratification by more than half of the States is also required. The majority here means the majority of the Members of the Parliament present on the date of the amendment and is not related to the total strength of the Parliament.

The fact that the US Constitution got amended only 27 times in the last 225 years, shows how rigid it is to amend the US Constitution, in contrast to the Indian Constitution.

CLICK:-REGISTER & DISCUSS ETHICS CASE STUDIES & YOUR UPSC PREPARATION WITH CD MENTORS FOR FREE

Salient Features

• Unwritten

One of the most important features of the British constitution is its unwritten character. There is no such thing as a written, precise and compact document, which may be called as the British constitution. The main reason for this is that it is based on conventions and political traditions, which have not been laid down in any document, unlike a written constitution, which is usually a product of a constituent assembly.

Indian Constitution, in comparison, is the lengthiest written constitution in the world.

• Evolutionary

The British constitution is a specimen of evolutionary development. It was never framed by any constituent assembly. It has an unbroken continuity of development over a period of more than a thousand years. It is said that the British Constitution is a product of wisdom and chance.

The Indian Constitution has certain similarities as well as differences on this particular aspect. It differs from the British Constitution to the extent that it is a written document and has well defined provisions. However, it too is open to evolution, given that the provision of

However, it too is open to evolution, given that the provision of an amendment is kept such, so as to allow for the Constitution to evolve according to the needs and sensibilities of the time.

• Flexibility

The British constitution is a classic example of a flexible constitution. It can be passed, amended and repealed by a Simple Majority (50% of the members present and voting) of the Parliament, since no distinction is made between a constitutional law and an ordinary law. Both are treated alike. The element of flexibility has provided the virtue of adaptability and adjustability to the British constitution. This quality has enabled it to grow with needs of the time.

Indian Constitution, in contrast, is both flexible as well as rigid. This compliments the basic ideology of the Indian Constitution quite well, wherein certain features like Sovereignty, Secularism, and Republic et al have been held sacrosanct, but otherwise the Constitution is amendable.

• Unitary vs. Federal Features

The British constitution has a unitary character as opposed to a federal one. All powers of the government are vested in the British Parliament, which is a sovereign body. Executive organs of the state are subordinate to the Parliament, exercise delegated powers and are answerable to it. There is only one legislature. England, Scotland, Wales etc. are administrative units and not politically autonomous units. The Indian Constitution, on the other hand, is federal.

Unitary	Federal	Confederation
Units come together and form the state.	All power lies with the Centre Powers for Provincial	Government comes from the Constitution.
		Centre delegates power to the provincial government.
Example: India Real power with the units.	Example: Britain Opposite to Unitary	Example: EU, USA

• Parliamentary Executive

This is one important similarity between the British and the Indian Constitution. (In addition to the Sovereignty of Parliament)

Britain has a Parliamentary form of government. The King, who is sovereign, has been deprived of all his powers and authority. The real functionaries are Ministers, who belong to the majority party in the Parliament and remain in office as long as they retain its confidence.

The Prime Minister and his Ministers are responsible to the legislature for their acts and policies. In this system, the executive and legislature are not separated, as in the Presidential form of government

• Sovereignty of Parliament

The term Sovereignty means Supreme Power. A very important feature of the British Constitution is sovereignty of the British Parliament (a written constitution being absent).

The British Parliament is the only legislative body in the country with unfettered power of legislation. It can make, amend or repeal any law. Though in India’s case, we have legislature at state level too, yet the law making power of the Indian Parliament roughly corresponds to that of the British Parliament.

The courts have no power to question the validity of the laws passed by the British Parliament. The British Parliament may amend the constitution on its own authority, like an ordinary law of the land. It can make illegal what is legal and legalize what is illegal.

Here, there is a marked difference, vis-à-vis the power of Indian Judiciary to keep a tab on the legality of the law framed. Also, the ‘Basic Structure’ doctrine, lends the Indian Judiciary further power to question the legality of the law, in light of the fact that the Supreme Court of India is the highest interpreter of the Constitution of India.

• Role of Conventions

Conventions are known as unwritten maxims (rules) of the Constitution. They provide flexibility and avoid amendments.

Most constitutions of the world have conventions. A necessary corollary to the unwritten character of the British Constitution is that conventions play a very vital role in the British political system. For example, while the Queen has the prerogative to refuse assent to a measure passed by the British Parliament, but by convention, she doesn’t do so and the same has become a principle of the constitution itself.

However, the legal status of conventions is subordinate to the written law.

• Rule of Law

Another important feature of the British constitution is the Rule of Law. Constitutionalism or limited government is the essence of Rule of Law. This checks the arbitrary action on part of the Executive. According to Dicey, there are three principles of Rule of Law, found in Britain:

1. Protection from arbitrary arrest and the opportunity to defend oneself.
2. Equality before Law:All persons are equal before law, irrespective of their position or rank. Equality before Law is different from the concept of Administrative Law, which gives immunity of various types to public servants. In the absence of Constitution and Fundamental Rights in Britain, the judiciary protects this law. So this system is called as the Principle of Common Laws (in USA – Principle of Natural Law; in India – Maneka Gandhi case).
3. The rights of people in Britain are guaranteed by the judiciary. The Judiciary gives recognition to the common laws. Thus, the people in Britain enjoy rights, even in the absence of a Bill of Rights or Fundamental Rights.

However it has been seen that Rule of Law isn’t practiced in its real sense.

Several reasons are attributed for it:

1. Growth of Administrative Law
2. Growth of Delegated Legislation
3. Internal and External Emergencies

These developments have been termed as ‘New Despotism’.

• Independence of Judiciary

The Rule of Law in Britain is safeguarded by the provision that judges can only be removed from office for serious misbehavior and according to a procedure requiring the consent of both the Houses of Parliament. So, the judges are able to give their judgments without any fear or favor.

The same has been adopted in India, where independence of Judiciary is hailed as an unmistakable part of the Constitution (one of the features of the ‘Basic Structure’ doctrine).

Organs of the State

Executive

The Executive in Britain is called as Crown. Earlier, the Crown symbolized King. Now, the King is part of the Crown.

The Crown, as an institution, consists of the following:

1. King
2. Prime Minister
3. Council of Ministers (CoM)
4. Permanent Executive, the Civil Servants
5. Privy Council

1. Crown: King is dead. Long live the King. In Britain, initially all power lied with the King. Later on, power shifted out of the institution of the King to the institution of CoM headed by the P.M., Permanent Executive and the Privy Council etc. Today, the Crown comprises of all these institutions. Hence, the first part of the statement describes the King as a person, while the second part describes the King or Crown as an institution.

2. Nature of Monarchy: Britain has a constitutional monarchy and a constitutional monarchy is not incompatible with democracy. This is because essentially the powers of the monarch as head of the state – currently Queen Elizabeth II – are ceremonial. The most important practical power is the choice of the Member of Parliament to form a government, but invariably the monarch follows the convention that this opportunity is granted to the leader of the political party or coalition, which has majority in the House of Commons.

Despite its lack of real power, the monarchy still has several important roles to play in contemporary Britain. These include:

• Representing UK at home and abroad
• Settings standards of citizenship and family life
• Uniting people despite differences
• Allegiance of the armed forces
• Maintaining continuity of British traditions
• Preserving a Christian morality

In addition, consider the following:

Parliamentary system requires two heads:

• First head, as head of the state. He represents the nation and provides continuity to the administration.
• Second head is the head of the government. He has real powers because the house has confidence in the Prime Minister. The P.M. is the leader of the House. He represents the majority of the House.

The institution of kingship is a source of psychological satisfaction. It is said that, “with the King in the Buckingham Palace, the Englishmen sleep peacefully in their houses”. The King is of great help in critical times. He usually has a very long experience and can give valuable advice in the interest of the country.

According to Bagehot, the King has three rights:

• Right to warn
• Right to encourage
• Right to be informed

Abolishing the kingship will require an elected head. An elected head, with no real powers, will have its own set of problems. In contrast, no provision of Monarchy exists in case of Indian Constitution. Indeed, holding of titles like King etc. are forbidden as per Article 18, a Fundamental Right, thus emphasizing Equality of all Indian citizens.

3. British Prime Minister and the Council of Ministers: Britain has a Cabinet form of government. A cabinet is a plural or collegiate form of government. The power doesn’t lie in one person, but the entire Council of Ministers. The principle is, “all Ministers sink and swim together”. It is based on collective responsibility towards the Lower House. The Cabinet has its origins in the Privy Council set up to advise the King. The roles of cabinet include the following:

• Approving policy (major policy making body)
• Resolving disputes
• Constraining the Prime Minister
• Unifying government
• Unifying the parliamentary party

Moreover, the Cabinet is the ultimate body of law making in the Parliamentary system. It is formed out of the party/group, which enjoys majority in the House. The cabinet meetings are held in private.

4. British Prime Minister

• Position of the Prime Minister

1. M. is the captain of the ship of the state.
2. M. is the head of the Cabinet.
3. The party of the P.M. enjoys majority in the House.
4. He is the connecting link between the King and the Cabinet as well as the King and the Parliament.
5. The life of the House depends on the P.M. He may advice the dissolution of the House.
6. The other Ministers are appointed on the advice of the P.M.
7. The term of the other Ministers also depends on the P.M.

The P.M. as first among equals

This is also called as Primus Inter Pares or Inter Stella Luna Minores.

This explains the P.M.’s position w.r.t. other ministers. In the cabinet system, there is a principle of collective responsibility; hence other ministers are also important.

The relative position of the P.M. and other ministers in a Parliamentary system can be compared to the relative position of the President and his secretaries in the Presidential system. In the Presidential system, members of the Cabinet are chosen by the President. In USA, spoils system exists.

The Secretaries are not members of the Congress. In the Parliamentary system, ministers are also the members of either House. The P.M. cannot treat them as his subordinates.

Theoretically, the P.M. should consider himself as only first among equals, must give due respect to other members of the Cabinet and should take decisions in consultation with them. However, the P.M. is first because:

• He is the one who is appointed first, since he is the leader of the House of Commons.
• Other ministers are appointed on his advice.
• Other ministers can be removed on his advice.

P.M. as moon among stars

This statement gives a more realistic view of the position of P.M. In practice, the P.M. gains prominence and he is not simply the first among equals. Both formal and informal factors are responsible for this.

• Formal Factors:He is the link between the Parliament and the King, and ministers are appointed/removed on his advice etc.
• Informal Factors:Personality factors, position of his party, external/internal emergency like situation

Difference between the British and Indian PM

Constitutional position of the Indian P.M. is modeled on the British P.M., with one difference. In India, the PM can be a member of either House of Parliament, i.e. Lok Sabha or Rajya Sabha. However, this is not so in Britain. It is a convention in Britain that the P.M. will always be a member of the Lower House (House of Commons) only.

Privy Council

It has been one of the advisory bodies to the King. It has lost relevance because of the emergence of the Cabinet. Cabinet decisions are the decisions of the Privy Council. It has some supervisory role w.r.t. University of Oxford, Cambridge etc. It also has some role in resolution of disputes related to the Church as well as a Court of Appeal in some admiralty cases.

Permanent Civil Servants/British Bureaucrats

Indian bureaucracy is modeled on the British bureaucracy.

Some features:

• Bureaucracy in Britain is generalist
• They are expected to be politically neutral
• Recruited through competitive exams
• Enjoy a lot of immunities
• It is said that the British bureaucracy is not representative. It is still elitist
• Bureaucrats are known as New Despots
• It is said that the Bureaucracy thrives behind the cloak of ministerial responsibility
• It has also been compared with Frankenstein’s monster (overpowering the Ministers)

Legislature

Essential differences between the two systems

There is a natural tendency to compare the Parliament of India with the British Parliament.

But our Parliament and Parliamentary Institutions and procedures are not a copy of the Westminster system. There are fundamental differences between their system and ours.

British Parliament has grown through some three hundred years of history. In Britain, the Parliament can said to be the only institution, which exercises sovereign powers and on which there are no limits because there is no written constitution.

India, on the other hand, has a written constitution. Powers and authorities of every organ of the Government and every functionary are only as defined and delimited by the constitutional document.

The power of Parliament itself is also clearly defined and delimited by the Constitution. However, within its own sphere, the Parliament is supreme. Also, Parliament is a representative institution of the people.

But it is not sovereign in the sense in which the British Parliament is sovereign and can do or undo anything. The point is that in the sense of constitutional sovereignty, their powers are not limited by a constitutional document.

Moreover, our constitutional document provides for fundamental rights of the individual, which are justiciable in courts of law. And any law passed by the Parliament, which abridges any of the fundamental rights can be declared ultra vires by the courts.

The courts adjudicate the disputes and while doing so, they can interpret the constitution and the laws. Also, Parliament has the constituent powers and within certain limitations it can suitably amend the constitution.

The British Parliament is bicameral, that is there are two houses or chambers – The House of Lords (strength not fixed) and The House of Commons (strength fixed at 650 members). The House of Lords has hereditary members. Moreover, it has the largest number of Life Peers, Church/Religious peers (Ecclesiastical Peers) and Law Lords.

The House of Lords

The House of Lords is the second chamber, or upper house, of the United Kingdom’s bi-cameral (two chamber) Parliament. Together with the House of Commons and the Crown, the House of Lords form the UK Parliament. There are four types of members of the house:

1. Life peers:These make up the majority of the membership. The power to appoint belongs formally to the Crown, but members are essentially created by the Queen on the advice of the Prime Minister. Life peers’ titles cease on death.
2. Law lords:Up to 12 Lords of Appeal in Ordinary are specially appointed to hear appeals from the lower courts. They are salaried and can continue to hear appeals until they are 70 years of age.
3. Bishops:The Anglican Archbishops of Canterbury and York, the Bishops of Durham, London and Winchester and the 21 senior Diocesan Bishops from other dioceses of the Church of England hold seats in the House. This is because the Church of England is the ‘established’ Church of the State. When they retire the bishops stop being members of the House.
4. Elected Hereditary peers:The House of Lords Act, 1999 ended the right of hereditary peers to sit and vote in the House of Lords. Until then there had been about 700 hereditary members. While the Bill was being considered, an amendment was passed (known as the Weatherill amendment after Lord Weatherill who proposed it), which enabled 92 of the existing hereditary peers to remain as members.

The House of Lords can propose and make changes, known as amendments. However its powers are limited; if it doesn’t approve of a piece of legislation, it can only delay its passage into law for up to a year. After that, there are rules to ensure that the wishes of the House of Commons and the Government of the day prevail.

In fact, the House of Lords could be labeled as one of the weakest upper house in the world. Since the passage of the Act of 1919 and 1949, the House of Lords has lost all real legislative powers. It is simply a delaying chamber now. It can delay an ordinary bill for a maximum period of one year and money bill for a maximum period of one month.

In comparison to Rajya Sabha, the House of Lords is a weak house. Rajya Sabha has equal powers with Lok Sabha, as far as an ordinary bill is concerned (though, there is provision of a joint session, but it is an extraordinary device).

Rajya Sabha has equal power with Lok Sabha as far as the amendment of the Constitution is concerned. Rajya Sabha is also a delaying chamber, like the House of Lords, as far as a Money Bill is concerned. Rajya Sabha can delay the bill for a maximum of fourteen days. Rajya Sabha does have some special powers, which are not available to Lok Sabha; for example: Articles 249 and 312.

Comparison between the House of Lords and Senate of USA

• Senate is called as the strongest Upper House. It enjoys equal power with the House of Representative in the context of an Ordinary Bill, a Constitutional Bill and even in passage of a Money Bill. It is customary to introduce Money Bill in the Lower House.
• The Senate also enjoys some special powers not available to the House of Representatives. For example, ratification of international treaties, ratification of higher appointments. The House of Lords did enjoy a privilege that it used to be the highest Court of Appeal in Britain. But this has now ceased to exist, as the Supreme Court has been created by the Constitutional Reform Act, 2005 (SC established in 2009).

The House of Commons

This is the lower chamber, but the one with most authority. It is chaired by the Speaker.

Unlike the Speaker in the US House of Representatives, the post is non-political and indeed, by convention, the political parties do not contest the Parliamentary constituency held by the Speaker. The number of members varies slightly from time to time to reflect population change.

In modern practice, the Prime Minister is the head of the Government and is always a member of the majority party or coalition in the House of Commons.

The Cabinet comprises primarily leading House of Commons Members of the majority, although Members of the House of Lords have served as Cabinet ministers. In fact, designating someone outside Parliament as a “life peer” has been one recent means of bringing someone essentially from private life into the Government.

The Prime Minister, although head of the Government and an MP, is now not usually the Leader of the House of Commons.

The Leader of the House of Commons, a member of the Government, is the chief spokesman for the majority party on matters of the internal operation of the House of Commons.

The Office of the Leader issues announcements of the impending House of Commons schedule, and a routine inquiry from the Opposition’s counterpart serves as an occasion for the Leader to announce the business for the next two weeks of session.

In the House of Commons, party organizations (akin to the Republican Conference or Democratic Caucus) meet regularly to discuss policy, and to provide an opportunity for backbench party members to voice their views to ministers or shadow cabinet members in a private forum.

The Position of Speaker of the House of Commons and its Comparison with the Indian and American Speaker

Features of British Speaker

The position of the Speaker is a position of great prestige and dignity. In UK, there is a convention that once a Speaker, always a Speaker. It means that a Speaker’s constituency is unchallenged. Once a person is appointed as a Speaker he gives formal resignation from his political parties. He has a casting vote and ultimate disciplinary powers with respect to the conduct of the House and MPs.

US Speaker (Speaker of House of Representatives)

He is expected to be a party man, not expected to be neutral; instead he favours his party. He does not have final disciplinary powers, which lie with the House itself. In USA, the Speaker can vote in the beginning.

Speaker of Lok Sabha

Though our position is midway between the British and the US model, it is theoretically closer to the British model. But similar conventions do not exist. For instance:

• It is not necessary for the Speaker to resign from his party
• If he decides to resign, he will not be disqualified under the Anti-defection law.
• No convention in India that he will be elected uncontested.

Judiciary

Under the doctrine of Parliamentary sovereignty, the judiciary lacks the intrinsic power to strike down an Act of Parliament. However, the subordination of common law to statute law does not mean the subordination of the Judiciary to the executive. Courts in Britain retain certain powers:

• Of interpreting the precise meaning of a statute.
• Of reviewing the actions of ministers and other public officials by applying the doctrine of ultra vires (beyond powers).
• Of applying the concept of natural justice to the actions of ministers and others.

Because Parliament is sovereign, the government can seek to overturn the decisions of the courts by passing amendment legislation. The power of judicial review provides the judiciary with a potentially significant role in the policy process.

In recent decades, there has been an upsurge in judicial activism for several reasons:

• Judges have been more willing to review and quash ministerial action
• British membership of the EU
• The incorporation of the ECHR (European Convention on Human Rights) into domestic law
• Devolution of powers to elected assemblies in Scotland, Wales and Northern Ireland
• The creation of a Supreme Court in 2009.

Comparison between the Indian and British Judiciary

• Differences

1. In case of British system, the lack of concept of ‘Basic Structure’ makes amending power of the Parliament supersede any judicial pronouncement. Whereas, in case of the Indian Judiciary system, the concept of ‘Basic Structure’ has provided a potent tool to Judiciary by which it can scuttle down any Executive or Legislative action, which it deems as against the basic spirit of the Constitution.
2. British legal system is completely based on ‘Common Law System’. Common Law System implies that law is developed by the judges through their decisions, orders, or judgments (also referred to as precedents). However, unlike the British system, which is entirely based on the Common Law System, where it had originated from, the Indian system incorporates the Common Law System along with the statutory and regulatory laws.

• Similarities

1. The actions of Executive can be declared ultra vires in both the systems
2. The judiciary is considered the highest interpreter of the Constitution
3. Off late, there has been a splurge in judicial activism in Britain and judiciary is becoming more and more active. A similar evolution of judiciary has been noticeable in the Indian case too

Note: By Constitutional Reform Act, 2005 the Supreme Court has come into existence as the highest Court of Appeal. A National Judicial Appointment Commission has also been introduced.

Brief Synopsis of comparison drawn above

British Constitution

1. Product of history and the result of evolution
2. There is a difference between theory and practice
3. Flexible and unitary constitution
4. Parliamentary government
5. Rule of law and civil liberties applicable

Indian Constitution	British Constitution
Written	Unwritten
Federal	Unitary
Power is divided between Centre and states	Power is the with the Centre
No Monarchy/Republic	Has King/Queen

Comparison between British Monarch and Indian President

British Monarch	Indian President
Position of the King is hereditary	Elected
King enjoys absolute immunity; it’s said that King can do no wrong	In India the President can be impeached for violation of the Constitution
King has no discretionary powers. He is known as ‘Golden Zero’	In India there was a lack of clarity w.r.t. the Indian President. There was confusion whether he has any discretionary power or is merely a rubber stamp.   • 24th Amendment clarifies that he doesn’t have any discretionary powers. Real power lies with the PM, while the President is merely a ‘rubber stamp’. • 44th Amendment Act again changed the stand, providing some scope for Presidential discretion. He could now send the request back to the CoM, though only once.

Comparison between British Monarch and the US President

British Monarch	US President
King as titular head	US President is both – a real as well as titular head
Hereditary Elected and can be impeached	No discretionary powers Real executive powers, subject to checks and balances

The UPSC is a central agency that has great responsibility for conducting examinations pertaining to Civil Services, Engineering Services, Defence Services, and Medical Services. It also conducts Economic Service, Statistical Service, and Police Forces examination.

The Union Public Service Commission of India was formed by the British Government during the British rule. In 1924, Lee Commission had suggested in its report for the establishment of an independent and impartial Public Service Commission for India and on the basis of such recommendation, the Union Public Service Commission was established in 1926.

Consequently by the government of India Act 1935, Public Service Commission was established separately for both the central and the state government services. After independence, arrangements were made to establish an independent and neutral Union Public Service Commission for the said purpose following the pattern adopted in the Government of India Act 1935.

Constitutional Provisions

1. Article 315 to 323 of Indian Constitution has a provision for such an agency.
2. According to Act 315 of the constitution of India, there shall be a permanent Union Public Service Commission for appointment to the various posts of the central government services.
3. Similarly, as Act 318 of the constitution of India also stated that the Union Public Service Commission will be constituted with a chairman and a fixed number of members; the number of such members and the terms and conditions of their service is to be determined by the President of India. The President, as such, appoints the Chairman and other members of the commission for a period of six years.

Appointment and Tenure

1. The Commission consists of a Chairman and ten other members. They are appreciative to follow the rules mentioned in Union Public Service Commission (Members) Regulations, 1969.
2. All the members of the commission are appointed by the President of India with at least half of the members being the Civil Servants (working or retired) with no less than ten years of experience in Central or State service.
3. The Constitution of India has also espoused certain measures to guarantee the neutrality and fairness of the U.P.S.C.
4. The Chairman of the Union Public Service Commission has not been authorized to take any office of profit under the central or any of the state governments after his retirement from service as chairman.
5. Furthermore, before the expiry of their term of service, the executive cannot remove the Chairman or any of the members of the commission from their service. They can be removed only through the means stipulated in the constitution. Apart from this, once these members are appointed the terms and conditions of their services cannot be changed.
6. Art. 322 announces that the remuneration and allowances of these members including the chairman will be considered as expenditure charged upon the Consolidated Fund of India, which means that their salaries and allowances are not subjected to the approval of the Parliament.
7. The Secretariat of UPSC is led by a Secretary, two additional secretaries, joint secretaries, and deputy secretaries.
8. Every member can hold office for six years or till the time he attains the age of 65 years, whichever is earlier.
9. A member can submit his resignation at any time to the President of India.
10. On the other side, the President can eliminate him on the basis of misbehaviour.
11. The UPSC submits a report of its work to the President annually. The report is then tabled in both houses of Parliament for discussion. The President places a memorandum in relation to the cases where the commission’s recommendations were not accepted. The memorandum elucidates the reasons for non-acceptance.

Functions of Union Public Service Commission

The duty of the Union Public Service Commission will be to conduct examinations for appointment to the services of the Union. Art. 320 of the constitution of India have categorically itemized the functions of the Union Public Service Commission (Tummala, 1994).

1. 1. Foremost function of Union Public Service Commission is to advocate for appointment in administrative services the meritorious and potential young men and women after selecting them through All India competitive examinations.
   2. Another function of U.P.S.C. is to assists them in framing and operating schemes of joint recruitment for any service for which candidates possessing special qualification.
   3. Union Public Service Commission advises the President on “all matters relating to methods of recruitment to civil services and for civil posts.
   4. Principles to be followed in making appointments to civil services and posts and in making promotions and transfers from the service to another and on the suitability of candidates for such appointments promotions or transfer.
   5. Next function is to look at all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matter.

Other functions of Union Public Service Commission are as under:

1. To conduct examinations for appointment to the services of the Union and conduct interviews for direct recruitment.
2. To advise on any matter referred to them and on any matter which the president may refer to the appropriate commission.
3. To exercise such additional functions as may be provided for by an Act of Parliament regarding the services of the Union and also with respect to the services of any local authority constituted by law.
4. It shall be the duty of the Union Public Service Commission if requested by any two or more states, to assist those States in framing and operating schemes of joint recruitment for any service.
5. It is generally compulsory for the Government of India to consult the Union Public Service Commission in respect of all the above matters. Nevertheless, the President has the power to make rules, specifying the matters in which, either generally or in particular circumstances the commission may not be consulted. Under the Union Public Service Commission (exemption from consultation) regulations framed by the President in 1958, it is not obligatory for the President to consult the U.P.S.C. in the following cases.
6. Posts in respect of which the authority of appointment, has specifically been conferred by the constitution in the President, Chairman of members of any Board, Tribunal Commission, Committee or any other similar authority, created under a statute or under the authority of a resolution of either Houses of the Parliament or by a resolution of the government of India for conducting an enquiry into any matter or advising the government of specified matters.
7. Posts concerned with the administration of North-East Frontier Agency and any service or post in respect of which the commission has agreed that it is not necessary for it to be consulted. The temporary and officiating appointments can also be made without consulting the U.P.S.C. provided the incumbent is not likely to hold the post for more than a year. But intimation has to be sent to the commission regarding such appointment as soon as the posts are filled. Similarly there is no need to make any reference to the commission regarding the reservation of posts in favour of backward classes, Scheduled Castes, Schedule Tribes.

Independence of UPSC

The Constitution has made the following provisions to safeguard and ensure the independent and impartial functioning of the UPSC:

1. 1. The chairman or a member of the UPSC can be removed from office by the President only in the manner and on the grounds mentioned in the Constitution. Thus, they enjoy security of tenure.
   2. The conditions of service of the chairman or a member, though determined by the President, cannot be varied to his disadvantage after his appointment.
   3. The entire expenses including the salaries, allowances, and pensions of the Chairman and members of the UPSC are charged on the Consolidated Fund of India and are not subject to the vote of Parliament.
   4. The chairman of the UPSC on ceasing to hold office is not eligible for further employment in the Government of India or any state.
   5. A member of the UPSC is eligible for appointment as the Chairman of UPSC or a State Public Service Commission but not for any other employment in the Government of India or any state
   6. The chairman or a member of UPSC is not eligible for reappointment to that office for a second term.

UPSC and Central Vigilance Commission

Since the emergence of CVC, the role of UPSC in disciplinary matters has been affected. Both are consulted by the government while taking disciplinary action against a civil servant. Here, UPSC being an independent body has an edge over CVC which got statutory status in 2003. Recently, in order to ensure speedy

Here, UPSC being an independent body has an edge over CVC which got statutory status in 2003. Recently, in order to ensure speedy finalisation of disciplinary matters and to avoid possibilities of the difference of opinion between UPSC and CVC, it has been decided as a policy to prescribe only one consultation- either with CVC or UPSC. However, in disciplinary cases wherein UPSC is not required to be consulted, the consultation with CVC would continue to be made.

However, in disciplinary cases wherein UPSC is not required to be consulted, the consultation with CVC would continue to be made.

Exemptions

In order to exempt some posts which for reasons of National Security or some other reasons may not be required to be referred to the Commission for their advice, the Union Public Service Commission (Exemption from Consultations) Regulations were issued on September 1, 1958, under Article 320(3)(a) and (b) of the Constitution. These Regulations are amended or revised as and when the need arises. The following matters are kept outside the purview of UPSC:

1. While making reservations of appointments or posts in favour of any backward class of citizens
2. While taking into consideration the claims of scheduled castes and scheduled tribes in making appointments to services and posts
3. With regard to the selections for chairmanship or membership of commissions or tribunals, posts of the highest diplomatic nature and a bulk of group C and group D services
4. With regard to the selection for temporary appointments for not more than a year

The President can exclude posts, services and matters from the purview of the UPSC. The President can also, in respect to the all-India services and Central services and posts may make regulations specifying the matters in which it shall not be necessary for UPSC to be consulted. All such regulations shall be laid before the Parliament which can amend or repeal them.

Mechanisation – Project Sampera

The Commission has recently undertaken a project called “SAMPERA” (Screening and Mechanised Processing of Examination and Recruitment Applications). A simplified single sheet common application form for all the examinations has been devised which will be scanned by using OMR/ICR technology.

The implementation of this project will mainly help in high speed scanning of data from forms eliminating manual entry. Other benefits will be accurate and faster generation of Admit Cards, Attendance lists with photo replica and signature facsimile of each candidate, and Error-free list of doubtful cases.

The main aim of this project is to cope with the increasing volume of applications through innovations and mechanised handling so as to reduce the processing time and send communications faster to minimized errors. The cases of impersonation/malpractices will also be eliminated and wasteful expenditure will be reduced.

Suggestions for rejuvenating UPSC

1. 1. To serve as a think-tank on personnel issues: It should go beyond the recruitment role to answer evolving issues relating to civil services and their role in a rapidly changing society.
   2. Association of Research Institutes and Universities in the functioning of UPSC: Services are often out of touch with new developments in technology and knowledge. UPSC should liaison with such institutions to conduct regular specially designed courses for administration
   3. Need of Decentralisation on the pattern of US: The increase in work of the commission has been manifold, it currently handles more than 14 lakh applications and scrutinises and advises in regard to 650 Recruitment Rules of different services/posts. There is a need of decentralization to effectively align with this increase in workload
   4. Keep in sync with changing times: UPSC so far has worked with remarkable competence, impartiality and integrity.

However a new world based on openness, accountability and delivery has emerged. UPSC needs to be in sync with these changes.

Powers of Union Public Service Commission (U.P.S.C)

Main power of Union Public Service Commission is its advisory power. It can give advises to the President and the governors of any State of the following affairs:

1. On all matters related with the appointment of the civil services of the governments.
2. The evaluation of the standard and efficiencies of the candidates for appointment, promotion or transfer in all civil posts.
3. On all matters regarding the discipline and punctuality of the employees of All India Services.
4. Affairs associated with the demands and benefits of employees working under the All India Civil Services and injured while on duty.
5. Whether the payment or expenditure for any work of an employee of All India Civil Services will be borne by the consolidated fund of India.
6. Regarding discipline and promptness in government functions of paying compensation to a government employee if he suffers any problem or financial loss due to the negligence on the part of the government, matters related with the punishment measures of those employees who have violated discipline or of all matters related with the interest of the government employees working under the central government.

The Constitution of India has made the Public Service Commission a simple advisory institution which is required to give advises to the subject sent to it by the President of India or by the Governors of the States. But to accept or refuse advises is the absolute discretion of the respective governments.

This is because India has adopted a responsible self-governing government where in the council of ministers cannot delegate its responsibilities to their employees to any other organization. Though at the same time, it should not neglect advises made by a commission consisting of experienced and expert persons.

In brief, The UPSC is the central recruitment agency in India. It is a sovereign constitutional body being directly created by the Constitution of India.

CLICK:-REGISTER & DISCUSS ETHICS CASE STUDIES & YOUR UPSC PREPARATION WITH CD MENTORS FOR FREE

The Election Commission of India, abbreviated as ECI is a constitutional body responsible for administering elections in India according to the rules and regulations mentioned in the Constitution of India.

It was established on January 25, 1950. The major aim of election commission of India is to define and control the process for elections conducted at various levels, Parliament, State Legislatures, and the offices of the President and Vice President of India. It can be said that the Election Commission of India ensures smooth and successful operation of the democracy.

According to Article 324 of Indian Constitution, the Election Commission of India has superintendence, direction, and control of the entire process for conduct of elections to Parliament and Legislature (state legislative assembly & state legislative council) of every State and to the offices of President and Vice-President of India.

Initially, the commission had only a Chief Election Commissioner. Presently, it consists of a Chief Election Commissioner and two Election Commissioners. For the first time, two additional Commissioners were appointed on 16th October 1989 but they had a very short term till 1st January 1990. Afterwards, on 1st October 1993 two additional Election Commissioners were appointed. The concept of multi-member Commission has been in operation since then, with decision-making power by majority vote.

Appointment & Tenure of Commissioners

1. The President has the power to select Chief Election Commissioner and Election Commissioners.
2. They have tenure of six years, or up to the age of 65 years, whichever is earlier.
3. They have the same status and receive pay and perks as available to Judges of the Supreme Court of India.
4. The Chief Election Commissioner can be removed from office only through accusation by Parliament.
5. Election commissioner or a regional commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.

Advisory Jurisdiction & Quasi-Judicial Functions

1. Under the Constitution, the Commission also has advisory jurisdiction in the matter of post-election ineligibility of sitting members of Parliament and State Legislatures.
2. Additionally, the cases of persons found guilty of dishonest practices at elections which come before the Supreme Court and High Courts are also referred to the Commission for its opinion on the question as to whether such person shall be disqualified and, if so, for what period. The judgment of the Commission in all such matters is binding on the President or, as the case may be, the Governor to whom such opinion is tendered.
3. The Commission has the power to prohibit a candidate who has failed to lodge an account of his election expenses within the time and in the manner set by law.
4. The Commission has also the power to remove or reduce the period of such disqualification as also other disqualification under the law.

Administrative Powers

1. To decide the territorial areas of the electoral constituencies throughout the country on the basis of the Delimitation Commission Act of Parliament.
2. To organize and periodically amend electoral rolls and to register all qualified voters.
3. To inform the dates & schedules of election and to scrutinize the nomination papers.
4. To grant recognition to political parties & allot election symbols to them.
5. To act as a court for settling disputes related to granting of recognition to political parties and allotment of election symbol to them.
6. ECI appoints the following-

1. 1. Chief Electoral Officer– ECI in consultation with State Government/Union Territory Administration nominates or designates an Officer of the said State/UT as the Chief Electoral Officer to supervise the election work in the State/UT
   2. District Election Officer– ECI in consultation with the State Government/ Union Territory Administration designates an officer of the said State/UT as the District Election Officer to supervise the election work of a district
   3. Returning Officer– ECI in consultation with State Government/Union Territory Administration nominates or designates an officer of the Government or a local authority as the Returning Officer for each assembly and parliamentary constituency. Returning Officer is responsible for the conduct of elections in the parliamentary or assembly constituency and may be assisted by one or more Assistant Returning Officers (again appointed by ECI) in the performance of his functions
   4. Electoral Registration Officer– ECI appoints the officer of State or local government as Electoral Registration Officer for the preparation of Electoral rolls for a parliamentary/ assembly constituency

Role of Election Commission of India

Election commission plays a vital role in organizing elections. The most critical challenge before the Election Commission of India is to implement norms and the Model Code of Conduct to ensure free and fair elections in the country. Its existence and independence are necessitated by history, which has revealed that self-governing elections are not free from disruption. Towards this end, it has been empowered to supervise political parties and candidates and take appropriate action in case of violations.

Functions and Powers

Key functions of the Election Commission of India are as under:

1. 1. The Election Commission of India is considered the guardian of free and reasonable elections.
   2. It issues the Model Code of Conduct in every election for political parties and candidates so that the decorum of democracy is maintained.
   3. It regulates political parties and registers them for being eligible to contest elections.
   4. It publishes the allowed limits of campaign expenditure per candidate to all the political parties, and also monitors the same.
   5. The political parties must submit their annual reports to the ECI for getting tax benefit on contributions.
   6. It guarantees that all the political parties regularly submit their audited financial reports.

Other powers handled by the Election Commission of India are as follows:

1. 1. The Commission can repress the results of opinion polls if it deems such an action fit for the cause of democracy.
   2. The Commission can recommend for disqualification of members after the elections if it thinks they have violated certain guidelines.
   3. In case, a candidate is found guilty of dishonest practices during the elections, the Supreme Court and High Courts consult the Commission.
   4. The Commission can postpone candidates who fail to submit their election expense accounts timely.

The main duties of the Election Commission are:

1. To supervise, direct, control and conduct all elections to Parliament and State Legislatures as also to the office of the President and Vice- President of India.
2. To set down general rules for election.
3. To determine constituencies and to prepare electoral rolls.
4. To give credit to political parties.
5. To allot election symbols to different political parties and individual contestants.
6. To appoint tribunals for the decision of doubts and disputes arising out of or in connection with election to parliament and State Legislatures.

Constitutional Provisions

1. Art. 324: broadly speaks of the functions of EC and its composition.
2. Art. 325: there shall be one general electoral roll for every territorial constituency for election to either Houses of Parliament and State legislature. It establishes equality among citizens by affirming that no person shall be ineligible for inclusion in the electoral roll on the grounds of religion, race, caste or sex.
3. Art. 326: lays down adult suffrage as the basis of elections to the Lok Sabha and to the Legislative Assemblies of States.
4. Art. 327: confers on Parliament the power to make provisions with respect to elections to federal and State Legislatures
5. Art. 328: confers on State Legislature the power to make laws with respect to elections to such legislature
6. Art. 329: bars interference by courts in electoral matters. Notwithstanding anything said in the constitution i.e. validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies shall not be called in question in any court

No election to either House of Parliament or either House of the Legislature of a State shall be called in question except by an election petition. Any elector or candidate can file an election petition on grounds of malpractice during the election. In respect of elections to the Parliament and State Legislatures, they can only be filed before the High Court and in respect of elections for the offices of President and Vice President, such petitions can only be filed before the Supreme Court.

Are the commissioners and the CEC equal?

1. In S.S. Dhanoa vs Union of India (1991), the SC held: “The chief election commissioner does not appear to be primus inter pares, i.e. first among equals, but he is intended to be placed in a distinctly higher position”
2. In T.N. Seshan vs Union of India (1995), the SC held that the CEC and ECs are equal. CEC is given the power of recommending the removal of ECs with the intention of shielding them and not to use it against them. CEC cannot use its suo moto as he is an equal to them.

The Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Act, 1991, as amended, provides that in case of difference of opinion on any matter, such matter shall be decided by the opinion of the majority. Thus the CEC cannot over-ride any decision of the commission by himself. As Chairman of the Election Commission he presides over the meetings, conducts the business of the day and ensures smooth transaction of business of the commission.

Independence of the Election Commission

Article 324 of the Constitution has made the following provisions to safeguard and ensure the independent and impartial functioning of the election commission:

1. The CEC is provided with the security of tenure. He holds office for a term of 6 years from the date he assumes office or till he attains the age of 65 years, whichever is earlier
2. Art. 324(5) says that the CEC cannot be removed from his office except in like manner and on like grounds as a Judge of the Supreme Court i.e. he can be removed by the president on the basis of a resolution passed to that effect by both the Houses of Parliament with special majority, either on the ground of proved misbehaviour or incapacity
3. Any other election commissioner or a regional commissioner cannot be removed from office except on the recommendation of the CEC
4. The service conditions of the CEC cannot be varied to his disadvantage after his appointment
5.  

Some flaws:

1. 1. The Constitution has not prescribed the qualifications (legal, educational, administrative or judicial) of the members of the Election Commission.
   2. The Constitution has not debarred the retiring election commissioners from any further appointment by the government.
   3. The administrative expenses of the EC or the salaries, allowances, and pensions of the CEC and ECs are not charged on the Consolidated Fund of India.

Electoral Reforms

• Model Code of Conduct

EC first issued a Model Code of Conduct for political parties at the time of the fifth general elections, held in 1971. Since then, the Code has been revised from time to time and lays down guidelines as to how political parties and candidates should conduct themselves during elections.

A provision was made under the Code that from the time the elections are announced by the Commission, Ministers and other authorities cannot announce any financial grant, make promises of construction of roads, carry out any appointments in government and public undertakings which may have the effect of influencing the voters in favour of the ruling party.

Despite the acceptance of the Code of Conduct by political parties, cases of its violation have been on the rise. It is a general complaint that the party in power at the time of elections misuses the official machinery to further the electoral prospects of its candidates.

The misuse of official machinery takes different forms, such as issue of advertisements at the cost of public exchequer, misuse of official mass media during election period for partisan coverage of political news and publicity regarding their achievements, misuse of government transport including aircraft/helicopter, vehicles.

• Disclosure of Antecedents by Candidates

In June 2002, the EC on the direction of the Supreme Court, issued an order under Article 324 that each candidate must submit an affidavit regarding the information of his/her criminal antecedents; assets (both movable and immovable) of self and those of spouses and dependents as well; and qualifications at the time of filing his/her nomination papers for election to the Lok Sabha, the Rajya Sabha and the State Legislative Assemblies.

But political parties believed that the EC and the judiciary were overstepping their powers. At the all-party meeting, held on July 8, 2002, representatives of 21 political parties decided that the EC’s order should not be allowed to be implemented. The Supreme Court again came out as a guardian of the citizen’s right to information.

The Supreme Court made it clear that failing to furnish the relevant affidavit shall be considered as a violation of the Supreme Court’s order and as such the nomination papers shall be liable to be rejected by the Returning Officer.

Furnishing of wrong or incomplete information shall result in the rejection of nomination papers, apart from inviting penal consequences under the Indian Penal Code. The 2004 General Elections were conducted under these rules.

The above order is an effective step to make democracy healthy and unpolluted. Citizens have every right to know about the persons whom they prefer as their representatives.

The EC has directed all Returning Officers to display the copies of nomination papers and affidavits filed by candidates to the general public and representatives of print and electronic media, free of cost.

• Registration of Political Parties

The party system is an essential feature of parliamentary democracy. However, there is no direct reference to political parties in the Constitution of India. The statutory law relating to registration of political parties was enacted in 1989 which was quite liberal.

As a result, a large number of non-serious parties mushroomed and got registered with the Commission. Many of them did not contest elections at all after their registration. It led to confusion among electors as to whom to vote. To eliminate the mushrooming of parties, the EC had to take some rigorous steps:

1. The Commission now registers a party which has at least 100 registered electors as its members and is also charging a nominal processing fee of Rs 10,000 to cover the administrative expenses which it will have to incur on correspondence with the parties after their registration.
2. In order to ensure that the registered political parties practice democracy in their internal functioning, the Commission requires them to hold their organizational elections regularly in accordance with their constitutions.

The measures taken by the EC to streamline the registration of political parties have shown effective results.

• Checking Criminalisation of Politics

The EC has expressed its serious concern over the entry of anti-social and criminal persons into the electoral arena. It has set down norms and made recommendations to the government to curb the menace of criminalization of politics.

1. The Commission has urged all political parties to reach a consensus that no person with a criminal background will be given the party ticket.
2. The candidates to an election are also obliged to submit an affidavit in a prescribed form declaring their criminal records, including convictions, charges pending and cases initiated against them. The information so furnished by the candidates is disseminated to the public, and to the print and electronic media.

• Limits on Poll Expenses

To get rid of the growing influence and vulgar show of money during elections, the EC has fixed legal limits on the amount of money which a candidate can spend during the election campaign. These limits are revised from time to time. The EC, by appointing expenditure observers keeps an eye on the individual accounts of election expenditure made by a candidate during election campaign. The contestants are also required to give details of expenditure within 30 days of the declaration of the election results.

Apart from this, the EC is also in favor of holding the Lok Sabha and the Assembly elections simultaneously, and to reduce the campaign period from 21 to 14 days. This, they feel, will lead to trim down the election expenditure.

Use of Scientific and Technological Advancements

• EVMs:

EC has been trying to bring improvements in election procedures by taking advantage of scientific and technological advancements. The introduction of ‘electronic voting machines’ (EVMs) is one of the steps in that direction by reducing malpractices and also improving the efficiency of the voting process.

On an experimental basis, the EVMs were first tried in the State of Kerala during the 1982 Legislative Assembly Elections. In June 1999 Assembly elections, Goa became the first State to successfully use EVMs in all its Assembly constituencies.

In the 2004 Lok Sabha elections, the machines were used all over the country. It is a major initiative taken by the EC to make the electoral process simple, quick and trouble-free. It has saved money, solved several logistical issues and also contributed to the conservation of the environment through saving of paper. Another major advantage of these machines is that the counting of votes becomes more fast and accurate.

• IT

EC has not lagged behind in making use of Information Technology for efficient electoral management and administration. It launched a website of its own in 1998.

This is now a good source to have accurate information about elections, election laws, manuals and handbooks published by the Commission.

• Computerization of Electoral Rolls

With a view to prevent impersonation of electors at the time of voting and to eliminate bogus and fictitious entries into electoral rolls, EC took a bold step in 1998 to take a nationwide program for the ‘computerisation’ of electoral rolls.

The printed electoral rolls, as well as CDs containing these rolls, are available to the general public for sale national and State parties are provided these free of cost after every revision of electoral rolls.

The entire country’s electoral rolls are available on its website. Karnataka became the first State to prepare electoral rolls with the photographs of voters in the 2008 elections.

• EPICs:

In an attempt to improve the accuracy of the electoral rolls and prevent electoral fraud, the Election Commission in August 1993 ordered the issuance of electors’ photo identity cards (EPICs) for all voters.

During the 2004 Assembly elections, it was mandatory for people possessing EPICs to furnish it at the time of voting. The distribution of EPICs, on the part of Election Commission, was a major step to reduce electoral malpractices. Only genuine voters were listed in the rolls with the issuance of voter identity cards.

• De-criminalization of politics

For preventing persons with criminal background from becoming legislators, the Commission has made a proposal for disqualifying (from contesting election) a person against whom charges have been framed by a Court for an offence punishable by imprisonment of 5 years or more. There is a provision of disqualification once a person is convicted and sentenced to imprisonment of two years or more. The Commission’s proposal is for disqualification even prior to conviction, provided the court has framed charges. As a precaution against foisting false cases on the eve of election, it has been suggested that only those cases in which charges are framed six months prior to an election should be taken into account for that election.

• Political parties reforms

The political parties should be legally required to get their accounts audited annually. The audited accounts should be put in public domain. There should be transparency in the fund raising and expenditure of political parties. Income tax exemption for donations should be given only for those political parties which contest election and win seats in the Parliament/State Legislature.

• Misuse of religion for electoral gain

The Commission has proposed that the provision in that Bill should be considered for avoiding misuse of religion by political parties.

• Amendment of law to make `paid news’ an electoral offence

The Commission has been proposed amendment in the Representation of People Act (RoPA) , 1951, to provide therein that publishing and abetting the publishing of `paid news’ for furthering the prospect of election of any candidate or for prejudicially affecting the prospect of election of any candidate be made an electoral offence with punishment of a minimum of two years imprisonment.

• Negative/neutral voting

In the ballot paper and on the ballot unit, after the particulars relating to the last candidate, there should be provisions for a column `none of the above’ to enable a voter to reject all candidates if he so desires.

• Ban on transfer of election officers on the eve of election

In the case of general election, there should be a ban against transferring any election related officer without the concurrence of the Commission for a period of six months prior to the expiry of the term of the House.

• Punishment for false affidavit by candidates

RoPA, 1951 provides that furnishing false information in the affidavit filed by the candidate is an offence punishable by imprisonment up to six months or with fine. There is no clear provision for follow-up action in the event of candidates filing false affidavits. EC has recommended that RoPA, 1951 should be amended to provide that any complaint regarding false statement in the affidavit filed by the candidates in connection with the nomination paper shall be filed before the Returning Officer (RO) concerned within a period of 30 days from the date of declaration of the election and that it shall be the responsibility of the RO to take proper follow-up action. Alternatively, complaint can lie directly to the Magistrate Court.