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Most Imp. Constitutional doctrines

1. Basic structure doctrine- Keshvananda Bharati Case (1973)

• Constitution has some basic structure which can not be amended even if all members of both the houses vote to amend that provision
• Federalism, Judicial review, Separation of power, art 20, art 21 etc are part of basic structure

2. Doctrine of Colorable Legislation –

• Whatever legislature can’t do directly, it can’t do indirectly
• It is most commonly applied wrt article 246 (3 lists)
• when a Legislature does not possess the power to make law upon a particular subject but nonetheless indirectly makes one

3. Doctrine of Pith and Substance- 

• Pith means true nature” or “essence and substance means the essential nature underlying a phenomenon.
• Thus, the doctrine of pith and substance relates to finding out the true nature of a statute.
• This doctrine is widely used when deciding whether a state is within its rights to create a statute that involves a subject mentioned in Union List of the Constitution.
• The basic idea behind this principle is that an act or a provision created by the State is valid if the true nature of the act or the provision is about a subject that falls in the State list <contrast it with doctrine of colorable legislation>

4. Doctrine of Repugnancy- 

 

• REpugnancy is an inconsistency or contradiction between two or more parts of a statute
• So. if a state passes any law on concurrent list subject which is inconsistent with the central law on that subject, it would be repugnant and liable to be struck down to the extent of repugnancy.

5. Doctrine of Harmonious Construction  

• Constitutional provisions should not be construed in isolation from all other parts of the Constitution, but should be construed as to harmonize with those other parts.
• As we discussed in judgement series when article 368 and 13 were found to be inconsistent, supreme court in Shankari Prasad case applied this principle to opine that parliament can amend fundamental rights and constitutional amendment would not be considered law for the purpose of article 13

6. Doctrine of Separation of Power –

Separation of power among executive, legislature and judiciary so that no one branch of govt wields excessive absolute power

Discuss – Other important constitutional doctrines

Discuss- Compare and contrast doctrine of separation of power with doctrine of checks  and balances

Discuss- Compare Separation of Power in parliamentary democracies (India) v/s presidential democracies (USA)

A few most imp. DPSPs

• To secure for all citizens a uniform civil code (art 44)
• To protect and improve the environment (art 48A)
• To separate judiciary from executive (art 50)
• To promote international peace and security (art 51)
• To provide free legal aid to the poor (art43A)

Discuss– DPSPs which trump fundamental rights under article 14 and 19

Three types of cut motions

• Policy cut: to be reduced to Rs. 1 <you disagree with govt policy>
• Economy cut: reduce by a specific amount.<done in more thrifty manner, no disagreement with policy>
• Token cut: reduce by Rs. 100 < to ventilate a specific grievance>
• Note- If any cut motion is accepted, govt is defeated in LS and has to resign

Discuss- Parliamentary oversight of executive in financial sphere

who are MLC’s what they do and why this post.brief explanation please.

1. Important sessions of Congress

• 1885- 1st, Bomaby, presided by W.C. Banerjee
• 1887- Badruddin Tyabji became 1st muslim to preside over congress session
• 1907- Surat, Ras Bihari Ghosh not Bose, split in Congress b/w moderates and extremists
• 1916- Lucknow, Reunion on congress, Lucknow pact b/w congress and muslim league
• 1920- Nagpur, A new constitution for congress, congress reorganized
• 1929-Lahore, J.L. Nehru, Purna Swaraj Resolution
• 1931-Karachi, Vallabh Bhai, Resolution on Fundamental rights and National Economic Programme
• 1938- Haripura, S.C. Bose, National Planning Committee under J.L. Nehru

Discuss- New things in new constitution of congress

Discuss- 1st non Indian and 1st woman president of congress

2. Gandhi’s styagrahas

• Champaran (1917)- 1st civil disobedience movement, against tinkathia system of indigo planters <3/20th>, Followers- Rajendra Prasad, Mahadeo Desai, J.B.Kriplani
• Ahmedabad Mill strike (1918)-1st hunger strike, over the discontinuation of plague bonuses, increase in wages
• Kheda (1918)- 1st non cooperation movement, for compensation in the event of crop loss, Followers- Sardar Patel, Indulal yagnil
• Rowlatt Satyagrah (1919)- 1st mass strike, roped in younger elements of Home Rule Leagues and Pan-Islamists

Discuss- Gandhi’s Satyagrahas in South Africa

3. Important Peasant movements

• Mapiilla revolt (1920s)- malabar region, Muslim tenants, Hindu landlords (Jennies), anti govt, anti landlord movement acquired distinct communal overtones
• Eka movement (1921)- against high rents, oppression of thikadars, in northern districts of UP, led by Madarai Pasi and low caste leader, symbolic religious rituals to unify <eka means ekta or unity>
• Bardoli Satyagraha (1926-28)- against increase in land revenue, Kunbi-Patidars, led by VAllabh Bhai, women of bardoli gave him the name, Sardar <eventually revenue hike reduced from 30% to 6%>
• Tebhaga movement (1946)- in Bengal to increase share of bargadars (share croppoers) to 2/3rd from ½ ,<tebhaga meaning three parts>
• All India Kisan Congress/ Sabha in 1936- President swami sahjanand, secretary N.G. Ranga

Discuss- Contribution of Kisan sabhas

 

4. Important Working class movement

• All India Trade Union Congress (AITUC) founded in 1920 under Lala Lajpat, Dewan Chaman Ali 1st general secretary
• Meerut Conspiracy Case (1929-33)- Sedition charges on labour leaders (Dange, Shaukat Usmani, Muzaffar Ahmed and 30 others)
• Huge participation of workers in Civil disobedience movement /(1930)
• Workers opposed the 2nd world war but supported British (allies) when Russia joined on their side in 1941 and communist did not support quit India movement

Discuss– Socialist tendencies in national movement

 

                        

dear CD are you covered all govt.schemes and polices or any remaining ones iam only depended on you please help.

APPOINTMENT OF VINOD RAI AS CHAIRMAN OF Banks’ Board Bureau (BBB)
The Comptroller and Auditor-General shall not be eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office.

The argument that the BBB Chairman does not draw any salary from Consolidated Fund of India and post of BBB Chairman being part-time exclude application of article 148(4).

Is BBB not a office under Government of India ?

1. Sources of constitution

• Fundamental rights from USA
• DPSP from Ireland
• Liberty, equality, fraternity, republic from France
• Federation with strong centre and residuary powers with centre from Canada
• Emergency provisions from Weimar constitution, Germany
• Justice and Fundamental duties from USSR

Discuss– Ideas borrowed from Australian and South African constitution

2. Preamble of Constitution

• It is based on objective resolution drafted and moved by Pt. Nehru
• 3 words socialist, secular and integrity were added by 42nd amendment
• Preamble is a part of constitution but not justiciable
• Preamble can be amended subject to condition that no amendment is done to the basic features

Discuss- Significance and importance of preamble

3. Vidhan Parishads

• Creation or abolition– Only parliament can do so by simple majority if concerned state legislature passes a resolution by special majority <2/3rd present and voting + majority of total>
• Only instance where state legislature uses special majority
• Minimum strength 40, maximum 1/3rd of assembly <maximum strength of assembly is 500>
• It’s not coequal with assembly as-
• If the bill originated in the council is rejected by assembly, it becomes dead
• Bill originating in the assembly can be held back by the council for maximum 4 months <3 +1>
• No provision for joint sitting

Discuss- States with bicameral legislature

Discuss- What happens if bill originating in assembly is rejected by the council

4. Devices of Parliamentary Proceedings

• 1st hour is question hour not zero hour
• Zero hour is an indian innovation and not mentioned in the rule of procedure
• Calling attention motion <call attention of minister> is also Indian innovation but mentioned in the rules of procedure
• Adjournment motion is an extraordinary device to draw attention to a definite matter of urgent public importance.It involves an element of censure, thus can be moved only in LS
• Motion of thanks is passed in both the houses after presidential address at the start of 1st session of every fiscal year <amendment to motion in RS is embarrassment to govt while in LS would amount to defeat of govt>

Discuss – differences b/w no confidence motion and censure motion

5. Executive

• President is the head of state not the PM while PM is head of govt i.e all actions in the name of president not PM
• In presidential system like US, president is both head of state and head of govt <no PM there >
• President is bound by the advice of CoM though he can send back the advice for reconsideration once
• President has vet power-
• Absolute Veto – President refuses to give assent to the bill <private member’s bill, cabinet resigns>
• Suspensive Veto – send the bill for reconsideration of house <can do it only once>
• Pocket veto <Just sits on the bill, neither rejects nor ratifies

Discuss – Veto power of Indian president v/s that of of Us president

Discuss – Qualified Veto

 

SOURCE

Background

• Founded by Alexander Cunningham, who is also revered as the “Father of Indian Archaeology”
  • He was the protege of James Prinsep <who was he, post in comments>
  • It was Lord Canning who helped pass a statute for ASI’s establishment in 1861
• Post Independence, it’s a Statutory body that now works under Ancient monuments and archaeological sites and remains act (AMASR Act), 1958
• It works as an attached Office of the Ministry of Culture
• ASI has 3678 protected monuments and Archaeology sites of National Importance + 20 cultural under the World Heritage List by UNESCO

Initiatives by ASI

1. Museums

ASI’s museums are customarily located right next to the sites that their inventories are associated with “so that they may be studied amid their natural surroundings and not lose focus by being transported”.

A dedicated Museums Branch maintains a total of 44 museums spread across the country.

2. Publications by ASI

• Epigraphia Indica
• Ancient India
• Indian Archaeology: A Review (Annually)

3. Library

• Central Archaeological Library in the National Archives building in Janpath, New Delhi

ASI Issues and Challenges

1. To Restore or Not

• Guidelines by John Marshall, founding DG of ASI <why was he important?> followed modern conservation ideology- “Restoration ends where conjecture begins”
• Issue is that technically speaking- ruins are seldom “restored” in original state. This is because in absence of documentation- archaeologists are left to conjecture what buildings may have looked like when they were originally built.
• Hence, many a conservationists are raising questions on ASI’s process of restoration. 

2. Personnel Management Issues

• Higher Authorities of ASI are traditionally from IAS Cadre
• Solution: In-house specialist must be promoted for better coordination b/w technical and managerial aspects of restoration
• Impacts: Would go a long way into incentivizing professionals
• Other issues: Low level of partnership with public, or Civil Society Organizations such as NGOs. Recently INTACH- an NGO approached it for sharing work on restoration, but ASI denied.

3. Issues explored in CAG Report

• 92 monuments are untraceable with no database on artifacts
• Poor Documentation of Protected Monuments/Artifacts
• Implemented in the 10 museums of Ministry of Culture/ASI in the first phase
• Paucity of funds (Eg- Red fort gardens lie unkempt)

4. What can be done for better management of Artifacts?

• Digitization of Museums and records (also to save them from calamities such as recent fire in Indira Gandhi Museum and Floods such as in Jammu and Kashmir)
• Do not store them in bunkers in basement, follow scientific methods of preservation.
• Partner with NGOs and private institutions such as INTACH <to be covered in next post of this series>
• Finally, overhaul of Museum Management in India is the only long term solution

Annexure: National Monument Authority (NMA)

It has members hailing from the fields of archaeology, country and town planning, architecture, heritage, conservation architecture or law. It comes under ASI’s supervision.

Objectives:

1. Responsible for the protection and preservation of monuments and sites
2. Through management of the prohibited and regulated area around the centrally protected monuments
3. Streamlining of approval procedure for construction related activities in regulated/restricted areas in the vicinity of Archaeological Survey of India (ASI’s) Protected Monuments in various cities

NMA in News:

• NOC Online Application Portal and Processing System (NOAPS): An e-Gov Project wherein NMA partnered with ISRO  to calculate accurate measurements of Geo Co-ordinates of various monuments around Centrally Protected Monuments for speedy approvals.

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Published with inputs from Amar

1. Fundamental rights

• Borrowed from American constitution
• They promote political democracy while DPSPs promote social and economic democracy
• Article 15,16,19,29 and 30 are available only to citizens not foreigners
• Even during national emergency under article 352, article 20 and 21 cannot be suspended under article 359
• Article 19 is automatically suspended during national emergency according to article 358

Discuss– fundamental rights which can be enforced against private citizens

2. Writs

• Habeas Corpus–  can be issued against both public authorities and private individuals
• Mandamus – can not be issued against private individuals
• Prohibition– can be issued only against judicial, quasi-judicial bodies not administrative bodies
• Certiorari– against judicial, quasi-judicial as well as administrative bodies but not legislative and private individuals
• Quo Warranto-  only in case of substantive public office of permanent character not against ministerial or private office

Discuss – meaning of these terms and logic behind these provisions

3. Election of President and VP

• Nominated members (be they that of RS, LS or state assemblies) don’t take part in Presidential election
• All elected members of both the houses and state assembles take part in presidential election <MLCs don’t whether elected or nominated>
• All members of both the houses take part in VP election <nominated plus elected but no role of states>
• Proportional representation by single transferable vote
• Votes of all elected members of parliament = votes of all elected members of all legislative assemblies

Discuss- ground on which VP and president can be removed from the office and procedure of removal

4. Evolution of legislature during British rule

• By act of 1858, British crown directly took over the administration of India, Governor General renamed as Viceroy
• GOI act of 1909, Morley-Minto reforms introduced the concept of separate electorate
• GOI act of 1919, Montagu-Chelmsford reforms separated central and provincial subjects and introduced the concept of dyarchy in provinces
• GOI act of 1935 created 3 lists, federal, provincial and concurrent and provided for provincial autonomy

Discuss– Names of first governor general of Bengal, governor general of India and viceroy

Discuss- With whom did residuary power rest in GOI act of 1935

5. Governors and LGs

• A governor can be given responsibility of more than one state and UT
• Governor is appointed and removed by president, there’s no ground mentioned for removal
• CMs of state are appointed by governor while CMs of UTs are appointed by president not LG

Discuss– but Kejriwal was given oath of office by Mr. Jung. How is it possible then?

Discuss– Pleasure doctrine for removal of governor v/s AG v/s Civil servants