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Subject: Polity

  • Understanding the significance of Kesavananda Bharati case

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

    Understanding the Basic Structure doctrine

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

    Limits on the powers of Supreme Court

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

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

    Conclusion

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

  • New Bill on powers of Delhi government, Lieutenant Governor

    The Ministry of Home Affairs (MHA) is likely to introduce legislation in the ongoing Parliament session to amend a 1991 Act pertaining to the powers and function of the Delhi government and the Lieutenant Governor.

    Try this PYQ:

    Q. Consider the following statements

    1. Union territories are not represented in the Rajya Sabha.
    2. It is within the purview of the Chief Election Commissioner to adjudicate the election disputes.
    3. According to the constitution of India, the Parliament consists of the Lok Sabha and the Rajya Sabha only.

    Which of the statement(s) given above is/are correct?

    (a) Only 1

    (b) 2 and 3

    (c) 1 and 3 only

    (d) None

    Key propositions of the Bill

    • The Bill proposes to clearly spell out the functions of the Council of Ministers and the Lieutenant-Governor (L-G) by giving more discretionary powers to the L-G.
    • As per the Bill, the L-G could act in his discretion in any matter that is beyond the purview of the powers of the Legislative Assembly of Delhi in matters related to the All India (Civil) Services and the Anti Corruption Branch.
    • It will also give more teeth to the L-G, and the validity of any decision taken as per such discretion shall not be questioned.

    Back2Basics: Special provisions for New Delhi

    • The Union Territory of Delhi with a Legislative Assembly came into being in 1991 under Article 239AA of the Constitution inserted by ‘the Constitution (Sixty-ninth Amendment) Act, 1991’.
    • It said that the UT of Delhi shall be called the National Capital Territory of Delhi.
    • The administrator thereof appointed under Article 239 shall be designated as the Lieutenant-Governor.
    • According to the existing Act, the Legislative Assembly of Delhi has the power to make laws in all matters except public order, police, and land.

  • MPLAD Scheme

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

    Try this PYQ:

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

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

    Which of the statements given above is/are correct?

    (a) 1 only

    (b) 2 only

    (c) Both 1 and 2

    (d) Neither 1 nor 2

    What is the MPLAD scheme?

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

    Funds available

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

    Implementation

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

    Guidelines for MPLADS implementation

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

  • [pib] Status of Mahanadi Tribunal

    At present, the Mahanadi dispute is under adjudication in the Tribunal under Section 5 (2) of Inter-State River Water Disputes Act, 1956

    Note the interrelation between the Article 262 and 253.They contain provisions related to international and interstate water sharing.

    Mahanadi Tribunal

    • The Central Government has constituted Mahanadi Water Disputes Tribunal in 2018 under Section 4 of the Inter-State River Water Disputes Act, 1956.
    • It is set to adjudicate on water disputes between the riparian States of Odisha and Chhattisgarh
    • The tribunal is expected to give its verdict within a period of three years.
    • Provided that if the decision cannot be given for an unavoidable reason, within a period of three years, the Central Government may extend the period for a further period not exceeding two years.

    What is the dispute about?

    • Chhattisgarh has been constructing dams and weirs (small dams) upstream the Mahanadi. This is being allegedly carried on without consulting Odisha.
    • It would affect the flow of the river downstream and affect drinking water supply. Also, it would impact the irrigation facilities in Odisha and adversely affect the interests of the farmers.
    • Moreover, the weirs and other projects would impact the flow of water in the Hirakud reservoir, a multipurpose river valley project, which is a lifeline for many in the state.

    Back2Basics: Water Disputes Resolution in India

    • The Interstate River Water Disputes Act, 1956 (IRWD Act) is an Act of the Parliament of India enacted under Article 262 of Constitution of India on the eve of the reorganization of states on the linguistic basis to resolve the water disputes that would arise in the use, control and distribution of an interstate river[1] or river valley.
    • Article 262 of the Indian Constitution provides a role for the Central government in adjudicating conflicts surrounding inter-state rivers that arise among the state/regional governments.
    • This Act further has undergone amendments subsequently and its most recent amendment took place in the year 2002.
    • A/c to art 262, the Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley.
    • Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint.

    Note: Any river water sharing treaty made with other countries, has to be ratified by the Parliament as per Article 253 after deciding the share of the Indian riparian states per Article 262 to make the treaty constitutionally valid or enforceable by the judiciary. The government has signed Indus Waters Treaty with Pakistan, Ganga water-sharing treaty with Bangladesh, etc. without the ratification by the Parliament and the consent of concerned riparian states per Article 252.

  • Why the Question Hour matters?

    The decision to go without “Question Hour” during the Monsoon Session of Parliament has evoked serious concerns about the democratic functioning of the institution.

    This newscard is very narrative in its form and scope. Try this question as well-

    Q.Discuss the various instruments of Parliamentary Control in India.

    What is Question Hour?

    • Question Hour is the liveliest hour in Parliament. It is during this one hour that MPs ask questions of ministers and hold them accountable for the functioning of their ministries.
    • Prior to Independence, the first question asked of government was in 1893. It was on the burden cast on village shopkeepers who had to provide supplies to touring government officers.
    • The questions that MPs ask are designed to elicit information and trigger suitable action by ministries.
    • Over the last 70 years, MPs have successfully used this parliamentary device to shine a light on government functioning.
    • Their questions have exposed financial irregularities and brought data and information regarding government functioning to the public domain.
    • With the broadcasting since 1991, Question Hour has become one of the most visible aspects of parliamentary functioning.

    Its evolution

    • The right to question the executive has been exercised by members of the House from the colonial period.
    • The first Legislative Council in British India under the Charter Act, 1853, showed some degree of independence by giving members the power to ask questions to the executive.
    • Later, the Indian Council Act of 1861 allowed members to elicit information by means of questions.
    • However, it was the Indian Council Act, 1892, which formulated the rules for asking questions including short notice questions.
    • The next stage of the development of procedures related to questions came up with the framing of rules under the Indian Council Act, 1909, which incorporated provisions for asking supplementary questions by members.
    • The Montague-Chelmsford reforms brought forth a significant change in 1919 by incorporating a rule that the first hour of every meeting was earmarked for questions. Parliament has continued this tradition.
    • In 1921, there was another change. The question, on which a member desired to have an oral answer, was distinguished by him with an asterisk, a star. This marked the beginning of starred questions.

    Its significance

    • Question Hour is not only an opportunity for the members to raise questions, but it is a parliamentary device primarily meant for exercising legislative control over executive actions.
    • The government’s actions erode the constitutional mandate of parliamentary oversight over executive actions as envisaged under Article 75 (3) of the Indian Constitution.

  • Parliamentary oversight and cancellation of question hour

    The article highlights the significance of question hour in democracy.

    Context

    • The decision to go without “Question Hour” during the Monsoon Session of Parliament, beginning September 14, has evoked serious concerns about the democratic functioning of the institution.

    Significance of question hour

    • Question Hour is an opportunity for the members to raise questions,
    • It is also a parliamentary device primarily meant for exercising legislative control over executive actions.
    • It is also a device to criticise government policies and programmes, ventilate public grievances, expose the government’s lapses, extract promises from ministers.
    • In short, question hour helps to ensure accountability and transparency in governance.

    Right to question the executive: Historical background

    • The right to question the executive has been exercised by members of the House from the colonial period.
    • The first Legislative Council in British India under the Charter Act, 1853, allowed members the power to ask questions to the executive.
    • The Indian Council Act of 1861 allowed members to elicit information by means of questions.
    • However, it was the Indian Council Act, 1892, which formulated the rules for asking questions including short notice questions.
    • The Indian Council Act, 1909, which incorporated provisions for asking supplementary questions by members.
    • The Montague-Chelmsford reforms brought forth a significant change in 1919 by incorporating a rule that the first hour of every meeting was earmarked for questions.
    • Parliament has continued this tradition.
    • Since 1921, the question on which a member desired to have an oral answer, was distinguished by him with an asterisk, a star.

    Recent instances in which right to ask questions was curtailed

    • The government passed important bills in the first session of the 17th Lok Sabha before the formation of department-related standing committees.
    • The Constitution Amendment Bill on J&K was introduced without circulating copies to the members.
    • Several important bills were passed as Finance Bills to avoid scrutiny of the Rajya Sabha.
    • Standing committees are an extension of Parliament.
    • Any person has the right to present his/her opinion to a Bill during the process of consideration.

    Consider the question “What is the significance of question hour in the context of democracy in India? What is the implication of its suspension due to pandemic?”

    Conclusion

    The government’s actions erode the constitutional mandate of parliamentary oversight over executive actions as envisaged under Article 75 (3) of the Indian Constitution.

  • Undoing the right to housing

    The article analyses the implications of recent Supreme Court order regarding the removal of encroachment along the railway line. 

    Context

    •  In short order, the Supreme Court of India on August 31 ordered the removal of about 48,000 slum dwellings situated along the railway tracks in Delhi.
    • The order raises several legal questions, which are discussed below.

    1) Violation of the principle of natural justice

    • The order violates principles of natural justice and due process because it was delivered without hearing the affected party, the jhuggi dwellers.
    • The order was passed in the long-running case on the piling up of garbage along railway tracks.
    • However, neither this case nor the report concerns itself with the legality of informal settlements.
    • Still, the Court made an unconvincing connection between the piling of garbage and the presence of slums.

    2) Ignoring the right to livelihood

    • In this order, the Court ignored its long-standing jurisprudence on the right to livelihood.
    • In the landmark decision concerning pavement-dwellers, a five-judge Bench of the Supreme Court in Olga Tellis & Ors vs. Bombay Municipal Corporation & Ors. (1985) held that the right to life also includes the “right to livelihood”.
    • Further, in Chameli Singh vs. the State Of U.P. (1995), the Supreme Court recognised the “right to shelter” as a component of the right to life under Article 21 and freedom of movement under Article 19(1)(e).

    3) Failure to consider policies and case laws

    •  High Court of Delhi has held that prior to any eviction, a survey must be conducted.
    • The procedure laid down in this judgment formed the basis for the Delhi Slum and JJ Rehabilitation and Relocation Policy, 2015.
    • In Ajay Maken & Ors. vs Union Of India & Ors. (2019), the Delhi High Court invoked the idea of the “Right to the City” to uphold the housing rights of slum dwellers.
    • This case led to the framing of a Draft Protocol for the 2015 Policy on how meaningful engagement with residents should be conducted.

    Conclusion

    The Courts need to strike the balance between the rights of the slum dweller and those affected by the encroachment.

  • What constitutes a breach of the legislature’s privilege?

    A motion for breach of privilege was moved in the Maharashtra Assembly against a news channel’s editor-in-chief. A similar motion was moved in the Maharashtra Legislative Council against an actor.

    Try this PYQ:

    Q.With reference to the Parliament of India, which of the following Parliamentary Committees scrutinizes and reports to the House whether the powers to make regulations, rules, sub-rules, by-laws etc. conferred by the constitution of delegated by the Parliament are being properly exercised by the Executive within the scope of such delegation?

    (a) Committee on Government Assurances

    (b) Committee on Subordinate Legislation

    (c) Rules Committee

    (d) Business Advisory Committee

    Provisions to protect the privileges of the legislature

    • The powers, privileges and immunities of either House of the Indian Parliament and of its Members and committees are laid down in Article 105 of the Constitution.
    • Article 194 deals with the powers, privileges and immunities of the State Legislatures, their Members and their committees.
    • Parliamentary privilege refers to the right and immunity enjoyed by legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made in the course of their legislative duties.

    What constitutes a breach of this privilege?

    • While the Constitution has accorded special privileges and powers to parliamentarians and legislators to maintain the dignity and authority of the Houses, these powers and privileges are not codified.
    • Thus, there are no clear, notified rules to decide what constitutes a breach of privilege, and the punishment it attracts.
    • Any act that obstructs or impedes either House of the state legislature in performing its functions, or which obstructs or impedes any Member or Officer of such House in the discharge of his duty, or has a tendency, directly or indirectly, to produce such results is treated as a breach of privilege.
    • It is a breach of privilege and contempt to print or publish libel reflecting on the character or proceedings of the House or its Committees or on any member of the House for or relating to his character or conduct as a legislator.

    Procedure followed in cases of an alleged breach

    • The Legislative Assembly Speaker or Legislative Council Chairman constitutes a Privileges Committee consisting of 15 members in the Assembly and 11 members in the Council.
    • The members to the committee which has quasi-judicial powers are nominated based on the party strength in the Houses.
    • The Speaker or Chairman first decides on the motions.
    • If the privilege and contempt are found prima facie, then the Speaker or Chairman will forward it to the Privileges Committee by following the due procedure.
    • At present, there is no Privileges Committee in either House of the state legislature.
    • The Committee will seek an explanation from all the concerned, will conduct an inquiry and will make a recommendation based on the findings to the state legislature for its consideration.

    What is the punishment for this?

    • If the Committee finds the offender guilty of breach of privilege and contempt, it can recommend the punishment.
    • The punishment can include communicating the displeasure of the state legislature to the offender, summoning the offender before the House and giving a warning, and even sending the offender to jail.
    • In the case of the media, press facilities of the state legislature may be withdrawn, and a public apology may be sought.

  • Explained: Maratha quota — the agitation, the politics

    The Supreme Court has referred to a Constitution Bench the question of whether states can exceed the 50% limit on quotas that were set by a nine-judge Bench in the landmark Indra Sawhney vs Union of India (1992) case.

    Practice question for mains:

    Q.The quota policy for OBCs needs an urgent revisit. Comment.

    Marathas and their ‘backwardness’

    • The Marathas are a politically dominant community who make up 32% of Maharashtra’s population.
    • They have historically been identified as a ‘warrior’ caste with large landholdings. Eleven of the state’s 19 chief ministers so far have been Marathas.
    • While the division of land and agrarian problems over the years have led to a decline of prosperity among middle- and lower-middle-class Marathas, the community still plays an important role in the rural economy.
    • The discontent in the community was a spillover into protests and unrest until the quota was announced.
    • The second phase of the protest saw a spate of suicides. The backward Marathwada region was the worst affected by the protests.

    What was the case?

    • A Bench of the SC heard a batch of petitions challenging reservations for Marathas in education and jobs in Maharashtra.
    • The petitions appealed a 2019 Bombay High Court decision that upheld the constitutional validity of the Maratha quota under the Socially and Educationally Backward Classes (SEBC) Act, 2018.
    • The Bench also heard a petition challenging admission to postgraduate medical and dental courses under the quota in the state.

    Earlier Bombay HC ruling

    • The Bombay HC ruled last year that the 16% quota granted by the state was not “justifiable”, and reduced it to 12% in education and 13% in government jobs, as recommended by the Maharashtra State Backward Class Commission (MSBCC).
    • The Bench ruled that the limit of the reservation should not exceed 50%.
    • However, in exceptional circumstances and extraordinary situations, this limit can be crossed subject to availability of quantifiable and contemporaneous data reflecting backwardness, the inadequacy of representation and without affecting the efficiency in administration.
    • The court relied heavily on the findings of the 11-member MSBCC, which submitted in November 2018 that the Maratha community is socially, economically and educationally backwards.

    Existing reservation

    • Following the 2001 State Reservation Act, the total reservation in Maharashtra was 52%: SCs (13%), STs (7%), OBCs (19%), Special Backward Class (2%), Vimukta Jati (3%), Nomadic Tribe B (2.5%), Nomadic Tribe C (3.5%) and Nomadic Tribe D (2%).
    • The quotas for Nomadic Tribes and Special Backward Classes have been carved out of the total OBC quota.
    • With the addition of 12-13% Maratha quota, the total reservation in the state went up to 64-65%.
    • The 10% quota for Economically Weaker Sections (EWS) announced by the Centre last year is also effective in the state.

  • Making the local governance strong

    The article analyses the issues faced by democracy in India and suggests the way out in the form of strong local governments.

    Issues being faced by Indian democracy

    1. Issue of use of money power

    • Around the world, electoral democracies face the issues of funding political parties and elections.
    • Money is required to win elections legitimately, even when people are not bribed to vote, which is illegitimate.
    • Communications with citizens can be very expensive.
    • Advertisements have to be paid for as well as teams of professionals for managing social media.
    • The race to raise more money for legitimate electioneering purposes can corrupt the process of funding parties and elections.
    • Solutions are not easy because the right to free speech cannot be denied.

    2.Issues with deliberations by the representatives

    • Debates within India’s Parliament hardly inspire citizens’ confidence in their representatives’ ability to govern the country.
    • The problem in electoral democracies is also in the conduct of their deliberations when they come together.
    • This problem is not due to the quality of the individuals, it is inherent in the design of the process for electing representatives.
    • Representatives of the people must be chosen by smaller electorates within geographical constituencies.
    • But when they meet together in the national chamber, they are expected to govern the whole country.
    • They must shed the interest of their constituency and consider what will be best for the whole country.
    • Constituency favouring leads to challenges for equitable solutions for sharing of river waters, and to railway stations.
    • Electing good representatives to Assemblies is not enough to ensure good decisions will be made.

    3.Role of political parties: Lack of inner democracies

    • Function of parties: Political parties in electoral democracies provide a solution to the problem of creating an alignment of views among representatives from hundreds of constituencies around the country.
    • A party’s point of view on fundamental matters can unite many.
    •  However, when there are too many parties and too many contradictory points of view to be accommodated within a coalition, governance can break down.
    • Therefore, political parties are not evil.
    • However, when political parties are not internally democratic, they become a source to amass power and wealth, and democratic nations suffer.

    So, should we adopt direct form of democracy

    • For the reason stated above, it has become very difficult in representative democracies to arrive at good and fair decisions for the governance of a large state or country.
    • New Internet technologies make adoption of direct form of democracy possible.
    • But, if all voters have not understood what is at stake, they cannot decide well this is what happened in hasty Brexit referendum.

    Way Forward

    1.Need for the strong local governance

    • Complex issues, where many interests collide, must be resolved by reason, not settled by the numbers.
    •  Hence there is no alternative to good local governance, wherein citizens manage their local affairs democratically.
    • One-size solutions devised by experts at the centre cannot fit all.
    • Local systems solutions are essential to solve global systemic problems of environmental sustainability and inclusive growth.

    2.Funding and Intra-Party Democracy related reforms

    • Electoral funding must be cleaned up, and democracy within political parties improved to make representative democracy work better.
    • This will require big changes to entrenched systems.
    • Citizens must appreciate that they have to be the source of solutions, and not become only the source of problems.
    • Citizens must learn to listen to each other’s perspectives in their villages and in their urban neighbourhoods.

    What are the challenges the electoral process in India faces? Suggest the solution to the issues democracy in India faces.

    Conclusion

    Since India’s Independence 73 years ago when the power of government was transferred from a centre in London to a centre in Delhi, strong local governance remains the unfinished agenda to make India’s democracy strong and deep.