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Subject: Polity

  • What is Darbar Move?

    The Jammu and Kashmir High Court asked the Centre and the Union Territory (UT) administration to take a final call on the continuation of the 148-year-old practice Darbar Move i.e. shifting of capitals between Jammu and Srinagar.

    Possible mains question:

    Discuss the feasibility, benefits and constraints caused by multiple administrative capitals in Indian states with special context to Jammu and Kashmir and the state of Andhra Pradesh. (250W)

    Darbar Move

    • Darbar Move is the name given to the bi-annual shift of the secretariat and all other government offices of Jammu and Kashmir from one capital city to another.
    • From May to October, governmental offices are housed in the state’s summer capital, Srinagar, and the other six months in its winter capital, Jammu.
    • The tradition was started during Dogra rule in 1872 by Maharaja Ranbir Singh.
    • It involved shifting of the Maharaja’s government to Jammu to escape the harsh winters of the Kashmir Valley, which, in the 19th century, used to result in the Valley being cut off from outside the world.
    • It is advocated that the continuation of the practice helped in the emotional integration between two diverse linguistic and cultural regions of Jammu and Kashmir.

    A costly practice

    • Ahead of the Darbar Move, Srinagar usually receives a facelift every year. Over 10,000 employees shift capital annually.
    • Roads around and leading to the Civil Secretariat, the seat of the government, are being renovated now.
    • Besides, the government offices and quarters have been renovated and the streetlights restored.
    • Hundreds of trucks are usually plied to carry furniture, office files, computers, and other records to the capital.
    • Over the years, there have been voices raised against the century-old practice which involves heavy funding towards ensuring the smooth conduct of the move.

    Why scrap Darbar Move?

    • If this practice is rationalized, the amount of money, resources and time which could be saved, could be utilized towards the welfare and development of the Union Territory.
    • It could be utilized for the protection and propagation of culture and heritage of the communities.
    • No reason or justification at all is available for requiring the judiciary to shift with the ‘Darbar Move’. The same negatively impact justice dispensation and impedes judicial administration.

  • ECI vague on whether J&K is part of Electoral College of President’s election

    The Election Commission of India (ECI) has replied ambiguously to an RTI query if the Union Territory of Jammu and Kashmir will be part of the Electoral College for the election of the President of India.

    This newscard invokes our basic GYAN acquired from the holy ‘Indian Polity’ by M. Laxmikanth. After reading this, ask yourself questions about the following :

    1) What comprises the electoral college of the President of India?

    2) Cases where the Constitutional Amendment Acts are required and wherever not

    What did ECI say?

    • The RTI request sought a list of the State and UTs Legislative Assemblies which were part of the Electoral College for the election of the President.
    • The query also asked the EC to clarify whether the newly-formed UT of Jammu and Kashmir was part of the Electoral College.
    • The EC sent a single-line response, merely saying- for the information, the applicant may be informed to refer Article 54 of the Constitution of India.

    What is Article 54 of the Constitution?

    • Under Article 54, the President is elected by an Electoral College, which consists of the elected members of both Houses of Parliament and the elected members of the Legislative Assemblies of all the States and also of NCT of Delhi and the UT of Puducherry.
    • The art. 54, thus, only specifically mentions NCT of Delhi and Puducherry as eligible to be part of the Electoral College.
    • There is no word about the newly-formed UTs of J&K and Ladakh.

    Ambiguity over J&K

    • The J&K Reorganization Act, which came into existence from August 2019, does not specify anything about whether the legislature of J&K would be able to vote in the election for a President.
    • A passing mention is made in Section 13 of the 2019 Act, which claims that J&K Legislature would have the same powers as its Puducherry counterpart.
    • The astonishing thing to note is that not a single MP in the parliamentary debate has pointed out this fact yet.

    A constitutional amendment is required

    • Inclusion of new members in the Electoral College in Article 54 would require a Constitutional Amendment to be carried out through two-thirds majority in Parliament and ratification by over 50% of the States.
    • This matter involves principles of federalism, hence constitutional amendment is a must.
    • Delhi and Puducherry were included as Electoral College members under Article 54 through the Constitution (Seventieth) Amendment Act of 1992.
    • Before that, Article 54 consisted of only the elected Members of Parliament as well as the Legislative Assemblies of the States.

    Back2Basics: Presidential Election in India

    • The President is elected by an Electoral College, which consists of the elected members of both Houses of Parliament and the elected members of the Legislative Assemblies of all the States and also of NCT of Delhi and the UT of Puducherry.
    • The authority to conduct elections to the Office of President is vested in the Election Commission of India.
    • The election of the President is held in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be by secret ballot.

    • The notification calling the election to the office of the President can be issued by the Election Commission on any day within the period of sixty days before the expiry of the term of office.
    • The election schedule shall be so fixed, that the President-elect is able to enter upon his office on the day following the expiry of the term of the outgoing President.

    With inputs from: TOI

  • Kesavananda Bharati Case (1973): The judgment that upheld basic structure of India’s constitution

    Exactly 47 years ago, the Supreme Court passed its landmark judgment in Kesavananda Bharati vs State of Kerala, considered among the most significant constitutional cases in India’s judicial history.

    Major judgments of the Supreme Court are mentioned in the newscard. Aspirants are advised to memorize them all with thier key features. UPSC may ask a prelim question mentioning all these judgements and asking which of them are related/not related to the Amendments in the Constitution.  Right from the Shankari Prasad Judgment (1951) to the Ayodhya Judgement (2019), note down all important judgements.

    Background

    Amending  the Constitution

    • The Constitution of a country is the fundamental law of the land. It is based on this document that all other laws are made and enforced.
    • Under some Constitutions, certain parts are immune from amendments and are given a special status compared to other provisions.
    • Since the Indian Constitution was first adopted, debates have raged as to the extent of power that Parliament should have to amend key provisions.

    Early years of Absolute Power

    • In the early years of Independence, the Supreme Court conceded absolute power to Parliament in amending the Constitution, as was seen in the verdicts in Shankari Prasad (1951) and Sajjan Singh (1965).
    • The reason for this is believed to be that in those initial years, the apex court had reposed faith in the wisdom of the then political leadership when leading freedom fighters were serving as Parliamentarians.
    • In subsequent years, as the Constitution kept being amended at will to suit the interests of the ruling dispensation, the Supreme Court in Golaknath (1967) held that Parliament’s amending power could not touch Fundamental Rights, and this power would be only with a Constituent Assembly.

    Parliament could make any amendment

    • Article 13(2) reads, “The State shall not make any law which takes away or abridges the right conferred by this Part (Part-III) and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
    • In both the cases, the court had ruled that the term “law” in Article 13 must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power under Article 368.
    • This means Parliament had the power to amend any part of the constitution including Fundamental rights.

    The tussle between Parliament and the judiciary

    • In the early 1970s, the government of then PM Indira Gandhi had enacted major amendments to the Constitution (the 24th, 25th, 26th and 29th) to get over the judgments of the Supreme Court in RC Cooper (1970), Madhavrao Scindia (1970) and the earlier mentioned Golaknath.
    • In RC Cooper, the court had struck down Indira Gandhi’s bank nationalization policy, and in Madhavrao Scindia it had annulled the abolition of privy purses of former rulers.

    Background for the Kesavananda Bharati Case

    • All the four amendments, as well as the Golaknath judgment, came under challenge in the Kesavananda Bharati case.
    • Here, relief was sought by the religious figure Swami Kesavananda Bharati against the Kerala government vis-à-vis two state land reform laws.
    • Since Golaknath was decided by eleven judges, a larger bench was required to test its correctness, and thus 13 judges formed the Kesavananda bench.
    • Critics of the doctrine have called it undemocratic since unelected judges can strike down a constitutional amendment. At the same time, its proponents have hailed the concept as a safety valve against majoritarianism and authoritarianism.
    • Noted legal luminaries Nani Palkhivala, Fali Nariman, and Soli Sorabjee presented the case against the government.
    • The majority opinion was delivered by CJI S M Sikri, and Justices K S Hegde, A K Mukherjea, J M Shelat, A N Grover, P Jaganmohan Reddy, and H R Khanna. Justices A N Ray, D G Palekar, K K Mathew, M H Beg, S N Dwivedi, and Y V Chandrachud dissented.

    A closer win

    • By a 7-6 verdict, a 13-judge Constitution Bench ruled that the ‘basic structure’ of the Constitution is inviolable, and could not be amended by Parliament.
    • The basic structure doctrine has since been regarded as a tenet of Indian constitutional law.

    The judgment in Kesavananda Bharati

    • The Constitutional Bench, whose members shared serious ideological differences, ruled by a 7-6 verdict that Parliament should be restrained from altering the ‘basic structure’ of the Constitution.
    • The court held that under Article 368, which provides Parliament amending powers, something must remain of the original Constitution that the new amendment would change.
    • The court did not define the ‘basic structure’, and only listed a few principles — federalism, secularism, democracy — as being its part.
    • Since then, the court has been adding new features to this concept.

    ‘Basic structure’ since Kesavananda

    • The basic structure doctrine was first introduced by Justice Mudholkar in the Sajjan Singh case (1965).
    • Major features were notably propounded by Justice Hans Raj Khanna in 1973.
    • The ‘basic structure’ doctrine has since been interpreted to include the supremacy of the Constitution, the rule of law, Independence of the judiciary, doctrine of separation of powers, federalism, secularism, sovereign democratic republic, the parliamentary system of government, the principle of free and fair elections, welfare state, etc.
    • An example of its application is SR Bommai (1994), when the Supreme Court upheld the dismissal of the governments by the President following the demolition of the Babri Masjid, invoking a threat to secularism by these governments.

  • Issues with nominated CM’s election

    • Maharashtra CM is yet to be nominated to one of the seats reserved for the Governor’s nominee in the state Legislative Council.
    • His current term in office approaches its end with a looming constitutional crisis.

    The discretionary powers of the governor have been subjected to various debates this year. Be it Karnataka, Maharashtra, MP or erstwhile J&K (under Lt. Governor) or the UT of Delhi.

    CM without Election

    • Maha CM took oath in accordance with Article 164(4).
    • The article states that a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.
    • It follows that the Chief Minister must become part of the legislature before the said expiration of 6 months.

    Governors dilemma

    • A situation in which an individual who is not a member of the legislature becomes chief executive of the government is in itself fairly common.
    • But with the pandemic raging, a by-election cannot be held.
    • The only way to fulfil the requirement, therefore, is for a person to be nominated to the Upper House by the Governor.
    • If that does not happen, the Governor is obligated to make way for someone else to lead the coalition govt.
    • CM Uddhav Thackeray is likely to have had no problems becoming a member of the legislature had the pandemic not hit.

    What does the Judiciary have to say?

    • In S R Chaudhuri vs State of Punjab and Ors (2001), the Supreme Court had ruled that it would be subverting the Constitution to permit an individual, who is not a member of the Legislature.
    • Such a person should not be appointed a Minister repeatedly for a term of ‘six consecutive months’, without him getting himself elected in the meanwhile.
    • The practice would be clearly derogatory to the constitutional scheme, improper, undemocratic and invalid.

    Testing the nomination route

    • The nomination route for non-member Ministers is less common — but not unconstitutional.
    • In 1952, C Rajagopalachari was nominated as CM of Madras by Governor Sri Prakasa.
    • Under Article 171(5), the Governor can nominate “persons having special knowledge or practical experience in respect of. literature, science, art, co-operative movement and social service”.
    • Last month, the President nominated former Chief Justice of India Ranjan Gogoi to Rajya Sabha even though there were doubts about him meeting these prescribed qualifications.
    • Thackeray can be said to have a stronger claim in this regard — he is an ace wildlife photographer.
    • Moreover, as per the Allahabad High Court in Har Sharan Varma vs Chandra Bhan Gupta And Ors (February 15, 1961), even politics can be seen as ‘social service’.

    The role of the Governor

    • It has been argued that Section 151A of The Representation of the People Act, 1951, prohibits the filling of a vacancy if “the remainder of the term of a member in relation to a vacancy is less than one year”.
    • However, this cannot be a reason for the Governor to refuse nomination — because the bar is in respect of by-election to fill a vacancy, not nomination.
    • Of course, the Governor could argue that he is not obligated under the Constitution to act swiftly on the advice of the Council of Ministers; also, why should he nominate Thackeray only to save his chief ministership.

    A new issue for debate

    • It is important to note the extraordinary context — India is currently battling a health emergency of the kind not seen in the history of the republic.
    • Political uncertainty is the last thing that Maharashtra, which has the highest coronavirus caseload and death toll by far in the country, needs at this moment.

    The question of discretion

    • What are the limits to the Governor’s discretion in nominations is the matter of discussion now.
    • In Biman Chandra Bose vs Dr H C Mukherjee (1952) the Calcutta HC rejected the plea that none of the nine nominated members to the legislature fulfilled the required criteria and held that the Governor cannot use his discretion in nominating members to the Council.
    • He has to go by the aid and advice of the Council of Ministers.
    • Article 163(1) of the Constitution makes it clear that the Governor must follow the recommendations of the Council of Ministers in all situations “except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion”.

    Case in Maharashtra

    • It can be argued that government is bound by the advice of the CoM only in executive matters as defined in Article 162 and since the nomination of members is not an executive power, he can act in his discretion.
    • However, it must be noted that under Article 169, while Parliament has the power to abolish or create a Legislative Council, it can pass such a law only after the state Assembly has passed a resolution to that effect.
    • Thus, the legislative power of the Assembly can be inferred from this provision.

    Also read:

    https://www.civilsdaily.com/news/role-of-governor-in-state-govt-formation/

  • No 100% quota for Scheduled Areas

    • A Constitution Bench of the Supreme Court held it unconstitutional to provide 100% reservation for tribal teachers in schools located in Scheduled Areas across the country.
    • The Bench was answering a reference made to it in 2016 on whether 100% reservation is permissible under the Constitution.

    Reservation in India is a system of affirmative action by the State that provides representation for historically and currently disadvantaged groups in Indian society in education, employment and politics. The 10% EWS quota this year has raised the inevitability for a possible mains question.

    No 100% quota

    • The apex court held that it is an obnoxious idea that tribals only should teach the tribals.
    • Merit cannot be denied in toto by providing reservation observed the judgement.
    • Citizens have equal rights, and the total exclusion of others by creating an opportunity for one class is not contemplated by the founding fathers of the Constitution of India.

    Invoking Indira Sawhney judgment

    • The court referred to the famous Indira Sawhney judgment (Mandal case- Indra Sawhney v. Union of India 1992), which caps reservation at 50%.
    • The court held that 100% reservation is discriminatory and impermissible.
    • The opportunity of public employment is not the prerogative of few.
    • A 100% reservation to the Scheduled Tribes has deprived SCs and OBCs also of their due representation.

  • Issue of post-retirement appointments of the judges.

    The article discusses the issue of retired judges accepting government post after retirement. Such appointments have several implications. It undermines confidence in the independence of the judiciary. It also influence pre-retirement judgements delivered by the judges. The article also offers some solutions to this problem.

    The provisions in the Constitution to secure the independence of the judiciary

    • The Constitution has been conceived to provide a pride of place to the judiciary.
    • Constitutional appointees to the Supreme Court have been guaranteed several rights in order to secure their independence.
    • Salary: The salaries of judges and their age of retirement are all guaranteed in order to secure their independence.
    • Removal: They cannot be easily removed except by way of impeachment under Articles 124(4) and 217(1)(b).
    • They have the power to review legislation and strike it down.
    • They can also question the acts of the executive.
    • All this makes it clear that the framers of the Constitution envisaged an unambitious judiciary for which the only guiding values were the provisions of the Constitution.

    Issue of judges accepting post-retirement jobs

    • It was thought that on retirement from high constitutional office, a judge would lead a retired life.
    • Nobody ever expected them to accept plum posts.
    • But the clear demarcation between the judiciary and executive got blurred as many judges over the years began to accept posts offered by the government.
    • A few years ago, a former Chief Justice of India (CJI) was made a Governor by the ruling party.
    • Now, we have the case of a former CJI, Ranjan Gogoi, being nominated by the President to the Rajya Sabha and taking oath as Member of Parliament.
    • Pre-retirement judgements under cloud: During his tenure as CJI, Justice Gogoi presided over important cases such as Ayodhya and Rafale where all the decisions went in favour of the government.
    • This gave rise to the impression that his nomination was a reward for these ‘favours’.
    • Thus his appointment — and that too within a few months of his retirement — not only raised eyebrows but came in for severe condemnation from varied quarters.
    • Loss of confidence: People are fast losing confidence in the so-called independent judiciary.
    • In 2013 Arun Jaitley, who was also a senior Advocate, ironically said that legislature was creating post-retirement avenues for Judges in every legislation.
    • He also said that post-retirement job influences pre-retirement judgements.
    • It is in this context that the appointment of Mr Gogoi has to be perceived.

    Did Constitution makers intend to nominate Judges?

    • Mr Gogoi’s view that membership of the Rajya Sabha was not a job but a service, and that once the President nominated him the call of duty required him to accept it, only created the impression that the judiciary is pliant.
    • A bare reading of Article 80(3) of the Constitution only envisages the President to nominate “persons having special knowledge in literature, science, art and social service” as members to the Rajya Sabha.
    • It is difficult to imagine that the Constitution-makers had in mind a retired CJI when framing this provision.

    A direct question based on the issue can be asked, like “What are the implications of post-retirement appointments of the judges? Give suggestions to deal with this problem”.  So, take note of the various issues and their solutions discussed here.

    Way forward

    • If post-retirement appointments are going to undermine confidence in the judiciary and in a constitutional democracy.
    • Enact law or amend Constitution: It is time to have a law in place either by way of a constitutional amendment or a parliamentary enactment barring such appointments.
    • This is the only way to secure the confidence of the people and prevent post-retirement appointments.
    • Increase pension: Judges can be compensated by being given their last drawn salary as a pension.
    • Retirement age can be increased: Also, the age of retirement for judges can be increased by a year or two.
    • This will undo the damage caused by post-retirement jobs.

    Conclusion

    The appointments of persons who have held constitutional office will undermine the very constitutional values of impartiality in the dispensation of justice. So, enacting a law to bar such appointments or amendment to the Constitution would be the step in the right direction.

  • Institutional fixes and the need for ethical politics

    The article discusses the recent event in Madhya Pradesh where a group of legislature resigned bringing down the government. A most important issue arising out such incidents is circumventing of the laws made to avoid such things from happening. Several such issues along with their solutions are described here.

    New method to bypass the anti-defection law

    • The political activities in Madhya Pradesh represent a new method of bypassing the anti-defection law and toppling elected governments.
    • The government in Karnataka was brought down in July last year in a similar manner with 17 MLAs of the ruling coalition resigning and joining the BJP.
    • What method was used? Under this novel method, a set of legislators of the party in power is made to resign from the Assembly to reduce the total strength of the House enough for the opposition party to cross the halfway mark to form the government.
    • In the ensuing by-elections, the members who resigned were then fielded as ruling party candidates (most of whom have been re-elected in the case of Karnataka).
    • The same practice is likely to be repeated in Madhya Pradesh soon.

    A question based on anti-defection law and its implication for healthy debate in the parliament was asked in 2013. And that issues still persist. So, take note of these issues.

    Exploiting the loophole in the Tenth Schedule

    • This method of mass defection circumvents the provisions of the Tenth Schedule of the Constitution (better known as the anti-defection law)
    • What is the Tenth Schedule? The tenth schedule prescribes the grounds for disqualification of legislators: voluntarily giving up party membership and voting or abstaining to vote against party directions.
    • Resignation is not mentioned as a ground for disqualification.
    • However, the Speaker in Karnataka disqualified them for the rest of the Assembly’s term, thereby barring them from contesting the by-polls.
    • While the Supreme Court upheld the disqualification.
    • It stuck down the bar from contesting by-polls.
    • In Madhya Pradesh, since the Speaker has accepted the resignation of the MLAs, the defectors can in any case contest the by-polls.

    Damaging the underpinnings of democracy

    • The recurrence of this model of defection signals the exploitation of the inherent weaknesses of the anti-defection law.
    • While solo legislators jumping ship might have reduced now, “horse-trading” seems to have gone from retail to wholesale.
    • This threatens the underpinnings of India’s electoral democracy since such surreptitious capture of power essentially betrays the people’s mandate in a general election.

    Kihoto case is an important case in relation to the anti-defection law.

    Time to reframe the anti-defection law

    • In this context, it is important to examine whether the anti-defection law fulfils any purpose.
    • This law raises fundamental concerns regarding the role of a legislator in a parliamentary democracy.
    • Issues with the law: It denies the legislator the right to take a principled position on a policy matter and reduces her to an involuntary supporter of the whims of party bosses.
    • Challenge to the constitutionality: The constitutionality of the Tenth Schedule was challenged for violating the Basic Structure of Constitution with regard to parliamentary democracy and free speech.
    • Judicial review of the Speaker’s decision: The Supreme Court in Kihoto Hollohan v. Zachillhu (1992) in a 3-2 verdict upheld the law while reserving the right of judicial review of the Speaker’s decision.

    What are the shortcomings in the anti-defection law?

    • Restriction on the freedom of legislator: The anti-defection law, on the one hand, severely restricts the freedom of a legislator and makes her a slave of party whips.
    • Failure in preventing the horse-trading: On the other hand, it has not been able to meet its primary objective of preventing horse-trading and continues to be circumvented to bring down elected governments.
    • This calls for reforms that address concerns at both ends of the spectrum.

    Following two are the solutions offered here. They are important from Mains point of view. As solutions are often asked for the pressing issues.

    Dinesh Goswami Committee and other suggestion

    • Restrict the scope of the binding whip: For addressing the first issue, as the Dinesh Goswami Committee also suggested, the scope of the binding whip should be restricted to a vote of confidence.
    • For addressing the second issue, it is best to institutionalise the Karnataka Speaker’s decision to bar the defected members from contesting in the ensuing by-poll, if not for a longer period.
    • This will disincentivise MLAs from jumping ship.
    • These reforms would require a constitutional amendment to the Tenth Schedule, an uphill task under the current circumstances.

    Conclusion

    We are facing a deeper challenge of the corrosion of India’s parliamentary system, for even in jurisdictions without such anti-defection laws, we do not see “horse-trading” and “resort politics”. Hence, beyond institutional fixes, we also need a popular articulation of an ethical politics that causes the public to shun such political manoeuvres.

    Back2Basic: What is the Tenth Schedule?

    • The Tenth Schedule was inserted in the Constitution in 1985.
    • It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
    • A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.
    • This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.
    • The law applies to both Parliament and state assemblies.
    • Exceptions under the law: Legislators may change their party without the risk of disqualification in certain circumstances.
    • The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.
    • In such a scenario, neither the members who decide to merge nor the ones who stay with the original party will face disqualification.
    • Is there any time limit to decide on the matter? The law does not specify a time period for the Presiding Officer to decide on a disqualification plea.
    • Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.

  • Anti Defection Law

  • Removal of AP State Election Commissioner by ordinance route

    The removal of the SEC by the ordinance route raises the question over the legality of the move. And if it passes the judicial scrutiny it would harm the independence of the body.

    The legality of the removal and its implication for free and fair elections

    • The fact that it was the culmination of an open conflict between the Election Commissioner and Chief Minister makes it a glaring instance of misuse of power.
    • The State government got the Governor to issue an ordinance to cut the SEC’s tenure from five to three years.
    • The ordinance also amended the criterion for holding that office from being an officer of the rank of Principal Secretary and above to one who had served as a High Court judge.
    • This automatically rendered the SEC’s continuance invalid.
    • Last month, just days before the local body polls were to be held, the SEC postponed the elections, citing the COVID-19 outbreak.
    • The State government approached the Supreme Court, but the court declined to interfere.
    • Having exhausted its legal remedy, the government should have waited for the ongoing fight against the disease to be over.
    • The Chief Minister has no legal right to terminate the SEC’s tenure.
    • The Constitution makes the holder of that post removable only in the same manner as a High Court judge.
    • If courts uphold this means of dislodging the head of an independent election body, it would mark the end of free and fair elections.

    Past judgements on the issue

    • The State government seems to have gone by legal opinion that citedAparmita Prasad Singh vs. State of U.P. (2007).
    • Cessation of term vs. removal: In that judgement the Allahabad High Court ruled that cessation of tenure does not amount to removal, and upheld the State Election Commissioner’s term being cut short.
    • The Supreme Court, while dismissing an appeal against the order, kept open the legal questions arising from the case.

    UPSC can frame the question based on the judgement in case by the SC and its implication for the independence of the body in conducting the fair, free and impartial election.

    Issues arising out of the past judgements

    • The judgment seems erroneous, as it gives freedom to the State government to remove an inconvenient election authority by merely changing the tenure or retirement age.
    • This was surely not what was envisioned by Parliament, which wrote into the Constitution provisions to safeguard the independence of the State Election Commission.
    • It is a well-settled principle in law that what cannot be done directly cannot be done indirectly.
    • Therefore, the removal of an incumbent SEC through the subterfuge of changing the eligibility norms for an appointment may not survive judicial scrutiny.
    • Prohibition on the variation of condition of service: Further, the Constitution, under Article 243K, prohibits the variation of any condition of service to the detriment of any incumbent.
    • Even if the State government argues that a change of tenure does not amount to varying the conditions of service, the new norm can only apply to the successor SEC, and not the one holding the office now.

    Conclusion

    In order to ensure the independence of the SEC and free and fair elections, legality of the move should not pass the legal scrutiny. Even if it passes the legal scrutiny the government should amend this provision avoid such instances in the future.

     

  • Needed, greater decentralisation of power

    Context

    Even as States have taken up positions of leadership in the pandemic response, federal limitations are becoming hurdles.

    State governments at the position of leadership

    • In the fight against the pandemic, one of the striking features of governance has been the signal role played by State Chief Ministers across India.
    • Proactive measures: Even before the Union government invoked the Disaster Management Act, 2005, many State governments triggered the Epidemic Diseases Act, 1897, and installed a series of measures to combat what was then an oncoming onslaught of COVID-19.
    • These actions have not always been perfect. Some of them have even disproportionately trenched upon basic civil liberties.
    • But, by and large, they have been tailored to the reality faced on the ground by the respective governments.
    • Policies to address local concerns: States such as Maharashtra, Kerala, Tamil Nadu, Rajasthan, and Karnataka have shaped their policies to address their direct, local concerns.
    • They have communicated these decisions to the public with clarity and consideration, helping, in the process, to lay out a broad framework for the nation.
    • Not just the laboratories of democracy: In doing so, they have acted not merely as “laboratories of democracy”, to paraphrase the former U.S. Supreme Court Justice Louis Brandeis, but also as founts of reasoned authority.

    Federal arrangements placing limitations on the states

    • Equally, though, as much as State governments have taken up positions of leadership, they have repeatedly found themselves throttled by the limitations of the extant federal arrangement.
    • The Centre for Policy Research has pointed out at least three specific limitations.
    • Funds and structuring own package: The inability of States to access funds and thereby structure their own welfare packages.
    • Curbs imposed by PFMS: The curbs imposed by a public finance management system (PFMS) that is mired in officialdom.
    • This has prevented States from easily and swiftly making payments for the purchase of health-care apparatus such as ventilators and personal protective equipment.
    • Disruption of supply chains: Three, the colossal disruption of supply chains not only of essential goods and services but also of other systems of production and distribution, which has placed States in a position of grave economic uncertainty.
    • Need to decentralise: As these limitations demonstrate an urgent need to decentralise administration, where States — and local bodies acting through such governments — are allowed greater managerial freedom.
    • Under such a model, the Union government will command less but coordinate more.

    Indian federalism-two distinct levels

    • There are varying accounts of what Indian federalism truly demands.
    • Two levels: What is manifest from a reading of the Constitution is that it creates two distinct levels of government: one at the Centre and the other at each of the States.
    • The Seventh Schedule to the Constitution divides responsibilities between these two layers.
    • The Union government is tasked with matters of national importance, such as foreign affairs, defence, and airways.
    • But the responsibilities vested with the States are no less important. Issues concerning public health and sanitation, agriculture, public order, and police, among other things, have each been assigned to State governments.
    • In these domains, the States’ power is plenary.
    • This federal architecture is fortified by a bicameral Parliament.
    • Significantly, this bicameralism is not achieved through a simple demarcation of two separate houses, but through a creation of two distinct chambers that choose their members differently-
    • A House of the People [Lok Sabha] comprising directly elected representatives and a Council of States [Rajya Sabha] comprising members elected by the legislatures of the States.

    Financial autonomy of the states

    • Ensuring financial autonomy: In formulating this scheme of equal partnership, the framers were also conscious of a need to make States financially autonomous.
    • No overlap: To that end, when they divided the power to tax between the two layers of government they took care to ensure that the authority of the Union and the States did not overlap.
    • Therefore, while the Centre, for example, was accorded the power to tax all income other than agricultural income and to levy indirect taxes in the form of customs and excise duties, the sole power to tax the sale of goods and the entry of goods into a State was vested in the State governments.
    • The underlying rationale was simple: States had to be guaranteed fiscal dominion to enable them to mould their policies according to the needs of their people.

    History of paradox in federal system of India

    • Despite this plainly drawn arrangement, the history of our constitutional practice has been something of a paradox.
    • It is invariably at the level of the States that real development has fructified.
    • But the Union has repeatedly displayed a desire to treat States, as the Supreme Court said in R. Bommai v. Union of India, as mere “appendages of the Centre”.
    • Time and again, efforts have been made to centralise financial and administrative power, to take away from the States their ability to act independently and freely.
    • Following five examples demonstrated that the point made here.

    1 Matters of finance-what was expected in theory did not realise

    • Consider the widely hailed decision to accept the 14th Finance Commission’s recommendation for an increase in the share of the States in total tax revenues from 32% to 42%.
    • While, in theory, this ought to have enabled the States to significantly increase their own spending, in reality, as a paper authored by Amar Nath H.K. and Alka Singh of the National Institute of Public Finance and Policy suggests, this has not happened.
    • What went wrong? Gains made by the States, as the paper underlines, have been entirely offset by a simultaneous decline in share of grants and by a concomitant increase in the States’ own contribution towards expenditures on centrally sponsored schemes.

    2. Goods and Service Tax

    • The decline in the sovereignty of the states: Notably, the creation of a Goods and Services Tax regime, which far from achieving its core purpose of uniformity has rendered nugatory the internal sovereignty vested in the States.
    • By striking at the Constitution’s federal edifice, it has made the very survival of the States dependent on the grace of the Union.
    • The tension today is so palpable that a number of the States are reported to have written to the Union Finance Ministry.
    • More than four months’ worth of Goods and Services Tax compensation to the States — reportedly totalling about a sum of ₹40,000 crore — remains unreleased.

    3. Passing a bill as a money bill

    • The Union government’s centralising instinct, though, has not been restricted to matters of finance.
    • It has also introduced a slew of legislation as money bills, in a bid to bypass the Rajya Sabha’s sanction, even though these laws scarcely fit the constitutional definition.

    4. Role of the Governors

    • Similarly, the role of the Governors has been weaponised to consolidate political power.

    5. Article 370

    • But perhaps most egregious among the moves made is the gutting of Article 370 and the division of Jammu and Kashmir into two Union Territories.
    • It was done without securing consent from the State Legislative Assembly.

    Conclusion

    Perhaps a crisis of the kind that COVID-19 has wrought will show us that India needs greater decentralisation of power; that administration through a single central executive unit is unsuited to its diverse and heterogeneous polity. We cannot continue to regard the intricate niceties of our federal structure as a nettlesome trifle. In seeing it thus, we are reducing the promise of Article 1 of the Constitution, of an India that is a Union of States, to an illusory dream.