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Subject: Polity

  • [2nd August 2024] The Hindu Op-ed: A verdict on the Money Bill that India awaits

    [2nd August 2024] The Hindu Op-ed: A verdict on the Money Bill that India awaits

    PYQ Relevance:

    Mains:

    Q1 The Indian Constitution has provisions for holding joint sessions of the two houses of the Parliament. Enumerate the occasions when this would normally happen and also the occasions when it cannot, with reasons thereof. (UPSC IAS/2017) 

    Q2 Rajya Sabha has been transformed from a ‘useless stepney tyre’ to the most useful supporting organ in the past few decades. Highlight the factors as well as the areas in which this transformation could be visible.  (UPSC IAS/2020) 

    Note4Students: 

    Prelims: Money Bill

    Mains: Issues related to Money Bill

    Mentor comments:  In the coming weeks, a seven-judge Bench of the Supreme Court of India will address key questions regarding the definition and scope of a Money Bill. The ruling will impact numerous legislations passed recently without Rajya Sabha approval. The case, stemming from the November 2019 Rojer Mathew vs. South Indian Bank Ltd. verdict, challenges the Finance Act, 2017. This Act, certified as a Money Bill, made extensive changes to 26 tribunals’ authority and jurisdiction, including their abolition, merger, and the imposition of new qualifications and service conditions.

    Let’s learn!

    __

    Why in the News? 

    The Supreme Court’s ruling will impact legislation passed without the Rajya Sabha’s approval and influence the state of India’s federal structure.

    Articles and definitions:
    • Article 109: Allows Money Bills to become law with only the Lok Sabha’s approval; Rajya Sabha can only make recommendations, which are not binding.
    • Article 110(1): Defines a Money Bill, listing subjects such as taxation, borrowing, and appropriation from the Consolidated Fund of India. A Bill must address only these subjects to be deemed a Money Bill.
    • Article 110(3): Grants the Speaker of the Lok Sabha the final authority to determine if a proposed legislation is a Money Bill.

    A colourable exercise of power: 

    • This term refers to actions taken by a legislative body that, while appearing to be within their authority, actually circumvent constitutional limits or principles. 
    • In the context of the Finance Act, 2017, the petitioners argue that the Act’s provisions extend beyond the permissible scope of a Money Bill, thereby constituting a subterfuge to bypass the Rajya Sabha. 

    Arguments Against the Finance Act, 2017

    • The Finance Act, 2017, included extensive amendments affecting the terms of office, qualifications, and regulatory powers of tribunals. These changes were seen as far-reaching and not merely incidental to financial matters, which should be the sole concern of a Money Bill as defined in Article 110(1) of the Constitution.
    • The Act conferred significant powers to the executive to regulate tribunals through delegated legislation. This delegation was criticized as granting unbridled authority, undermining the independence of the judiciary.
    • The petitioners contended that the Act perverted the Constitution’s plain language, aiming to defeat its fundamental principles, particularly the separation of powers and the independence of the judiciary.

    Judicial Precedents and Constraints

    • K.S. Puttaswamy Case: The majority in the Rojer Mathew case felt constrained by the precedent set in K.S. Puttaswamy vs. Union of India, where the Supreme Court upheld the classification of the Aadhaar Act as a Money Bill. The majority opinion noted that the Puttaswamy case did not adequately clarify the implications of the word “only” in Article 110(1), which is crucial for determining the legitimacy of a Money Bill.
    • Need for Clear Standards: The lack of bright-line rules regarding the Speaker’s certification of a Bill as a Money Bill has led to ambiguity. The Rojer Mathew case emphasizes the necessity for a definitive interpretation of what constitutes a Money Bill to prevent future misuse of this classification.

    Implications of the Rojer Mathew Case

    • Potential for Future Challenges: The outcome of the Rojer Mathew case could have significant implications for the classification of future legislation as Money Bills, particularly regarding the balance of power between the Lok Sabha and Rajya Sabha.
    • Broader Legislative Impact: If the seven-judge Bench decides to interpret the term “only” in a manner that restricts the scope of Money Bills, it could limit the legislative powers exercised through this route, thereby reinforcing constitutional safeguards against the misuse of legislative authority.
    Role of Rajya SabhaFederal Backbone:

    • Justice D.Y. Chandrachud emphasized that the Rajya Sabha is an “indispensable constitutive unit of the federal backbone of the Constitution.” It represents the interests of states and ensures their voices are heard in the legislative process.
    • Representation of Pluralism: The Rajya Sabha acts as a mirror to the pluralistic nature of Indian society, reflecting diverse regional and cultural interests that may not be adequately represented in the Lok Sabha.

    Checks and Balances
    • Preventing Authoritarianism: The Rajya Sabha serves as a check on the Lok Sabha, especially when the ruling party has a significant majority. It can prevent hasty or ill-considered legislation driven by populist sentiment.
    • Deliberative Role: As a deliberative body, the Rajya Sabha provides a platform for thorough debate on major issues, allowing for a more measured approach to law-making compared to the often fast-paced decisions of the Lok Sabha.

    Legislative Review
    • The Rajya Sabha is designed to review and re-evaluate legislation passed by the Lok Sabha, ensuring that laws are carefully considered and that potential flaws are addressed before enactment.
    • It acts as a guardian of the rights of states, promoting decentralization and ensuring that state interests are adequately represented in national legislation.

    Representation of Vulnerable Sections
    • Inclusivity: The Rajya Sabha allows for representing marginalized and minority groups, providing them a voice in the legislative process. This is particularly important for women, and religious, ethnic, and linguistic minorities who may struggle to gain representation in the Lok Sabha.
    • The President nominates members to the Rajya Sabha for their expertise in various fields, ensuring that diverse perspectives are included in legislative discussions.

    Way forward: 

    • Clarification of Money Bill Criteria: The Supreme Court should provide a clear and definitive interpretation of Article 110, particularly the implications of the term “only” in defining what constitutes a Money Bill.  
    • Strengthening the Role of the Rajya Sabha: The Court’s ruling should reinforce the importance of the Rajya Sabha as a critical component of India’s federal structure. 

  • States can sub-classify SCs for quotas: top court      

    Why in the news?

    • In a 6:1 majority ruling on August 1, the Supreme Court determined that sub-classification within the Scheduled Castes (SCs) and Scheduled Tribes (STs) categories is permissible to extend the benefits of affirmative action.
    • However, the seven-judge Bench, led by Chief Justice of India (CJI) D.Y. Chandrachud, emphasized that this must be grounded on “quantifiable and demonstrable data” rather than political motivations.

    Why sub-classification is necessary?

    • Addressing Inequality Within SCs: The Supreme Court ruling emphasizes that SCs are not a homogeneous group. Instead, there are significant disparities in socio-economic and educational status among different castes within the SC category.
      • Sub-classification allows for the identification of those who are more disadvantaged and ensures that benefits are equitably distributed among them.
    • Equitable Distribution of Benefits: States have argued that despite existing reservations, certain castes remain grossly underrepresented compared to others.
      • Sub-classification aims to create separate quotas for these underrepresented groups within the SC quota, thereby promoting fairness and equity in the distribution of affirmative action benefits.
    • Legal Precedent and Historical Evidence: The majority opinion of the Supreme Court referenced historical and empirical evidence indicating that specific castes within the SCs face greater oppression and discrimination.
    • Judicial Oversight: The ruling stipulates that any sub-classification must be based on “quantifiable and demonstrable data” regarding levels of backwardness and representation, ensuring that the process is transparent and justifiable.

    What does the creamy layer principle say?

    • Exclusion of the Creamy Layer: The creamy layer principle refers to the exclusion of the more affluent and advanced members within a backward class from receiving reservation benefits. This principle is currently applied to Other Backward Classes (OBCs) but has been suggested for implementation within SCs and STs as well.
    • Achieving True Equality: Justice B.R. Gavai, in his concurring opinion, emphasized the need for states to identify and exclude the creamy layer among SCs and STs to ensure that affirmative action benefits reach those who are genuinely disadvantaged.
    • Historical reason: The creamy layer principle has been upheld in various Supreme Court judgments (Indra Sawhney judgment in 1992), which have recognized that certain individuals within reserved categories may have advanced socio-economic status and should not benefit from reservations intended for the disadvantaged.

    Way forward: 

    • Data Collection and Analysis: States should prioritize the collection of comprehensive and quantifiable data on the socio-economic status of different castes within the SC and ST categories.
    • Policy Framework for Creamy Layer Exclusion: States should develop clear policies to identify and exclude the creamy layer within SCs and STs from reservation benefits.

  • The case for a Legal Advisory Council  

    Why in the news?

    Legal insights from well-structured think tanks can be crucial in clarifying the true intent of specific legislation for the government.

    Scope to Review the Process of Legal Consultancy

    • Need for Structured Legal Inputs: The handling of legal issues by the National Democratic Alliance has been inadequate. There is a need for continuous, informed, and empirically valid legal inputs from structured think tanks to clarify legislative intents.
    • Proposal for a Legal Advisory Council (LAC): Establishing a LAC akin to the Economic Advisory Council could provide the Prime Minister with timely legal analysis and insights, helping to preempt legal challenges and enhance the legislative process.

    Need of Think Tank: 

    • Expert Legal and Policy Analysis: Well-structured think tanks provide informed and empirical legal analysis that can enhance the legislative process.
    • Facilitation of Evidence-Based Decision Making: Think tanks can contribute to evidence-based decision-making by conducting research and providing data-driven insights on complex legal and social issues.

    Recent Legal Issues and the Puttaswamy Case Judgment

    • Electoral Bonds Scheme: The Supreme Court recently ruled the electoral bonds scheme unconstitutional for violating voters’ right to information. This decision highlights the importance of conducting proportionality tests before implementing laws to balance privacy rights with transparency.
    • Aadhaar Act Intervention: A similar legal examination prior to the implementation of the Aadhaar Act could have prevented the Supreme Court’s intervention in the K.S. Puttaswamy v. Union of India case, which addressed privacy concerns.
    • Transporter Strike: Concerns over the hit-and-run provisions in the Bharatiya Nyaya Sanhita, 2023, led to nationwide protests by transporters, indicating the need for thorough legal viability assessments before introducing potentially problematic legislation.

    Anticipating Challenges

    • Proactive Legal Analysis: The proposed LAC would conduct legal analyses of issues referred by the government and perform suo motu research on contemporary legal matters, allowing for proactive identification of potential legal challenges.
    • Engagement with National Law Universities: Leveraging the expertise of national law universities can enhance the legal consultancy process, ensuring that laws are constitutionally viable and socially acceptable. Regular research inputs from these institutions can aid in formulating better legislation and addressing legal challenges before they escalate.

    Way forward: 

    • The LAC should comprise legal experts, eminent jurists, academicians, and researchers with specializations in various fields frequently legislated upon by the government, such as criminal law, trade law, international law, business laws, and taxation laws.
    • Establish formal mechanisms for collaboration, such as the Committee for Reforms in Criminal Laws at the National Law University Delhi set up by the Ministry of Home Affairs, to facilitate the exchange of ideas and research between the government and academia.

  • SC to examine acquitted man’s ‘Right to be Forgotten’: What is this right, and how have courts ruled earlier?    

    Why in the News?

    Last week, the Supreme Court agreed to hear a case that could define the scope of the “Right to be Forgotten” referred to in European privacy law as the “Right to Erasure” in India.

    What is the ‘Right to be Forgotten’?

    • The right to be forgotten allows individuals to remove or de-index their personal information from the internet if it infringes on their right to privacy. It is based on the principle that personal data should be removed when it is outdated, irrelevant, or no longer necessary.
    • Affirmed by the Court of Justice of the European Union (CJEU) in the “Google Spain case” (2014), which ruled that search engines must remove data if it is inadequate, irrelevant, or excessive in light of the time elapsed.
    • Under the EU’s General Data Protection Regulation (GDPR), Article 17 describes the right to erasure, reflecting the concept of informational self-determination.

    How is this ‘Right’ interpreted in India?

    • Absence of Statutory Framework: India lacks specific legislation explicitly addressing the right to be forgotten.
    • Judicial Interpretation: The 2017 Supreme Court ruling in Justice K.S. Puttaswamy v. Union of India recognized the right to privacy as a fundamental right. Justice S.K. Kaul’s concurring opinion suggested that the right to be forgotten involves removing personal data that is no longer necessary or relevant.
    • Judicial Guidelines: Justice Kaul outlined valid justifications for overriding this right, including freedom of expression, legal compliance, public interest, and research purposes.

    How have Courts ruled on the Issue?

    • Rajagopal vs. State of Tamil Nadu (1994): The Supreme Court recognized a “right to be let alone” but differentiated it from public records, including court decisions. Once something becomes public, privacy rights are diminished.
    • Dharamraj Bhanushankar Dave vs. State of Gujarat (2017): Gujarat HC refused to remove details of an acquittal, asserting that court orders should remain public.
    • The Registrar General (2017): Karnataka HC protected the name of a petitioner in a sensitive annulment case, aligning with trends in Western jurisdictions.
    • Delhi HC (2021): Extended the right to be forgotten to criminal cases, allowing details of an acquittal to be removed from search results to protect the petitioner’s career prospects.
    • Orissa HC (2020): Noted the need for a broader debate on the right to be forgotten, particularly concerning “revenge porn” and online content.

    Way forward: 

    • Legislative Framework Development: India should consider drafting comprehensive legislation that explicitly addresses the right to be forgotten, aligning with international standards while balancing privacy, freedom of expression, and public interest.
    • Judicial and Policy Clarity: The Supreme Court’s upcoming ruling should aim to establish a clear legal precedent on the right to be forgotten, ensuring consistency across lower courts and aligning with global practices.

    Mains PYQ: 

    Q Examine the scope of Fundamental Rights in the light of the latest judgement of the Supreme Court on the Right to Privacy. (2017)

  • President appoints six new Governors  

    Why in the News?

    President Droupadi Murmu has appointed six new Governors and reshuffled three others.

    New appointments:

    Name New Position
    Om Mathur Governor of Sikkim
    K. Kailashnathan Lieutenant Governor of Puducherry
    Santosh Kumar Gangwar Governor of Jharkhand
    Jishnu Dev Varma Governor of Telangana
    Ramen Deka Governor of Chhattisgarh
    C.H. Vijayashankar Governor of Meghalaya
    Haribhau Kisanrao Bagde Governor of Rajasthan

    About the Office of Governor and his/her Appointment

    Details
    Role
    • Constitutional head of a state, similar to the President at the central level.
    • Exists in states, while lieutenant governors and administrators are in union territories.
    • Independent constitutional office, not subordinate to Central government.
    Articles Articles 153 to 167 in Part VI of the Constitution deal with the state executive
    Part of State Executive Consists of the Governor, Chief Minister, Council of Ministers, and Advocate General
    Borrowed Office
    • From the Government of India Act of 1935.
    • Canadian model adopted: Governor appointed by President by warrant under his hand and seal.
    Dual Role
    • Chief executive Head of the States (nominal).
    • Agent of the central government.
    Qualifications
    • Constitutional: Citizen of India, 35+ years old.
    • Conventional: Outsider to the state, President consults the Chief Minister.
    Oath
    • Administered by the Chief Justice of the state High Court (or senior-most judge available)
    • Swears to execute office faithfully, preserve the Constitution, and serve the people
    Term of Office
    • No fixed term, holds office for 5 years subject to President’s pleasure
    • Eligible for reappointment.
    • Can be transferred or hold office beyond term until successor assumes charge
    Removal
    • Can resign by addressing the President
    • Can be removed by the President at any time without specified grounds
    • Chief Justice of state high court may temporarily discharge functions in contingencies
    Additional Functions
    • Acts on advice of Chief Minister and Council of Ministers
    • Holds executive power, legislative power (to some extent), and discretionary power
    • Functions as Chancellor of state universities, where applicable
    Reforms  stipulated by Sarkaria Commission (1988)
    • Governor should be appointed by the President after consulting the Chief Minister.
    • Should be a person of eminence, not belonging to the state.
    • Should not be removed before term completion except in rare circumstances.
    • Act as a bridge between the center and state.
    • Exercise discretionary powers judiciously.

     

    PYQ:

    [2013] Which one of the following statements is correct?

    (a) In India, the same person cannot be appointed as Governor for two or more States at the same time

    (b) The Judges of the High Court in India are appointed by the Governor of the State just as the Judges of the Supreme Court are appointed by the President

    (c) No procedure has been laid down in the Constitution of India for the removal of a Governor from his/her post

    (d) In the case of a Union Territory having a legislative setup, the Chief Minister is appointed by the Lt. Governor on the basis of majority support.

  • High Court Judges’ Appointment under process: Centre

    Why in the News?

    The Union government has said that 219 proposals for the appointment of High Court judges by the Collegium are in various stages of processing.

    What is Collegium System?

    • The collegium system is the method used for the appointment and transfer of judges in the Supreme Court and High Courts of India.
    •  It is the Indian Supreme Court’s invention.
    • The term ‘Collegium’ does not find mention in the Constitution.
    • Constitutional Provisions:
      • Article 124: The President appoints the Chief Justice and other judges of the Supreme Court after consultations with judges of the Supreme Court and High Courts as deemed necessary.
      • Article 217: The President appoints High Court judges after consultations with the Chief Justice of India, the Governor of the state, and the Chief Justice of the High Court concerned

    Composition:

    1. Supreme Court Collegium:
      • A five-member body.
      • Headed by the Chief Justice of India (CJI).
      • Includes the four other senior most judges of the Supreme Court at that time.
    2. High Court Collegium:
      • Led by the Chief Justice of the respective High Court.
      • Includes the two senior most judges of that High Court.
      • Recommendations for appointments by a High Court collegium are sent to the government only after approval by the CJI and the Supreme Court collegium.

    Evolution: Three Judges Cases

    • First Judges Case (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective.
      • The Supreme Court, in a majority decision, held that the opinion of the Chief Justice of India is not binding on the executive in the matter of appointments and transfers of judges. The court ruled that the executive has primacy in judicial appointments.
    • Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”.
      • The Supreme Court, by a majority of 7:2, overruled the First Judges Case and held that the CJI’s opinion regarding judicial appointments and transfers should be given primacy.
      • The court established that the CJI should consult with the two senior-most judges of the Supreme Court before making recommendations for appointments and transfers, thereby creating a collegium system.
    • Third Judges Case (1998): On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

    The procedure followed by the Collegium:

    Appointment of CJI

    • The President of India appoints the CJI and the other SC judges.
    • As far as the CJI is concerned, the outgoing CJI recommends his successor.
    • In practice, it has been strictly by seniority ever since the supersession controversy of the 1970s.
    • The Union Law Minister forwards the recommendation to the PM who, in turn, advises the President.

    Other SC Judges:

    • For other judges of the top court, the proposal is initiated by the CJI.
    • The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs.
    • The consultees must record their opinions in writing and it should form part of the file.
    • The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

    For High Courts:

    • The CJs of High Courts are appointed as per the policy of having Chief Justices from outside the respective States. The Collegium takes the call on the elevation.
    • High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges.
    • The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues.
    • The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

    Qualifications for Appointment as a Supreme Court Judge:

    According to Article 124(3) of the Constitution, a person can be appointed as a judge of the Supreme Court if he or she:

    • Is a citizen of India.
    • Has served as a judge of a High Court for at least five years or in two such courts in succession.
    • Alternatively, has been an advocate of a High Court for at least ten years or in two or more such courts in succession.
    • Is a distinguished jurist in the opinion of the President.

    Qualifications for Appointment as a High Court Judge:

    • The person must have held a judicial office for at least 10 years in India, or
    • Must have been a practising advocate in a High Court for at least 10 years.
    • The person must be enrolled under the Bar Council of India.

    PYQ:

    [2012] What is the provision to safeguard the autonomy of the Supreme Court of India?

    1. While appointing the Supreme Court Judges, the President of India has to consult the Chief Justice of India.
    2. The Supreme Court Judges can be removed by the Chief Justice of India only.
    3. The salaries of the Judges are charged on the Consolidated Fund of India to which the legislature does not have to vote.
    4. All appointments of officers and staffs of the Supreme Court of India are made by the Government only after consulting the Chief Justice of India.

    Which of the statements given above is/are correct?

    (a) 1 and 3 only

    (b) 3 and 4 only

    (c) 4 only

    (d) 1, 2, 3 and 4

  • States have the unlimited right to tax mineral-rich lands    

    Why in the News?

    The Supreme Court delivered a significant 8:1 judgment affirming that State Legislatures have the power to tax mining lands and quarries, independent of the Parliament’s Mines and Minerals (Development and Regulation) Act of 1957 (MMDR Act).

    About the verdict given by SC      

    • Judgment Overview: The majority opinion, authored by Chief Justice D.Y. Chandrachud, stated that states derive their taxing authority from Article 246 and Entry 49 of the State List, which pertains to taxation on lands and buildings.
    • Distinction Between Tax and Royalty: The Court clarified that royalty paid for mining leases is not considered a tax. 
      • Royalty is viewed as a contractual obligation between the mining lessee and the lessor, thus not subject to the same regulatory framework as taxes.
    • Parliamentary Limitations: The judgment emphasised that the MMDR Act cannot impose limitations on state taxation powers regarding mines and quarries. The Court rejected the argument that Entry 50 of the State List allowed Parliament to impose restrictions on state taxes related to mineral rights.
    • Dissenting Opinion: Justice B.V. Nagarathna provided a dissenting opinion, cautioning that allowing states to tax under Entry 49 could lead to double taxation and undermine the specific provisions of Entry 50.

    About the Mines and Minerals (Development and Regulation) Act of 1957

    • The MMDR Act was enacted to regulate the mining sector in India, ensuring the development and conservation of minerals while balancing the interests of the state and the public.
    • The Act provides a comprehensive framework for the licensing and regulation of mines, including provisions for the fixation of royalties on mineral extraction.
    • The Act has been a point of contention regarding the extent of state powers to impose taxes on mineral rights, with arguments that it limits state legislative competence in this area.
    • The Supreme Court’s recent ruling clarifies that the MMDR Act does not restrict state powers to tax mineral rights, thus resolving conflicts arising from previous interpretations of the Act.

    On the division of the power

    • Constitutional Framework: The Constitution of India delineates the distribution of powers between the Centre and the States through the Seventh Schedule, which includes the State List and the Union List.
    • Entry 49 and Entry 50: Entry 49 allows states to levy taxes on lands and buildings, while Entry 50 pertains specifically to taxes on mineral rights, subject to limitations imposed by Parliament.
    • Judicial Clarity: The Supreme Court’s judgment clarifies that states can exercise their taxing powers under both Entries 49 and 50 without interference from the MMDR Act, reinforcing the states’ authority over local resources.

    Conclusion: The Supreme Court’s ruling affirms that states can tax mining lands independently of the MMDR Act, highlighting their authority under Article 246 and Entry 49, despite dissenting concerns about double taxation.

    Mains PYQ:

    Q Though the federal principle is dominant in our Constitution and that priniciple is one of its basic features, but it is equally true that federalism under the Indian Constitution leans in favour of a strong Centre, a feature that militates against the concept of strong federalism. 15M

  • Parliamentary Democracy: A Comparison between Nepal and India

    Why in the News?

    • On July 14, K. P. Sharma Oli was sworn in as Nepal’s Prime Minister for the fourth time, leading a new coalition government.
      • Since the abolition of the monarchy in 2008, Nepal has had 14 governments despite a new constitution in 2015 promising progress.

    Evolution of Nepal’s Constitution

    • 1948: The Government of Nepal Act was the first attempt at creating a constitution.
    • 1951: The Interim Government of Nepal Act aimed to establish democracy but was replaced in 1959.
    • 1959: Introduced a multi-party system, but the Panchayat Constitution of 1962 established a party-less system under King Mahendra.
    • 1990: A constitutional monarchy restored the multi-party system.
    • 2007: An Interim Constitution was adopted after continued political upheavals.
    • 2015: The current constitution established Nepal as a federal democratic republic.

    Comparing the Indian Constitution and Nepal’s Constitution:

    India Nepal
    Historical Background Adopted on November 26, 1949, and came into effect on January 26, 1950.

    Framed by the Constituent Assembly elected in 1946.

    		 Current constitution promulgated on September 20, 2015.

    Many attempts since 1948, 1951, 1959, 1962, 1990, and 2007.
    Form of Government Quasi-federal nature of the Indian constitution is described as a “Union of States” in Article 1. Other factors also talk about the quasi-federal like Emergency power and independent judiciary. etc

    Parliamentary system with the President as the ceremonial head and the Prime Minister as the head of government.

    		 Federal democratic republic.

    Parliamentary system with the President as the ceremonial head and the Prime Minister as the executive head.
    Structure of Government Bicameral legislature: Lok Sabha (House of the People) and Rajya Sabha (Council of States).

    Three levels of government: central, state, and local.

    		 Bicameral legislature: House of Representatives and National Assembly.

    Three levels of government: federal, provincial, and local.
    Federal Structure More centralized federal structure. The central government has significant authority over states.

    Flexible to allow greater central control when necessary.

    		 More decentralized federal structure. Greater autonomy to provinces.

    Includes seven provinces, each with its own government and legislature.
    Elections and Representation First-past-the-post (FPTP) system for Lok Sabha elections. Representation through single-member constituencies and multi-party systems. Mixed electoral system with both FPTP and proportional representation (PR). Ensures broader representation but leads to the proliferation of smaller parties.
    Judiciary The Supreme Court of India is the highest judicial authority.

    Ensures protection of fundamental rights and upholds the rule of law.

    		 The Supreme Court of Nepal is the highest judicial body.

    Interprets the Constitution and protects citizens’ rights. Aims to uphold the rule of law and safeguard fundamental rights.
    Fundamental Rights and Duties Comprehensive list of Fundamental Rights in Part III, including equality, freedom, religion, and constitutional remedies. Fundamental Duties in Part IV-A. Extensive fundamental rights, covering civil, political, and socio-economic rights. Emphasizes affirmative action for marginalized groups.
    Secularism and Religion A secular state with no official religion which mentioned in the Preamble of the Constitution. The secular state was declared in the 2015 Constitution.

    Protects religious freedom and promotes harmony among religious communities.

     

    PYQ:

    [2023] Compare and contrast the British and Indian approaches to Parliamentary sovereignty.

    [2022] Critically examine the procedures through which the Presidents of India and France are elected.

    [2021] Analyze the distinguishing features of the notion of Right to Equality in the Constitutions of the USA and India.

    [2021] Analyse the distinguishing features of the notion of Right to Equality in the Constitutions of the USA and India.

    [2020] The judicial systems in India and the UK seem to be converging as well as diverging in recent times. Highlight the key points of convergence and divergence between the two nations in terms of their judicial practices.

    [2019] What can France learn from the Indian Constitution’s approach to secularism?

    [2018] India and the USA are two large democracies. Examine the basic tenets on which the two political systems are based.

  • Is immunity for the President and Governors absolute?  

    Why in the news?

    The Supreme Court has agreed to examine if the immunity granted to the President and Governors under Article 361 violates fundamental rights and constitutional principles.

     What is the case?  

    • The Supreme Court is examining a petition filed by a contractual woman employee of the West Bengal Raj Bhavan, who has accused Governor C.V. Ananda Bose of sexual harassment and molestation.
      • The petitioner argues that the “absolute immunity” granted to the Governor under Article 361 of the Constitution undermines her fundamental rights and the fairness of the legal process.

    Immunity Under Article 361: 

    • Article 361 provides immunity to the President and Governors from being answerable to any court for acts performed in their official capacity.
    • Specifically, clause (2) of Article 361 states that no criminal proceedings can be initiated or continued against the President or a Governor during their term of office. The petitioner contends that this immunity should not apply to illegal acts that violate fundamental rights.
    • The petitioner argues that the Governor’s immunity caused negligent handling of her complaint by police, delaying justice and hindering investigations.
    • The Supreme Court will determine if Article 361(2) immunity is absolute or can be challenged in serious cases like sexual harassment.

    Does Article 361 Grant Absolution to the Governor against Criminal Charges?

    • Scope of Article 361: Article 361 does grant significant immunity to Governors, shielding them from criminal proceedings during their term. However, the immunity is not absolute.
      • The first provision allows for the conduct of the President to be reviewed by designated bodies for impeachment, while the second provision allows for civil suits against the government.
    • Judicial Precedents: Previous court rulings have indicated that while Governors enjoy immunity under Article 361, this does not prevent judicial scrutiny of their actions, especially if those actions infringe upon fundamental rights.
      • For example, in the case of Rameshwar Prasad vs. Union of India, the Supreme Court stated that civil immunity does not preclude challenges based on malafide actions.
    • Potential for Legal Challenge: The current case may set a precedent for how Article 361 is interpreted regarding criminal acts committed by Governors.
      • If the court finds that immunity does not apply to acts that violate fundamental rights, it could pave the way for accountability and legal recourse for victims of misconduct by constitutional authorities.

    Conclusion: The Supreme Court’s interpretation of Article 361 could redefine the immunity of Governors, potentially allowing criminal proceedings for actions violating fundamental rights, thereby ensuring accountability and justice for victims.

    Mains PYQ:

    Q Discuss the essential conditions for the exercise of the legislative powers by the Governor. Discuss the legality of the re-promulgation of ordinances by the Governor without placing them before the Legislature. (UPSC IAS/2022)

  • Right to Shelter is a Fundamental Right: Supreme Court     

    Why in the News?

    The Supreme Court emphasised the need to balance railway infrastructure development in Haldwani, Uttarakhand, with the fundamental right to shelter nearly 50,000 people accused of illegally encroaching on railway land.

    What was the Case?

    • The hearing was based on an application filed by the Railways seeking to modify a January 2023 Supreme Court order.
    • The order had stayed a Uttarakhand HC direction to evict the families within a week, even using paramilitary forces.
    • The application pointed out that the Ghaula River flood has disrupted railway operations in the region and that more land was urgently needed to lay new tracks.

    What is the Right to Shelter?

    • The right to shelter is derived from the Right to Life under Article 21 of the Constitution of India, which guarantees the protection of life and personal liberty.
    • Article 19(1)(e) provides the Right to reside and settle in any part of the territory of India.

    Judicial pronouncements related to it:

    • Olga Tellis v. Bombay Municipal Corporation (1985): The Supreme Court recognized the right to livelihood as a part of the right to life under Article 21.
    • Chameli Singh v. State of Uttar Pradesh (1996): The Supreme Court declared that the right to shelter is a fundamental right under Article 21. It includes adequate living space, safe and decent structures, clean surroundings, light, air, water, electricity, and sanitation.
    • Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan (1997): The Supreme Court directed the state to construct affordable houses for the poor, reiterating the state’s duty to provide shelter and make the right to life meaningful.

    Various Legislations supporting the Right to Shelter:

    • The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
    • The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
    • The Slum Areas (Improvement and Clearance) Act, 1956

     

    PYQ:

    [2021] Consider the following statements :​

    1. ‘Right to the City’ is an agreed human right and the UN-Habitat monitors the commitments made by each country in this regard.​
    2. ‘Right to the City’ gives every occupant of the city the right to reclaim public spaces and public participation in the city.​
    3. ‘Right to the City’ means that the State cannot deny any public service or facility to the unauthorized colonies in the city.​

    Which of the statements given above is/are correct?

    (a) 1 only

    (b) 3 only

    (c) 1 and 2

    (d) 2 and 3