BPSE - 212

2nd Part
Block-2

Q1. Constituent Assembly

A. A constituent assembly is the body of experts which makes the constitution of any country. There were two broad types of leadership in the Constituent Assembly: 

(I) political and (2) technical. 

                   Because of the predominance of the Congress party, the

political leadership was spearheaded by its leaders. The top of this leadership consisted of Pandit Jawaharlal Nehru, Sardar Vallabhbhai Patel, Maulana Abul Kalam Azad, and Dr. Rajendra Prasad. In this Constituent Assembly Congress had an overwhelming majority. But the Congress party had nominated several members from outside the party's fold. Many of them were legal experts and leading legislators in the previous British Indian legislatures. The shape of the opposition in the Constituent Assembly was unstable. The Cabinet Mission had divided the Indians into three communities - the General, the Muslims, and the Sikhs. The Congress party overwhelmingly dominated the 'General' section and had come into an agreement with the Sikh Akal Panth. It also had nominated a few nationalist Muslims like Abul Kalam Azad and Rafi Ahmed Kidwai.

            The provisions of the Constitution were extensively debated upon in the several Committees that were formed for this purpose before being presented to the Assembly for its consideration. On the basis of the deliberations in the Assembly, the Drafting Committee, which was constituted on 29 August 1947, prepared the draft text of the Constitution.

Q2. What was Cabinet Mission and what was its plan? What was the proposal of the Cabinet Mission Plan on the Interim Government?

A. In January 1946 there were elections to the provincial legislature. In March 1946, a committee of the British Cabinet, known as the Cabinet Mission visited India to assess the Indian political situation and frame a scheme for making a constitution for India. This team was led by Sir Pethick-Lawrence. The Cabinet Mission recommended for establishment of Constituent assembly consisting of the representatives of all the major groups. The Cabinet Mission thought that, though the ideal way to form it would be through the election on the basis of adult suffrage but

there was no time left for that. Earlier that year provincial legislatures had been elected on the basis of a limited franchise and communal electorates. The Cabinet Mission proposed that the Constituent Assembly be elected by those provincial assemblies.

Interim Govt.

The Cabinet Mission proposed that, while the work of Constitution-making should continue, the interim government headed by the Governor-General with the help of representatives of the major political parties should continue to work in the meantime. There was some difference between the Congress and the Muslim League on the composition of the Interim Government, but they were sorted out. A new Executive Council was set up first with mostly Congress members and then including Muslim League representatives.

Fundamental Rights -

                The Fundamental Rights are enshrined in Part III of the Constitution, and their implementation is guaranteed by the Supreme Court. In other words, Fundamental Rights are justiciable which means they are enforced by law. Some of the Fundamental Rights are applicable only to the citizens of the country and not to

foreigners. Article 20, Article - 21 and Article 22 are, however, applicable to all. Except during an 'Emergency', Fundamental Rights cannot be suspended. However, even during an Emergency Article 20 Article 21 cannot be withheld. The Constitution was amended by the Forty-Fourth Amendment Act and through Article 359-1 A, it was stated that Article 20 and Article 21 cannot be suspended even when a proclamation of Emergency is in operation.

Right to Freedom -

The Constitution also ensures the Right to Freedom under Articles 19 to 22. Article 19 guarantees the right to freedom of speech and expression, right to peaceful assembly, right to form associations, right to visit and reside in any part of the country and the right to profess and practice one's religion. These rights too, are subject to any reasonable restrictions that can be imposed by the state. Article 20 guarantees that no person shall be punished on the basis of laws that are enacted after a crime has been committed, no person should be punished more than once for the same offense and protection from standing trial against oneself.

Article 21 ensures the protection of 'personal life and liberty'. In other words, the state does not have the right to take away the life of a person, except through the procedure established by law. Article 21A provides the right to education. Article 22 prohibits the detention of persons without trial. However, in certain cases, preventive detention of a person up to three months and, in some cases, beyond that is permitted.

Right to Equality

The Constitution ensures the Right to Equality to its citizens under Articles 14 to 18. Article 14, guarantees the Right to Equality before the Law. In other words, this article ensures that all persons can be tried in a court of law and every person can approach the courts for justice and that no person shall be discriminated against in the application of laws, nor can any person claim special privileges and favoritism. Article 15 guarantees protection from discrimination on the basis of 'religion, race, caste, sex or place of birth'. It provides for equal access and thus the Right against

Discrimination. It also, however, states clearly that the state can make special provisions for the uplift of certain categories of people like socially and culturally backward classes and Scheduled Castes and Scheduled Tribes. Article 16 provides for the Right to Equality of Opportunity in employment. Continuing with its desire to ensure equality of all citizens, the Constitution also abolished untouchability whose practice is a crime under Art 17, while Article 18 abolished Tittles.

The Directive Principles of State Policy (DPSP) -

The Directive Principles of State Policy (DPSP) are an adaptation from the Irish Constitution. These are broad guidelines that have to be borne in mind while enacting laws and in implementing them. Unlike the Fundamental Rights, the DPSP are not justiciable. The Constitution does not provide for their guarantee and, therefore, their enforcement can not be questioned in a court of law. The DPSP prescribes that the state shall ensure -

40. - Organization of village panchayats.

41.- Right to work, to education and to public assistance in certain cases.

42. - Provision for just and humane conditions of work & maternity relief.

43. - Living wage, etc., for workers.

43A. -Participation of workers in the management of industries.

44.- Uniform civil code for the citizens.

45. - Provision for early childhood care and education to children below the age of six years.

46. - Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sections.

47.- Duty of the State to raise the level of nutrition and the standard of living and to improve public health.

48.- Organisation of agriculture and animal husbandry.

48A. - Protection and improvement of environment & safeguarding of forests and wildlife.

49.- Protection of monuments and places and objects of national importance.

50.- Separation of judiciary from the executive.

51. - Promotion of international peace and security

Fundamental Duties -

The Fundamental Duties enshrined in the Constitution are an obligation to the citizens of India to strive for the common benefit of all. They are expected to accord respect to the Constitution, the National Tri-colour and the Anthem. They are expected to work for upholding the unity and integrity of the country and work for a

harmonious society setting aside all divisive tendencies. The citizens of the country have a duty to protect its resources both natural and material. By an amendment 42nd Amendment Act 1976, a list of Fundamental Duties of Citizens of India was inserted in the Constitution in the form of Article 51A in Part IVA. The legal status of Fundamental Duties, which are addressed to citizens is quite like the Directive Principles, which are addressed to the State, in the sense that there are no provisions for their direct enforcement. The Supreme Court has held the Fundamental Duties to be obligatory in nature .

Supreme Court & Habeas Corpus-

         The Supreme Court is the custodian of the Constitution. Laws enacted by the legislature can be declared invalid by the Supreme Court if it is of the opinion that they are not in conformity with the provisions of the Constitution. This power is known as the power of 'judicial review'. Besides, the Supreme Court & the High Courts can also issue writs to the government and its agencies. A well-known example is the Writ of Habeas Corpus. An applicant can plead in front of SC to issue writ thus asking the Supreme Court to direct the concerned police authorities to present before the court a person who is missing and is believed to be under their custody.

Q. Examine the Parliaments powers to amend the Constitution of India.

A.      Article 368 together with other articles, empowers the Parliament to make amendments to the Constitution. The amendment procedure laid down in the constitution is both rigid and soft for different articles. While some need only a simple majority, most need a majority of two-thirds present and voting in both the Houses of Parliament and the assent of the President. The toughest amendment procedure prescribed requires, besides the two-thirds present and voting and requirement, also the consent of at least half the number of Legislatures in States in the country. And furthermore, it also requires the assent of the President. Parliament is authorized to amend the Constitution as long as it did not amend the 'basic features of the Constitution. Besides, the Supreme Court has the power to decide whether an amendment to the Constitution, indeed, were against the basic features of the Constitution or not.

Q. How is citizenship acquired in India.

A.   Under Articles 5 to 8 of the Constitution, the following categories of persons became the citizens of India at the date of the commencement of Constitution on 26 November 1949, i.e. the date on which the Constitution was adopted by the Constituent Assembly.

a) those domiciled and born in India;

b) those domiciled, not born in India but either of whose parents was born in India;

c) those domiciled, not born in India, but ordinarily resident in India for more than five years;

d) those residents in India, who migrated to Pakistan after 1 March 1947 and returned later on resettlement permits;

e) those residents in Pakistan, who migrated to India before 19 July 1948 or those who came afterward but stayed on for more than 6 months and got registered;

f) those whose parents and grandparents were born in India but were residing outside India.

Through Part II of the Constitution, the Parliament is authorized to make laws pertaining to acquisition and termination of citizenship subsequent to the commencement of the constitution.

Q  What are the provisions related to citizenship in the Indian Constitution.

A.  Answer includes Fundamental Rights, Right to equality, Right to Freedom & to 'elections' and 'franchise' are especially important in the context of the long history Constitution of deprivation of political rights under colonial rule. It is significant that the Constitution made 'universal adult franchise' the basis of elections to the Lok Sabha and the Legislative Assembly of States. Article 326 of the Constitution conferred voting rights to all citizens above the age of 21 (changed to 18 by the Constitution 61st Amendment Act of 1988, with effect from 1 April 1989). It is crucial that the Constitution did not lay down any property and education criteria. Women were given equal rights as men.

Q. What are the major limitations of the Indian Constitution concerning the citizenship rights of women and other underprivileged sections?

A.  A major limitation of the Indian Constitution relating to the citizenship rights of women lies in the fact that a crucial provision relating to the removal of discrimination against women and other underprivileged sections is listed as DPSP. As a result of it, the substantive citizenship rights that can be enjoyed by women and

others are not enforceable by law but obligatory in nature. Forex. Article 39 of the Constitution advise the State to frame its policies towards securing',

(a) that the citizens, men, and women equally, have the right to an adequate means of livelihood; and

(b) that there is equal pay for equal work for both men and women.

Although the courts have in certain cases intervened to provide equal pay for equal work, substantive economic equality for women remains elusive. Legally too, women face numerous disabilities. The provisions of Article 44 of the Directive Principles advise the State to implement uniform civil code to all its citizens throughout the territory of India. Various women's groups have demanded that this directive be implemented to rectify women's subordinate position in society. Matters pertaining to marriage, dowry, divorce, parentage, guardianship, maintenance, inheritance, succession, etc., which are presently determined by the 'personal laws' of specific religious communities should be done away with rather Uniform Civil Code should be enforced to improve the condition of women . While there is a diversity of opinion among women's groups, they have, by and large, demanded a system of gender-just laws that would help them realize their potential as citizens of the country.

Q. In what way do the institutions, like the National Commission for Women and the National Human Rights Commission help us enhance our citizenship rights?

A.  To raise the issues relating to the rights of women and other citizens through various means including the public Interest litigation and social Action Litigation, the National Commission for Women was set up in 1992 under a Parliamentary Act (The

National Commission for Women Act, 1990). The women’s commission has been given wide-ranging powers to investigate and recommendations to the govt. Authorities. It is concerned with

matters relating to women's rights under the constitution and issues of women's socio-economic conditions, health, and violence perpetrated against them. Over the years the Commission has taken up cases of violence, torture, and harassment of women(including molestation, rape, dowry-related violence, custodial rape and death, torture and harassment within the family or in the workplace. The women’s commission is also involved in issues of women's legal and political rights.

              The National Human Rights Commission is another institution established by an Act of Parliament (The National Human Rights Act, 1993). It was set up to inquire into violations of people's rights by the govt agencies. It also possesses the right to

investigate and make a recommendation to protect citizens. Institutions like the National Commission for Women and National Human Rights Commission, when effectively used or pressurized by the civil society, could contribute towards the establishment of a just society. It helps in securing the vulnerable section & encourages them to lead a life of dignity.

Q. What are the important features of a parliamentary system of government?

A. Parliamentary democracy is characterized by the fusion of executive and legislative powers into a single body. The executive, the cabinet ministers, sit as members of parliament and play a double role in the fusion of executive and legislative powers. Those who recommend legislation as members of the cabinet also vote on the same legislation as members of the governing legislation. Typically, the government is the Cabinet & the rest of the members of the majority party or coalition of parties in the parliament. The government, in a sense, has an automatic majority & most decisions are made from among these groups. Since the executive is selected on the basis of majority support in the parliament and not directly elected, the government is accountable only to the parliament.

Secondly, the executive branch of government is divided into a large formal head of state (the monarch) and the head of the government (the Prime Minister) who exercises most of the executive powers and is responsible to the parliament. The function of the head of the state is not to govern but to see that there is a government. When a crisis occurs, either through the break down of a coalition government or through some national emergency, the head of the state has the responsibility to select an individual to form a government and get on with the business of governing. The Prime Minister is the head of the government, whose function is to make policy and suggest laws through his or her subordinates. The

Prime Minister leads the Cabinet and therefore the government.

Q. What are the fundamental features of the parliamentary system in India

A.  They are as follows -

• A government is formed as a result of parliamentary elections. It is based upon the strength of the party that has the majority or a coalition of parties in the parliament;

• The fundamental feature of the parliamentary system is political pluralism. It allows the presence of competing political parties with diverse ideologies and goals reflecting the interests and aspirations of a heterogeneous polity;

• Ministers or the members of the real executive (government) are drawn from the party in the parliament that has gained the majority in the parliament or are a party to the coalition;

• The government is responsible and accountable to the parliament, it means that the govt can continue to function as long as it has the parliament’s confidence and can be removed in case of loss of that confidence;

• The government can recommend dissolution of the parliament and call a general election in case no party is in a position to form the government. It means that electoral terms are usually flexible within a maximum limit;

• The parliamentary executive is collective and the nature of power diffusion is collegial ;

• The posts of the head of the government and the head of the state are separate with the President being the constitutional figurehead and the Prime Minister, leading the Council of Ministers, the real executive.

Q. What does the term collegial executive or parliamentary democracy mean?

A. Parliamentary democracy means a collegial executive. Although the Prime Minister is the chief executive, he or she is not a singular executive. The collegial executive is a collection of ministers (Cabinet) who must make decisions as a group. The cabinet must be in general agreement before legislation is recommended or

policies are proposed. The ministers are both individually and collectively responsible to the parliament for their actions. Parliamentary democracy also means a democracy based on party responsibility. 

                   As we know in a parliamentary democracy, the majority party or a coalition of parties commanding a majority in the parliament forms the government. The political parties in a parliamentary system have a party’s manifesto and on which the

position of the party with regard to a wide variety of issues is stated. The party manifesto is adhered to by the govt with as much consistency as possible. When the cabinet suggests a piece of legislation that would fulfill a pledge made in the party manifesto, all members of the majority party must vote for that particular law.

Failure to do so invites the wrath of the party. The member will not be nominated as the party’s candidate to run in the next election thus losing the party’s ticket. The government is a parliamentary system, therefore, it has a built-in majority on most issues and it will generally prevail.

              The minority party may debate the issues, the laws, and the proposals, and they may even succeed in causing minor changes through suggested amendments. However, the minority can never defeat a bill initiated by the majority so long as the rule of party responsibility holds.