BPSE - 212

6th Part

Q. Examine the nature of changes that have taken place in the Indian bureaucracy since the 1990s.

A. The era of globalization worldwide commenced about one and a half decades back; sometime around the mid to the late 1980s. By liberalization of the economy is meant freeing a national economy from governmental control and letting it run as per the market forces. It was increasingly felt that the democratic socialist model of development had failed to deliver the goods and hence economy was liberalized in 1990 onwards. The liberalization of the economy entailing a slackening, if not total elimination, of governmental regulation over the economy, gained currency. Once liberalization of the economy was accepted, changes in the bureaucracy were

introduced.

              The slackening of governmental rules and regulations gave a boost to the economy. Economic Reforms led to doing away from the plethora of government rules & to this extent the developmental process has been increased. Subsequent to the structural adjustment of the economy consequent to liberalization, there have been perceptible shifts in the attitude of the bureaucracy. When liberalization first commenced, a lot of bureaucrats were openly hostile to it as they obviously felt that in a regime of slackening governmental control, the quantum of power wielded by them as well as their importance would come down. This has indeed happened. The ‘redeeming’ feature in that over the years, some bureaucrats have seen the writing on the wall, and become ‘facilitators’ rather than obstructers of development. The Indian media in the last few years has carried quite a few lead stories on the personal initiatives of the post-90s bureaucrats in the domain of citizen-friendly administration. A lot of the comparatively younger bureaucrats have grown up in the new, liberalizing India and are, therefore, more amenable to the new ideas of development.

Block-4 (Unit-14)

Q. Describe the Division of Powers between Union and States.

A.   Legislative powers between the Union and state governments are in the Seventh Schedule. The executive powers of the Union and state governments co-exist with their legislative powers. The powers of the Union and state governments are enlisted in three lists known as The Union List, the State List, and the Concurrent List.

In List 1, the Union List, the powers of the Union government are mentioned. It contains 97 subjects; in List 11, the State List, 61 subjects is mentioned on which State legislatures will enact laws. In List 111, the concurrent List have mentioned the powers that are to be concurrently exercised by the Union & the state governments

and 47 subjects are mentioned in this.

                 The residual powers, not mentioned in any of these lists, belong to the Union. There are, however, three conditions attached to this division:

I)  If on a concurrent list the Union and a state's laws conflict, the Union law will prevail.

2) The Rajya Sabha has the power to declare that in the national interest the Parliament should make laws with respect to a specific matter enumerated in the State List. If by a two-thirds majority, Rajya Sabha passes a resolution to this effect, the Union Parliament can make laws for the whole or any part of India for a period of

one year.

3) When a proclamation of emergency is in operation the Parliament may legislate on any of the state subjects. The force of such law will lapse six months after the proclamation ceases to operate. All subjects relating to defence, security, external affairs, communication, currency, banking & insurance, inter-state river and river valleys, inter-state trade & commerce, major industries, development and regulation of oilfields and mines declared by Parliament necessary to be controlled by it, census and universities and other institutions declared by Parliament to be of national importance are under the Union's control. Public order, police, prisons, local communication, land, agriculture, public health, local government, mines not under the Union's control, intoxicating

liquor and betting and gambling are under the state's control. The concurrent jurisdiction of the Union and the state extend to criminal law & criminal procedure, preventive detention, education, forests, inland shipping and navigation, factories, boilers, electricity, newspapers, books and printing presses,

weights and measures and price control.

Q. What r the reasons for providing special provisions for certain states in the Indian constitution.

A.  The Constitution of India provides for uniform rule over the whole country. But certain regions of the country are governed by special provisions. These provisions ensure the protection of cultural identities, customs and economic and political interests of the original inhabitants of these areas. These regions include the tribal hills of the North Eastern States, i.e., Assam, Arunachal Pradesh, Manipur, Nagaland, Mizoram, Meghalaya and Tripura, the state of Jammu and Kashmir and the regions known as the "Scheduled Areas".

          "The Scheduled Areas" are those tribal inhabited areas that are located in other parts of the country than North-East India. These areas are located in the states of Andhra Pradesh, Bihar. Chhattisgarh, Gujarat, Himachal Pradesh, Madhya Pradesh, Jharkhand, Maharashtra, Orissa, and Rajasthan. Besides these areas, some other regions of the country also are governed by special provisions.

                Some states have been clamoring to be accorded Special Category Status (SCS), though there are no special provisions for them in the constitution. Placement in such a category would entitle them to get special assistance to development from the Center- like an increase in the grant-in-aid in comparison to the loan. While the loans have to be repaid to the lender, the grant-in-aid has not to be

re-paid. The states which are backward in terms of the development of the infrastructure or which have suffered due to the national disasters like drought or flood demand to be categorized as the Special Category Status.

Part XXI of the Indian Constitution includes, apart from Article 370 —

Temporary Provisions with respect to the State of Jammu and Kashmir — special provisions for 11 other states, listed under Articles 371, 371A-H, and 371J. The existence of these provisions shows that princely states negotiated the terms and conditions of their entry into the Union, or sought special constitutional protections in view of their unique needs and conditions. Each of these constitutional provisions is, in fact, rooted in historical reasons. Special provision is provided for J&K under Art.370, for Maharashtra & Gujrat Art.371, and under Art.371A to H for states of Sikkim (F), Assam(B), Arunachal(H), Nagaland(A), Mizoram(G), Manipur (C ), Andhra & Telangana (D), Karnataka (J), Goa(I). 

Q. Describe the special provisions meant for N-E India.

A.  The Constitution of India provides for uniform rule over the whole country. ‘But certain regions of the country are governed by special provisions. These provisions ensure the protection of cultural identities, customs and economic and political interests of the original inhabitants of these areas. These regions include the tribal hills of the North Eastern States, i.e., Assam, Arunachal Pradesh, Manipur, Nagaland, Mizoram, Meghalaya, and Tripura. For the protection of the interests and cultural identity of the tribals residing in N-E, special provisions are provided in the constitution. In the VI Schedule, Article 244 of the Constitution, lays down special provisions for the protection of the interest and cultural identities of the hill tribes of North. 

               The most important provision of the VI Schedule is the creation of the Autonomous District Councils. These ADC ‘s were established in all North - Eastern states except for Arunachal Pradesh, Nagaland and the greater part of Mizoram do not have this. The Inner Lines Regulation exists for three states: i. e., Arunachal Pradesh, Mizoram and Nagaland, and North Cachar district of Assam. These regions are protected areas where an outsider has to obtain permits to visit for entering into the protected states of Arunachal Pradesh, Mizoram and Nagaland, and North Cachar district of Assam.

           The modern institution of the Autonomous District Councils is elected bodies. They are controlled by the new generation which has benefited from modern means of education. The Special Provisions are meant to protect the cultural identities and rights of the residents of the concerned regions, especially from the encroachment of outsiders. The people in this area had been averse to the notion of an outsider ruling over them. Any intrusion or its apprehension into their affairs was met with opposition and hostility.

      According to these provisions outsiders can not sell or purchase the property of their residents, their affairs are governed by their customary laws. In the case of North-East India. the Autonomous District Councils and The Inner Lines Regulations are promulgated on the basis of the VI Schedule. The special provisions were meant to preserve tribal autonomy and protect the cultural and economic

interests of the hill tribes.

Q. Describe special provisions of Scheduled Areas.

A.  For the protection of the interests and cultural identity of the tribals residing in parts of the country other than hills of the North-East, there are special provisions in the Constitution of India. These areas are known as the Scheduled areas and the provisions regarding them are enshrined in the V Schedule of our constitution.

Parliament has powers to change these by ordinary legislation without amending the constitution. The main provisions are as follows:

i) The executive power of the states extends to the scheduled areas;

ii) The Governor of these states has to submit the report to the president regarding the administration of such areas on the annual basis or whenever required to do so;

iii) Tribes Advisory Councils have to be constituted to advise the government on the matters relating to the welfare and advancement of the Schedules Tribes - these matters are those which may have been referred to the councils by the Governor;

iv) The Governor is authorized to direct the state government not to apply in the scheduled Areas any Act of Parliament of or the state Legislature or apply it subject to exceptions or modifications.

v) The Governor is authorized to make regulations to prohibit or restrict the transfer Of land by or among the members of Scheduled Tribes. He is also authorized to regulate the allotment Of land and business of money-lending. All such regulations have the assent of the President;

Vi) The President may appoint a Commission to report on the administration of the Scheduled Areas and Scheduled Tribes in the state. As it was obligatory to appoint such Commission at the end of the first ten years of the implementation of the Constitution, the first Commission was appointed in 1960. The Commission

submitted its report in 1961.

Q.  Finance Commission

Q.  Examine the areas of tension in Center-State relations.

A.  Some major tension areas in Union-State relations are -

1) Role of Governor

2) The imposition of President’s rule

3) Reservation of Bills for the consideration of the President

4) Sharing of Finances

5) Use of Electronic Media

Role of Governor - The Constitution empowers the Centre to appoint Governors in states to work as Centre's representative and to maintain coordination between the Centre and the States. However, in practice, the position and role of the Governor have

become an issue of tension between the Centre and the States. The main point of contention is that Centre appoints the Governor as if he/she was just a representative of the center in the State. The ruling party at the Centre has found the office of Governor as an effective instrument to recapture power for itself. The appointment of the Governor becomes important as the Constitution provides certain discretionary powers to the governor. These powers are significant particularly in three matters.

#  One is with regard to the appointment of Chief Minister when neither a single party nor a combination of parties emerge from the election with a clear majority. Related to this is also the question of dismissal of the Chief Minister on the loss of majority support or otherwise.

#  The second matter is with regard to making a report to the President under Article 356 about his satisfaction that a situation has arisen in which the Governance of the State cannot be carried on in accordance with the provisions of the Constitution thereby recommending the imposition of President's rule.

#  The third power is with regard to reservation of bills for the consideration of President.

Reservation of Bills for Consideration of President- 

Article 200 of the Constitution provides that certain types of bills passed by the State legislature may be reserved by the Governor for the consideration of the President. The President may either give

his assent or may direct the Governor to send it back for reconsideration by the State legislature along with his comments.

But even after the bill has been passed by the State legislature for the second time the President is not bound to give his assent. The main purpose of this provision is that the Centre can keep watch on the legislation in the national interest. But Governors, and through them, the central government has used this provision to serve the partisan interests. 

           The opposition-led States have from time to time raised a hue and cry against the misuse of these provisions. There have been instances where the Governor has reserved a bill against the advice of the State Ministry presumably under the direction of the Central

Government.

The imposition of President’s Rule - The real issue of tension between the Centre and the States has become an emergency under Article 356 that gives Centre power to dismiss a state government on the ground of failure of constitutional machinery in the States. The Proclamation of emergency under Article 356 means that President assumes to himself all or any of the functions of the Government of the State including those belonging to the Governor or any other authority. It is because of this that this emergency is popularly called "President's rule". 

               Article 356 as such gives extensive powers to the union government to interfere in the working of the State Governments. It has been suggested that the provision for the imposition of President's rule in States was made to deal with the serious situations to be used as last resort. However, in practice the way and number of times this provision has been used: it has become the most contentious issue in Union-State relations. The provisions. apart from genuine cases of instability or national interest, have been used for:

a) Dismissing the state governments having the majority in the Assembly.

b) Suspending and dissolving the Assemblies on partisan consideration.

c) Not giving a chance to the opposition to form the government when the electoral verdict was indecisive.

d) Denying the opportunity to the opposition to form the govt when ministry resigned in anticipation of the defection on the floor of the House.

e) Not allowing thee opposition to form the government even after the defeat of the Ministry on the floor of the House.

             Consequently, Article 356 has become the most abused and criticized clause of the Constitution. In spite of the safeguards provided by the 44th Amendment Act, it continues to be so and has become a sore and serious tension area in Center-State relations.

Financial Relations - The demand of the States for greater fiscal autonomy has now become one of the most debated issues and another area of center-state tension. The tension on this arises because of:-

a) comparative powers of taxation.

b) statutory versus discretionary grants: and

c) economic planning.

Sources of revenue of the Centre arc relatively elastic & expandable as against those of the States. The Centre also controls vast resources generated through deficit financing, loans from organized money markets in the country as well as huge funds of foreign aid. The residuary powers of taxation are also vested with the central government. In addition to this, the Constitution also authorizes the Centre to collect surcharges on taxes to raise additional funds in times of emergency. In practice, the surcharge has become a permanent feature of the income tax structure. Another loophole in the taxation system due to which states suffer is the corporate tax which keeps on expanding and is the exclusive purview of the center. The States, therefore, have to be dependent on Central assistance. There are four methods for

devolution of funds from the Centre to the States:-

(i) obligatory sharing of Union taxes 

(ii) permissive sharing of Union excise duties;

(iii) assignment of certain Union resources wholly to the States:

(iv) provision for giving financial assistance to the States in the form of grants and loans.

          With regard to the sharing of resources and assignment of certain resources entirely to the States, Articles 280 and 281 provide for the appointment of an independent statutory Finance Commission every fifth year or earlier as the President of India desires. The States have a sense of discrimination in the allocation of grants. The provision for grants-in-aid by the Centre is a discretionary power of the center and there are allegations that it is distributed in a controversial manner. Centre gives grants-in-aid to States under Article 281 on its discretion for undertaking schemes, helping to cope with natural calamities or for removal of disparities, etc. There is a general feeling that the Centre discriminates between States being ruled by different political parties. The States, therefore have time and again raised hue n cry over the distribution of resources by the center in a biased

manner.

Use of Electronic Media - In India as per the Constitution legislative powers to control and regulate broadcasting rest with the Union government. It has been alleged that the government and party in power at the Centre have used the media on the one hand to black out anything critical of its performance and on the other to

malign the state governments being ruled by other parties. Particularly during the 1980 the opposition parties raised a hue and cry against the blatant misuse of the All India Radio and Doordarshan for partisan purposes. It had been alleged that the

media had been the mouthpiece of the union government. With the arrival of private channels and the establishment of Prasar Bharti that provides, some autonomy to Radio and Doordarshan the governmental control and Centre's monopoly over media has been reduced. Also in a situation of coalition governments in which

Regional parties are playing an important role the central government can no longer ignore them. Still, the powers to legislate, control and regulate the media rest with the Union government and complaints about use and misuse of AIR & Doordarshan for partisan purposes remain.

Q. What safeguards arc suggested against the misuse of powers to proclaim President's rule in states'?

A. The Supreme Court of India on March 11, 1994, in the Bommai case, gave a significant judgment on the application and use of Article 356. According to it President's power to issue under Article 356 proclamation must be understood to be a conditional power. This action is judicially reviewable and the Presidents' satisfaction about the breakdown of administrative machinery in a particular state must be formed on relevant material which can be scrutinized by the courts. It also suggested that no irreversible action like the dissolution of the legislative assembly is permissible unless both houses of Parliament approve the proclamation until then the most the central executive can do is to keep the assembly in suspended animation and after a parliamentary approval, the courts can, in fit cases, restore the status. The Supreme Court's decision thus has placed significant restrictions on powers to proclaim President's rule. This has given some leverage to President. This

the judgment also suggested that President rule should be considered as rarest of the rare case and after all other alternates are exhausted.

Q. Describe the Sarkaria Commission.

A.  The Sarkaria Commission was asked to review the working of existing arrangements between the Union and States keeping in view the social and economic developments that have taken place over the years and devise the strategies to improve for the unity and integrity of the country. The Commission after talking to various state governments, political parties and other interested and

concerned quarters finally submitted it's reporting on October 27. 1987. 'The Sarkaria Commissioned favored a strong Centre as the only safeguard to national integrity which was being threatened severely by various divisive forces present in politics today. But the Commission did not equate strong center With the centralization of powers. In fact, it viewed centralization as dangerous for national integration. It made a total of 265 recommendations classified subject-wise under twenty areas. Among the major recommendations are those with regard to the appointment and

working for the Governor, use of Article 356 and division of economic resources. The commission recommended that only a person of high integrity should be appointed as the governor of a state. He should not on demitting his office be eligible for any

other appointment or office of profit. Article 356 should be used sparingly in extreme cases as a measure of last resort when all available alternatives fail. Safeguards should be incorporated in Article 356 to enable Parliament to review its continuance. On the economic front, the Commission recommended a review in the scheme for levying taxes and duties, a constitutional amendment to make corporation tax sharable between the Union and the States. It also suggested looking into the grievances of resource allocation and taxation reforms. It also suggested that the Inter-State River Water Disputes Act may be amended to make it mandatory on the

Union government to constitute a tribunal within one year of receipt of a complaint.

BPSE - 212

5th Part

Q. Describe the jurisdiction of the Supreme Court.
A. The different categories into which the jurisdiction of the Supreme Court is divided as follows:
1) Original Jurisdiction, 2) Appellate Jurisdiction,
3) Advisory Jurisdiction, 4) and Review Jurisdiction.

Original Jurisdiction -

The Supreme Court has original jurisdiction firstly as a federal court. In a federal system of India, both the Union and the State governments derive their powers from and are limited by the same constitution. Sometimes differences emerge due to the interpretation of powers between the Union and States, or conflicts between States governments. Under Article 131, the Supreme Court is given exclusive power to settle disputes between the Union and a State or between one State and another, or between a group of States and others. The Supreme Court is also the protector or custodian of Fundamental Rights. 

          Article 32 of the Constitution gives citizens the right to move the Supreme Court directly for the enforcement of any of the fundamental rights enumerated in Part III of the Constitution. As the guardian of Fundamental Rights, the Supreme Court has the

power to issue writs such as Habeas Corpus, Quo Warranto, Prohibition, Certiorari, and Mandamus. By using the Writ of Mandamus, the court may order the public officials to perform their legal duties. Prohibition is a writ to prevent a court or tribunal from doing something over its authority. By the writ of Certiorari, the

court may strike off an order passed by any official of the government, local body or a statutory body. Quo warranto is a writ issued to a person who is not authorized to occupy a public office. (Habeus Corpus also explain) In addition to issuing these writs,

the Supreme Court is empowered to issue appropriate directions and orders to the executive.

Appellate Jurisdiction

             The Supreme Court is the highest court of appeal among all courts in the territory of India. It has comprehensive appellant jurisdiction in cases involving constitutional issues; civil and criminal cases; and wide-ranging powers of special appeals. Article 132 of the Constitution provides for an appeal to the Supreme Court from any judgement or final order of a court in civil, criminal or other proceedings of a High Court if it involves a substantial question of law as to the interpretation of the Constitution. The appeal again depends upon whether the High Court certifies, and if

does not, the Supreme Court may grant special leave to appeal.

Article 133 of the Constitution provides for an appeal to the SC from any judgement or final order in civil proceedings of a High Court.

Article 134 of the Constitution provides for an appeal to the Supreme Court from any judgement or final order in criminal proceedings of a High Court. This jurisdiction can be invoked only in three different categories of cases:-

a) if the High Court on appeal reverses an order of acquittal of an accused person and sentence him to death.

b) if the High Court has withdrawn for the trail before itself in any case from any court which is subordinate to its authority and in such a trial the convicted or the accused the person is sentenced to death, and

c) if the High Court certifies that the case is fit for appeal to the Supreme Court. 

Advisory Jurisdiction

The Supreme Court is vested with the power to render advisory opinions on any legal, constitutional, judicial issue that may be referred to it by the President. The advisory role of the Supreme Court is different from the ordinary judgement in three senses: 

first, there is no litigation between two parties; second, the advisory opinion of the Court is not binding on the government to adhere; finally, it is not executable as a judgement of the court. The practice of seeking an advisory opinion of the Supreme Court helps the executive to arrive at a sound decision on important issues. In 1977 President sought to advise of SC on setting up of special courts to the trial of excesses during the emergency period.

Review Jurisdiction -

The Supreme Court has the power to review any judgement pronounced or order made by it. This means that the Supreme Court may review its own judgement order. The Indian Supreme Court apart from interpreting the Constitution, functions as the court of appeal in the country in matters of civil and criminal cases.

It can entertain appeals without any limitation, not only of any court but also of any tribunal within the territory of India. Despite these powers, the Indian Supreme Court is a creature of the Constitution and depends for the continuation of these powers on the Union a legislature which can impose limitations on them by amending the Constitution.

           Moreover, all these powers can also be suspended or superseded whenever there is a declaration of emergency in the country.

Notes on - UPSC, Special Provisions for Deprived Sections, Controversy over the Policy of Reservation

UPSC - UPSC is an autonomous body created by the Constitution to recruit – personnel (officer and other ranks) for the various Central Government services. Its charter is available in Part XIV of the Constitution of India. It conducts the annual civil services examination (for the IAS, IFS, IPS Allied Services Group A and B) and also other Central Government services such as the Indian Forest Service, the Indian Economic Service and the Indian Engineering Service. In fact, the UPSC conducts the recruitment of not only the civilian bureaucracy but also of the defence services of

the country. Thus, it conducts the examinations for the National Defence Academy (NDA) and the Indian Military Academy (IMA). The UPSC has been conducting the various examinations since 1947. It is, in fact, not only responsible for recruitment but also acts as an advisory body regarding all career matters of the recruited personnel. Being a constitutional authority, UPSC is amongst the few institutions which function with both autonomy and freedom, along with the country’s higher judiciary and lately the Election Commission. 

Special Provisions for Deprived Sections -

                It is important to note that as regards to the recruitment to bureaucratic positions in India, there is provision for reservation of a certain percentage of posts for deprived sections of society. Thus, from the onset of independence, 22.5% of the post has been

reserved for Scheduled Castes (SCs) and Scheduled Tribes (STs). Also, since the implementation of the Mandal Commission recommendations, an additional 27% of posts have been reserved for the Other Backward Castes (OBCs). 

           As mentioned in the DPSP, Article 46 urges the states to work for the economic upliftment of SC, ST and other vulnerable weaker sections of society. Various state governments have their own state-wise quotas for government jobs. Some of the Southern Indian States like Karnataka and Tamil Nadu for instance – have always had very high quotas for which there have been historical

and socio-political reasons.

Controversy over the Policy of Reservation -

             The policy of reservation which is based on the principle of affirmative action has been controversial from the beginning. While it has always found favour with the sections for whom it is meant, the others have not been too well disposed towards it. While this section somehow reconciled itself towards reservation for the Scheduled Castes and Scheduled Tribes, it found it difficult to accept a similar treatment to the OBCs after the announcement of the Mandal Commission recommendations. This is because it was felt that the OBCs really do not have a history of religion-sanctioned social oppression the way SCs and STs and especially, the SCs have.

             There is merit in this argument, but as of today the recommendations have come to stay and the possibility of a change in the status quo in extremely remote, if not impossible. In fact, since government jobs are increasingly being reduced in the

wake of globalization, there has been no talking of reserving jobs in the private/corporate sector for the marginalized sections of society. This demand, though not concretized as yet, has further widened the split between those benefited by reservation and those outside the reserved slot.

Q. Committed Bureaucracy

A. By Committed Bureaucracy it is expected that a bureaucrat should be hundred per cent committed to the policies and programmes of the political party in power. By extension, this also implied a full commitment to the individual politicians holding

power. A bureaucrat was not to be guided by any other consideration. This development was, essentially, a consequence of the belief in the Congress circles that the electoral debacle the party had suffered in 1967 was because the civil bureaucracy had not faithfully delivered on the party’s programmes, thus alienating the voters from the party.

                 This Congress defeat had very far-reaching and basically negative consequences. Once the idea gained legitimacy, bureaucrats began running for favours from their political masters. 1. Plum postings were offered to those who show loyalty to their political bosses, while those who insisted on following an independent line based on professional opinion were punished. 2. The punishment took the form of arbitrary transfers, postings to insignificant departments and in some cases, even suspension from service. 

3. A system of rewards and punishments got institutionalised in due course of time with civil servants being rewarded and punished on the basis of their loyalty and commitment to politicians or parties and not on the basis of their professional performance.

4. Over a period of time, the politician-bureaucrat nexus grew into a powerful force immensely benefiting both the parties giving a decisive blow to the concept of development and citizen-friendly

administration. 

5. This was the period of ‘politicization of the bureaucracy’ now the Bureaucrats of proven competence and integrity found it comfortable to toe the footsteps of the political leaders who are in power. The officers were not expected to be as loyal to the Constitution, as they had to be to their ministers. Officers were supposed to be the servicemen to carry out the orders of political bosses. Political patronage gave encouragement to corrupt and led to stagnation of the economy. Shrewd officers, who could get away with any wrongdoing, were given more importance. As a consequence, officers became a tool in the hands of politicians to benefit and further their carrier. Upright officers with some mission

and neutral approach had been sidelined.

BPSE - 212

4th Part 

Judicial Review

Powers of the President - The executive powers of the Union are vested in the President. Article 53 vests all executive powers in him and empowers him to exercise these powers directly by himself or through officers subordinate to him. Article 75 requires the Prime Minister to communicate to the President all decisions of the Union Council of Ministers. Article 77 holds that all executive powers of the Union government shall be exercised in the name of the President. The President has both administrative and military powers. The President has the power of appointment and removal of high dignitaries of the State. The President appoints the Prime Minister and, on the latter’s advice, the council of ministers, the

Attorney-General, the justices of the Supreme Court and High Courts, members of special commissions (such as the Union Public Service Commission and the Election Commission); and the governors of states. The choice of the Prime Minister is not a

discretionary prerogative of the President but is usually dictated by the party commanding a majority following in the Lok Sabha.

               The President of India is also the Commander-in-Chief of the Defence Forces. He appoints the Chiefs of the Army, the Navy, and the Air Force. He has the power to declare war and conclude peace. But all these powers have to be exercised by him subject to the ratification of the Parliament. As pointed out, he exercises he

exercises all the executive powers only with the aid and advice of the Council of Ministers headed by the Prime Ministers.

              Even though the President is not a member of either house of Parliament, Article 79 states that the President is an integral part of the Union Parliament. The President has the power to summon both the houses of Parliament, nominate twelve members to the Rajya Sabha, has the right to address either house or their joint

session at any time and the power to dissolve the Lok Sabha. All money bills to be introduced in the Parliament have to obtain the recommendation of the President. Such a prior recommendation is also necessary for introducing bills regarding the formation of new states, alteration of areas, boundaries, names of the existing states,

etc. Finally, when any bill is passed by the Parliament, it can become an Act only when it has the assent of the President. The President can withhold or return a non-money bill for the reconsideration of the Parliament. However, if the same is passed by both the houses with or without modifications and returned to the President, the latter is bound to give his assent.

             When the Parliament is not in session, the President can promulgate ordinances in public interest. These ordinances have the same force and effect as the laws passed by the Parliament. However, they have to be placed before the Parliament within a

period of six weeks from the day of the reassembling of Parliament. Without the Parliament’s approval, the ordinance will become invalid. Article 254 empowers the President to remove inconsistencies between laws passed by the Parliament and State Legislatures and the subjects included in the Concurrent List.                        Another legislative function President having a bearing on states is that the Governor of a state can reserve certain bills passed by the state Legislatures for the consideration of the President.

The judicial powers of the President of India include the appointment of the justices of the Supreme Court and High Courts, and the power to grant pardon, reprieve, suspension, remission or commutation of punishment or sentence of the court. These powers of granting pardon are given to the President for removing the extreme rigidity in the criminal laws and for protecting the persons on humanitarian considerations. The President also has the right to seek the advice of the Supreme Court on some important constitutional, legal and diplomatic matters. In 1977, the President sought the advice of the Supreme Court for creating Special Courts to try the emergency excesses.

Q. What are the emergency powers of President.

A.  Emergency Provisions are enshrined in Part XVIII of the Constitution under Articles 352 to 360. With the intention of safeguarding sovereignty, independence, and integrity of the Union of India, the constitution bestows the President of India with emergency powers. The President is empowered to declare three types of emergencies, namely,

a) national emergency arising out of the war, external aggression or armed rebellion,

b) emergency arising due to the break down of the constitutional machinery in the States and

c) financial emergency.

National Emergency - The President can make a proclamation of national emergency at any time if he is satisfied that the security of Indian any part of the country is threatened by war, external aggression or armed rebellion. This proclamation must be submitted to the Parliament for its consideration and approval. It must be accepted within one month by both the houses of Parliament by two-third of the members present and voting. If the Parliament fails to approve the proclamation bill, it ceases to operate. If approved, it can continue for a period of six months. However, it can continue for any length of time if the President approves the proclamation for every six months. The Parliament, however, has the power to revoke the emergency at any time by a resolution proposed by at least one-tenth of the total members of

the Lok Sabha and accepted by a simple majority of the members present and voting.

National emergency under Article 352 was proclaimed for the first time in the wake of the war with China on October 26,1962. It continued up to January 10, 1968. Another proclamation of emergency took place on December 3, 1971, in the wake of the India-Pakistan war. The second proclamation was made in 1971 during the Bangladesh war. On 26th June 1975, for the third time, the President proclaimed, on the advice of the Prime Minister, an emergency in the name of grave danger to internal security.

Declaration of Constitutional Emergency (President’s Rule) -

The most contentious and abused emergency provision is Article    356. If the President receives a report from the Governor of a State citing break down of law and order machinery stating that the constitutional machinery has broken down or that the administration of the State can no longer be carried out in accordance with the provisions laid down in the Constitution of India, an emergency can be declared in that State. The President may do so even if he is otherwise satisfied with a constitutional breakdown in a state. The provision allows dismissing the State

government and bringing it under President's Rule or Central Rule. Under such a condition, the Governor of the State assumes all the responsibility. The Governor functions and carries out the administration in the State, on behalf of the President, i.e. the Centre, with the aid of his advisors appointed by the President who is recommended by the Union Council of Ministers. The proclamation of this type of emergency popularly called as President Rule can remain in force for a period of six months. By the 44th Amendment, the Parliament can extend the duration of the state emergency for a period of six months at one instance. The total period of state emergency cannot go beyond three years. 

            There were several instances when Article 356 was imposed in various States. The first instance of dismissing a State govt by invoking Article 356 even while it continued to enjoy the confidence of the State Legislature occurred in 1959, in Kerala, when the Communist government of the day was dismissed. Other instances include the dismissal of State governments en masse twice, in 1977 after the Janata Party swept the general elections and subsequently in 1979 when the Congress Party returned to power. Other contentious occasions on which invoking the provision resorted are in 1984 in Andhra Pradesh and later in Karnataka when the SR Bommai government was dismissed, and the court later subsequently held that the decision was incorrect.

Financial Emergency -

A financial emergency can be declared under Article 360 in conditions in which the financial stability or credit of the country or any part of the country is threatened. However, as provided for in the Forty-Fourth Constitutional Amendment Act of 1979, such a proclamation needs to be approved by both the Lok Sabha and the Rajya Sabha within two months from the date of its proclamation. In case if the Lok Sabha is at that time dissolved, within 30 days from the date it (the new house) is reconstituted it should be approved. On its face value, one can say that the President enjoys formidable powers. In reality, however, he can exercise his powers only on the aid and advice of the Council of Ministers, headed by the Prime Minister. In this respect, the Presidents position is more like that of the British Monarch rather than that of the President of the United States of America. While the President of India may be the head of the state, the head of the government is the Prime Minister.

Q. Define Collective Responsibility.

A. The Council of Ministers functions on the principle of collective responsibility. Under this principle, all ministers are equally responsible for each and every act of government. That is, under collective leadership, each minister accepts and agrees to share responsibility for all decisions of the cabinet. Doubts and disagreements are confined to the privacy of the cabinet room. Once a decision has been taken, it has to be loyally supported and considered as the decisions of the whole government. If any member of the Council of Ministers is unable to support government policy in the Parliament or in the country at large, then that member is morally bound to resign from the Council of Ministers.

               Even if the Council of Ministers is formed as a result of a coalition of various political parties, a minimum common programme becomes essential for maintaining the solidarity of the ministry. The various political parties forming the coalition govt have to stand behind that programme. Unless they do so the Cabinet cannot survive. Unity within Council of Ministers is not only essential for its very survival but is also necessary for its efficiency and efficacy, on the basis of which alone can it continue to enjoy the confidence of the people. Minister of State Mohan

Dharia was dismissed from the Council of Ministers in 1975 because of public dissent from the government policy on how to handle the people’s movement launched by Jayaprakash Narayan. Open bickering between members of the Janata government

on matters of public policy was the prelude to the collapse of the government in 1979.

Q. Parliamentary system contains structural factors which contribute to Prime Minister's power and influence. Identify these factors. Also elaborate PM powers.

A.       In a parliamentary system, the Prime Minister is the head of the Council of Ministers, leader of the majority party in the Lower House and head of the government. The Prime Minister’s prerogative of constituting, reconstituting and reshuffling the ministry as well as chairing the meetings bestows the office of PM with considerable influence over the members of Parliament. It must, however, be noted that the Prime Minister’s freedom to select his colleagues is subjected to his/her own position within the party. The Prime Minister also derives power and influence from the fact that he/she is the leader of the majority party and sometimes even the leader of the parliamentary wing of the party. 

                 As a leader of the Lok Sabha, the Prime Minister has enormous control over parliamentary activities. The Prime Minister advises the President on summoning and prorogation of the sessions of Parliament. The Speaker consults the Prime Minister in finalising the agenda of the Lok Sabha. With the Council of Ministers sponsoring the majority of the bills presented to the Parliament and with the Prime Ministers deciding on the strategies for presenting the bills before the Parliament, the Prime Minster’s influence over the legislature gets reinforced. Moreover, the

Prime Minister enjoys enormous legislative power in the form of recommending Ordinances to the President for promulgation when the Parliament is not in session.

              But the most important power of the Prime Minister with regard to Parliament is to recommend dissolution of Lok Sabha. The President has to accept the advice of the Prime Minister who is backed by the majority of the Lok Sabha. This is the power by

which the Prime Minister controls even the opposition. As the head of the government, the Prime Minister enjoys the power of

patronage. All the major appointments of the Central government are made by the Prime Minister in the name of the President, which includes justices and judges of the Supreme Court and High Court, the Attorney-General, the Chiefs of the army, navy and air force, Governors, ambassadors and High Commissioners, the Chief and

members of the Election Commission, etc. 

          Further, the Prime Minister’s control over the administration, including the intelligence agencies and other administrative wings of the government enhances his/her influence over other members of parliament and administration.

(PIL) Judicial Review - Public interest litigation means litigation for the protection of the public interest. It is the litigation which is introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party. The Supreme Court of India stated that any ‘public-spirited’ individual or organization could move the court even by writing a letter. In 1986 when the then chief justice P.N. Bhagwati introduced public interest litigation (PIL) to the Indian judicial system. In 1988, the Supreme Court delineated the matters to be entertained as PIL. The categories are the matter concerning bonded labour, neglected children, the petition from prisoners, petition against police, petition against atrocities on women, children, Scheduled

Castes and Scheduled Tribes, environmental matters, adulteration of drugs and foods, maintenance of heritage and culture and other such matters of public interest. PIL is considered as one of the major democratic rights of the people of India and granted not by the Parliament but by the judiciary.

Judicial Reforms - The most fierce criticism that the judiciary in India faces large number of pending cases and the delay in the dispensation of justice. In the early 1990s, there were more than two crore cases pending in different courts around the country. Reasons for the piling of a large number of cases can be attributed to structural and procedural flaws in the judiciary. The exploitation of loopholes available in judicial process enables the dishonest to abuse the judicial system. This leads to the piling up of cases as well as delay in the dispensation of justice.

             Another weakness of the judicial system is cumbersome procedures and expensive cost of justice. In this regard, the Tenth Law Commission had invited suggestions for judicial reforms. One suggestion was to reduce the workload of the Supreme Court of India which accepts nearly one lakh cases every year. To reduce

the load of the Supreme Court, suggestions was to establish a Constitutional Court to deal exclusively with constitutional matters and another was to establish Zonal Courts of Appeal in the country. Systematic running of the courts and more use of technology are some other suggestions for judicial reforms. Suggestions for judicial reforms have been proposed to help achieve economic, political and social justice.

BPSE - 212

3rd Part

Q. The parliamentary government is more a responsible govt than a stable government. Explain.

A. Though ideally, any democratic executive must satisfy the conditions of stability and responsibility in practical circumstances, a balancing of both has been difficult. A non-parliamentary government is not dictated by parliament as it is not dependent on a parliamentary majority for continuing in office or for its survival. By assuring a fixed tenure, a non-parliamentary system tends to value stability rather than responsibility. The government’s dependence on parliamentary majority makes it responsible for its functions as the majority is crucial for govt survival. In our parliamentary democracy, the parliament plays a vital and

deliberative role as a forum for national debate. It keeps a check upon governmental authority and functions, a kind of watchdog. The individual members of parliament and the opposition during question hour, amendment processes and general debates, have repeatedly demonstrated the importance of the parliament.

Furthermore, the restraint upon government activities and policies is maintained through the introduction of no-confidence motions, cut motions, adjournment motions and calling attention. Thus, a popular authority of the parliament in our political system is reinforced both through the continuous and periodic assessment

of governmental functioning. It is continuously assessed by the members of the parliament and periodically by the people during general elections. This is completely different from the presidential systems where this assessment is only periodic and the tenure of the executive is fixed thus making the legislature literally ineffective during normal times. The parliament plays a deliberative role as a forum for national debate. This itself checks governmental authority as it is accountable to the parliament for its actions

which is checked by different parliamentary devices. This ensures a responsible govt, though not necessarily a stable government. Thus we can say that the parliamentary government is more a responsible government than a stable government.

Q. What are the two factors that establish constitutional supremacy rather than parliamentary supremacy in India?

A. The parliamentary structure has also been replicated at the level of the states. Both the Center and the state derive their power from the same constitution and are also limited by it. The parliament respects the autonomy of states and the federal spirit which is vital for the unity of the Union. Therefore at the level of the states, the parliamentary spirit is pursued in choosing their leaders and administering government activities. By the adoption of the parliamentary system at the state level, the legislative powers of the parliament are limited. Since the federal and the state governments have separate law-making the authority that derives it is from the constitution, the Indian situation is characterized by constitutional supremacy rather than parliamentary supremacy. The supremacy of the constitution is further reinforced by the constitutional provision of guaranteeing fundamental rights and empowering the judiciary with the power to act as a custodian of these rights.

Q. What are the special powers of Rajya Sabha.

A.  Rajya Sabha is an important part of Indian democracy. The Constitution grants certain special powers to the Rajya Sabha. As the sole representative of the States, the Rajya Sabha enjoys two exclusive powers which are of considerable importance. Firstly under Article 249, the Rajya Sabha has the power to declare that in the national interest the Parliament should make laws with respect to a specific matter enumerated in the State List. If by a two-thirds majority, Rajya Sabha passes a resolution to this effect, the Union Parliament can make laws for the whole or any part of India for a period of one year.

           The second exclusive power of the Rajya Sabha given by the constitution is with regard to the setting up of All-India Services. If the Rajya Sabha passes a resolution by not less than two-thirds of the members present and voting, the Parliament is empowered to make laws providing for the creation of one or more.  All-India Services are common to the Union and the States. Thus, these special provisions make the Rajya Sabha an important component of Indian Legislature rather than just being an ornamental second chamber like the House of Lords of England.

       The constitution-makers have designed the Rajya Sabha not just to check any hasty legislation brought in the Lok Sabha, but also to play the role of an important influential advisor. Its compact composition and permanent character provide continuity and stability. As many of its members are "elder statesmen" the Rajya Sabha commands respect. Rajya Sabha is a continuing chamber as it is a permanent body not subject to dissolution. One-third of its members retire at the end of every two years and elections are held for the vacant positions. A member of Rajya Sabha has a six-year term unless he resigns or is disqualified.

Q. What are the qualifications and disqualification for a member of the Indian Parliament?

A. To be a member of the Lok Sabha, a person should be an Indian citizen, must have completed 25 years of age at the time of contesting elections. One must possess all other qualifications that are prescribed by the law of the Parliament. The candidate seeking election to the Lok Sabha can contest from any parliamentary

constituency from any of the States in India. The Constitution has laid down certain disqualifications for membership. No person can be a member of both Houses of Parliament or member both of

Parliament and of a State legislature. The candidate may contest from several seats, but if elected from more than one, he has to vacate all except one according to his choice. If a person is elected both to the State legislature and the Parliament and if he does not resign from the State legislature within the specified time period, he will forfeit his seat in Parliament.

A member should not hold any office of profit under the Central or State government except those that are exempted by a law of Parliament. He should not have been declared as an insolvent or of unsound mind by a competent court. A member also gets disqualified when he remains absent from the meetings of the

House for a period of sixty days without prior permission. A member is automatically disqualified when he voluntarily acquires the citizenship of another country. He is also disqualified if he is under any acknowledgment of allegiance to a foreign state. These are some of the reasons for the disqualification of membership of a person from membership of any house of the parliament.

Q. What are the powers of the Lok speaker.

A. The position of the Speaker of the Lok Sabha is more or less similar to the Speaker of the English House of Commons. The office of the Speaker is a symbol of high dignity and authority. Once elected to the office, the speaker severs his party affiliation and starts functioning in an impartial manner. He acts as the guardian of the rights and privileges of the members of the house.

The Speaker is conferred with a number of powers to ensure the orderly and efficient conduct of the business of the House. He conducts the proceedings of the house, maintains order and decorum in the house. The speaker decides points of order, interprets and applies rules of the house. The Speaker’s decision is final in all such matters.

       The Speaker certifies whether a bill is money bill or not and his decision is final. The Speaker authenticates that the house has passed the bill before it is presented to the other house or the President of India for his assent. The Speaker in consultation with the leader of the house determines the order of business. He decides on the admissibility of questions, motions, and resolutions. The Speaker will not vote in the first instance but can exercise a casting vote in case of a tie. The Speaker appoints the chairpersons of all the Committees of the house and exercises control over the Secretarial staff of the house.

Q. Describe the legislative procedure to enact the law

A. The first stage of legislation is the introduction of a bill that includes the proposed law and is accompanied by the "Statement of Objects and Reasons". The introduction of the bill is also called the first reading of the bill. 

There are two types of bills: ordinary bills and money bills. A bill other than money or financial bill may be introduced in either House of Parliament and requires passage in both the Houses

before it can be presented for the President's assent. A bill may be introduced either by a Minister or a private member. Every bill that is introduced in the House has to be published in the Gazette. Normally, there is no debate at the time of the introduction of a bill. The member who introduces the bill may make a brief statement indicating broadly the aims and objects of the bill. If the bill is opposed at this stage, one of the members opposing the bill may be permitted to give his reasons. After this, the question is put to vote. If the House is in favor of the introduction of the bill, then it goes to the next stage.

       In the second stage, there are four alternative courses. After its introduction, a bill (I) may be taken into consideration; (II) may be referred to a Select Committee of the House; (III) may be referred to a Joint Committee of both the Houses; (IV) may be circulated for the purpose of soliciting public opinion. While the first three options are generally adopted in case of routine legislation, the last option is resorted to only when the proposed legislation is likely to arouse public controversy and agitation. The day one of these motions is carried out, the principles of the bill and its general

provisions may be discussed. If the bill is taken into consideration, Amendments to the bill and clause by clause consideration of the provisions of the bill are undertaken.

           If the bill is referred to the Select Committee of the House, it considers the bill and submits its report to the House. Then the clauses of the bill are open to consideration and amendments are admissible. This is the most time-consuming stage. Once the

clause by clause consideration is over and every clause is voted, the second reading of the bill comes to an end.

     In the third stage, the member in charge moves that "the bill be passed". At the third reading, the progress of the bill is quick as normally only verbal or purely formal amendments are moved and discussion is very brief. Once all the amendments are disposed of, the bill is finally passed in the House where it was introduced.

Thereafter, it is transmitted to the other House for its consideration.

When the bill comes up for consideration by the other House, it has to undergo all the stages as in the originating House. 

There are three options before the House (I) it may finally pass the bill as sent by the originating House; (II) it may reject the bill

altogether or amend it and return to the originating House;

(III) it may not take any action on the bill and if more than six months pass after the date of receipt of the bill, this means rejection. The originating House now considers the returned bill in the light of the amendments. If it accepts these amendments, it sends a message to the other House to this effect. If it does not accept these amendments, then the bill is returned to the other House with a message to that effect. In case both the Houses do not come to an agreement, the President convenes a joint-sitting of the two Houses. The disputed provision is finally adopted or rejected by a simple majority of the vote of those who are present and voting.

              A bill that is finally passed by both the Houses is presented with the signature of the Speaker to the President for his assent. This is normally the last stage. If the President gives the assent, the bill becomes an Act and is placed in the Statute Book. If the President withholds his assent, there is an end to the bill. The President may also, return the bill for the reconsideration of the Houses with a message requesting them to reconsider it. If, however, the Houses pass the bill again with or without amendments and the bill is presented to the President for his assent for the second time, the President has no power to withhold his assent. Thus, law-making is a long, cumbersome and time-consuming process; it becomes difficult to pass a bill within a short time. Proper drafting of the bill saves time and skillful soliciting of opposition support makes the task easier.

Q. Define Money Bill.

A. Any bill which relates to revenue and expenditure is called a financial bill. But the financial bill is not a money bill. Article 110 states that no bill is a money bill unless it is certified by the Speaker of the Lok Sabha. A money bill cannot be introduced in the Rajya Sabha. Once a money bill is passed by the Lok Sabha, it is transmitted to the Rajya Sabha. The Rajya Sabha cannot reject a money bill. It must, within a period of fourteen days from the date of receipt of the bill, return the bill to the Lok Sabha with any recommendation. It is the prerogative of the Lok Sabha to either accept or reject all or any of the recommendations. If the Lok Sabha accepts any of the recommendations, the money bill is deemed to have been passed by both Houses. Even if the Lok Sabha does not accept any of the recommendations, the money bill is deemed to have been passed by both the Houses without any

amendments. If a money bill passed by the Lok Sabha and transmitted to the Rajya Sabha for its recommendations is not returned to it within fourteen days, it is deemed to have been passed by both the Houses at the expiry of the said period in the original form.

Q. What are the PARLIAMENTARY DEVICES TO CONTROL THE EXECUTIVE

A. A number of mechanisms are available to control the executive they are-

1) Question Hour - Every sitting in the parliament begins with the Question Hour, which is available for asking and answering questions. Asking of questions is an inherent parliamentary right of all the members, irrespective of their party affiliations. The real objective of the member is asking the question is to point out the shortcomings of the administration and to ascertain the thinking of the government in formulating its policy. In cases where the policy already exists, in making suitable modifications in that policy. In case the answer given to a question does not satisfy the member who raised it and if he feels the need for detailed ‘explanation in public interest’ he may request the presiding officer for a discussion. The presiding officer can allow discussion, usually in the last half an hour of a sitting.

2) Adjournment Motion - Members can, with the prior permission of the presiding officer, call the attention of a Minister to any matter of public importance and thus request the Minister to make a statement on the subject. The Minister may either make a brief statement immediately or may ask for time to make the statement at a later hour or date. Members can take the government to task for a recent act of omission or commission having serious consequences by resorting to adjournment motion. This motion is intended to draw the attention of the house to a recent matter of urgent public importance having serious consequences for the country. Since the matter is urgent and serious, a normal procedure of motion or a resolution can take time and hence the members resort to adjournment motion. Adjournment motion is an extraordinary procedure which, if admitted, leads to setting aside the normal

business of the house for discussing a definite matter of public importance. Adoption of an adjournment motion amounts to the censure of the government. Besides these devices, Parliament exercises control over the executive through various house committees.

3) Parliamentary Committees - Parliament establishes a series of committees with necessary powers to scrutinize the working of the different departments of the government. Among the important Committees, which scrutinize the government's works two committees need special mention: Public Accounts Committee and

Estimates Committee which look into the area of public finances

These and other Committees are expected to keep the executive on its toes. They ensure an effective and comprehensive examination of all the proposed policies. Often these parliamentary Committees provide an ideal place for discussing controversial and sensitive matters in a non-partisan manner, away from the glare of publicity. They provide a useful forum for the utilization of experience and ability that may otherwise remain untapped. They also constitute a valuable training ground for future ministers & presiding officers. In our parliamentary democracy, the parliament plays a vital and deliberative role as a forum for national debate. It keeps a check upon governmental authority and functions, a kind of watchdog. The individual members of parliament and the opposition during question hour, amendment processes and general

debates, have repeatedly demonstrated the importance of the parliament. Furthermore, the restraint upon government activities and policies is maintained through the introduction of no-confidence motions, cut motions, adjournment motions and calling attention. Thus, a popular authority of the parliament in our

political system is reinforced both through the continuous and periodic assessment of governmental functioning. It is continuously assessed by the members of the parliament and periodically by the people during general elections.